Karnataka High Court
A.M.E"S Dental College And Hospital And ... vs State Of Karnataka & Ors on 2 September, 2014
Bench: N.Ananda, S.N.Satyanarayana
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IN THE HIGH COURT OF KARNATAKA
GULBARGA BENCH
DATED THIS THE 2ND DAY OF SEPTEMBER, 2014
PRESENT
THE HON'BLE MR.JUSTICE N.ANANDA
AND
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
WRIT PETITION NOS.203221/2014 &
203289-309/2014 (EDN-AD)
BETWEEN
1. A.M.E'S DENTAL COLLEGE AND HOSPITAL
RAICHUR BIJANAGERE ROAD
RAICHUR - 584 103
REPRESENTED BY ITS PRINCIPAL
DR. T.R. GURURAJ RAO
S/O T.V. RAMACHANDRA RAO
AGED: 64 YEARS.
2. SRUTHY SURESH
D/O K.B. SURESH KUMAR
AGED: 18 YEARS.
3. SREEKANT C.S.
S/O SREE KUMAR C.N.
AGED: 19 YEARS.
4. SHIVA PRIYA
D/O AMARESH KATKAM
AGED: 18 YEARS.
5. SANKEPALLY NITISH
S/O S. GNANEDER REDDY
AGED: 19 YEARS.
6. GOTURU MUHURTHA
S/O G. MAHADEV REDDY
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AGED: 18 YEARS.
7. VULAVA BEETI KAYYA SREE
D/O V. JAGANMOHAN REDDY
AGED: 20 YEARS.
8. KOTHALA ANUSHA
D/O K. SATHYA REDDY
AGED: 22 YEARS.
9. CHITTARI ANUSHA VARMA
D/O C. CHANDRASEKHAR VARMA
AGED: 21 YEARS.
10. K. SUNIL JOSHUA
S/O K. YESURATHNAM
AGED 20 YEARS.
11. ABBASAHEEB GARI KHANITHA
D/O A CHAND BASHA
AGED: 19 YEARS.
12. M.V. RAMYA MURTHY
D/O M. SREENIVASALU
AGED: 19 YEARS.
13. SYADA ARIFA ANJUM
D/O SYED MUKHTAR BASHA
AGED: 18 YEARS.
14. SYED KHURRAM PASHA
S/O SYEDABIB HUSSAIN
AGED: 19 YEARS.
15. HANAN NAZEER AHMED KHAN
S/O AHMED NAZEEMULLAH
AGED: 19 YEARS.
16. KOTA SNEHITHA
D/O KOTESHWARA RAO
AGED: 18 YEARS.
17. KAMIREDDY LAKSHMI PRANAYA
D/O K.T. ESHWARA REDDY
AGED: 18 YEARS.
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18. PURANAPU VV PARAMESHWARACHARI
S/O P. BHASKAR
AGED: 19 YEARS.
19. CHILKURI KUMAR SWAMY BABAJI
S/O C.H. SRINIVAS
AGED: 20 YEARS.
20. MANGADUDDI NEERAJA
D/O M. ANJANEYULU
AGED: 18 YEARS.
21. PITA BHAVANA
D/O DR.P. SATHYAM
AGED: 19 YEARS.
22. PANUGANTI SHRUTHI
D/O P. YADAGIRI
AGED: 19 YEARS.
... PETITIONERS
(BY SRI. P.S. MALIPATIL AND
SRI. ABHISHEK MALIPATIL, ADVOCATES)
AND
1. STATE OF KARNATAKA
DEPARTMENT OF MEDICAL EDUCATION;
MINISTRY OF HEALTH AND FAMILY WELFARE
VIKASA SOUDHA,
BANGALORE - 560 001
REPRESENTED BY ITS SECRETARY.
2. RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES
4TH 'T' BLOCK, JAYANAGAR
BANGALROE - 560 001.
REPRESENTED BY ITS REGISTRAR.
3. THE DENTAL COUNCIL OF INDIA
IWAN-E-GALIB MARG, KOTLA ROAD,
NEW DELHI - 110 002
REP. BY ITS SECRETARY.
