Rajasthan High Court - Jodhpur
Sunita Kumari vs Rajasthan University Of Health And ... on 8 August, 2023
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2023:RJ-JD:25434]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 1158/2023
1. Sunita Kumari D/o Shri Pancha Ram, Aged About 25
Years, Presently Residing At The Vyas Dental College And
Hospital, Girls Hostel, Jodhpur, Rajasthan.
2. Kailash S/o Shri Bhada Ram, Aged About 26 Years,
Presently Residing At The Vyas Dental College And
Hospital, Boys Hostel, Jodhpur, Rajasthan.
----Petitioners
Versus
1. Rajasthan University Of Health And Science, Through Its
Registrar, Kumbha Marg, Pratap Nagar, Jaipur, Rajasthan.
2. Vyas Dental College And Hospital, Through Its Principal,
Near Kudi Haud, Kudi, Nh-65, Pali Road, Jodhpur.
----Respondents
For Petitioner(s) : Mr. Ankur Mathur
For Respondent(s) : Mr. Abhinav Jain
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 08/08/2023
1. Learned counsel for the parties are in agreement that the controversy involved in the present case is squarely covered by the judgment rendered by the Division Bench of this Hon'ble Court in Harsh Raj Verma & Ors. Vs. State of Rajasthan & Ors. :
D.B. Civil Special Appeal (Writ) No.911/2018 and other connected matters, on 04.05.2023, which reads as follows:
"5. Heard learned counsel for the parties as well as perused the record of the case, alongwith the judgments cited at the Bar.
6. This Court observes that the NEET has been introduced in the country in the year 2016, as an entrance examination for admission in the MBBS/BDS Courses; the whole purpose of the NEET is to enhance and maintain the high standards, in (Downloaded on 12/11/2023 at 04:05:01 AM) [2023:RJ-JD:25434] (2 of 10) [CW-1158/2023] uniformity, in the field of medical. The exercise of conducting the NEET has been uphold by the Constitutional Bench of the Hon'ble Apex Court in the case of Modern Dental Medical College & Research Center & Ors., Vs State of Madhya Pradesh & Ors., (2016) 7 SCC 353. The same principle has been reiterated with approval by the Hon'ble Apex Court in the case of Abdul Ahad And Ors. Vs. Union of India (2020) 1 SCC OnLine SC 627 and also, by the Division Bench of the Hon'ble High Court of Karnataka in the case of Karnataka State Private Homeopathic Medical College Managements Association and Ors Vs Union of India & Ors (W.P. No. 25723 of 2022 (EDN-RES), decided on 03.03.2023).
Relevant portion of the judgment rendered in Karnataka State Private Homeopathic Medical College Managements Association (Supra) is reproduced as hereunder;
"25. In ABDUL AHAD AND ORS. Vs. UNION ON INDI(A2020) 1 SCC ONLINE SC 627, a three Judge Bench of Supreme Court has approved the principles laid down by a Constitution Bench of the Supreme Court in MODERN DENTAL COLLEGE AND RESEARCH CENTRE supra, upholding the introduction of common entrance examination for the following reasons:
1. The legislature in its wisdom has taken the view that merit-based admissions can be ensured only through a common entrance test followed by centralised counselling either by the State or by an agency authorised by the State.
2. In order to ensure rights of the applicants aspiring for medical courses under Articles 14, 15, and 16 of the Constitution of India, legislature by the impugned legislation introduced the system of common entrance test (CET) to secure merit-based admission on a transparent basis.
3. If private unaided educational institutions are given unfettered right to devised their own admission procedure and fee structure, it would lead to situation where it would impinge upon the "right to equality" of the students who aspire to take admission in such educational institutions.
4. Common entrance test by State or its agency will ensure equal opportunity to all meritorious and suitable (Downloaded on 12/11/2023 at 04:05:01 AM) [2023:RJ-JD:25434] (3 of 10) [CW-1158/2023] candidates and meritorious candidates can be identified for being allotted to different institutions depending on the courses of study, the number of seats and other relevant factors. 5. Having regard to the larger interest and welfare of the student community to promote merit and achieve excellence and curb malpractices, it would be permissible for the State to regulate admissions by providing a centralised and single-window procedure.
6. Holding such CET followed by centralised counselling or single window system regulating admissions does not cause any dent on the fundamental rights of the institutions in running the institution.
