Karnataka High Court
Shri. B V V Sanghs vs Rajiv Gandhi University Of on 11 December, 2018
Author: B.V. Nagarathna
Bench: B.V. Nagarathna
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF DECEMBER, 2018
PRESENT
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
AND
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
W.P.NOS.107605-107609 OF 2017 (EDN-AD-MED)
AND
W.P.NO.107628 OF 2017
BETWEEN :
1. SHRI. B V V SANGH'S
P. M. NADAGOUDA MEMORIAL DENTAL
COLLEGE AND HOSPITAL
BAGALKOTE-587101,
R/BY ITS PRINCIPAL,
DR. SHREENIVAS. S. VANAKI,
AGE: 50 YEARS.
2. MS.AISHWARYA R BORAGAVI,
D/O RAJENDR, AGE: 21 YEARS,
3. MS.LAXMI G PATEL
D/O GAUTAM L PATEL,
AGE: 18 YEARS,
4. MS.SHRUSHTI SHINTRE,
D/O SATISH AGE: 19 YEARS,
5. MS.SHRUSHTI NUGGANATTI,
D/O GURAPPA, AGE: 19 YEARS,
6. MS.VEENA D/O VAIJUNATH PATIL,
AGE: 20 YEARS,
All are STUDENTs OF
1ST YEAR BDS COURSE
2
AT P.M. NADAGOUDA MEMORIAL
DENTAL COLLEGE AND HOSPITAL,
BAGALKOT.
... PETITIONERS
(BY SRI. M. R. NAIK, SENIOR COUNSEL FOR
SRI. G. K. HIREGOUDAR, ADVOCATE FOR PETITIONERS)
AND :
1. RAJIV GANDHI UNIVERSITY OF
HEALTH SCIENCES
4TH T BLOCK, JAYANAGAR,
BENGALURU-560041,
REPRESENTED BY ITS REGISTRAR.
2. RAJIV GANDHI UNIVERSITY OF
HEALTH SCIENCES,
4TH T BLOCK, JAYANAGAR,
BENGALURU-560041,
REPRESENTED BY ITS
REGISTRAR (EVALUATION)
3. DENTAL COUNCIL OF INDIA,
THROUGH ITS SECRETARY,
AIWAN-E-GALIB MARG,
TEMPLE LANE, KOTLA ROAD,
NEW DELHI-110002.
... RESPONDENTS
(BY SRI SHIVAKUMAR S. BADAWADAGI, ADVOCATE, FOR R1 &
R2; SRI. M. B. KANAVI, ADVOCATE FOR R3)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO:
(A) ISSUE A WRIT OF MANDAMUS OR ANY OTHER
APPROPRIATE WRIT OR ORDER OR DIRECTION, DECLARING
THAT THE ADMISSION GRANTED TO THE PETITIONERS NO.2 TO
6 FOR THE ACADEMIC YEAR 2016-2017 TO THE B.D.S COURSE
IS VALID AND THAT THEY ARE ENTITLED TO CONTINUE THEIR
STUDIES BY GRANT OF APPROVAL OF THEIR ADMISSION;
3
(B) ISSUE A WRIT OR ORDER OR DIRECTION IN THE
NATURE OF CERTIORARI QUASHING THE COMMUNICATION
DATED 29.05.2017 BEARING NO.AC2-ADM/BDS/2016-17/DO24
ISSUED BY THE RESPONDENT NO.1, VIDE ANNEXURE-'Q'
INSOFAR AS IT RELATES TO THE PETITONER NO.2 TO 6.
(C) ISSUE A WRIT, OF MANDAMUS DIRECTING THE
RESPONDENT UNIVERSITY TO APPROVE THE ADMISSION OF THE
PETITIONERS NO.2 TO 6 AND PERMIT THEM TO CONTINUE THE
COURSE.
(D) ISSUE SUCH OTHER ORDER OR FURTHER RELIEFS
AS THIS HON'BLE COURT DEEMS FIT TO MEET THE ENDS OF
JUSTICE.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING THIS DAY, NAGARATHNA J., MADE THE
FOLLOWING:
ORDER
Though these writ petitions are listed to consider I.A.No.2/2018, with consent of learned counsel on both the sides they are heard finally.
