Rajasthan High Court - Jaipur
Preeti Saini vs State Of Raj & Ors on 21 August, 2013
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH [1] S.B. Civil Writ Petition No.8192/2010 Preeti Saini Versus State & Ors. [2] S.B. Civil Writ Petition No.7946/2010 Vishnu Dutt Sharma Versus State & Ors. DATE OF ORDER : 21/08/2013 HON'BLE MR. JUSTICE M.N. BHANDARI Mr. Rajendra Soni, for petitioners. Mr. Angad Mirdha, ] Mr.Ashok Gaur, Sr. Adv. with ] Mr. Achintya Kaushik ] for respondents
Mr. R.A. Katta ] Mr. Virendra Lodha, Sr. Adv. with ] Mr. Nitin Bagri ] Ms. Gayatri Rathore ] *** REPORTABLE:
These two writ petitions pertain to admission in MBBS/BDS Course. It is to challenge the advertisement dated 17.05.2010 and 26.05.2010 for holding Pre-Medical Test by the NIMS University for admission in MBBS/BDS Course. A further direction is sought to fill all the seats of the courses through entrance test namely; RPMT & PCPMT.
Learned counsel for petitioners submits that admissions in MBBS/BDS Course can be made as per Regulation on Graduate Medical Education, 1997 framed by MCI (in short MCI Regulation) however NIMS University issued advertisement and filled the seats de hors MCI Regulation. It is moreso when the Hon'ble Apex Court earlier decided the similar issue when one of the Medical Colleges namely; Gitanjali Medical College had given admissions de hors Regulation 5 of the MCI Regulation. The NIMS University had yet evolved mechanism to give admissions in MBBS/BDS course by holding entrance test at their own. They issued advertisement for holding All India Combined Pre-Medical Test/Dental Test on 28th May, 2010. The respondent University thereafter issued another advertisement to extend the date of entrance test for 11th June, 2010. The advertisements for entrance test were issued despite of Pre Medical Test conducted by Rajasthan University of Health Sciences vide its advertisement dated 18.02.2010 and Private College Pre-Medical Test conducted by Mohanlal Sukhadia University. The respondent-NIMS University thus conducted entrance test at their own to fill up their own seats in violation of MCI Regulation and which cannot be said to be by fair, impartial and non-exploitative method. The entrance test and consequential admission thus deserve to be set aside with further direction to fill the seats through RPMT or PCPMT.
Learned counsel referred the judgement in the case of PA Inamdar Vs. State of Maharashtra, reported in (2005) 6 SCC 537 where it was held that while unaided institution can claim right under Article 19(1)(g) of the Constitution of India for establishment of the institution, the admissions can be made by one common entrance test by the institutions imparting same or similar professional education. The State can also provide common entrance test to secure fair and merit based admission. It is to avoid mal-administration. In the background aforesaid, the respondent-NIMS University was under an obligation to fill all the seats from an amongst meritorious candidates either from PMT or PCPMT. A further reference of the judgment in the case of Islamic Academy of Education Vs. State of Karnataka & Ors., reported in JT 2003 (7) SC-1 has been given. In the aforesaid case, the judgment in the case of TMA Pai Foundation & Ors. Vs. State of Karnataka & Ors., reported in JT 2002 (9) SC-1 was considered in great details. The majority judgment in the case of TMA Pai Foundation (supra) was summarized in seven points which is again have bearing on the present case. Therein, it was held that unaided professional colleges can have certain percentage of seats for admission for those students who have passed common entrance test conducted by itself or by the State/University however remaining seats have to be filled on the basis of counselling by the State agency. In the instant case, the respondent University departed from direction given in the case aforesaid.
Learned counsel further referred the judgment in the case of Rajan Purohit & Ors. Vs. Rajasthan University of Health Sciences & Ors., reported in (2012) 10 SCC 770. Therein, similar controversy came up for consideration before the Hon'ble Apex Court. Referring to Regulation 5 of the MCI Regulations, it was held that an institution is not at liberty to give admission de hors the MCI Regulations. Therein, admission to 117 students in MBBS course was given in violation of MCI Regulations. A direction was accordingly issued to fill equivalent number of seats, through State agency, in future. The further reference is given to the judgement in the case of TMA Pai Foundation (supra). Therein, Hon'ble Supreme Court emphasised triple test for filling of the seats by non-minority unaided institution.
In view of MCI Regulations, admission to the MBBS/BDS Course deserves to be set aside inasmuch as any admission de hors the Regulations, if allowed to maintain, it would be nothing but perpetuation of illegality. The admission should be cancelled. A reference to the judgment in the case of Abhyudya Sanstha v. Union of India, reported in (2011) 6 SCC 145 has been given apart from reference of the case of Harish Verma & Ors. Vs. Ajay Srivastava & State of Rajasthan & Ors., reported in AIR 2003 SC 3371 wherein illegal admissions were cancelled.
Learned counsel for petitioners lastly contended that even principles of natural justice are not required to be followed to cancel illegal admission. The reference of judgment in the case of Mohammad Sartaj Vs. State of U.P., reported in 2006 (2) SLR 1999 (SC) 2219 and State of M.P. Vs. Shyama Pardhi, reported in AIR 1996 (SC) 2219 has been given apart from various other judgements. Prayer is accordingly made to allow the writ petitions.