7. While private educational institutions have a "right of occupation" in running the educational institutions, equally they have the responsibility of selecting meritorious and suitable candidates, in order to bring out professionals with excellence. Rights of private educational institutions have to yield to the larger interest of the community.
8. The freedom of private educational institutions to establish and run institution, impart education, recruit staff, take disciplinary action, admit students, participate in fixation of fees is in no way being abridged by the impugned legislation; it remains intact."
7. This Court further observes, as held by the learned Single Judge in the impugned judgment, that after 5 th Amendment of the Revised BDS Course Regulations, 2007, Regulation 6(ii) thereof, dealing with minimum percentile for different classes in the NEET for admission in the BDS Course, clearly reveals that the requirement of securing minimum marks is not mandatory in nature; the Regulation itself provides that "when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility-cum- Entrance Test held for any academic year for admission to BDS Course, the Central Government in consultation with Dental Council of India may at its discretion lower the minimum marks required for admission to BDS Course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the said academic year only."
The said Regulation 6 is reproduced as hereunder:
(Downloaded on 12/11/2023 at 04:05:01 AM)[2023:RJ-JD:25434] (4 of 10) [CW-1158/2023] "6. In the existing Sub-regulation 5 of Regulation II, under the heading "Procedure for selection to BDS course" shall be as follows:-shall be deleted and substituted as under:-
(i) There shall be a single eligibility-cum-entrance examination namely "National Eligibility-cum-Entrance Test for admission to BDS course" in each academic year."
(ii) In order to be eligible for admission to BDS Course for a particular academic year, it shall be necessary for a candidate to obtain minimum of marks at 50th percentile in "National Eligibility-cum-Entrance Test to BDS course"
held for the said academic years. However, in respect of candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, the minimum marks shall be at 40th percentile. In respect of candidates with locomotory disability of lower limbs terms of subregulation 4 above, after the commencement of these amendments, the minimum marks shall be at 45th percentile. The percentile shall be determined on the basis of highest marks secured in the All-India common merit list in "National Eligibility-cum-Entrance Test for admission to BDS course"
Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility-cum-
Entrance Test held for any academic year for admission to BDS Course, the Central Government in consultation with Dental Council of India may at its discretion lower the minimum marks required for admission to BDS Course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the said academic year only.
(iii) The reservation of seats in dental colleges for respective categories shall be as per applicable laws prevailing in States/Union Territories. An all India merit list as well as State-wise merit list of the eligible candidates shall be prepared on the basis of the marks obtained in National Eligibility-cum-Entrance Test and candidates shall be admitted to BDS course from the said lists only.(Downloaded on 12/11/2023 at 04:05:01 AM)
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(iv) No Candidate who has failed to obtain the minimum eligibility marks as prescribed in Clause (ii) above shall be admitted to BDS course in the said academic year.
(v) All admissions to BDS course within the respective categories shall be based solely on marks obtained in the National Eligibility-cum-Entrance Test.
(vi) To be eligible for admission to BDS course, a candidate must have passed in the subjects of Physics, Chemistry, Biology/ Biotechnology and English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry and Biology/Biotechnology at the qualifying examination as mentioned in Sub Regulation 2 of Regulation I and in addition must have come in the merit list of "National Eligibility-cum-Entrance Test" for admission to BDS course in respect of 'candidates belonging to Scheduled Castes, Scheduled Tribes or other Backward Classes' the minimum marks obtained in Physics, Chemistry and Biology/bio-technology taken together in qualifying examination shall be 40% instead of 50% in respect of candidates with locomotory disability of lower limbs in terms of sub-regulation 4, after the commencement of these amendments, of Regulation I above, the minimum marks in qualifying examination in Physics, Chemistry and Biology/Bio-technology taken together in qualifying examination shall be 45% instead of 50%.
Provided that a candidate who has appeared in the qualifying examination the result of which has not been declared, he/she may be provisionally permitted to take up the National Eligibility-cum-Entrance Test and in case of selection for admission to the BDS Course, he/she shall not be admitted to that course until he fulfills the eligibility criteria under Regulation I.
(vii)The Central Board of Secondary Education shall be the organization to conduct National Eligibility-cum-Entrance Test for admission to BDS course.