2. First petitioner is the management of an Institute of Dental Sciences and Research Center, Belagavi (petitioner-college) and petitioner Nos.2 to 6 are the students admitted by the First petitioner-College in the First year of Bachelor of Dental Sciences (BDS course) in the academic year 2016-17.
4
3. Being aggrieved by communication dated 29.05.2017 issued to the Principal of the College (Annexure-Q) by respondent No.1-University by which the petitioner Nos.2 to 6 have been directed to be discharged from the First petitioner-college, these writ petitions have been filed assailing the said communication at Annexure-Q and for seeking approval of the admission of petitioner Nos.2 to 6 for the academic year 2016-17 in the First year BDS course by considering representation dated 08.04.2017 vide Annexure-P.
4. Briefly stated the facts are that on 09.01.2016 the Karnataka Examination Authority (hereinafter referred to as the 'Examination Authority' for the sake of convenience) issued a brochure for conducting Common Entrance Test (hereinafter referred to as the 'CET') for M.B.B.S. and BDS. Courses for the academic year 2016-17 prescribing the academic eligibility and other details. Petitioner Nos.2 to 6 appeared in the CET and were eligible to be counselled by the Karnataka Examination Authority. 5 The total intake of the first petitioner-college is fifty seats for BDS Course. As per the Consensual Agreement between Government of Karnataka and the Karnataka Professional Colleges Foundation in the matter of regulating admissions and fee structure for the undergraduate courses in private professional colleges of medicine and dental sciences for the Academic Year 2016- 17 (hereinafter referred to as 'Consensual Agreement'), 35 seats out of 100 seats were made available to be filled by the Karnataka Examination Authority (as Government quota seats) at subsidized fee structure. When the Examination Authority were taking steps for making admission as per the Consensual Agreement, the Hon'ble Supreme Court decided to review its earlier judgment passed in Christian Medical College in which National Eligibility and Entrance Test (hereinafter referred to as 'NEET') was validated.
5. However, on 4th and 5th of May 2016, CET was conducted by the Karnataka Examination Authority for 6 State Government quota seats in Government Colleges as well as Private Colleges for admission to both Medical as well as Dental seats in the state of Karnataka. However on 24.05.2016 the Union of India decided that the Government quota seats in Government and Private Medical and Dental seats would not be allotted on the basis of NEET for the academic year 2016-17 and in accordance with that decision amendments were made to the Dentists Act 1948 by introducing Section 10D after initially passing an order in that regard. As a result it enabled the students who had taken the CET to be admitted through the Karnataka Examination Authority for medical and dental courses respectively for the academic year 2016-17. Consequently the Karnataka Examination Authority conducting two rounds of counseling to fill up the Government quota seats in the Government Colleges and the Private Medical Colleges. In respect of the first petitioner - college also the students appeared for counseling and out of 35 seats made over towards Government quota by the petitioner-college, 27 seats were 7 taken and eight vacant seats remained. According to the petitioner as per the Consensual Agreement the eight vacant seats were made over to the first petitioner- college as being casual vacancies to be filled up by the management.
6. Petitioner Nos.2 to 6 who appeared in the CET but did not appear for the counseling before the Examination authority were admitted in the vacant Government quota seats, which were made over to the petitioner - college. As a result in five out of eight vacancies which were made over by the State Government to the petitioner - college, petitioner Nos.2 to 6 were admitted and consequently the number of vacancies in the Government quota was reduced to three (3). Petitioner-College sought approval of the admission of the five students admitted in their college. When the list of students was submitted by the petitioner-college to the respondent - University for grant of approval of their admission, the University issued the impugned 8 communication at Annexure-Q stating that petitioner No.2 to 6 - students not being admitted in the management quota or in the COMED-K quota, could not have been admitted in the petitioner-Institution as they did not possess NEET rank card. In other words, since petitioner Nos.2 to 6 had not appeared in the NEET exam they could not have been admitted in the First petitioner Institution. Therefore the respondent - University directed the First petitioner - Institution to discharge these students. It is at that stage, communication at Annexure-Q is being assailed and petitioners herein have sought the aforementioned reliefs.
