Karnataka High Court
Monika Pahwa vs Director Of Medical Education on 6 February, 1996
Equivalent citations: ILR1996KAR845, 1996(6)KARLJ365
ORDER Bharuka, J.
1. These Writ Petitions have been filed by 15 students who claim to have been admitted by the respondent Bangalore Institute of Dental Sciences and Hospital, Bangalore (hereinafter in short 'the College') to the BDS Course during the academic year 1994-95. They have approached this Court for issuance of a Writ of Mandamus directing the respondents Director of Medical Education, the Bangalore University and the State Government to approve the admissions of these Petitioners in the first year BDS course as accorded by the College under the purported Management quota, since the respondent University under its communication dated 17.10.1995 (Annexure R-2 to the University's Statement of Objection) has refused to approve their admissions on the ground that the respondent Director of Medical Education has held these admissions in excess of the sanctioned intake under the Management.
2. The rights of College Managements to admit students are governed by the provisions of the Karnataka Universities Act, 1976 (in short, 'the University Act'), the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 (in short, 'the Capitation Fee Act'), the Rules framed thereunder, namely the Karnataka Selection of Candidates for Admission to Engineering, Medical and Dental Courses Rules, 1993 (in short, 'the Admission Rules') and the orders passed or the directions issued by the Supreme Court of India in this regard from time to time. Therefore for ascertaining the said right of the Management, it is necessary to examine the respective statutory provisions and the Judicial Directions issued in this regard.
3. In the case of UNNI KRISHNAN, J.P. v. STATE OF ANDHRA PRADESH, , the Supreme Court with an idea to eliminate the discretion in the Management altogether in the matter of admission, envisaged a Scheme as contained in paragraph 170 of the Report. According to the said Scheme, all the seats in Professional Colleges were to be filled up by Governmental Agencies - 50% being free seats and the remaining 50% as payment seats.
4. Subsequently, by its order dated 14.5.1993 , the said Scheme was modified by the Supreme Court to the extent that if was made permissible for the Professional Colleges to admit non-resident Indians (NRI) students to the extent of 5 per cent of their total intake for a given year out of payment seats on the basis of merit. Such NRI students were not required to lake any Entrance Test.
5. By a subsequent Order dated 7.10.1993 the Supreme Court raised the NRI quota from 5% to 15% by restricting the same for the year 1993-94 only.
6. Subsequently, by Order dated 13th May 1994 in T.M.A. PAI FOUNDATION v. STATE OF KARNATAKA, 1994 (4) SCC 728, the Supreme Court fixed the NRI quota at 10% for the year 1994-95 for Medical and Dental Colleges as is evident from para-3 of the Judgment Which reads as under:
"So far as the NRI quota is concerned, we fixed the same as 15% last year. We fixed the NRI quota in respect of minorities institutions as 5%. Although the NRI quota should not, normally, be more than 5%, but keeping in view the reduction in the fee structure, we fix the same as 10% (of the total seats) for this year. We further make it clear that in case any seat in the NRI quota remains unfilled, the same can be filled by the Management at its discretion."
7. Despite the aforesaid Order dated 13.5.1994 passed by the Supreme Court, curiously the State Government for some or the other reason, by its Notification dated 9.8.1994 substituted Rule 12B of the Rules so as to raise the Management quota to 15% (10% for NRIs and 5% for others).
8. When the said act of the State Government was brought to the notice of the Supreme Court, the Apex Court taking serious view of the matter, by its Order dated 12.9.1994, stayed the said substituted Rule with a further direction that -
"all admissions including that of non-resident Indians shall be made in accordance with the orders of this Court dated May 13, 1994 read with the earlier order dated April 5, 1994. We have clearly indicated in these orders that the admissions to the NRIs and others shall not be more than 10% so far as Medical and Dental Colleges are concerned. We further make it clear that so far as Engineering and other categories are concerned, the reservations for NRIs and others is only 3%."
9. Consequent upon passing of the said Order, the State Government again by its Notification dated 14th September 1994 re-substituted the said Rule 12B which, as it stands till date, reads as under:
Rule 12B : Reservation of seats for non resident Indian Candidates and others - The Management of any private aided or unaided institution, as the case may be, may admit (on the basis of merit).
(i) Non-Resident Indians and others to the extent of not more than ten per cent of the intake in Medical and Dental Colleges.
(ii) Non-Resident Indians and others to the extent of not more than five per cent of the intake in Engineering Colleges;
determined for a course of study in an academic year;
Provided that such admission shall only be against "Payment Seats".
10. From the statutory provisions noted above along with the Directions of the Supreme Court, it is clear that for the academic year 1994-95 the Management of Dental College could have admitted students of its own (hereinafter referred to as the 'Management Quota') to the following extent only -
(i) As per Rule 12B of the Rules as it existed till 14.9.1994 upto 15% of its intake; and
(ii) On or after 15.9.1994, as per substituted Rule 12B - maximum 10% of its intake.