... RESPONDENTS
(BY SRI. SHIVAKUMAR TENGLI, AGA FOR R1
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SRI. R.V. NADAGOUDA, ADVOCATE, FOR R2)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTON OF INDIA, PRAYING TO ISSUE A
WRIT IN THE NATURE OF CERTIORARI, OR SUCH OTHER WRIT IN
THE NATURE OF CERTIORARI, SUCH OTHER WRIT, ORDER OR
DIRECTION, QUASHING THE IMPUGNED COMMUNICATION DATED
10.06.2014 NUMBERED AS NO.AC2/ADM/MIS-35/2013-14, ISSUED
BY THE 2ND RESPONDENT VIDE ANNEXURE-A AND ETC.
THESE WRIT PETITIONS ARE COMING ON FOR ORDERS THIS
DAY, N.ANANDA J. MADE THE FOLLOWING:-
ORDER
Petitioner Nos.2 to 22 were admitted in the first petitioner/college namely A.M.E's Dental College and Hospital, Raichur and the first petitioner had sought for approval from Rajiv Gandhi University of Health Sciences (second respondent herein).
2. The second respondent vide letter dated 10.06.2014 communicated to first petitioner/college as per Annexure-A, that the admission of petitioner Nos.2 to 22 for 1st year BDS course for the academic year 2013-2014 cannot be approved for the following reasons:
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1. Petitioner Nos.2 to 22 have not appeared/not qualified in the Entrance Test conducted by Government of India, State Government or its authorized agencies.
2. For admission to BDS course, it is mandatory for a student to appear and qualify in any of the Entrance Test as per DCI/RGUHS regulations.
3. The second respondent following the directions of Supreme Court in the case of Priya Gupta Vs. State of Chhatisgarh and Ranjan Purohit Vs. Rajasthan University of Health Sciences reported in (2012 (5) Scale 328) and (2012 (11) SCR 299) respectively, held that the admission of petitioner Nos.2 to 22 cannot be considered for approval accordingly, communicated to the dean of the first petitioner/ college.
Therefore, the first petitioner/college and students are before this Court.
4. We have heard learned counsel for petitioners and learned counsel for respondent Nos.1 and 2.
5. The learned counsel for petitioners referring to consensual agreement dated-Nil would submit that in relation to 6 seats which are unfilled, the Management has power to admit the students.
The learned counsel for petitioners has referred to the note to the consensual agreement which reads as hereunder:
"Note: In so far as admissions to Undergraduate Courses in Dental Sciences (BDS Course); it has been the 'past experience' of the State Government in Karnataka; and the Private Managements that, there are more number of seats available than, the applicants seeking admissions to these courses, through a Common Entrance Test, whether in the Government or Private Managements' colleges and; that for the said reason, year after year; for several years now; the seats have remained un-filled and wasted in most of the colleges; including in Government Colleges. It has now been realized that, such non-filling of fairly large number of seats; and consequent shortfall in funding through tuition fees stipulated, results in disturbing and denying the calculated total required funding, to impart quality education, and in the process, the 'students community' suffers. Therefore after exhausting all merit lists-of KEA, COMED-K or any other recongnized entrance tests for admission to Dental courses; it would be permissible to grant 'admissions' in the 7 respective Institutions imparting BDS Course; to any eligible candidate based only on their 'academic merit' in the qualifying examination; not requiring appearance in an Entrance Test, for the purpose."
6. The learned counsel appearing for second respondent has relied upon the judgment of Supreme Court reported in 2012 (7) SCC 433 in the case of Priya Gupta Vs. State of Chhatishgarh & Ors., to contend that in the aforesaid judgment, the Supreme Court has given following directions:
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 8 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 course.
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 9 be given on the basis of 10+2 exam marks, strictly in order of merit.
vi) All admission 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 10 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.
7. The learned counsel for second respondent would submit that direction Nos.7 and 8 which are relevant for the present case have been flagrantly violated by the first petitioner/college in the matter of filling the seats which had remained vacant.