7. We have heard learned Senior Counsel, Sri. M.R.Naik, appearing for the petitioners and learned counsel, Sri. Shivakumar S.Badawadagi, for the first and the second respondent - University, learned Additional Government Advocate and learned counsel for the Dental Council of India, Sri M.B. Kanavi, the 3rd respondent at length and perused the material on record. 9
8. The controversy in these writ petitions is in very narrow compass. The question is, as to, whether, petitioner Nos.2 to 6 could have been admitted in the first petitioner institution in the unfilled Government quota seats after they were made over to the management by the State Government in terms of the Consensual Agreement.
9. It is not in dispute that petitioner Nos.2 to 6 had appeared in CET but had not appeared in the counseling conducted by the Examination Authority. At this stage itself it may be observed that had these five petitioners - students appeared in the counseling conducted by the Karnataka Examination Authority they could have sought allotment and admission in the First petitioner institution as admittedly out of 35 seats categorised as Government quota seats, only 27 seats were filled and eight remained vacant which were made over by the State Government to the petitioner - 10 Institution to be filled up as a casual vacancy under the Consensual Agreement.
10. It is also not in dispute that the Academic Year 2016-17 was a period of transition insofar as admission to professional colleges namely, medical and dental colleges in the country was concerned as the Hon'ble Supreme Court had given its imprimatur to conduct a NEET by the Central Government and to have a centralized format of admission of students with counseling done by the State Examination Authority on the basis of the merit secured by the students in NEET.
11. Admittedly, petitioner Nos.2 to 6-students did not appear in NEET but appeared in CET and were allotted then respective ranks but did not appear in the counseling conducted by Examination Authority. As already noted, had they appeared in the counseling conducted by the Examination Authority they could have sought admission in the first petitioner-Institution in the Government quota itself. Even then they would have been 11 three more vacant seats in the Government quota which would have been transferred to the petitioner institution.
12. The controversy is with regard to the admission of petitioner Nos.2 to 6 - students made by the first petitioner college in the unfilled government quota seats which were made over by the State Government to the first petitioner management pursuant to the Consensual Agreement.
13. In this regard the contention of learned Senior Counsel for petitioners is that there was no impediment for the petitioners students to be admitted in the vacant seats which were made over by the State Government to the First petitioner - Institution as these petitioners - students could have in any case been admitted in the said quota had they appeared in the counseling conducted by Karnataka Examination Authority, but for reasons best known to the petitioners - students they did not appear before the Examination Authority which conducted the counseling. Thereafter in view of the vacancy in eight 12 seats (Government quota) which were made over by the State Government to the petitioner - Institution, petitioner Nos.2 to 6 - students were accommodated in that quota on the fee structure meant for government quota seats. That this is not a case where the first petitioner - Institution has tried to exploit the petitioners-students so as to extract capitation fee or exorbitant fee from the said students. Merely because these students were not admitted in the COMED-K quota or in the management quota the respondent University cannot find fault with the students or the First petitioner - institution on the premise that they did not possess NEET card. It is because they did not possess NEET card that these students were accommodated in the Government quota after the vacant or unfilled seats were made over by the State Government to the First petitioner - Institution.
14. In this regard learned counsel for the respondents - university sought to defend its direction to discharge these students by contending that these 13 students ought to have been accommodated or admitted not in the Government quota seats but in the COMED-K quota or in the management quota in which event they had to possess the NEET card and therefore they could not have been admitted by the First petitioner institution.
