Rajasthan High Court - Jaipur
(Dr. Yogendra Singh Gurjar & Anr. vs . State Of Rajasthan & Ors.) on 25 April, 2014
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. CIVIL WRIT PETITION NO.8117/2011 (Dr. Yogendra Singh Gurjar & Anr. Vs. State of Rajasthan & Ors.) Date of Order : 25th April, 2014 HON'BLE MR. JUSTICE M.N. BHANDARI Mr.Rajendra Soni, for the petitioner/s. Mr.I.R.Saini, AAG. Mrs. Shruti Dixit, Dy.GC. Mr.S.P.Sharma, Sr. Adv. with Mr.Gaurav Sharma ] Mr.R.A.Katta ] Mr.Angad Mirdha ] Mr.S.S.Raghav ] Mr.Kishore Gaur for Mr.Bharat Vyas ], for the respondent/s. R E P O R T A B L E : BY THE COURT:
This writ petition pertains to admission in PG Medical Courses.
The Rajasthan University of Health Sciences (In short the RUHS) issued Notification on 30.10.2012 for Pre-PG Medical/Dental Entrance Examination of 2012. The petitioner No.1 and 2 participated in the entrance test and secured 1028 and 1000 marks respectively. They secured 85.66 percent and 83.33 percent marks.
The Convener Pre P.G. Medical Examination RUHS issued a notification on 02.04.2011 for first round of counselling for admission in PG Course. The petitioners participated in the counselling but surprised to notice that Mahatma Gandhi Medical College has not been included in the first counselling. The Mahatma Gandhi University of Medical Sciences & Technology (In short Mahatma Gandhi University) issued a separate advertisement on 27.05.2011 inviting application in prescribed form for admission in PG Courses, though the schedule date to hold entrance test to fill state quota had already expired. The advertisement to fill-up management quota was, however, issued by the said medical college as per Schedule. The respondent Mahatma Gandhi University thus issued advertisement dated 27.05.2011 de hors the direction of Hon'ble Apex Court and schedule fixed for admission in PG Medical Courses. It was moreso when Mahatma Gandhi university was not included by the UGC in the list of the Universities, thus it was not even recognized by the UGC on the date of issuance of advertisement.
The advertisement for making admission at the level of University itself was otherwise in violation of judgment of Hon'ble Apex Court in the case of Islamic Academic of Education Vs. State of Karnatka reported in (2003) 6 SCC 697 and P.A.Inamdar Vs. State of Maharashtra reported in (2005) 6 SCC 537.
The Hon'ble Apex Court has given schedule for admission to PG Course but respondent Mahatma Gandhi University violated it also and filled the seats in their own manner without holding test. It was to favour relatives of high-ups, which includes Minister of Higher Education (Medical Education) of State of Rajasthan, Vice Chancellor of Rajasthan University of Health Sciences and even wards of Central Ministers and other high-ups in a clandestine manner. It was at the cost of those, who were meritorious like the petitioners. One Dr. Rajshree Singh is closely related to Minister of Higher Education, Government of Rajasthan, Dr. Aslam Nagra is brother-in-law of Dr. R.B.Panwar, Vice Chancellor of Rajasthan University of Health Sciences, Dr. N.N.Meena is relative of Central Minister, Dr. Ankur Poonia is son of Principal of Mahatma Gandhi Medical College. They all were given admission in PG Course by self managed affairs of Mahatma Gandhi university. In fact, the Mahatma Gandhi Medical College & Hospital and now the University are known for violation of judgment of Supreme Court so as the Regulations made by Medical Council of India. The petitioners have thus challenged the criteria for PG admission and giving admission to those, who could not find place in merit in the entrance test conducted by the Rajasthan University of Health Sciences. The petitioners thus preferred this writ petition immediately after giving notice for demand of justice.
It is further stated that on 10.07.2012, this Court passed an order directing the petitioner to amend the cause title so as to implead Mahatma Gandhi university as a party respondent as advertisement at Annex.7 was issued by the Registrar of said University. The amended cause title was thus filed and taken on record. Learned counsel for the petitioners have prayed for grant of relief to the petitioners apart from sending the matter to CBI for causing investigation or pass any other appropriate order.
Learned Senior Advocate Mr.S.P.Sharma assisted by Mr. Gaurav Sharma appearing for the Mahatma Gandhi Medical College & Hospital and University raised preliminary objection regarding maintainability of the writ petition. It is on the ground that petitioners did not apply for admission in Mahatma Gandhi Medical College & Hospital. The admissions were completed before the last date fixed by Medical Council of India (for short MCI). They have thus no locus to challenge admissions. The allegations of favourtism made in the writ petition are not only vague but at the instance of fictitious candidates.
Other objection is regarding maintainability of joint writ petition.
Coming to the merit, it is submitted that Mahatma Gandhi Medical College & Hospital was not under an obligation to give admission from the merit list out of the entrance test conducted by the Rajasthan University of Health Sciences as Mahatma Gandhi University was going to be created. The advertisement dated 07.01.2011 was, however, issued to fill up management seats as provided under MCI Regulations. As per the quota prescribed by the MCI, 50 percent of seats are treated for management quota and remaining to be filled by state quota. The petitioners did not apply against management quota. The Mahatma Gandhi University was then created by State Ordinance dated 23rd May, 2011. The said university is having right to manage its affairs as per the statute. It was not obligatory to give admission out of the list prepared by the Rajasthan University of Health Sciences. Immediately after its creation, an advertisement was issued on 27.05.2011 for admission in PG Courses. The Mahatma Gandhi University is having autonomous and independent status. All those admissions were given on or before the last date, i.e., 31st May, 2011. The allegations of giving admission to high ups are incorrect. It is stated that some of them were given admission against management quota and others participated in entrance test conducted by the University and based on merit, thus could get admission. The Mahatma Gandhi University/Medical College did not participate in the counselling held by Rajasthan University of Health Sciences as the formation/creation of the Mahatma Gandhi University was approved much before issuance of Ordinance on 23rd May, 2011. In view of above, there is no illegality in the action of the Registrar, Mahatma Gandhi University. A reference of amended Regulations so notified by the MCI on 21st July, 2009 is given to show meaning of academic merit for admission to the PG Course. It can be prepared based on competitive test held by the University or by State and based on Centralized Competitive Test held at the national level. The Mahatma Gandhi University had determined the academic merit through entrance test at their own level as per PG Medical Education Regulations of 2009 (Part II).
The reply to the writ petition has been filed by the respondent Nos. 1 to 4. A reference of letter dated 08th April, 2011 sent by Mahatma Gandhi Medical College & Hospital is given. Therein, Convener Pre PG Medical Entrance test was informed that Government of Rajasthan has already issued a letter of intent for establishment of Mahatma Gandhi University. The approval of the said University is at the final stage, thus Mahatma Gandhi Medical College & Hospital would not be able to participate in the first counselling scheduled from 11th April to 13th April, 2011. They requested not to allot students for their PG Course. It was to avoid any litigation in the matter. The concluding para, however, suggests that if due to any unforeseen reasons, approval for establishment of proposed Mahatma Gandhi University is delayed beyond 30th April, 2011, i.e., before commencement of PG Course since 01st May, 2011, the intimation would be sent to include the medical colleges in second counselling.