11. Under Rule 2(k) of the Admission Rules, 'intake' has been defined to mean the sanctioned strength of a College fixed by the affiliating authority. Clauses (b) and (c) of Sub-section (10) of Section 53 of the Universities Act, which were inserted by Karnataka Act 23 of 1986, provide thus:
"(b) The maximum number of students to be admitted to a course of study shall not exceed the intake fixed by the University or the Government, as the case may be and any admission made after this section came into force in excess of the intake shall be invalid."
(c) No student whose admission has become invalid under Clause (b) shall be eligible to appear nor shall he be presented by the college to appear at any examination conducted by the University."
11-A. In Clause (3) of the Scheme in Unni Krishnan's case (supra) it has been held by the Supreme Court that no Professional College shall be permitted to increase the number of seats fixed by the appropriate authority except under the permission of the latter.
12. In the present case, it is not in dispute that the approved intake of the College is 60 which has been fixed by the University with approval of the State Government keeping in view the infrastructure and year-wise teaching staff employed in the College as per the BDS Regulations framed by the Dental Council of India under Section 20 of the Dentists Act, 1948. It means, the respondent College cannot in any circumstance admit more than 60 students in the first year BDS course conducted by it in a given academic year. But, in the present case it has been found that as against the said permitted intake of 60, admissions given are 71. Thus there are an excess admissions of 11 students. Apart from these 11 students, 4 other students, who have been admitted within the approved intake, are also before this Court in the present Writ Petitions since their admissions have been refused to be approved on the ground that the same have been given admission in excess of permissible Management Quota.
13. Since the grievances similar to the present ones had been raised by the students and the Managements - of 16 Medical Colleges through their respective Writ Petitions, which have been heard together, I found it desirable to obtain a report from the Education Secretary with respect to the factual issues involved in such Writ Petitions including the present ones under my order dated 6.12.1995. Accordingly Sri S.V. Ranganath, Education Secretary-II after giving opportunity to the Managements of the Colleges has ably prepared and submitted his Report on 18.12.1995 on all material and factual aspects, to which I will be referring hereinafter at appropriate places. He has also taken pains to be personally present in the Court at the hearing of the cases with original records as and when required and has rendered very valuable assistance in the matter, for which he deserves all appreciations.
14. As per the Report of the Education Secretary, the details of approved intake of and actual admissions made in the College are as follows:
(i) Approved Intake ... : 60
(a) Free Seats ... : 30
(b) Payment Seats ... : 24
(c) Management Seats ... : 05 (10%): :9(15%)
(ii) Actual Admissions made : 71
(a) Free Seats ... : 28
(b) Payment Seats ... : 22
(c) Management Seats ... : 21
(iii) Admissions made in excess of
10% under Management Quota : 16
(iv) Number of Management Quota
Admissions made before
15.9.1994 ... : 09
(v) Number of Management Quota Admissions
made after 15.9.1994 ... : 12
15. From the above details, it is clear that the College had admitted 9 students under Management Quota prior to 13.9.1994 which is 15 per cent of the intake. Therefore, these admissions were quite in accordance with Rule 12B as it existed during that period. Petitioners are amongst these 9 students. Therefore, 1, 2 and 3 in my opinion, refusal by first two respondents to approve admission of these students seems to be unwarranted in law. Accordingly respondent University is directed to approve their admissions.
16. It is also an admitted fact that the College had admitted 12 students after 15.9.1994. All these admissions are undisputedly in excess of the Management Quota as fixed under Rule 12B of the Rules. As is apparent from the statement of objections filed by the respondent-College as also the Report of the Education Secretary, the College Management has sought to justify the said admissions on the following grounds:
(i) 4 candidates have been admitted against the backlog vacancies; and
(ii) 2 candidates have been admitted against the vacant payment seats on the presumption that these seats will revert to the Management after the last date to be fixed in terms of para-9 of the Scheme formulated in Paragraph 170 (page 2250) of the Unni Krishnan's Case (supra).
17. So far as the filling up of seats by the College Management in excess of the permissible intake on the ground of alleged backlog vacancies is concerned, despite hearing at length on the issue, I failed to find any statutory sanction supporting the said claims of the Management.
18. The intake of a College, as noticed above, is fixed by the University keeping in view the Regulations framed under the Dentists Act by the Dental Council of India. Section 53(10) of the Universities Act in unambiguous terms prohibits taking of admissions in excess of the fixed intake, wherein it has been specifically stated that all such excess intakes shall be invalid and no student whose admission has become invalid shall be entitled to appear at any examination conducted by the University.