Learned counsel appearing for the Medical Council of India Shri Angad Mirdha submitted that admission to the MBBS/BDS Course by NIMS University was in violation of Regulation 5 of MCI Regulations. The private University is required to follow MCI Regulations for admission in medical courses. As per Regulation 5 of the MCI Regulations, admission can be given on the basis of marks obtained by the candidate in qualifying examination (10+2) but aforesaid applies only to the State having only one Medical College and one University/Board/Examining Body. In the State of Rajasthan, there exists many Medical Colleges apart from Universities. In view of the above, Regulation 5(2) of MCI Regulations applies. As per aforesaid Regulation, a competitive entrance test needs to be held so as to achieve uniform evaluation of the candidates. Therein, it is not permissible to hold a separate entrance test by one institution. In view of the above, the admissions to MBBS/BDS Course by NIMS University was in violation of Regulations. It is despite of specific direction of Hon'ble Apex Court not to make admission de hors the Regulation.
Learned counsel appearing for Mohanlal Sukhadia Universities submitted that admission to the MBBS/BDS Course can be made either through RPMT or PCPMT. The third method is not provided under the Regulation and pursuant to the judgements of the Hon'ble Apex Court. As per Regulations, one competitive entrance test should be held for admission in MBBS/BDS Course. As per judgment of the Hon'ble Apex Court, the said competitive entrance examination can be conducted by State agency or by the Association of institution. In the State of Rajasthan, RPMT is conducted by the State agency, whereas PCPMT is by the Association of the institution. Both RPMT & PCPMT were held in the State of Rajasthan, yet NIMS University conducted entrance test at their own and made admission despite of availability of meritorious candidate from RPMT and PCPMT.
Shri Ashok Gaur, Senior Counsel, appearing for NIMS University opposed the writ petitions and raised preliminary objection for its maintainability in the changed circumstances. It is stated that both the petitioners have already taken admission in MBBS/BDS Course inasmuch as the petitioner Preeti Saini is pursuing course with Jhalawar Medical College and another petitioner Vishnu Dutt Sharma was admitted in Government Medical College, Kota. In view of admission of both the petitioners, the writ petitions should be rendered as infructuous as judicial intervention would not lead to award effective relief to the petitioners. Reference of judgment in the case of Khalid Hussain (Minor) Vs. Commissioner and Secretary to Government of Tamil Nadu, Health Department, Madras & Ors., reported in AIR 1987 SC 2074 is given. Similar view was expressed by Hon'ble Apex Court in the case of Shipping Corporation of India Ltd. Vs. Machado Brothers & Ors., reported in (2004) 11 SCC 168.
It is further submitted that Preeti Saini was not otherwise eligible for admission in MBBS/BDS Course as she could not secure 50% marks in entrance test thus she has no locus to challenge admission made by the respondent University.
It is further contended that no interim order was passed by this court, though it was listed before it from time to time. The respondent University accordingly conducted entrance test and made admissions.
Coming to the merit of the case, he submitted that RPMT/PCPMT are held to fill up seats of Medical Colleges affiliated with Rajasthan University of Health Sciences, whereas respondent is a private University established by a legislation thus it is free to hold its entrance test. The liberty aforesaid lies pursuant to the provisions of NIMS University Act, 2008 (in short the Act of 2008). The NIMS Medical College was earlier affiliated to the University of Rajasthan followed by affiliation with Rajasthan University of Health Sciences however after Act, 2008 it is now affiliated to NIMS University. It being a private University, having its own Act and Statute, free to conduct its own entrance test. A reference of Sections 5(g), 22(k), 29(2) and Sections 31 of the Act of 2008 is given to support the arguments. It is apart from Chapter IX of the statute. The reference of Rule 3 of the statute has also been given. The University is at liberty to make admission at its own and while doing so, it maintained triple test formula given by Hon'ble Apex Court in TMA Pai Foundation (supra). The selection test was conducted on All India Level thus admissions pursuant to it were in accordance to the Act, 2008 and statute made thereunder.
Learned counsel for NIMS University has further made reference of Regulation 4 of MCI Regulations to indicate that all the students admitted in MBBS/BDS course were in possession of qualification prescribed therein thus it is not a case where ineligible candidates have been given admission. Learned counsel has placed reliance on the judgment in the case of TMA Pai Foundation (supra) apart from the judgment in the case of PA Inamdar (supra). The reference of recent judgment of Hon'ble Apex Court in the case of Christian Medical College Vs. Union of India & Ors. In TC(C) No.98/2012, decided on 18.07.2013 is also given. Therein, private institutions have been given liberty to make admission in their Colleges to safeguard their fundamental rights guaranteed under Article 19(1)(g) of the Constitution of India.
Lastly reference of the judgment of this court in the case of Director, Gitanjali Medical College Vs. State of Rajasthan & Ors., reported in 2010 (4) WLC (Raj.) 231 is given to show that admission in Medical Colleges can be on the basis of entrance test held by the institution itself or by the State agency or through the Association of institution. The NIMS University had conducted its own entrance test. It is further submitted that there are number of Colleges/Universities throughout the country which are conducting their own entrance test for admission in the Medical Colleges. In the background aforesaid, there was no illegality in the action of the respondents for making admission to the MBBS/BDS Course.
The learned counsel appearing for the private respondent/s adopted the arguments of learned counsel appearing for NIMS University.
I have considered the rival submissions of the parties and perused the record.