Learned counsel Mr.Angad Mirdha, appearing for MCI submitted that Indian Medical Council Act, 1956 (for short Act of 1956) empowers MCI, inter alia, to prescribe standard of medical education as well as to frame Regulations. The Regulations were framed under Section 33 of the Act of 1956, thus they are statutory in nature. The Mahatma Gandhi University acted illegally in giving admission in PG Course as it violated not only MCI Regulations but judgment of Hon'ble Apex Court. It had made admission even without transparency. The date of entrance test,declaration of result and merit have not been made known and can not be done in four days. In fact, the medical college should have given admission from the meritorious candidates of Pre-PG Entrance Examination held by Rajasthan University of Health Sciences. The admission beyond prescribed schedule was not accepted by the Apex Court in the case of MCI Vs. Madhu Singh reported in 2002 (7) SCC 258.
It is stated by learned counsel Mr.Angad Mirdha that pursuant to Regulations aforesaid, an order was issued by the Government of India, Ministry of Health and Family Welfare on 14.05.2003 followed by Notification dated 25th February, 2004 by the MCI under Section 33 of the Act of 1956. The Notification issued by the MCI on 25th February, 2004 is statutory in nature and has been referred by the Hon'ble Apex Court in its subsequent judgment in the case of Mridul Dhar Vs. Union of India & Ors. reported in (2005) 2 SCC 65.
Referring to the schedule, it is submitted that entrance examination is to be conducted in the mid of January to the Mid of February for state quota and for All India Quota, it is second Sunday of January. It is followed by declaration of result by 28th February and first round of counselling by 25th April for state quota followed by joining of course by 01st May. The second counselling is not permissible and 07th April is last date for All India Quota to join the course and in case of unfilled seats of All India Quota, to surrender it for State Quota. The last date for commencement of academic session is 02nd May. The respondent Mahatma Gandhi University has given admission in deviation and violation of schedule given above and otherwise, against the direction given by the Supreme Court apart from para Nos. 8.1 to 8.5 of the Government decision dated 14.05.2003 and Notification of MCI dated 25th February, 2004. In the case of Mridul Dhar (supra), time schedule for entrance test and admission has been referred and is required to be followed. The respondent Mahatma Gandhi University has violated the aforesaid. The entrance test for PG Course, if conducted, then it was in ignorance to Clause (6) of the Regulations of 2009 as amended vide Notification dated 21st July, 2009. Clause (ii) provides for each institution to seek recognition of Post-graduate medical qualification through an affiliated university. So far as the Mahatma Gandhi University is concerned, it is not an affiliated university of MCI, thus there was no question of recognition of institution under it. The recognition and affiliation under the university would be after first batch appear in the examination conducted by the affiliated university. The Mahatma Gandhi University is thus not even authorized to award degrees unless affiliation is given along with recognition as per the amended Regulations of 2009.
Learned counsel Mr.R.A.Katta, appearing for the respondent Nos.3 and 4 submits that respondent Mahatma Gandhi University acted in violation of Regulations framed by the MCI so as the judgment of Hon'ble Supreme Court. The MCI Regulations are binding, being statutory in nature. The University was established much beyond the scheduled date for holding entrance test, thus there is violation of judgment of Apex Court in the case of Mridul Dhar (supra). Para Nos. 31, 32 and 35 of the aforesaid judgment was referred. A further reference is made to the judgment in the case of Dr. Preeti Srivastava Vs. State of M.P. reported in (1999) 7 SCC 120. Therein, Regulations of MCI were considered to be statutory, thus binding in nature. It was held that MCI is having authority to prevent sub-standard entrance test for medical course. In the instant case, the Mahatma Gandhi University alleged to have conducted entrance test at their own level and that too, within a period of three days. The schedule given for admission is required to be maintained in view of the judgment of Hon'ble Apex Court in the case of Madhu Singh (supra). Para No.22 of the aforesaid judgment is referred. In the instant case, the respondent university alleged to have conducted entrance test beyond schedule date.The admission was also given in violation of schedule provided by the Apex Court. 31st May is not a normal date for admission but as an exception when vacancy arises due to any reason. In the instant case, no vacancy arose subsequent to crucial date fixed for admission. The academic session for PG Course needs to be started from 02nd May as was decided by the Government of India, Ministry of Health and Family Welfare in its communication dated 14.05.2003 and Notification of MCI dated 25th February, 2004 apart from judgment of Hon'ble Apex Court, thus action of Mahatma Gandhi University is in violation of Notification of MCI and judgment in the case of Mridul Dhar (supra). Accordingly, prayer is made to direct the MCI not to recognize the qualification undertaken by the students as they were admitted after the scheduled date. A reference of Regulation 9 of the MCI Regulations is given to show that management and State quota are to be filled by the competent authority and is divided in equal ratio. The respondent Mahatma Gandhi University was thus not authorized to fill the quota meant for competent authority of State by holding alleged entrance test at their own level, otherwise there remains no difference between management quota and state quota. Learned counsel for the respondent/s has supported the prayer made by the petitioners showing action of Mahatma Gandhi University to be illegal.
An affidavit has been filed by respondent No.5 to indicate that as per the MCI Regulations of 2009, 50 percent seats have to be filled by the State Authorities and remaining by the management. It is further stated that in the light of the judgment in the case of TMA Pai Foundation & Ors. Vs. State of Karnataka & Ors. reported in (2002) 8 SCC 481 and in the case of Islamic Academic (supra) and P.A.Inamdar (supra). The respondent Mahatma Gandhi University/Medical College was not authorized to make admission at their own level, when a challenge is not made to Clause 9 of the Regulations of 2009 where quota is divided between management and state in equal ratio and has been admitted by Mahatma Gandhi University in their reply.
I have considered the rival submissions made by learned counsel for the parties and scanned the matter carefully.
Before averting to the factual aspects and the issues raised by learned counsel for the respective parties on merit, I am first deciding preliminary objections raised by learned counsel for the respondent Nos. 9 to 11.
It is stated that petitioners did not apply in pursuance to the entrance test conducted by the Mahatma Gandhi University, thus they have no locus to challenge the entrance test and admissions given thereupon. Further objection is regarding joint petition. I find that petitioners have challenged the advertisement issued by the respondent Mahatma Gandhi University on 27.05.2011. A further prayer was thus made to fill 50 percent seats of Post Graduate course through entrance test conducted by the Rajasthan University of Health Sciences. A direction is also sought for enquiry by the CBI. The challenge to the locus of petitioners cannot be accepted as the petitioners have challenged the authority of the Mahatma Gandhi University to make admission in violation of schedule provided by the Government of India, MCI and Hon'ble Apex Court. If the petitioners would have appeared in the entrance test said to have conducted by Mahatma Gandhi University, then they could have no right to challenge it. The joint writ petition is maintainable under the High Court Rules. The petitioners thus cannot be non-suited on the aforesaid grounds. It is more so when holding of entrance test is also doubted by other respondents.
It is further stated that respondent Mahatma Gandhi University is having right to make admission pursuant to Ordinance on its establishment vide Notification dated 23rd/24th May, 2011, thus challenge is not maintainable. A reference of judgment in the case of P.A.Inamdar (supra) has been given.