19. Further Section 10A(1)(b)(ii) of the Dentists Act provides that-
"10A. (1) Notwithstanding anything contained in this Act or any other law for the time being in force, - ... ... ...
(b) no authority or institution conducting a course of study or training (including a post-graduate course of study or training) for grant of recognised dental qualification shall,-
(i) .... ..... ....
(ii) increase its admission capacity in any course of study or training (including a post graduate course of study or training), except with the previous permission of the Central Government obtained in accordance with the provisions of this; section."
19A) The above quoted provision has been inserted by the Parliament in the Dentists Act through the Dentists (Amendment) Act, 1993 making it effective from 27.8.1992. In view of the said provision, by operation of Article 254 of the Constitution of India, notwithstanding any provision contained to the contrary in any State Legislation, the intake i.e. admission capacity of a Dental College cannot be increased except with the previous permission of the? Central Government.
20. It appears that the concept of taking excess admission on the ground of alleged "backlog vacancies" has been conveniently designed by the Managements of Professional Colleges on the plea that if the vacancies caused either on transfer or on discontinuance of students in certain years are permitted to be filled up by admitting equal number of students during any subsequent year in excess of the approved intake of such subsequent year it will not be illegal. The logic advanced behind this mathematical adjustment appears to be hat the total number of students in the College remains to be same at he intended level on taking into consideration the full admission strength in clinical facilities.
21. From the Circular dated 8th June 1990 of the State Government, it appears that the Management had tried to persuade the State Government to take a policy decision in this regard in their favour for approving the admissions against such backlog vacancies. But the Government, in the ultimate paragraph of the said Circular found it more convenient to observe that -
"Government hereby direct that approval of Government in such cases shall not be necessary in future. However, approval of the Dental Council gf India has to be obtained for such cases. The concerned Universities may ratify such excess admissions made against vacancies caused by the departure of the originally admitted students, either on transfer or by discontinuance."
22. Mr. N.K. Patil, appearing for the respondent University has brought to my notice that pursuant to the University communication made with reference to the above Circular dated 8.6.1990, the Dental Council of India by its letter dated 19.3.1993 in No. DE-22(23)/92/5092 had communicated to the following effect :
"That the permission for admission in lieu of the earlier vacancies may not be permitted and that the concerned State Government and the affiliating University be informed."
23. Despite the said communication of the Dental Council of India and for undisclosed reasons, the Government, by its subsequent Circular dated 2.8.1995, except the first sentence of the paragraph of its earlier Circular dated 8.6.1990 as quoted above, the remaining were deleted. This Circular reads as under:
"In Government Circular No. HFW 29 MME 90, dated 08.06.1990 the following sentences are deleted in the last para of the above circular. "However, approval of the Dental Council of India has to be obtained for such cases. The concerned Universities may ratify such excess admissions made against the vacancies caused by the departure of the originally admitted students either on transfer or by discontinuance."
24. Smt. Sherin Zafrulla, Additional Central Government Standing Counsel appearing for the respondent Dental Council of India has strongly objected to the plea raised on behalf of the Managements that under the provisions of the Dentists Act and the Rules and Regulations framed thereunder the Managements can fill up any seat against the alleged backlog vacancies in excess of the permissible intake of the year concerned. She has brought to my notice various provisions of the Dentists Act and the Regulations, some of which has already been noticed above.
25. The Director of Medical Education (Respondent No. 1) has filed her personal affidavit stating therein that -
"In the statements filed by me in respect of different colleges, it is stated against some students "Names of Students approved under backlog". This is a mistake. I have not approved any backlog seats as I have no power to do so. I have merely certified the statement containing the names of students stated to have been admitted by the colleges to be sent to University. It is left to the colleges to obtain permission in respect of the socalled "backlog admissions" from the Dental Council of India who is the competent authority."
25A. From the above statement of the Director of Medical Education, it is clear that neither the Government claims any authority to approve admissions in excess of approved intake nor it has been so done. But there seems to be some misconception in the mind of the Director that it can be so done by the Dental Council of India. This needs to be dispelled. It should be borne in mind by all concerned that Section 10A(b)(ii) of the Dentists Act unambiguously mandates that the admission capacity of a College can be increased only with previous permission of the Central Government and therefore the Dental Council cannot for itself accord any such permission.
26. From the discussion made above, it is glaringly clear that the Managements of the Dental Colleges have no authority in law to give admissions to any candidate in excess of permissible intake of the given year on the alleged ground of backlog vacancies.