15. In order to consider the aforesaid rival contentions it would be useful to refer to the position of law as it existed in the academic year 2016-17. The Medical Council of India by amending the Regulations of Graduate Medical Education, 1997, issued a Gazette Notification of 21.12.2010 to the effect that the admissions to MBBS course shall based solely on the marks obtained in NEET. The said notification was challenged inter alia by Christian Medical College, Vellore, before the Hon'ble Supreme Court, which was allowed by decision dated 18.07.2013 reported as Christian Medical College, Vellore vs. Union of India, (2014)2 SCC 305. As a result, admissions of students to MBBS Course was no longer bad. Subsequently, review petitions were filed before the 14 Hon'ble Supreme court of India and, by order dated 11.04.2016, the review petitions were allowed and the decision rendered on 18.07.2013 was recalled and it was directed that the matters be considered afresh. At this stage, it may be mentioned that the Medical Council of India published a notification in 2015 amending the Regulations of Graduate Medical Education, 1997, whereby a time schedule for completion of the admission process for first year MBBS course was prescribed. The said schedule was approved in Ashish Ranjan and Others vs. Union of India and Others, decided on 18.01.2016, reported in (2016)11 SCC 225. As per the schedule, the conduct of entrance examination was to take place between 1st and 7th May and the result of the entrance examination was to be declared by June. Further in Sankalp Charitable trust and Another Vs. Union of India and Others, reported in (2016)7 SCC 487, NEET - Phase I was to be held in terms of the notification dated 21.12.2010 issued by the Medical Council of India. The All India Pre-Medical Test to be held on 01.05.2016 and 15 Phase-II of NEET for the left out candidates was to be held on 24.07.2016. By order dated 06.05.2016, passed in the case of Sankalp Charitable Trust vs. Union of India, it was clarified that no examination shall be permitted to be held for admission for MBBS students by any private college or association or any private/deemed university.
16. When the matter stood thus, an amendment was made to the Dentists Act, 1948 by the Dentists (Amendment) Act, 2016, (hereinafter referred to as the 'Act'.) Act No.40/2016 by insertion of Section 10D after Section 10C after initially an Ordinance being issued by the Hon'ble President of India on 24.05.2016. Section 10D reads as under:
"2. After section 10C of the Dentists Act, 1948 (hereinafter referred to as the Principal Act), the following section shall be inserted, namely:-
"10D. There shall be conducted a uniform entrance examination to all dental educational institutions at the undergraduate level and post- graduate level through such designated authority in Hindi, English and such other languages and in such 16 manner as may be prescribed and the designated authority shall ensure the conduct of uniform entrance examination in the aforesaid manner:
Provided that notwithstanding any judgment or order of any Court, the provisions of this Section shall not apply, in relation to the uniform entrance examination at the undergraduate level for the academic year 2016-17 conducted in accordance with any regulations made under this Act, in respect of the State Government seats (whether in Government Dental College or in a private Dental College) where such State has not opted for such examination."
17. The reason as to why Parliament had to amend the Act was in order to take into consideration, the ground realities in respect of academic year 2016-17 in as much as although NEET has been introduced throughout the country nevertheless there were certain States which had already commenced the process of admission through their own Examination Authorities by having a Common Entrance Test in respective of the States. Thus, in the State of Karnataka the CET was held in May 2016 by issuance of the brochure as early as in January 2016. 17
18. On a reading of Section 10D, it becomes clear that although Parliament intended that they should be a uniform entrance test for all Dental Institutions at the undergraduate level and postgraduate level through a designated authority and in a prescribed manner, the proviso is significant. Under the proviso for the academic year 2016-17 Section 10D was not made applicable in relation to the uniform entrance test at the undergraduate level to be conducted in accordance with the said regulation under the Act, in respect of State Government seats, whether in Government Dental Colleges or in private Dental College where such state had not opted for such examination. The ordinance gave option for the States to either opt for NEET or conduct their exams exclusively for State seats for the Academic Year 2016-17.
19. In the instant case though Karnataka State had opted for NEET, the fact remains that CET was also conducted side by side and it is an admitted fact that those students who had appeared in CET were also admitted in 18 the State Government quota of seats through the Examination Authority, which is a State body, in government as well as private dental colleges. Therefore as far as Karnataka State is concerned, there was both CET as well as NEET as an option for students to be admitted in the colleges in the academic year 2016-17. It goes without saying that if a student had appeared in CET and had been allotted a rank then such a student would obviously seek a seat in one of the State Government Colleges or a Government quota seat in private dental college and not in a seat which was available for a candidate who had appeared in NEET. In the instant case, petitioner Nos.2 to 6, as already noted above, had appeared in CET and had they appeared for the counseling conducted by the Examination Authority they would have been allotted seats either in any Government College or in a Private Dental College in Government quota as per their ranking and merit.