I have considered the aforesaid issue and find that the University was created on 23rd/24th May, 2011, whereas, if the scheduled dates for entrance test and admissions are taken note of, it is much prior to the date of creation of the University and advertisement dated 27.05.2011. Thus, merely establishment of the University subsequent to the relevant date does not authorize them to violate the judgment of Supreme Court. If the schedule given by the MCI and the Supreme Court are looked into, the entrance test cannot be conducted on 27th May of the year concerned as the date to hold entrance test in Mid January to Mid February and to start of academic session is 02nd May for PG Course. Accordingly, even second objection cannot be accepted. The University was under an obligation to act as per law and judgment of Hon'ble Apex Court. The advertisement dated 27-5-2011 does not indicate date of entrance test rather gives different mode of admission.
The Mahatma Gandhi University cannot make admission in violation of the MCI Regulations or the directions of the Hon'ble Apex Court. Even the Ordinance cannot superseded the Notification dated 25th February, 2004 and the directions of Hon'ble Apex Court. The admission pursuant to the advertisement dated 27th May, 2011 cannot be said to be fair and transparent as the advertisement does not show an entrance test to determine inter se merit. The schedule, as required for admission, has not been followed by the University, thus apart from violation of schedule, the admissions are not made as per the MCI Regulations. Hence, a claim for admission cannot be made in violation of statutory provisions and judgments of Apex Court, thus second objection raised by the respondent Nos.9 to 11 cannot be accepted.
Third preliminary objection is regarding allegation made in para NO.9 of the writ petition. It pertains to admission of relatives of high-ups and those, who are well connected. It is stated that none has been impleaded as a party respondent. In absence of them, the plea raised in para No.9 may not be accepted.
If prayer in the writ petition so as the facts narrated therein are looked into, the effort of the petitioners is to show a clandestine operation at the instance of respondent Nos.9 and 11 to hold alleged entrance test and to the admission in PG Course contrary to the judgment of Supreme Court and MCI Regulations. It is with a view to favour high-ups and to make admission as per their own convenience, thus non-impleadment of such persons cannot frustrate the issue raised by the petitioners because allegation are not against those persons but against Mahatma Gandhi University. The facts have given to illustrate the favoritism, hence, third preliminary objection is also rejected summarily.
Now comes merit of the case. If the facts of this case are taken in brief then it comes out that Respondents No.4 called applications and conducted entrance test for PG Medical Courses as per the time schedule. After declaration of result, they organized first counselling. The respondent Mahatma Gandhi Medical College & Hospital wrote a letter on 08th April, 2011 indicating that on 08th December, 2010, they had been intimated about approval of PG seats available for allotment, however, formation of the University is at the final stage, thus college would not participate in the counselling. It was also mentioned that if University is not established by 30th April and as commencement of course is since 01st May, necessary intimation would be given for participation in counselling though second counselling is not provided. The letter aforesaid shows that Mahatma Gandhi Medical College & Hospital had no intension to participate in counselling for admission in PG Medical Course at the initial stage. The University was then established pursuant to the Gazette Notification dated 23rd May, 2011 and accordingly, advertisement was issued by Mahatma Gandhi University on 27th May, 2011 for admission in PG course. It is also a fact that prior to it, on 07.01.2011, the Mahatma Gandhi Medical College & Hospital called applications to fill management seats thus they were knowing about the schedule given by the government, MCI and Apex Court. The respondents - Mahatma Gandhi University/College could not answer as to why they did not participate in the counselling when University did not established by the relevant date so as to avoid violation of the judgment of Apex Court.
In the case of Mridul Dhar (supra), the Hon'ble Apex Court elaborately dealt with the issues, which includes reference to the schedule for holding entrance test followed by counselling and date to commence the course. In para No.14, it was also held that last date of 30th September for MBBS course is not for normal admission but is to grant admission against the staray vacancies. Relevant paras of the aforesaid judgment are quoted hereunder for ready reference :
7. It is a matter of anguish that despite various decisions of this Court and laying down of time schedule for completion of admission process, the time schedule has not been adhered to at various stages by various authorities resulting in otherwise avoidable discontentment and hardship to the candidates. The observance of the time schedule is paramount for effective utilization to All India Quota of medical and dental seats. The denial of a seat in college of choice on the basis of one's merit position leads to frustration and results in injustice to the young students. The admission to a professional course based on merit position is paramount for the career of a student. The omission and commission in respect of admissions this year, as is evident from orders aforenoted, adversely affected the career of meritorious students in their not getting admission in the college of their choice. Any frustration and feeling of injustice at an impressionable age at which the students compete in All India Competition is neither desirable from the point of view of either the young students nor for country's future. We are concerned with the career of those bright candidates who compete in a tough all India competition. In this background, it is necessary to examine the acts of omission and commission at various levels, the suggestions that have been made and submissions put forth, to consider the issuance of directions for streamlining admissions from the next academic year in MBBS/BDS courses.
8. In Medical Council of India v. Madhu Singh and Ors., while making it clear that no admissions can be granted after the scheduled date, which essentially should be the date for commencement of the course, MCI was directed to ensure that the examining bodies fix a time schedule specifying the duration of the course, the date of its commencement and the last date for admission. It was further directed that different modalities for admission can be worked out and necessary steps like holding of examination if prescribed, counseling and the like have to be completed within the specified time and no variation of the schedule so far as admissions are concerned shall be allowed. In case of any deviation by the institution concerned, action as prescribed shall be taken by MCI.
9. The Ministry of Health of Family Welfare, Government of India convened a meeting of the State Health/Medical Education Secretaries and the Vice-Chancellors of the universities of health sciences and as a result of discussion issued a directive dated 14th May, 2003 to the Secretaries of Health and Medical Education in all the States and Union Territories and to all universities awarding medical/dental degrees laying down the policy guidelines on admission of students and other allied matters, inter alia, having regard to the decision in Madhu Singh's case(supra), laying down the schedule for completion of the various stages of admission process, commencing of academic session and closure of admissions in courses of medicine and dentistry to be applicable to all medical and dental colleges in the country from the academic session 2003-04 onwards. All State Governments, universities, medical and dental institutions in the country and any other authorities concerned were directed to strictly abide by the time frame for completion of each of the stages of admission process indicated in the time schedule. It also directed that neither any student shall be admitted in any course of medicine or dentistry after expiry of the last date prescribed for course of admission in that course nor any university shall register any such admission sought to be made. The State Governments were directed to take all necessary steps to prevent deviation from the prescribed schedule.
10. The directive dated 14th May, 2003 also stipulates the cancellation of admission granted after the last date of closure of admission and warns the candidates of the consequences of taking admission after the last date for closure of admissions. Paragraphs 8.4 and 8.5 of the directive read as under:
"8.4 In exercise of the powers conferred by the Hon'ble Supreme Court, the Medical Council of India or the Dental Council of India may direct that any student identified as having obtained admission after the last date for closure of admission be discharged from the course of study; or any medical or dental qualification granted to such a student shall not be a recognized qualification for the purpose of the Indian Medical Council Act, 1956 or the Dentist Act, 1948, as the case may be. The Institution which grants admission to any student after the last date prescribed for the same shall also be liable to face such action as may be prescribed by MCI or DCI.