Learned counsel for NIMS University has raised preliminary objection regarding maintainability of the writ petitions at this stage thus I am deciding the aforesaid issue first. It is stated that writ petitions have become infructuous with the admission of both the petitioners in MBBS/BDS Course and one of the petitioners was not even in possession of required 50% qualifying marks for admission in MBBS/BDS Course. To consider the preliminary objection, I have gone through the grounds as well as prayer of the writ petitions.
I find that writ petitions cannot be rendered infructuous due to the admission of the petitioners either in the same year or in subsequent year. It is for the reason that challenge was made to the advertisement for entrance test in MBBS/BDS Course. It was due to violation of MCI Regulations and judgment of the Hon'ble Supreme Court. The issue thus needs to be decided because a further relief is prayed for appropriate direction as deemed fit by the court in the facts and circumstances of the case.
I have further considered the judgement referred by the learned counsel for NIMS University in the case of Khalid Hussain (supra). The judgment in the aforesaid case was given on its own facts. It was held that the court is not under an obligation to interfere in all the cases unless justice of the case so demands. In the case of Shipping Corporation of India Ltd. (supra), it was held that by a subsequent event, if original proceeding has become infructuous, the court can take such action as is necessary in the interest of justice which includes disposing of infructuous litigation. The issue is as to whether the matter has become infructuous or not depends on facts of each case. In the instant case, if prayer and the grounds are taken note of, a challenge to the advertisement for admission to MBBS/BDS is made being in violation of MCI Regulations thus issue in reference to it has to be decided, rather writ petitions cannot be dismissed holding it to be infructuous. The preliminary objections raised thus cannot be accepted. If the petition is rendered infructuous, then challenge to the advertisement in violation of MCI Regulation cannot be answered, moreso when there is a specific challenge to it.
Coming to the merit of the case, it would be necessary to refer certain provisions applicable for admission in medical college. Pursuant to the Medical Council of India Act, 1956 (in short Act of 1956), Regulations on Graduate Medical Education, 1997 were framed (in short Regulations of 1997). The Regulation 4 provides for admission to the medical courses-eligibility criteria, whereas Regulation 5 provides selection of the students. Both the Regulations are relevant thus quoted hereunder for ready reference:
4. Admission to the Medical Course Eligibility Criteria: No Candidate shall be allowed to be admitted to the Medical Curriculum of first Bachelor of Medicine and Bachelor of surger (MBBS) Course until:
(1) He/she shall complete the age of 17 years on or before 31st December of the year admission to the MBBS course;
(2) He/she has passed qualifying examination as under:
(a) The higher secondary examination or the Indian School Certificate Examination which is equivalent to 10+2 Higher Secondary Examination after a period of 12 years study, the last two years of study comprising of Physics, Chemistry, Biology and Mathematics or any other elective subjects with English at a level not less than the core course for English as prescribed by the National Council for Educational Research and Training after the introduction of the 10+2+3 years educational structure as recommended by the National Committee on education;
Note: Where the course content is not as prescribed for 10+2 education structure of the National Committee, the candidates will have to undergo a period of one year pre-professional training before admission to the Medical Colleges;
or
(b) The intermediate examination in science of an Indian University/Board or other recognised examining body with Physics, Chemistry and Biology which shall include a practical test in these subjects and also English as a compulsory subject;
or
(c) The pre-professional/pre-medical examination with Physics, Chemistry and Biology, after passing either the higher secondary school examination, or the pre-university or an equivalent examination. The pre-professional/per-medical examination shall include a practical test in Physics, Chemistry and Biology and also English as a compulsory subject;
or
(d) The first year of the three years degree course of a recognised university, with Physics, Chemistry and Biology including a practical test in three subjects provided the examination is a University Examination and candidate has passed 10+2 with English at a level not less than a core course;
or
(e) B.Sc. Examination of an Indian University, provided that he/she has passed the B.Sc. examination with not less than two of the following subjects Physics, Chemistry, Biology (Botany, Zoology) and further that he/she has passed the earlier qualifying examination with the following subjects Physics, Chemistry, Biology and English.
or
(f) Any other examination which, in scope and standard is found to be equivalent to the intermediate science examination of an Indian UniversityBoard, taking Physics, Chemistry and Biology including practical test in each of these subjects and English.
Note:
The pre-medical course may be conducted either at Medical College or a Science College.
Marks obtained in Mathematics are not to be considered for admission to MBBS Course.
After the 10+2 course is introduced, the integrated courses should be abolished.