8. The learned counsel for petitioners would submit that the Management of first petitioner/college has followed all the directions. Therefore, 2nd respondent had no justification to reject the approval of admission of petitioners Nos.2 to 22. 11
The learned counsel for petitioners has relied upon the judgment of Supreme Court reported in (2014) 2 SCC 305 (in the case of Christian Medical College, Vellore and Others Vs. Union of India and Others) would submit that the Supreme Court has held that in respect of minority educational institutions, it is not mandatory for the students to pass entrance examination prescribed by the Medical Council of India or Dental Council of India for admission to medical or dental courses to the colleges run by minority institutions.
9. In the case of Christian Medical College, Vellore, as per majority view, impugned notifications issued by MCI and DCI are quashed but it was clarified that would not invalidate action so far taken under the amended regulations including admissions already given on basis of NEET conducted by MCI, DCI and other private medical institutions and the same shall be valid for all purposes.
The judgment in Christian Medical College, Vellore was rendered on 18.07.2013. In the case on hand, allotment of seats on the basis of entrance examinations conducted by State and COMEDK is not in issue. We are dealing with the mandatory 12 obligations enjoined on the 1st petitioner in the matter of allotment of seats which had remained unfilled after the process of admission of students as per seat matrix agreed to in terms of consensual agreement. Therefore, it is necessary to consider if the 1st petitioner has followed the directions of Supreme Court in Priya Gupta's case and terms of consensual agreement relied upon by 1st petitioner.
10. In terms of direction Nos.7 and 8 in Priya Gupta's case, if any seats remained vacant or are surrendered from All India Quota, they should positively be allotted and admission be granted strictly as per merit by 15th September of the relevant year and not by holding an extended counseling. No college may grant admissions without duly advertising the vacancies available and by publishing the same through internet, newspaper, on 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 a shadow of favouritism.
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11. On consideration of the aforestated directions, we hold the first petitioner/college should not have taken decision to admit the students (petitioners No.2 to 22) without following the aforestated directions. Now adverting to consensual agreement relied upon by 1st petitioner we find the agreement casts mandatory obligation on 1st petitioner in the matter of unfilled seats.
Sub-clauses VII and VIII of clause 'E' of the agreement reads thus:
"vii. All the seats, remaining unfilled at the end of third round of counseling by KEA and second round counseling by COMEDK and prescribed joining time, by all the agencies shall be made over to the respective Private Professional Colleges, to be filled up from amongst other eligible General Merit candidates seeking admission to individual colleges, so as to avoid any wastage of available seats.
viii. It has been the experience of the private institutions; specially located in mofusil areas that, seats remain un-filled, there being no takers of these seats in such institutions. In order to avoid wastage of seats, it is decided; to permit filling up of said seats;14
after the entire process of selection is carried out, as mentioned herein above and; before the last date notified for such admissions; to enable the Private Managements of respective colleges to fill the said seats; based on the eligibility and 'inter se merit' determined by the marks in the qualifying examination of the applicants to the respective."
12. The learned counsel for petitioners would submit that the first petitioner had informed State Government about the seats, which had remained unfilled. We do not find such correspondence or the permission granted by the State Government to proceed with the matter in terms of sub clauses VII and VIII of clause 'E' of the consensual agreement.
13. It is the specific case of 1st petitioner that petitioner Nos.2 to 22 have admitted based on their academic eligibility. In our considered opinion the 1st petitioner cannot take unilateral decision without adhering to aforestated directions and without the concurrence of Government of Karnataka.
In view of the above, 1st petitioner cannot justify its unilateral decision in the matter of admission of petitioners No.2 to 22.
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14. Therefore, we are of the considered opinion that 2nd respondent (Rajiv Gandhi University of Health Sciences) was justified in refusing to accord approval of admission of petitioners Nos.2 to 22 to the 1st year BDS Course for academic year 2013-2014, in the first petitioner/college. There are no reasons to interfere with the impugned order. The petition is dismissed.
Sd/-
JUDGE Sd/-
JUDGE Srt/MSR