8.5 The Time Schedule for completion of the admission process as in the Annexure shall also be printed in the Bulletin of Information for the candidates or the Prospectus for admission to the concerned course. The candidates shall be clearly warned of the consequences of taking admission in any institution after the last date for closure of admissions."
14. The academic session commences between 1st August and 31st August and the last date for joining MBBS/BDS courses is 30th August. However, students can be admitted against vacancies arising due to any reason by 30th September. The date 30th September is not for normal admission but is to give opportunity to grant admissions against stray vacancies. The adherence to the time schedule by everyone is paramount for the timely grant of admissions, commencement of academic session and for closure of the admissions after 30th September each year. In fact, the timely holding of 10+2 examination and declaration of its results is also of paramount importance for the entire admission process. If the results of CBSE or other equivalent examination are not declared well before the commencement of first round of counseling/admission of All India Quota seats, i.e., 20th June, it is likely to adversely affect the candidates who may otherwise be toppers in the All India Entrance Examination. A candidate may be in the first 200 position, out of about 2,00,000 candidates in the merit ranking but if the results of his qualifying examination of CBSE or its equivalent are not available to him or to DGHS responsible for counseling, the candidate would lose chance to get admission in college of his choice despite his merit position.
31.The time schedule for post-graduate and super-specialty course admissions may also be noted as under:
"TIME SCHEDULE FOR POSTGRADUATE AND SUPERSPECIALTY COURSES ADMISSIONS:
Schedule of admission Postgraduate Courses Super-specialty Courses All India Quota State Quota Conduct of entrance examination 02nd Sunday of Jan. Mid-Jan to Mid-
Mid-Feb.
May-June
Declaration of result of qualifying exam
3rd week of Feb. By28th Feb.
By 30th June
1st round of counselling/admission
5th March to To be over by
22nd March 25th April
To be over by 25th July
Last date for joining the allotted college and course
7th April 1st May
31st July
2nd round of counselling or allotment of seats from waiting list
No 2nd Counselling No 2nd
Counselling
No 2nd counselling
Laste date for joining for candidates allotted seats in 2nd round of counselling or from the waiting list After 7th April Not applicable vacant seats will stand surrendered back to the State/Colleges Not applicable Commencement of academic session 2nd May 1st August Last date upto which students can be admitted against vacancies arising due to any reason 31st May 30th September
32. Having regard to the professional courses into consideration, it deserves to be emphasized that all concerned including Governments, State and Central both, MCI/DCI, colleges, new or old, students, Boards, universities, examining authorities etc. are required to strictly adhere to time schedule wherever provided for; there should not be mid-stream admission; admission should not be in excess of sanctioned intake capacity or in excess of quota of any one, whether Stare or Management. The carrying forward of any unfilled seats of one academic year to next academic year is also not permissible
35. Having regard to the aforesaid, we issue the following directions:-
1. All participating States and Union Territories, Board of Secondary Education shall declare 10 + 2 result by 10th June of every year and make available the marksheet to the students by 15th June.
The aforesaid condition would not apply to West Bengal for the year 2005. As already noticed, the West Bengal would make available to the concerned students the marksheets by 15th June, 2005 Heads of Boards would be personally liable to ensure compliance.
2. The time table mentioned in Notification dated 25th February, 2004 shall be strictly adhered to by all concerned including States and Union Territories and results of State Medical/Dental Entrance Examination shall be declared before 15th of June.
3. The States/Union Territories shall complete the admission process of first round of State Level Medical/Dental College admission by 25th July i.e. a week before start of second round counseling or allotment of seats under All India Quota. The correct vacancy position shall be intimated by the Chief Secretary to the DGHS by 26th July. It shall be verified by the Head of the Institution/or Head of the Medical Institution/Health Department in the State.
4. It shall be the responsibility of all concerned including Chief Secretaries of each State/Union Territories and/or Health Secretaries to ensure compliance of the directions of this Court and requisite time schedule as laid down in the Regulations and non-compliance would make them liable for requisite penal consequences.
5. All seats in All India Quota must be fully disclosed giving details of the date of recognition/renewal to DGHS before a date to be notified by DGHS and the same shall be duly published.
6. By 31st October, the State through Chief Secretaries/Health Secretaries shall file a report in regard to admissions with the DGHS giving details about the adherence to a time schedule and admission granted as per the prescribed quota. The recalcitrant States, particularly officers personally will have to face consequences for violation.
7. The DGHS shall file by 31st January, 2005 report in regard to feasibility of conducting counseling through the process of video conferencing.
8. The DGHS shall file report within three months on the aspect of Section 10 A seats being subjected to 15 per cent All India Quota and about the increase of the quota from 15 per cent to 20 per cent.
9. The DGHS shall also file a report within three months on the aspect of constitution of high-power Committee/Ombudsman.
10. The seats allotted upto 15th July, shall also be subjected to respective State Quotas.
11. If any private medical college in a given academic year for any reason grants admission in its management quota in excess of its prescribed quota, the management quota for the next academic year shall stand reduced so as to set off the effect of excess admission in the management quota in the previous academic year.
12. The time schedule for grant of admission to postgraduate courses shall also be adhered to.
13. For granting admission, the merit determined by competitive examination shall not be tinkered with by making a provision like grant of marks by mode of interview or any other mode.
14. Time schedule for establishment of new college or to increase intake in existing college, shall be adhered to strictly by all concerned.
15. Time schedule provided in Regulations shall be strictly adhered to by all concerned failing which defaulting party would be liable to be personally proceeded with.
16. Copy of the judgment shall be sent to Chief Secretaries of all States/Union Territories for compliance.
The perusal of paras quoted above reveals not only emphasis for adherence of the schedule for admission given by the Government of India followed by Notification dated 25th February, 2004 issued by the MCI under Section 33 of the Act of 1956 but also the manner. It should be merit based. In the instant case, the respondents evolved there own method to determine the merit, which is otherwise not provided under the Rules. The merit list of All India Pre-PG Examination conducted by the official respondents is not applied to the State Quota so as the marks of qualifying examination and Mahatma Gandhi University had not conducted All India Pre-PG Examination, thus there is a gross violation of the procedure in making admission in PG Course. The issue aforesaid has again been considered by the Hon'ble Apex Court in the case of Priya Gupta Vs. State of Chhattisgarh & Ors. reported in AIR 2012 SC 2413. Relevant paras of the said judgment are also quoted hereunder for ready reference :
23. Lastly, in the case of Priyadarshini Dental College & Hospital v. Union of India & Ors. [(2011) 4 SCC 623], this Court cautioned all concerned that the schedule specified in Mridul Dhar (supra) should be maintained and regulations should be strictly followed. The Court suggested that the process of inspection of colleges, grant of permission or renewal of permission should also be done well in advance to allow time for setting right the deficiencies pointed out.