5. Selection of students: The selection of students to medical college shall be based solely on merit of the candidate and for determination of the merit, the following criteria be adopted uniformly throughout the country:
(1) In States, having only one Medical College and one university board/examining body conducting the qualifying examination, the marks obtained at such qualifying examination may be taken into consideration;
(2) In States, having more than one university/board/examining body conducting the qualifying examination (or where there is more than one medical college under the administrative control of one authority) a competitive entrance examination should be held so as to achieve a uniform evaluation as there may be variation of standards at qualifying examinations conducted by different agencies;
(3) Where there are more than one college in a state and only one university/board conducting the qualifying examination, then a joint selection board be constituted for all the colleges;
(4) A competitive entrance examination is absolutely necessary in the cases of institutions of All India character;
5. Procedure for selection to MBBS course shall be as follows:
(i) In case of admission on the basis of qualifying examination under clause (1) based on merit, candidate for admission to MBBS course must have passed in the subjects of Physics, Chemistry, Biology & English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry, and Biology at the qualifying examination as mentioned in clause (2) of regulation 4. In respect of candidates belonging to Scheduled Castes, Scheduled Tribes or Other Backward Classes, the marks obtained in Physics, Chemistry and Biology taken together in qualifying examination be 40% instead of 50% as above;
(ii) In case of admission of the basis of competitive entrance examination under clause (2) to (4) of this regulation, a candidate must have passed in the subjects of Physics, Chemistry, Biology and English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry and Biology at the qualifying examination as mentioned in clause (2) of regulation 4 and in addition must have come in the merit list prepared as a result of such competitive entrance examination by securing not less that 50% marks in Physics, Chemistry and Biology taken together in the competitive examination. In respect of candidates belonging to Scheduled Castes, Scheduled Tribes or other Backward Class the marks obtained in Physics, Chemistry and Biology taken together in qualifying examination and competitive entrance examination be 40% instead of 50% as stated above:
Provided that a candidate who has appeared in the qualifying examination the result of which has not been declared, he may be provisionally permitted to take up the competitive entrance examination and in case of selection for admission to the MBBS course, he shall not be admitted to that course until he fulfils the eligibility criteria under regulation 4.
Perusal of Regulation 4 shows as to who would be eligible for admission in medical courses. Regulation 5 however provides for selection of students. As per sub-clause (1), if State is having only one Medical College and one University/Board/Examining Body, the admission can be given on the basis of marks obtained in qualifying examination (10+2). Sub-clause (2) provides that in a State, having more than one Medical College/University/Board/Examining Body, a competitive entrance examination should be held so as to achieve a uniform evaluation as there may be variation of standards for qualifying examination conducted by different agencies. Sub-clause (4) provides a competitive entrance examination in cases of institution of All India Character.
In the State Government, there are more than one Medical College/University/Board thus a competitive entrance examination needs to be held to achieve uniform evaluation, and for it, a common entrance test needs to be conducted. Pursuant to the Regulation, a common entrance test named as RPMT is conducted by the Stage agency and other is PCPMT for association of institutions. The respondent University has failed to make admissions from and amongst meritorious candidates from either of the entrance test referred to above. It evolved it own entrance test in violation of Regulation 5.
It is stated that pursuant to the NIMS University Act of 2008, entrance test was conducted. It was after observing triple test as indicated by Hon'ble Apex Court in the case of TMA Pai Foundation (supra).
Learned counsel made reference of various provisions however failed to notice Section 32 of the Act, 2008, which is reproduced hereunder:
32. Admissions.- (1) Admission in the University shall be made strictly on the basis of merit.
(2) Merit for admission in the University may be determined either on the basis of marks or grade obtained in the qualifying examination and achievements in co-curricular and extra-curricular activities or on the basis of marks or grade obtained in the entrance test conducted at the State level either by an association of the universities conducting similar courses or by any agency of the State:
Provided that admission in professional and technical courses shall be made only through entrance test (3) Reservation in admission to the University for scheduled castes, scheduled tribes and other backward classes, women and handicapped persons shall be provided as per the policy of the State Government.
Sub-clause (2) of Section 32 provides that admission in University would be on the basis of marks obtained in entrance test conducted at the State level either by association of the University conducting similar course or by agency of the State. The proviso to it reiterate that admission in professional and technical course shall be made only through entrance test. In the instant case, association of the institution conducted test called as PCPMT and otherwise Stage agency conducted PMT thus the action of the University to hold entrance test at their own for admission in medical college goes even contrary to Section 32 of the Act of 2008.
The only plea is that having obtained character of a private University, it cannot be regulated by same means and the provisions as are applicable to the medical colleges affiliated to Rajasthan University of Health Sciences. The NIMS University is to be regulated by its own act. I have considered the aforesaid argument but find that as per Regulation 5, a State having more than one University is required to conduct an entrance test to have uniform evaluation thus even after establishment of private University, common entrance test is required to be conducted for admission in medical college otherwise there cannot be uniform evaluation. The Regulation does not allow a single entrance test by the institution or University itself thus even if respondent is a private University, it cannot make admission in medical course de hors Regulation 5. It is moreso when Section 32 of the Act of 2008 also requires admission through entrance test either conducted by association of the institution or by the agency of the State.