8. In the present case, as mentioned in the factual matrix, the Federation has approached the Hon'ble Apex Court by preferring a writ petition bearing Writ Petition (C) No. 747/2016, but, vide order dated 23.09.2016, the same was dismissed as (Downloaded on 12/11/2023 at 04:05:01 AM) [2023:RJ-JD:25434] (6 of 10) [CW-1158/2023] withdrawn, with liberty to file a representation for seeking the same relief; the necessary representation was moved by the Federation on 23.09.2016. Thereafter, the respondent-Union of India vide letter dated 29.09.2016 forwarded the representation of the Federation to the respondent-State, and directed to take the necessary action, as deemed fit, regarding the lowering down of the percentile. The respondent-State thereafter, reduced the minimum percentile by 10 percentile, and with additional reduction in percentile by 5 percentile.
9. Subsequently, the respondent-DCI vide letter dated 05.10.2016 requested the respondent-Union of India that the aforementioned relaxation in percentile for admission in the Course in question, as granted, may be declared as void ab initio; whereafter, the respondent-Union of India, vide order dated 06.10.2016, requested the respondent-State to withdraw and cancel the order, which were passed, pertaining to the grant of relaxation in question and respondent-Union of India, vide order dated 07.10.2016, declined to accede to the recommendation of the respondent-DCI, which was made vide letter dated 03.10.2016 in view of the vacant seats in the Course in question.
9.1. Therefore, the permission to take the necessary action as deemed fit was granted by the respondent-Union of India; after the said letter, the respondent-State lowered down the percentile as above.
10. This Court agrees with the observation made by the learned Single Judge in the impugned judgment that vide the letter dated 29.09.2016, the respondent-Union of India delegated the power to the respondent-State to take necessary action pertaining to the admission in BDS course. In pursuance of such delegated power, the respondent-State vide letter dated 30.09.2016 permitted all the private Dental Colleges to fill up the vacant seats by lowering down the marks to the extent of 10 percentile, followed by additional reduction by 5 percentile; the respondent-State also informed the same to the respondent- Union of India vide letter dated 04.10.2016, whereupon the respondent-Union of India declined lowering down of the percentile, while requesting the respondent-State to withdraw and cancel the orders regarding lowering down of the percentile.
10.1 The entire action of the respondent-State, as taken by it, upon delegation of the requisite power by the respondent-Union of India itself, is justified in the eye of law, because the (Downloaded on 12/11/2023 at 04:05:01 AM) [2023:RJ-JD:25434] (7 of 10) [CW-1158/2023] respondent-Union of India itself stated that "necessary action as deemed fit".
11. This Court further observes that the judgment rendered by the Hon'ble Apex Court in the case of Rajiv Gandhi University of Health Sciences (supra) shall not have precedence in the present case, as in the said judgment, the Hon'ble Apex Court categorically observed that "we are not inclined to interfere in the admissions so made. However, we direct that this order as well as the impugned order are not to be treated as precedent in any other case".
12. This Court also observes that the Hon'ble Madras High Court passed the order in the case of V.S. Subeeksha (Supra); the appeal challenging the same though was dismissed by the Hon'ble Apex Court vide the judgment rendered in Dental Counsel of India Vs V.S. Subeeksha (Supra); however, the Hon'ble Apex Court in the said judgment observed that, The impugned order(s) not to be treated as a precedent for any other matter. The question of law is kept open. Therefore, the said judgment also cannot be cited as a precedent in the present case.
13. This Court further observes that lowering down of the percentile by the respondent-State to the extent of 10 % and additionally by 5 percentile in exercise of the delegated power by the respondent-Union, as mentioned in the aforementioned factual matrix, clear reveals that beyond the same, no further relaxation can be extended to any candidate aspiring to pursue the BDS Course in the State of Rajasthan.
14. The learned Single Judge, in the impugned judgment, observed that the "An affidavit dated 21.01.2018 was filed by the Joint Secretary, Ministry of Health and Family Welfare before this Court stating therein that for the State of Rajasthan, the ratio of available seats to the number of qualified candidate was 1:11 for the academic year 2016-2017. However, on ground level, it was found that only about 500 candidates had been admitted against 1350 seats for BDS course including Government colleges. Thus, about 850 seats were lying vacant. In the said affidavit, there is no explanation as to how the number of seats of the BDS course were lying vacant even in spite of stand that a sufficient number of candidates who had attained the minimum of percentile in the NEET were available for the academic year 2016-2017".