24. In the case of State of Bihar & Ors. v. Dr. Sanjay Kumar Sinha & Ors. [(1990) 4 SCC 624], a Bench of this Court took exception to the non-adherence to the time schedules and reiterated that the admissions to medical colleges and post-graduate courses were governed by the orders of this Court and the regulations issued by the Medical Council of India, which must be strictly followed. This Court issued a warning, that if there was any violation in future, the same shall be treated as default and viewed very seriously. Further, in the case of Medical Council of India v. Madhu Singh & Ors. [(2002) 7 SCC 258], this Court declared two very important principles. Firstly, it declared that mid-stream admissions should not be permitted and secondly, noticing the practice of compassion in review of such admissions, this Court also held that late or mid-stream admission, even just four months after beginning of the classes, cannot be permitted.
25. A consistent and clear view held by this Court is that the regulations framed by the MCI are binding and these standards cannot be deviated from. Reference can be made to State of M.P. & Ors. v. Gopal D. Tirthani & Ors. [(2003) 7 SCC 83 paras 24 and 26]; Bharati Vidyapeeth (Deemed University) & Ors. v. State of Maharashtra & Anr. [(2004) 11 SCC 755 para 20]; Chowdhury Navin Hemabhai & Ors. v. State of Gujarat & Ors. [(2011) 3 SCC 617 paras 7, 11, 12, 14 and 18] and Harish Verma & Ors. v. Ajay Srivastava & Ors. [(2003) 8 SCC 69 paras 14 to 21].
26. What is of greater significance is that this Court has not so far considered or stated as a principle, what consequences should follow where the Central Government, or the State Government or Medical Council of India or the College itself, with impunity, violate the time schedule, regulations and order of merit to give admission to students in an arbitrary and nepotistic manner. Also, we must consider what preventive steps can be taken to avoid such repetitive and intentional defaults, as well as undue exploitation of the class of students. Admissions based on favouritism necessarily breach the rule of merit on the one hand, while on the other, they create frustration in the minds of the students who have attained higher rank in the competitive entrance examinations, but have not been admitted. We propose to specifically address this concern in this judgment. From the above discussion and reference to various judgments of this Court, it is clear that adherence to the principle of merit, compliance with the prescribed schedule, refraining from mid-stream admissions and adoption of an admission process that is transparent, non- exploitative and fair are mandatory requirements of the entire scheme.
27. Now, let us examine the adverse consequences of non-adherence to the prescribed schedules. The schedules prescribed have the force of law, in as much as they form part of the judgments of this Court, which are the declared law of the land in terms of Article 141 of the Constitution of India and form part of the regulations of the Medical Council of India, which also have the force of law and are binding on all concerned. It is difficult to comprehend that any authority can have the discretion to alter these schedules to suit a given situation, whether such authority is the Medical Council of India, the Government of India, State Government, University or the selection bodies constituted at the college level for allotment of seats by way of counseling. We have no hesitation in clearly declaring that none of these authorities are vested with the power of relaxing, varying or disturbing the time schedule, or the procedures of admission, as provided in the judgments of this Court and the Medical Council of India Regulations. Inter alia, the disadvantages are:-
1) Delay and unauthorized extension of schedules defeat the principle of admission on merit, especially in relation to preferential choice of colleges and courses. Magnanimity in this respect, by condoning delayed admission, need not be shown by the Courts as it would clearly be at the cost of more meritorious students. The principle of merit cannot be so blatantly compromised. This was also affirmed by this Court in the case of Muskan Dogra & Ors. v. State of Punjab & Ors. [(2005) 9 SCC 186].
2) Mid-stream admissions are being permitted under the garb of extended counseling or by extension of periods for admission which, again, is impermissible.
3) The delay in adherence to the schedule, delay in the commencement of courses etc., encourage lowering of the standards of education in the Medical/Dental Colleges by shortening the duration of the academic courses and promoting the chances of arbitrary and less meritorious admissions.
4) Inequities are created which are prejudicial to the interests of the students and the colleges and more importantly, affect the maintenance of prescribed standard of education. These inequities arise because the candidates secure admission, with or without active connivance, by the manipulation and arbitrary handling of the prescribed schedules, at the cost of more meritorious candidates. When admissions are challenged, these students would run the risk of losing their seats though they may have completed their course while litigation was pending in the court of competent jurisdiction.
5) The highly competitive standards for admission to such colleges stand frustrated because of non-adherence to the prescribed time schedules. The admissions are stretched to the last date and then admissions are arbitrarily given by adopting impermissible practices.
6) Timely non-inclusion of the recognised/approved colleges and seats deprives the students of their right of fair choice of college/course, on the strength of their merit.
7) Preference should be to fill up all vacant seats, but under the garb that seats should not go waste, it would be impermissible to give admissions in an arbitrary manner and without recourse to the prescribed rule of merit.
30. Thus, the need of the hour is that binding dicta be prescribed and statutory regulations be enforced, so that all concerned are mandatorily required to implement the time schedule in its true spirit and substance. It is difficult and not even advisable to keep some windows open to meet a particular situation of exception, as it may pose impediments to the smooth implementation of laws and defeat the very object of the scheme. These schedules have been prescribed upon serious consideration by all concerned. They are to be applied stricto sensu and cannot be moulded to suit the convenience of some economic or other interest of any institution, especially, in a manner that is bound to result in compromise of the above- stated principles. Keeping in view the contemptuous conduct of the relevant stakeholders, their cannonade on the rule of merit compels us to state, with precision and esemplastically, the action that is necessary to ameliorate the process of selection. Thus, we issue the following directions in rem for their strict compliance, without demur and default, by all concerned.
i) The commencement of new courses or increases in seats of existing courses of MBBS/BDS are to be approved/recognised by the Government of India by 15th July of each calendar year for the relevant academic sessions of that year.
ii) The Medical Council of India shall, immediately thereafter, issue appropriate directions and ensure the implementation and commencement of admission process within one week thereafter.
iii) After 15th July of each year, neither the Union of India nor the Medical or Dental Council of India shall issue any recognition or approval for the current academic year. If any such approval is granted after 15th July of any year, it shall only be operative for the next academic year and not in the current academic year. Once the sanction/approval is granted on or before 15th July of the relevant year, the name of that college and all seats shall be included in both the first and the second counseling, in accordance with the Rules.
iv) Any medical or dental college, or seats thereof, to which the recognition/approval is issued subsequent to 15th July of the respective year shall not be included in the counseling to be conducted by the concerned authority and that college would have no right to make admissions in the current academic year against such seats.
v) 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.
vi) All admissions through any of the stated selection processes have to be effected only after due publicity and in consonance with the directions issued by this Court. We vehemently deprecate the practice of giving admissions on 30th September of the academic year. In fact, that is the date by which, in exceptional circumstances, a candidate duly selected as per the prescribed selection process is to join the academic course of MBBS/BDS. Under the directions of this Court, second counseling should be the final counseling, as this Court has already held in the case of Ms. Neelu Arora & Anr. v. UOI & Ors. [(2003) 3 SCC 366] and third counseling is not contemplated or permitted under the entire process of selection/grant of admission to these professional courses.
vii) If any seats remain vacant or are surrendered from All India Quota, they should positively be allotted and admission granted strictly as per the merit by 15th September of the relevant year and not by holding an extended counseling. The remaining time will be limited to the filling up of the vacant seats resulting from exceptional circumstances or surrender of seats. All candidates should join the academic courses by 30th September of the academic year.
viii) No college may grant admissions without duly advertising the vacancies available and by publicizing the same through the internet, newspaper, on the notice board of the respective feeder schools and colleges, etc. Every effort has to be made by all concerned to ensure that the admissions are given on merit and after due publicity and not in a manner which is ex-facie arbitrary and casts the shadow of favouritism.
ix) The admissions to all government colleges have to be on merit obtained in the entrance examination conducted by the nominated authority, while in the case of private colleges, the colleges should choose their option by 30th April of the relevant year, as to whether they wish to grant admission on the basis of the merit obtained in the test conducted by the nominated State authority or they wish to follow the merit list/rank obtained by the candidates in the competitive examination collectively held by the nominated agency for the private colleges. The option exercised by 30th April shall not be subject to change. This choice should also be given by the colleges which are anticipating grant of recognition, in compliance with the date specified in these directions.