The reference of various provisions of the Act of 2008 has been given more specifically of Section 5(n). The aforesaid provision gives power to the University to determine standards of admission in the University which includes examination, evaluation, etc. The same way Section 29(k) and other provisions give liberty to the University to decide the Policy for admission including reservation of seats. The position in reference to Chapter IX of the statute is similar. If it is presumed that respondent NIMS University is having power to regulate their own admission and to determine Policy for its purpose, question would be as to whether it can be allowed to stand in conflict with MCI Regulations of 1997. It has not been disputed by learned counsel for the parties that medical education falls in the concurrent list and as per Article 254 of the Constitution of India, in case of repugnancy between Central and State legislation, what will prevail is Central legislation. The Act of 1956 gives power to frame Regulation and it is now settled law that MCI can frame Regulation to determine eligibility and standards for admission in medical courses. In view of the above, what will prevail is MCI Regulations and not the provision of the Act, 2008 or statute made thereunder to the extent of repugnancy. The rights claimed based on the Act, 2008 cannot be accepted in derogation to MCI Regulations. The issue as to how admission in medical courses should be made has already been determined by this court as well as Hon'ble Apex Court in catena of judgements. In the recent judgment of Rajan Purohit (supra), the issue was discussed in details. In the aforesaid case, the admissions were made in violation of Regulation 5 of the Regulations, 1997. A plea was taken by Medical College that Regulation 4 of MCI Regulations determines criteria of eligibility and based on the aforesaid, admissions were given from and amongst meritorious candidates in qualifying course (10+2). The Hon'ble Apex Court considered the issue in reference of judgment in the case of TMA Pai Foundation (supra) and subsequent judgments on the issue and held that admission to the medical college was in violation of Regulation 5(2). The judgement in the case of Rajan Purohit (supra) was pursuant to the judgement of Division Bench of the Court in the case of Director, Gitanjali Medical College Vs. State & Ors. reported in 2010 (4) WLC (Raj.) 231 where aforesaid issue was dealt with in great details. The relevant paras of the said judgement are quoted hereunder for ready reference:
57.We are concerned with private unaided professional colleges. In para 68 (TM Pai foundation), it has been observed that unaided professional colleges are entitled to autonomy in their administration whereas they do not forego or discard principle of merit and therefore, would be permissible for University or the government while granting recognition, to require such a private unaided institution to provide for merit based selection while giving the management sufficient discretion in admitting students by various methods particularly when all those who have passed common entrance test held by State/University. Certain percentage of seats can be reserved for admission by management out of those students having passed common entrance test held by itself or by State/University and have applied to the college concerned for admission while the rest of seats can be filled up on the basis of counselling by State agency; and percentage for this purpose can be prescribed according to local needs.
59.What has been finally observed in TMA Pai Foundation is that as regards professional un-aided private institutions, to maintain excellence in professional education, a greater emphasis be laid on the merit of student which could be adjudged by various methods. That being so, in para 68 Apex Court observed that certain percentage of the seats can be reserved for admission by the management out of those students who have passed common entrance test held by itself or by the State/University and have applied to the college for admission while rest of seats may be filled up based on counselling by State Agency; and percentage can be prescribed by the Government according to the local needs and different percentage can be fixed for minority unaided and non-minority unaided and professional colleges.
60.MA Pai foundation case came up for consideration in Islamic Academy of Education v. State of Karnataka 2003 (3) SCC 697 (supra), where one of questions which arose for consideration was as to whether private unaided professional colleges are entitled to admit students by evolving its own method of admisison. Question No. 3 & 4 being relevant are ad infra:
(3) Whether private unaided professional colleges are entitled to fill in their seats, to the extent of 100% and if not, to what extent; and (4) Whether private unaided professional colleges are entitled to admit students by evolving their own method of admission?
61. These questions were considered by Apex Court in para 10 onwards and observed that while taking practical approach, it cannot be disputed that selections must be made on merit basis and what has been observed in TMA Pai foundation in para 68 that admission by the management can be made by a common entrance test held by itself or by the State/University; & the words common entrance test clearly indicate that each institute cannot hold separate test and it must be therefore clarified that management could select students of their quota, either on the basis of common entrance test conducted by the State or on the basis of common entrance test conducted by the association of all colleges of a particular type in that State e.g. Medical, engineering or technical. In para 19 (Islamic Academy's case), State Government was directed to appoint permanent committee which would ensure that the tests conducted by association of colleges is fair & transparent. It was also observed that different percentage of quota for students' admission in management quota in each minority or non-minority unaided professional colleges shall be separately fixed on the basis of need by respective State and if there is any dispute as regards fixation of percentage of quota that would be open for the Management to approach the committee. Para 16 reads ad infra:
16. That brings us the question as to how the management of both minority and non minority professional colleges can admit students in the quota allotted to them. Undoubtedly the majority Judgment has kept in mind the sad reality that there are a large number of professional colleges which indulge in profiteering and/or charging of capitation fees. It is for this reason that the majority Judgment provides that in professional colleges admission must be on the basis of merit. As has been rightly submitted it is impossible to control profiteering/charging of capitation fees unless it is ensured that admission is on the basis of merit. Also as has been rightly pointed out if a student is required to appear at more than one entrance test it would lead to great hardship. The application fees charged by each institute, even though they may be only Rs. 500 to Rs. 1000 for each institute, would impose a heavy burden on the students who will necessarily have to apply to a number of colleges. Further as has been rightly pointed out, students would have to arrange for transport from and to and stay at various places if they have to appear for individual tests conducted by each College. If a student has to go for test to each institute it is possible that he/she may not be able to reach, in time, the venue of a test of a particular institute. In our view what is necessary is a practical approach keeping in mind the need for a merit based selection. Paragraph 68 provides that admission by the management can be by a common entrance test held by "itself or by State/University". The words "common entrance test" clearly indicate that each institute cannot hold a separate test. We thus hold that the management could select students, of their quota, either on the basis of the common entrance tests conducted by the State or on the basis of a common entrance test to be conducted by an association of all colleges of a particular type in that State e.g. medical, engineering or technical etc. The common entrance test, held by the association, must be for admission to all colleges of that type in the State. The option of choosing, between either of these tests, must be exercised before issuing of prospectus and after intimation to the concerned authority and the Committee set up hereinafter. If any professional college chooses not to admit from the common entrance test conducted by the association then that college must necessarily admit from the common entrance test conducted by the State.