19
20. Therefore academic year 2016-17 has to be construed to be a watershed or a transitory year when the Union Government realized that for that academic year admissions could not be made purely on the basis of NEET and that it had to recognize the examinations conducted by various State Governments such as CET in Karnataka State.
21. The consensual agreement between Government of Karnataka and Karnataka Professional Colleges' Foundation and in the matter of regulating admission and fee structure for the under-graduate courses in private professional colleges of medicine and dental sciences for the Academic Year 2016-17 categorically stated that in view of the judgment of the Hon'ble Supreme Court and the Ordinance No.4 of 2016 dated 24.05.2016, the Government of Karnataka, through Karnataka Examination Authority, would be admitting the student in Government Medical and Dental Colleges and in respect of government quota seats and members 20 institutions of the Karnataka Professional Colleges foundation will admit students by way of common counseling, through the COMED-K on the basis of merit list prepared on the basis of entrance test conducted by NEET. It is well-known that government seats are seats surrendered by the College Foundation for admission on the basis of common entrance test conducted by the government in terms of the consensual agreement. That as per the Consensual Agreement entered into between Karnataka Professional Colleges Foundation on behalf of Private Medical and Dental Colleges and the State Government insofar as unfilled seats in the Government Quota in private medical colleges are concerned they would revert back to the private medical college in terms of the clause 3(a) and (c) of the Consensual Agreement. Clause 3(a) and (c) of the said Consensual Agreement read as under:
"3a) The member institution of KPCF, imparting studies in Under-Graduate education in their respective Institutions, would make available/hand-21
over 40% of seats out of the total intake available, in each of their member - Medical colleges and 35% of seats out of the total intake available, in each of their member - Dental Colleges, to the government's KEA Cell (KEA), for counseling and allocation of seats; based on merit; as per ranking to be determined / assigned by the Common Entrance Test, being conducted by the Governmental agency i.e., KEA as per Rules framed for this purpose in accordance with the terms of this agreement.
b) x x x x x x x x
c) It is further agreed that, there shall be only two round of counseling and that if any seats remain unfilled/vacant, at the end of 'Second round of counseling by the KEA/KEA Cell in so far as Dental Colleges are concerned, all those seats would revert back to the Karnataka Professional College's Foundation/its member institutions, for its appropriate counseling/allotment, to its general merit category candidates or being filled by the respective colleges as casual vacancies, or as may be decided by the KPC Foundation so that the said vacancies would be filled up within three days before the last day for making admissions. It is agreed that there would not be any such extra round of counseling for Dental and any such admissions by extended rounds would not be binding on the respective college management". 22
Clause 6 deals with modalities of admissions and clause 6(a) is relevant and is extracted as under:
6. Modalities of Admissions :
a. There shall be, only 'Two rounds' of counseling: by COMED-K Authorities for UG courses, in the immediate order of sequence of counseling, by the Karnataka Examination Authority, under the supervision of a Common Monitoring/ Overseeing Committee; to be constituted by the Government to ensure that the admissions are fair, transparent and non-exploitative and to enforce clauses of this agreement. Any grievances; in the matter of counseling/admissions be redressed by the authorities of the said 'monitoring committee' strictly in terms, and within the scope of this agreement. All seats remaining unfilled at the end of second round of counseling by COMED-K, in respect of UG Courses shall be made over to the respective Private Professional Colleges, to be filled up from amongst other eligible general merit candidates, seeking admission to said individual colleges. All seats remaining unfilled by COMED-K at the end of Second round of counseling shall be treated as casual vacancies and respective college managements could fill them up as casual vacancies. The member institutions of Karnataka professional Colleges Foundation can fill up any seats unfilled after the 23 second round of counseling on the basis of NEET ranking".
On a conspectus reading of the afore two clauses, it becomes clear that the unfilled Government quota seats of the private dental college would revert to the private dental colleges to be filled up as a casual vacancy or as may be decided by the KPC foundation in order to ensure that the seats do not remain vacant or go wasted.