31. All these directions shall be complied with by all concerned, including Union of India, Medical Council of India, Dental Council of India, State Governments, Universities and medical and dental colleges and the management of the respective universities or dental and medical colleges. Any default in compliance with these conditions or attempt to overreach these directions shall, without fail, invite the following consequences and penal actions:-
a) Every body, officer or authority who disobeys or avoids or fails to strictly comply with these directions stricto sensu shall be liable for action under the provisions of the Contempt of Courts Act. Liberty is granted to any interested party to take out the contempt proceedings before the High Court having jurisdiction over such Institution/State, etc.
b) The person, member or authority found responsible for any violation shall be departmentally proceeded against and punished in accordance with the Rules. We make it clear that violation of these directions or overreaching them by any process shall tantamount to indiscipline, insubordination, misconduct and being unworthy of becoming a public servant.
c) Such defaulting authority, member or body shall also be liable for action by and personal liability to third parties who might have suffered losses as a result of such default.
d) There shall be due channelization of selection and admission process with full cooperation and coordination between the Government of India, State Government, Universities, Medical Council of India or Dental Council of India and the colleges concerned. They shall act in tandem and strictly as per the prescribed schedule. In other words, there should be complete harmonisation with a view to form a uniform pattern for concerted action, according to the framed scheme, schedule for admission and regulations framed in this behalf.
e) The college which grants admission for the current academic year, where its recognition/approval is granted subsequent to 15th July of the current academic year, shall be liable for withdrawal of recognition/approval on this ground, in addition to being liable to indemnify such students who are denied admission or who are wrongfully given admission in the college.
f) Upon the expiry of one week after holding of the second counseling, the unfilled seats from all quotas shall be deemed to have been surrendered in favour of the respective States and shall be filled thereafter strictly on the basis of merit obtained in the competitive entrance test.
g) It shall be mandatory on the part of each college and University to inform the State and the Central Government/competent authority of the seats which are lying vacant after each counseling and they shall furnish the complete details, list of seats filled and vacant in the respective states, immediately after each counseling.
h) No college shall fill up its seats in any other manner.
The perusal of the paras, quoted above, reveals that all the issues relevant to this matter have been considered therein, though it was a case of admission in MBBS Course but in Sub-para No.12 of Para No.35, it has been applied even for PG Course. The detailed directions were given to apply Schedule and the method of admission for PG course, which exists in sub-para 12, 13, 14 of para No.35 in the case of Mridul Dhar (supra). It is further relevant to refer that in the case aforesaid, the admission in MBBS Course was cancelled and writ petition to challenge it was also dismissed by the High Court. The judgment of the High Court has been interfered by the Hon'ble Apex Court but it by invoking Article 142 of the Constitution of India. The directions were given favourable to the candidates but it was made clear that aforesaid should not be considered to be precedents, thus the Court was clearly of the view that violation of directions of Hon'ble Apex Court and the Notification of MCI cannot be accepted. It is also relevant to mention that the Government of India issued order dated 14th May, 2003 followed by Notification issued by MCI dated 25th February, 2004 in reference to the judgment of Hon'ble Apex Court in the case of Madhu Singh (supra) wherein specific directions were given for the aforesaid purpose. Para Nos.22 and 23 of the said judgment are referred and are quoted hereunder for ready reference:
22. It is to be noted that if any student is admitted after commencement of the course it would be against the intended objects of fixing a time schedule. In fact, as the factual positions go to show, the inevitable result is increase in the number of seats for the next session to accommodate the students who are admitted after commencement of the course for the relevant session. Though, it was pleaded by learned counsel for respondent No.1 that with the object of preventing loss of national exchequer such admissions should be permitted, we are of the view that same cannot be a ground to permit mid- stream admissions which would be against the spirit of governing statutes. His suggestion that extra classes can be taken is also not acceptable. The time schedule is fixed by taking into consideration the capacity of the student to study and the appropriate spacing of classes. The students also need rest and the continuous taking of classes with the object of fulfilling requisite number of days would be harmful to be students' physical and metal capacity to study. In fact such a suggestion was held to be grossly inappropriate in Dr. Dinesh Kumar's case (supra). In paragraph 15, it was observed as under:
"The next question is as to when should the examination be held. Learned counsel for the Union of India as also the Indian Medical Council suggested that it could be done in October this year so that the candidates selected at the entrance examination could join the 1987-88 session from November. In most of the colleges, admission in respect of 85 per cent seats has been completed and actual teaching has either begun or is about to begin. By November a substantial part of the course would have been read. To meet the situation, learned counsel for the Union of India suggested that we should direct the colleges and institutions to have a supplementary course for the students admitted against the 15 per cent vacancies. In the absence of consent from the institutions, it would be difficult to work out that. As it is, there exists a lot of confusion in the field and we do not propose to add to it by giving a direction of the type proposed. On the other hand it would be appropriate to bring the scheme into operation from the coming year so that all the preliminaries can be properly conducted and in regular course the students can seek admission to the 1988-89 session. We accordingly direct the authorities to hold the examination in the manner directed, in June (sic May) 1988. The Union of India, the Medical Council the Dental Council, the several States, Universities and Medical Colleges or institutions who are covered by the scheme are directed to comply with these orders in time so as to give full effect to what has been said here.
23.There is, however, a necessity for specifically providing the time schedule for the course and fixing the period during which admissions can take place, making it clear that no admission can be granted after the scheduled date, which essentially should be the date for commencement of the course.
In conclusion:
(i) there is no scope for admitting students mid-stream as that would be against very spirit of statutes governing the medical education;
(ii) even if, seats are unfilled that cannot be a ground for making mid session admissions;
(iii) there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year;
(iv) the MCI shall ensure that the examining bodies fix a time schedule specifying the duration of this course, the date of commencement of the course and the last date for admission;
(v) different modalities for admission can be worked out and necessary steps like holding of examination if prescribed, counseling and the like have to be completed within the specified time;
(vi) no variation of the schedule so far as admissions are concerned shall be allowed;
(vii) in case of any deviation by the concerned institution, action as prescribed shall be taken by the MCI.
The perusal of the paras quoted above gives clear verdict of the Hon'ble Apex Court on the issue raised herein but in reference to the aforesaid, the present writ petition needs to be considered.