67. However, it was observed in para 136 that either in minority or non-minority institutions, admissions must be made on the basis of common entrance test which may be either held by State, itself or such institutions either situated in one State or the other collectively. Relevant paras 136, 137 & 138 in PA Inamdar's are ad infra:
136. Whether minority or non- minority institutions, there may be more than one similarly situated institutions imparting education in any one discipline, in any State. The same aspirant seeking admission to take education in any one discipline of education shall have to purchase admission forms from several institutions and appear at several admission tests conducted at different places on same or different dates and there may be a clash of dates. If the same candidate is required to appear in several tests, he would be subjected to unnecessary and avoidable expenditure and inconvenience. There is nothing wrong in an entrance test being held for one group of institutions imparting same or similar education. Such institutions situated in one State or in more than one State may join together and hold a common entrance test or the State may itself or through an agency arrange for holding of such test. Out of such common merit list the successful candidates can be identified and chosen for being allotted to different institutions depending on the courses of study offered, the number of seats, the kind of minority to which the institution belongs and other relevant factors. Such an agency conducting Common Entrance Test (CET, for short) must be one enjoying utmost credibility and expertise in the matter. This would better ensure the fulfillment of twin objects of transparency and merit. CET is necessary in the interest of achieving the said objectives and also for saving the student community from harassment and exploitation. Holding of such common entrance test followed by centralized counseling or, in other words, single window system regulating admissions does not cause any dent in the right of minority unaided educational institutions to admit students of their choice. Such choice can be exercised from out of list of successful candidates prepared at the CET without altering the order of merit inter se of the students so chosen.
137. Pai Foundation has held that minority unaided institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admissions and the procedure therefore subject to its being fair, transparent and non-exploitative. The same principle applies to non-minority unaided institutions. There may be a single institution imparting a particular type of education which is not being imparted by any other institution and having its own admission procedure fulfilling the test of being fair, transparent and non-exploitative. All institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the above said triple tests. The State can also provide a procedure of holding a common entrance test in the interest of securing fair and merit-based admissions and preventing mal administration. The admission procedure so adopted by private institution or group of institutions, if it fails to satisfy all or any of the triple tests, indicated herein above, can be taken over by the State substituting its own procedure. The second question is answered accordingly.
138. It needs to be specifically stated that having regard to the larger interest and welfare of the student community to promote merit, achieve excellence and curb mal-practices, it would be permissible to regulate admissions by providing a centralized and single window procedure. Such a procedure, to a large extent, can secure grant of merit based admissions on a transparent basis. Till Regulations are framed, the admission committees can oversee admissions so as to ensure that merit is not the casualty.
Perusal of paras quoted reveals detailed discussion regarding procedure for admission in medical college. All the judgements referred by respective counsels have been considered by this Court thus need not to be reiterated to make this judgment bulky. The paras quoted above give answer to the issue raised here. In view of the Regulation 5(2) of MCI Regulations and judgment in the case of TMA Pai Foundation (supra), a common entrance test should be conducted but in the instant case, common entrance test does not exist, rather it was a test by the respondent University for its admission. It is hit by even a recent judgement in the case of Priya Gupta Vs. State of Chhatisgarh & Ors. reported in 2012 (7) SCC 433. Para No.46.5 of the said judgement is quoted hereunder for ready reference:
46.5 The admission to the medical or dental colleges shall be granted only through the respective entrance tests conducted by the competitive authority in the State or the body of the private colleges. These two are the methods of selection and grant of admission to these courses. However, where there is a single Board conducting the State examination and there is a single medical college, then in terms of Clause 5.1 of the Medical Council of India Eligibility Certificate Regulations, 2002 the admission can be given on the basis of 10+2 exam marks, strictly in order of merit.
The perusal of the para, quoted above, reveals that admission in medical college can be only by two mode, which are through the entrance test held by authority in the State or body of private college. It is necessary to clarify that if there are more than one university, then common entrance test should be held amongst them in the manner indicated in the judgement supra because a State having more than one University is also governed by Regulation 5(2) of MCI Regulations.
Another argument has been raised in reference to Regulation 5(4) to show that respondent University conducted entrance test on All India Level thus it is saved by the aforesaid Regulation. I find the argument aforesaid to be without substance. The respondent University has been created under the State Act thus cannot be said to be an institution of All India character. The All India character can be given to AIMS and like bodies thus aforesaid argument cannot be accepted.
Learned counsel for respondent University has further given reference of various judgement of Hon'ble Supreme Court starting from the case of TMA Pai Foundation (supra). It is to canvass that an institution can make admission through entrance test held by Stage agency or association of institution and lastly by holding test by itself. The Paras 67 & 68 of the said judgment are quoted hereunder for ready reference:
67. We now come to the regulations that can be framed relating to private unaided professional institutions.
68. It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forgo or discard the principle of merit. It would, therefore, be permissible for the university or the government, at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the Management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the Management out of those students who have passed the common entrance test held by itself or by the State/University and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the state agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the government according to the local needs and different percentage can be fixed for minority unaided and non-minority unaided and professional colleges. The same principles may be applied to other non-professional but unaided educational institutions viz., graduation and post- graduation non-professional colleges or institutes.