22. The admission position for the year 2016-17 in the petitioner college is as under:
BDS COURSE ADMISSION POSITION FOR THE YEAR 2016-17 Admitted Sanc-
Admit- Against Final
tioned Vacant
ted Vacant Vacancy
intake
Seat
Govern-
35 27 08 04(i) 04(ii)
ment
COMED-K 45 02 43 -- 43
Manage-
20 20 -- -- --
ment
Total 100 49 51 04(iii) 47(iv)
According to petitioners' counsel,
(i) wrongly shown as 4, it should be 5
(ii) wrongly shown as 4, it should be 3
(iii) wrongly shown as 4, it should be 5
(iv) wrongly shown as 47, it should be 46
24
On perusal of the same it becomes evident that in the Government quota seats out of 35 seats only 27 seats were filed and 8 seats reverted to the First petitioner institution. It is in-fact in five of those 8 seats, petitioner Nos.2 to 6 were admitted and consequently only 53 seats (49+4) were filled up in the said institution out of 100 seats and 49 seats remained vacant.
23. Learned Senior Counsel, Sri M.R.Naik appearing for the petitioners submits that these admissions have been made on the fee structure which is prescribed for Government quota seats and not the fee structure which was prevalent for management quota seats which fact is not controverted by learned counsel for respondents.
24. In the circumstances, can it be said, the first petitioner institution could not have admitted petitioner Nos.2 to 6 - students in the absence of they possessing NEET card and therefore they had to be discharged. In other words, question is, whether, the petitioners-students 25 had to be admitted only in COMED-K or management quota seats and could not have been admitted in the casual vacancy of four seats which reverted to the State Government. Our answer to the aforesaid question is in the negative. It is reiterated, that this is not a case where the first petitioner - Institution admitted petitioner Nos.2 to 6 students even in the absence of they appearing in CET and were offered seats on a platter. The petitioner- students appeared in CET but did not appear in the counseling conducted by the Examination Authority for those students who had appeared in the CET in the Academic Year 2016-17. It is reiterated that, had they appeared for the counseling, in all probability, they would have been allotted the First petitioner-Institution as admittedly there were six vacant seats which remained vacant even after the second round of counseling.
25. In the circumstances we do not think that this is the case where the management has overstepped its limits, either in the context of their sanctioned intake or in 26 the context of exhausting their COMED-K and management quota and trying to admit the petitioners-students even in the absence of the students having qualified in CET. Rather, we may add that there was no impediment for the petitioner-institution to admit these two students in the vacant seats, since they had qualified in the CET, after the said seats were made over to the management on remaining unfilled by the State and Karnataka Examination Authority. Therefore, respondent-University could not have insisted that since these petitioners - students did not appear in NEET and did not possess the NEET card they were ineligible to be admitted in the petitioner institution.
26. It is made clear that in the academic year 2016-17 any student who had appeared in CET and had appeared for counseling before the Examination Authority and allotted a seat in a private institution or for that matter a Government College was on the basis of the result of CET and NEET was not made compulsory to such a student who had appeared in CET.
27
27. As already noted, Academic Year 2016-17 was a transitory year and the proviso to Section 10D of the Act enabled such kind of admissions to be made so as to ensure that the seats were filled and the uncertainty and agony of students was reduced if not erased and to bring about some kind of a saving of actions and steps which had been taken by State Government for filling up of the seats though CET as in the State of Karnataka.
28. In the circumstance on the facts of this case, since there were vacancies in the Government quota seats, which could have been taken by the petitioners students had they appeared in the counseling conducted by the Examination Authority and they had not done so and subsequently the college had admitted them in that quota, is not an infraction of either the Act or regulation made under the Act or the judgments of the Hon'ble Supreme Court. But rather it is in consonance with the Consensual Agreement which were recognized and acted upon by the 28 State Government and hence they could not have been directed to be discharged by respondent-University.
29. In the circumstances Annexure-Q insofar as petitioner Nos.2 to 6 are concerned is quashed. Respondent Nos.1 & 2 - University is directed to grant approval of admission of the petitioners - students and permit them to appear in all annual examinations and declare their results in accordance with law.
30. Writ petitions are allowed to the above extent with no order as to costs.
In view of the writ petitions being allowed, I.A.Nos.2/2018 stands allowed.
Sd/-
JUDGE Sd/-
JUDGE EM/-