The first question for my consideration is as to whether respondent-Mahatma Gandhi University was authorized to issue advertisement on 27th May, 2011 for admission in P.G. Course in violation of schedule given by the Hon'ble Apex Court in the case of Mridul Dhar (supra) and the order of Government of India dated 14.05.2003 apart from MCI Notification dated 25th February, 2004. The respondent No.5, the Rajasthan University of Health Sciences so as the learned counsel for MCI have referred to the schedule for admission to PG Medical and Dental Courses. As per schedule, entrance test for PG Course has to be conducted in the mid of January to mid of February for the state quota. For All India Quota, it is 02nd Sunday of January. The declaration of result of entrance test is to be on 28th February for state quota, whereas, 03rd February for All India Quota followed by first round of counselling, to be conducted by 25th April for state quota and 22nd March for All India Quota. The last date for joining the course is 01st May for state quota and 07th April for All India Quota. The second round of counselling is not provided, however, it is provided that if seats of All India Quota are not filled by 07th April, then vacant seats will go to the State/Colleges and thereby, to be included in first round of State Quota counselling to be ended by 25th April. The commencement of the academic session is 02nd May. 31st May is given as last date by which students can be admitted to the vacancies arising out of any reason. The schedule, thus reveals not only the dates for entrance test and declaration of result but the date of counselling and commencement of academic session, which is 02nd May for PG Courses. The respondent Mahatma Gandhi University, had taken care of 31st May to be the last date for grant of admission in ignorance of the schedule for entrance test and counselling and as to when admission can be given by 31st May. The advertisement for admission was given on 27th May. It was beyond the scheduled date of the entrance test and even declaration of result. It is apart from the date of counselling, which expired much prior to 27th May, 2011. In fact, academic session has to start on 02nd May, thus even date aforesaid expired much prior to the entrance test said to have been conducted by the respondents in pursuance to the advertisement dated 27th May, 2011. The mode of admission given therein is important thus the advertisement dated 27th May, 2011 is quoted hereunder for ready reference:
(1) Admission on these and upto 50% seats will be given on the basis of institutional preference and constitutional reservation (for SC/ST/OBC/SBC).
(2) The inter se merit may be assessed on the basis of common all India entrance test i.e. on the basis of merit of All India Pre PG examination or on the basis of marks at the level of qualifying examination as prescribed by MCI/DCI guidelines.
The advertisement aforesaid shows different manner of admission. The admission have to be given as per the schedule and manner prescribed by MCI/Government of India and referred by the Hon'ble Apex Court in its judgment. The respondent Mahatma Gandhi University/College took a decision not to fill the seats from entrance test conducted by the Rajasthan University of Health Sciences, though they themselves admitted the last date for commencement of PG Course to be 01st May, 2011. The letter written by the Mahatma Gandhi University, Jaipur on 08th April 2011 has been enclosed by the respondent Nos. 1 and 2 along with their reply and relevant part of the said letter is quoted hereunder for ready reference:
However, if due to any unforeseen reasons, our approval of establishment of proposed Mahatma Gandhi University of Medical Sciences and Technology, Jaipur is delayed beyond 30th April, 2011 i.e. before the commencement of PG Courses on 01st May, 2011, we will intimate your good self accordingly to include our name in the second counselling of PG students conducted at your level.
The perusal of letter written by the Mahatma Gandhi Medical College , Jaipur reveals that they had no intension to give admission pursuant to counselling conducted by Rajasthan University of Health Sciences as there is no date for counseling after 30th April however, they admitted commencement of PG Course since 01st May, 2011. The arguments are, thus, contrary to their own admission. On 27th May, 2011, they issued advertisement but it does not specify the date of entrance test and result apart from the date of counselling. If the advertisement at Annex.7 issued by Mahatma Gandhi University is compared with the advertisement at Annex.3, it would reveal difference. The advertisement at Annex.7 is quite unspecific regarding last date to submit application form and date of entrance test. The date for declaration of result of test and counselling is not given, yet respondents filled all the seats by 31st May, 2011, i.e., within four days from the date of issuance of advertisement. The advertisement rather gives different mode of admission and is contrary to the Regulations. The outcome of the aforesaid is nothing but denying admission to the meritorious candidates, who appeared in the entrance test held by the Rajasthan University of Health Sciences. They have right to seek admission against 50% seats meant for state quota as per Clause 9 of the MCI Regulations of 2009, which is quoted hereunder for ready reference and to show that how the seats have to be filled:-
Clause 9 under the heading Selection of Post Graduate Students, shall be substituted as under:-
(1)(a) Students for Post Graduate medical courses shall be selected strictly on the basis of their Inter-se Academic Merit.
(b) 50% of the seats in Post Graduate Diploma Courses shall be reserved for Medical Officers in the Government service, who have served for at least three years in remote and difficult areas. After acquiring the PG Diploma, the Medical Officers shall serve for two more years in remote and/or difficult areas.
(2) For determining the 'Academic Merit', the University/Institution may adopt the following methodology:-
(a) On the basis of merit as determined by a 'Competitive Test' conducted by the State Government or by the competent authority appointed by the State Government or by the University/group of Universities in the same State; or
(b) On the basis of merit as determined by a centralized competitive test held at the national level; or
(c) On the basis of individual cumulative performance at the first, second and third MBBS examinations provided admissions are University wise;
Or
(d) Combination of(a) and (c):
Provided that wherever 'Entrance Test' for postgraduates admission is held by a State Government or a University or any other authorized examining body, the minimum percentage of marks for eligibility for admission to postgraduate medical course shall be 50 per cent for general category candidates and 40 per cent for the candidates belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes :
Provided further that in Non-governmental institutions fifty percent of the total seats shall be filled by the Competent Authority notified by the State Government and the remaining fifty per cent by the management(s) of the institution on the basis of Inter-se Academic Merit.
The perusal of the para quoted above reveals that 50 percent of the total seats is to be filled by state authority and 50 percent by management of the institution on the basis of Academic Merit. The respondent Nos.9 and 11 have violated the aforesaid Regulation for filling seats of state quota in PG Medical Courses. The seats of state quota has been filled by them in violation of MCI Regulations so as the order of Government of India as well as judgment of Hon'ble Apex Court. This is moreso when the respondents were knowing it well as to how and when the seats have to be filled. Therefore only, an advertisement was earlier issued on 07.01.2011 by the Mahatma Gandhi Medical College & Hospital to fill management quota seats. It is not clarified that as to why they did not wait for establishment of University for filling up management quota seats also. The legal position is otherwise clear and MCI Regulations are statutory in nature and otherwise, admission is to be given as per the scheduled.
The scheduled dates for admission has been reiterated by the Hon'ble Apex Court in the case of Mridul Dhar (supra).