Perusal of Para 68 reveals that unaided professional institutions are entitled to autonomy in their administration but they cannot discard the principle of merit in admission. For the aforesaid purposes, it is held permissible for the University or the Government to put certain conditions while granting recognition. While putting condition to provide merit based admission, the management may be given sufficient discretion in admission of the students. To illustrate it was held that certain seats can be reserved for admission by the management out of those students who have passed common entrance test held by itself or by the State or University.
Learned counsel for respondent University emphasised on the illustration given in Para 68 of the case of TMA Pai Foundation (supra) as it allows entrance test by the institution itself without realizing the fact that aforesaid is only illustration and otherwise for filling up quota meant for management inasmuch as rest of the seats are required to be filled based on counselling by the Stage agency even if illustration is taken to be mandatory. The portion of the said judgment on which reliance is placed is quoted again hereunder for ready reference:
This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the Management out of those students who have passed the common entrance test held by itself or by the State/University and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the state agency.
Perusal of para quoted reveals that admissions can be by the entrance test held by itself but it would be against seats reserved for the management and remaining seats to be filled on the basis of counselling by the State agency, thus it does not give absolute liberty to the institution to make entire admissions based on entrance test conducted by itself. In the case of Director, Gitanjali Medical College (supra), the same view has been reiterated but respondent University has failed to take proper interpretation of the illustration given in TMA Pai Foundation (supra) and followed in subsequent judgments. Para 68, 69 & 70 of TMA Pai Foundation (supra) was considered by 7 Judges Bench in the case of PA Inamdar Vs. State of Maharashtra (supra). Para 68 of TMA Pai Foundation has been divided in two parts and it was held that second part of Para 68 of TMA Pai Foundation (supra) is only an illustration tantamounting to just suggestion or observation. Paras 109 & 110 of the case of PA Inamdar Vs. State of Maharashtra (supra) are reproduced for ready reference:
109. And yet, before we do so, let us quote and reproduce paragraphs 68, 69 and 70 from Pai Foundation to enable easy reference thereto as the core of controversy touching the four questions which we are dealing with seems to have originated therefrom. These paragraphs read as under:
"68.(I) It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forego or discard the principle of merit. It would, therefore, be permissible for the university or the Government, at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the management sufficient discretion in admitting students. This can be done through various methods.
(II) For instance, a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State/university and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the State agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the Government according to the local needs and different percentages can be fixed for minority unaided and non-minority unaided and professional colleges. The same principles may be applied to other non-professional but unaided educational institutions viz. graduation and postgraduation non-professional colleges or institutes.
69. In such professional unaided institutions, the management will have the right to select teachers as per the qualifications and eligibility conditions laid down by the State/university subject to adoption of a rational procedure of selection. A rational fee structure should be adopted by the management, which would not be entitled to charge a capitation fee. Appropriate machinery can be devised by the State or university to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus for the furtherance of education is Page 38 permissible. Conditions granting recognition or affiliation can broadly cover academic and educational matters including the welfare of students and teachers.
70. It is well established all over the world that those who seek professional education must pay for it. The number of seats available in government and government-aided colleges is very small, compared to the number of persons seeking admission to the medical and engineering colleges. All those eligible and deserving candidates who could not be accommodated in government colleges would stand deprived of professional education. This void in the field of medical and technical education has been filled by institutions that are established in different places with the aid of donations and the active part taken by public-minded individuals. The object of establishing an institution has thus been to provide technical or professional education to the deserving candidates, and is not necessarily a commercial venture. In order that this intention is meaningful, the institution must be recognized. At the school level, the recognition or affiliation has to be sought from the educational authorityor the body that conducts the school-leaving examination. It is only on the basis of that examination that a school-leaving certificate is granted, which enables a student to seek admission in further courses of study after school. A college or a professional educational institution has to get recognition from the university concerned, which normally requires certain conditions to be fulfilled before recognition. It has been held that conditions of affiliation or recognition, which pertain to the academic and educational character of the institution and ensure uniformity, efficiency and excellence in educational courses are valid, and that they do not violate even the provisions of Article 30 of the Constitution; but conditions that are laid down for granting recognition should not be such as may lead to governmental control of the administration of the private educational institutions.
110. In Islamic Academy the majority has (vide para 12) paraphrased the contents of para 68 by dividing it into seven parts. S.B. Sinha, J has read the same para 68 by paraphrasing it in five parts (vide para 172 of his opinion). However, we have reproduced para 68 by dividing it into two parts. A reading of the majority judgment in Pai Foundation in its entirety supports the conclusion that while the first part of para 68 is law laid down by the majority, the second part is only by way of illustration, tantamounting to just a suggestion or observation, as to how the State may devise a possible mechanism so as to take care of poor and backward sections of the society. The second part of para 68 cannot be read as law laid down by the Bench. It is only an observation in passing or an illustrative situation which may be reached by consent or agreement or persuasion.