(Downloaded on 12/11/2023 at 04:05:01 AM)[2023:RJ-JD:25434] (8 of 10) [CW-1158/2023] 14.1. At the same time, this Court observes that the Colleges in question, for the purpose of giving admissions to the candidates against the vacant seats in the BDS Course, have granted relaxation beyond the one already granted by the respondent- State, even to those students who have secured much lower marks [including zero / (-) percentile] in the NEET, which fact cannot lost sight of by the Courts, Central Government, State Governments, Union Territories Governments and other Authorities, and thus, such relaxation as granted by the Colleges in question cannot at all be acceptable, and sustainable in the eye of law, as, if such relaxation is accepted and sustained, the same would have adverse impact upon the high and uniform standards in the field of medical education.
15. This Court further observes that the leaned Single Bench mentioned in the impugned judgment, that, "In fact, the State too while acting on the letter of the Central Government dated 29.09.2016 permitted reduction only to the extent of 10% and additional 5%. Therefore, the Institution at their own level continued to reduce till the last seat was filled without adhering to the extent of 10% and additional 5%." This Court views the issue very seriously, as to how those students, having secured much lower percentile, including zero/(-) percentile, were given admission in the BDS Course by the Colleges in question, beyond the relaxation granted by the respondent-State, that too without obtaining any prior approval/sanction for doing the same.
16. This Court, at this juncture, considers it appropriate to reproduce the relevant portion of the judgment rendered by the Division Bench of this Hon'ble Court at Jaipur Bench in the case of Madhu Saini Vs Rajasthan University of Health Sciences (Supra), which reads as under:
"34. Under these circumstances, we find that no ground has been made out for granting relief to the appellants. There is no merit in these appeals and the same are accordingly dismissed. However, we make it clear that the appellants would be at liberty to proceed against the respondent-College to get the amount of compensation of Rs.10,00,000/- (each) in pursuance of the directions issued by the learned Single Judge in accordance with law.(Downloaded on 12/11/2023 at 04:05:01 AM)
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35. Before parting with the judgment, we would like to observe that the time has come where such backdoor entries in educational institutions should be stopped and discouraged. To permit any backdoor entry to any educational institution would be de hors the Rules and Regulations. The respondent-College was well aware of the fact that admissions cannot be granted to the appellants contrary to the regulations, even then, the College permitted the appellants to continue their studies in-spite of the directions by the Dental Medical Council to discharge the appellants. Such an intentional and deliberate violation of the Regulations by the respondent-College while granting admissions to the appellants in the academic year-2017 cannot be condoned. Hence, for the above unauthorized act, the respondent-College is liable to pay and deposit the costs of Rs. 25,00,000/- with the Rajasthan State Legal Services Authority (RSLSA) within a period of three months from today.
RSLSA shall recover the same from the respondent- College in accordance with law".
17. Thus, while concurring with the observations made by the learned Single Judge in the impugned judgment, finds the judgments cited on behalf of the appellants in the present appeals do not render any assistance to their case, and thus, no case is made out so as to grant any relief to any of the appellants in the present appeals.
18. Accordingly, while dismissing the present appeals, this Court issues the following directions:
(a) All the students, who have been admitted after giving relaxation beyond 10% and additional 5%, if not discharged, shall stand discharged from the BDS course with immediate effect; in case any of such student(s) has already been awarded the Degree of the BDS Course, beyond the relaxation granted by the respondent-State, the same, if not already procured and deposited, shall be required to be procured by the concerned College, who in turn shall deposit the same with the concerned University within a period of one month from today, failing which the concerned University would be at liberty to initiate contempt proceedings against the College, who fails to do so.(Downloaded on 12/11/2023 at 04:05:01 AM)
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(b) Each of such College(s), who have granted relaxation, beyond the one already granted by the respondent-State, are also liable to deposit a cost of Rs.50,00,000/- with the Rajasthan High Court Legal Services Committee (RHCLSC), Jodhpur within a period of two months from today; the RHCLSC shall recover the same from the concerned College(s), strictly in accordance with law.
(c) The said College(s) shall pay a sum of Rs.25,00,000/- to each of such student(s) within a period of three months from today, as compensation, as the student(s) have been made to suffer on count of being given admission by the College(s), while extending the relaxation beyond the one already granted by the respondent-State. The respondent-State is directed to ensure the same.
(d) The Registry is directed to send a copy of this judgment to the RHCLSC and the concerned authority of the respondent-State to ensure the compliance of this judgment.
(e) All pending applications stand disposed of."
2. In light of the aforesaid judgment, the present petition is dismissed in the same terms and directions. However, the petitioners shall be governed by the fate of SLP, which is said to have been already filed. All pending applications stand disposed of.
(DR.PUSHPENDRA SINGH BHATI), J.
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