The respondent Mahatma Gandhi University did not make admission as per the procedure and schedule. The aforesaid is violated by them. The direction to maintain schedule and consequence of violation is given by the Apex Court in the case of Priya Gupta (supra). The judgment referred to above is having reference of the earlier judgments and directions have been given to maintain schedule and consequences of violation thereof. The facts of this case not only show violation of schedule for admission but no material exist to show as to when entrance test was conducted followed by counselling on declaration of result. The University is not justified to violate the schedule based on issuance of letter of intent unless it is established on or before the crucial date to start the process of entrance test. The Mahatma Gandhi Medical College & Hospital, in their letter dated 08th April, 2011, admitted the date of commencement of the course. Para No.6 of the reply filed by respondent Nos.9 to 10 is also quoted hereunder to show contentions for holding entrance test for admission, though the advertisement dated 27th May, 2011 does not speak about the date of test, rather gives different mode, as it is even based on marks at the level of qualifying examination, thus there is variance in pleadings and the documents.
6.That the contents of Para No.6 of the writ petition clearly show the ignorance of the petitioners and the bald allegations against the humble answering respondents without verifying. It is submitted that making bald allegations of giving admission in clandestine manner is clearly uncalled and without any basis. It is submitted that admission in Pre PG Examination were conducted by conducting entrance examination wherein several applications were received and examination was carried out and the admissions were made purely on merit basis as per the result of the examination. Admittedly, the petitioners did not participate in examination conducted by the Mahatma Gandhi University for Medical Sciences and Technology for PG being done in their University for which advertisement was issued on 27/05/2011 and now the petitioners are estopped from challenging the admissions which have been made under the advertisement.
The matter has one more aspect. The advertisement for admission was issued on 27th May, 2011, beyond scheduled dates for entrance test and date for declaration of result and counselling. The admissions were given within a period of four days from the date of advertisement without indicating the date of entrance test, declaration of result and the counselling. The way, admission has been given, speak volumes above it and in the light of the aforesaid, allegations for admission to relatives of high-ups cannot be ignored so as the default of the Mahatma Gandhi University.
An argument has been raised by learned counsel Mr.Angad Mirdha, appearing for the MCI, that Mahatma Gandhi University was not authorized to give admission in absence of recognition for Post Graduate Medical Courses. The recognition of University is required, which does not exist. In view of above, even if PG Medical Course is undertaken by the students through Mahatma Gandhi Medical College & Hospital, their qualification may not be recognized by the MCI. Learned counsel for the respondent Nos.9 and 11 has raised serious objection to the aforesaid as no pleading exists in the reply filed by the MCI. The aforesaid argument is taken into consideration by the Court and I find that first issue for consideration is as to whether admission in the PG Medical Course is given in accordance with the law or not. The issue of recognition of qualification is other issue, which can be dealt with by the MCI as and when it comes to them. The issue can be determined in the light of the amended Regulations of 2009. Thereby, I leave aforesaid issue open for MCI to decide it at the appropriate stage at their own.
The Clause 9 of the MCI Regulations provides method of admission. It has to be based on Academic Merit. The respondent Mahatma Gandhi University had not ad-here to the procedure of admission, though averment exists for holding of entrance test but advertisement does not give last date for submission of form, date of examination and result and the date of counselling.
The case in hand does not show compliance of the directions aforesaid. Even if the issue and the allegations for giving admission to the wards of few influential persons is ignored, then also, the Court cannot ignore the method of admission adopted by the Mahatma Gandhi University. It is in utter violation of Regulations and the directions of the Hon'ble Supreme Court. If any admission is not made based on merit of entrance test, then permitting the University to continue the studies of such students would be nothing but to endorse the illegality committed by them. It is not only violation of directions of Hon'ble Supreme Court and the order of the Government of India apart from MCI Notification dated 25th February, 2004 giving out the schedule for holding entrance test and the procedure for admission but even violation of Regulations providing method of admission. It is worthy to observe that a student of PG Course would be administering medical studies in specialized field. If such a candidate has been given admission in PG Course in violation of the procedure provided by the MCI, then it is nothing but to sacrifice not only the merit but command of MCI, which is authorised to provide method of admission in medical courses to maintain its standard.
It is a case where blunted violation of the procedure for admission to the speciality course of PG in medical sciences has been made apart from violation of schedule given by the Government of India, MCI and the Apex Court.
In view of discussion made above, the instant petition is to be governed by the decision of Government dated 14th May, 2003 and has been referred by the Hon'ble Apex Court in the case of Mridul Dhar (supra). The government decision dated 14th May, 2003 was passed in pursuance to the judgment of Hon'ble Apex Court in the case of Madhu Singh (supra). Para No.8.4 of the government decision dated 14th May, 2003, referred in para No. 10 of the judgment in the case of Mridul Dhar (supra) is quoted again hereunder for ready reference:
10.The directive dated 14th May, 2003 also stipulates the cancellation of admission granted after the last date of closure of admission and warns the candidates of the consequences of taking admission after the last date for closure of admissions. Paragraphs 8.4 and 8.5 of the directive read as under:
8.4 In exercise of the powers conferred by the Hon'ble Supreme Court, the Medical Council of India or the Dental Council of India may direct that any student identified as having obtained admission after the last date for closure of admission be discharged from the course of study; or any medical or dental qualification granted to such a student shall not be a recognized qualification for the purpose of the Indian Medical Council Act, 1956 or the Dentist Act, 1948, as the case may be. The Institution which grants admission to any student after the last date prescribed for the same shall also be liable to face such action as may be prescribed by MCI or DCI.
The direction referred above should govern the present case, inasmuch as, any admission in violation of schedule prescribed by the Government of India, MCI and in violation of procedure for admission is to be governed by the para quoted above.
I find that directions of the Government of India dated 14th May, 2003, as referred by the Hon'ble Apex Court, stipulates discharge of students from the course of study and not to recognize their qualification under the Act of 1956. The Medical Council of India is thus directed to take action in compliance of para No.8.4 of the order of the Government of India, quoted above, for those admissions, which were granted in pursuance to the advertisement dated 27th May, 2011. They will accordingly take up the matter even against the respondent Nos.9 to 11 for violation of order of the Government of India, Notification of the MCI and the judgment of Hon'ble Apex Court. The MCI is directed to take action as per law within a period of three months from today and compliance report be placed before this Court thereupon. The Medical Council of India will not involve any person interested in this case for compliance of the order otherwise serious view would be taken against none-else but the Medical Council of India. An inaction on the part of the MCI can attract contempt proceedings against the defaulting officers as directed by the Hon'ble Apex Court in the case of Mridul Dhar (supra).
The admissions given by the respondent Nos.9 to 11 in pursuance to the advertisement dated 27th May, 2011 are in violation of the schedule and procedure referred by the Hon'ble Apex Court in the case of Mridul Dhar (supra) thus they are directed to deposit the entire fee collected from those students with the Medical and Health Department, State of Rajasthan within a period of six weeks from today to be used for advancement of studies in medical sciences.
So far as petitioners are concerned, admission in PG Course for the year concerned cannot be allowed in their favour now at this stage but, as directed by the Hon'ble Apex Court, they are required to be indemnified. The respondent Nos. 9 to 11 are directed to pay the cost of litigation to petitioners which is quantified at Rs.10,000/- .
With the aforesaid, the writ petition stands allowed with the cost of Rs.10,000/-. This disposes of the stay application as well.
To see compliance of the directions given above, list this case on 31st July, 2014.
(M.N. BHANDARI), J.
Preeti, P.A. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Preeti Asopa P.A.-cum-J.W