It is clearly held that second part of Para 68 is only illustration thus cannot be read as law laid down by the Hon'ble Apex Court. It is surprising that argument is yet made by the respondent University to justify entrance test by itself. In the same manner reference of recent judgment of Hon'ble Apex Court in the case of Christian Medical College (supra) has been given without realizing that the controversy therein was altogether different. It was in reference to MCI Regulations for Post Graduate course. Referring to the amendment made in the year 2010 for Post Graduate course and various provisions of the Constitution and judgments of Hon'ble Apex Court, it was held that Medical Council of India has no authority to hold entrance test, thus amended Regulations to conduct National Eligibility-cum-Entrance Test was declared to be unconstitutional. It seems that respondent University wants to take benefit of certain observations which argument is in ignorance of direct judgement on the issue in the case of Islamic Academy (supra). The observation is in regard to right of private institution to admit students of their choice. The aforesaid observation was not in reference to the issue involved therein and has not been examined in reference to Regulation 5 of the MCI Regulations. It is more so when, issue involved herein was earlier clarified by the Hon'ble Apex Court in the case of PA Inamdar (supra) while referring Para 68 of TMA Pai Foundation (supra) that admission by entrance test held by the institution itself is not a ratio propounded by Hon'ble Apex Court. It is no doubt that unaided institution has right to admit students but it should be after maintaining required standards and for that purposes, they cannot ignore Regulation made by MCI.
In my opinion, the respondent University committed grave illegality while making admission through the entrance test conducted by themselves in violation of Regulation 5(2) of MCI Regulations. The admissions are thus declared to be in violation of MCI Regulations.
In the case of Director, Gitanjali Medical College (supra), the admissions were made after taking into consideration the marks of qualifying examination (10+2), whereas respondent University conducted entrance test but at their own level. The outcome in both the cases is nothing but violation of Regulation 5(2) of MCI Regulations and the issue aforesaid has already been decided by Hon'ble Apex Court in the case of Rajan Purohit (supra).
The argument has been given by the respondent University that many Medical Colleges and Universities are making admissions based on their own entrance examination. Thus, respondents have not committed any illegality in conducting entrance test at their own. I find aforesaid argument of no significance inasmuch as if any other institution is committing illegality, it does not meant that respondent University should also be allowed to commit same illegality. It is rather settled law that courts should not perpetuate the illegality. In view of the above, even last argument raised by learned counsel for respondents cannot be accepted.
The issue now remains as to what direction should be given in the facts and circumstances of the case. This Court while rejecting preliminary objection, noticed that petitioners have questioned the procedure of admission through advertisement issued by the respondent University. That issue has been decided holding it to be illegal and now direction is to be given in the light of the second prayer of the writ petitions. It can be to cancel the admissions made pursuant to the procedure adopted in violation of MCI Regulations. The other can be to penalize the students and institution for violation with further direction to the MCI to take action against defaulting institution. In the case of Rajan Purohit (supra), the Hon'ble Apex Court allowed the students to pursue their course because they were otherwise eligible as per Regulation 4 of MCI Regulations. The fact situation is similar in this case. The Hon'ble Apex Court made difference between eligible candidates admitted by faulty procedure then admission of ineligible candidates. Looking to the judgement of Hon'ble Apex Court in the case of Rajan Purohit (supra) and taking note that students herein are pursuing their course for last few years, dis-continuance from studies would not be appropriate, however, when admissions are found to be in violation of Regulation 5, each of the students are directed to pay a sum of Rs.3 lacs to the State Government for development of infrastructure in Government Medical Colleges of the State Government or for SMS Medical Hospital, within a period of three months from today, failing which, their admission would stand cancelled and in that case, respondent University will return the balance fee to such students. The directions aforesaid are given as students have been heard in representative capacity and otherwise, it is in consonance to the direction in the case of Rajan Purohit (supra), though it was under Article 142 of Constitution of India. It may not be binding as such, hence, same deviation in the direction also exist in the facts and circumstances. The notice for payment of penalty amount of Rs.3 lac by the students would be caused by NIMS University on each student. This is only in regard to the students.
The fact further remains that institution which is instrument for violation of MCI Regulations, needs to be dealt with by severe penalty. It is to avoid any violation of the Regulations in future and in view of the fact that litigation of this nature is coming up and earlier many cases have been decided by this court as well as by Hon'ble Apex Court and recent judgement is in the case of Rajan Purohit (supra). The defaulting respondent University is thus directed to deposit one year's fee of the students with the State Government to be used for development of infrastructure of Government Medical Colleges/Hospital. The direction be complied within two months from today. The aforesaid is the additional penalty then directed in the case of Rajan Purohit (supra). It is required to be imposed on the institution which has violated MCI Regulations otherwise if it is made free only with arrangement to give equivalent number of seats in future to be filled by State agency, then they will get fee as otherwise payable by such students in government college. They would then be affected only in terms of fee. The respondent University is further directed to give 10 seats each year to be filled through entrance examination by State agency till number of illegal admissions given by them pursuant to the advertisement of year 2010 are set off. The students therein will pay fee at par with government medical college.
The directions aforesaid are not the same as given by the Hon'ble Apex Court in the case of Rajan Purohit (supra) as directions therein were under Article 142 of Constitution of India. The additional direction is for deposition of one year's fee is instead of cancellation of admission resulting in refund of entire fee by the institution.
Lastly and before parting with the judgement, the MCI is also directed to take serious action, which includes even de-recognition of defaulting institutions. In fact, if respondent University commits illegality in future, the MCI is directed to take steps for its de-recognition. It is in view of the fact that MCI cannot be a silent spectator for admission in medical courses where high standards are required to be maintained.
With the aforesaid, both the writ petitions are allowed. This disposes of stay applications also.
[M.N.BHANDARI], J.
FRBOHRA/8192CWP2010-FRB.doc Certificate:
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
FATEH RAJ BOHRA, P.A