27. Now, I may come to the second ground pleaded on behalf of the College Managements that in anticipation of fixation of a last date by the competent authority, it had accorded admission in excess of the Management Quota. On a pointed query made by me in this regard, the Education Secretary in his Report referred to above, after referring to various developments, has reported thus:
"Thus, the State Government only contemplated fixing 3rd January 1995 as the last date for filling up seats in Professional Colleges through the CET Cell giving liberty to the Managements to fill up the vacant seats on their own. However, orders empowering managements to fill up the vacant seats on their own was not issued in view of the stay order of the Hon'ble Supreme Court in Nikhil Verma's case. As such, no date was formally fixed by the State Government as the last date for admission of CET Cell sponsored candidates and Managements were not given liberty to fill up vacant seats on their own."
28. The Colleges have not placed on record any order of the Government or the authorities under the Rules whereunder it has been communicated to them that after 3rd January 1995 or for that sake after any other date, the seats remaining unfilled by the authorities against payment or free category will stand surrendered to them for being filled up at their own discretion. But, support has been sought to be drawn from the communication dated 6.12.1994 of the Director (Annexure R-1 to the statement of objections filed by the College) addressed to the respondent-College. It reads thus:
"Sub: Admission to I MBBS Course for the year 1994-95 regarding.
Ref: D.O. Letter No, ED 342 TGL 94, dtd. 3.12.94 of the Deputy Secretary to Government-1, Education Department.
With reference to the above, this is to inform you that the Government has decided to extend the last date for admission to professional courses both in respect of Free and Payment seats categories upto 15.12.1994.
Hence, you are hereby informed to admit the candidates selected by Common Entrance Test Cell under free and payment categories upto 15.12.1994 until further orders.
Sd/- Director of Medical Education"
Annexure R-2 is another communication made to the College by the Administrative Officer of the Common Entrance Test Cell (for short, CET Ceil) to the said effect. The said last date was again extended upto 3.1.1994. These communication merely indicate that the Colleges should grant admissions to the students sent by the authorities under the Rules by those given dates. It was never communicated to them by any competent authority that any seat lying vacant subsequent to those dates will fall to the Management for being filled up by them.
29. Accordingly it is held that no fast date had been prescribed by any competent authority i.e. either by the State Government or the authorities under the "Admission Rules" in terms of Paragraph (9) of the Scheme envisaged under the Unni Krishnan's case (supra) setting liberty to the Management to fill up any seat in excess of Management Quota fixed under Rule 12B of the Rules.
30. But, since, as it appears that there was a sustained effort to persuade the Government to surrender the unfilled seats to the Management despite the fact that there was a long waiting list of candidates with the CET cell, the matter having been brought to the notice of the Supreme Court in the case of NIKHIL VERMA v. STATE OF KARNATAKA, WP (c) No. 750 of 1994, an Interim Order came to be passed on 4.1.1995 to the following effect :
"In the meantime, status quo to be maintained. No further seat against surrender to the Management shall be filled up, till then."
31. Nikhil Verma's said Writ Petition was finally disposed of by the Supreme Court on 7.2.1995 with the following directions :
"(1)(a) No payment seat shall be surrendered to the Management, except under the orders of this Court.
(b) The Management shall be allowed to fill up only 10% of the seats in Medical Colleges and 5% seats in Engineering Colleges.
(2) If the Karnataka students are not available in respect of the payment seats reserved for Karnataka students, they shall be filled up by admitting non-Karnataka students.
(3) If any seat falls vacant on account of candidate admitted to that seat not reporting, that seat shall be given to the next candidate in the waiting list and so on."
32. Therefore, it is clear that the allotment of seats made to various Colleges including the present College by the authorities under the Rules even after 3.1.1995 were under and in accordance with the Directions issued by the Supreme Court; and, accordingly the College authorities were duty bound to honour the same.
33. Keeping in view the discussion made above, it can unhesitantly be held that the admissions effected by the College in excess of its permissible intake is attributable to the admissions granted by the Management in excess of its Quota prescribed under Rule 12B of the Rules and not because of the admissions given pursuant to the allotments made by the CET Cell.
34. Coming back to the facts of the present case, I find that as against the permissible intake of 60, as held above, 52 admissions are in conformity with the Rules i.e. 28 free seats, 22 payment seats and 9 seats under Management Quota. Therefore, so far as Section 53(10) of the Universities Act is concerned, out of 12 remaining students, one can still be accommodated within the permissible intake.
35. Accordingly, in my opinion, so far as petitioners Nos. 1, 2 and 3 are concerned, since they had been admitted prior to 15.9.1995 within the 15% permissible Management Quota as per Rule 12B as it then existed, their admissions need to be approved by the University.
35A. So far as petitioners 4 to 15 are concerned they have been admitted by the College of its own in excess of the Management Quota on the same day namely 18.12.1994. But, since, as discussed above in para 32, out of these one can still be accommodated within the permissible intake, that benefit has to go to petitioner No. 12 (Parikshit P. Hegde) who has secured 72.33% in the qualifying examination being highest among them.
36. In the case of STATE OF PUNJAB v. RENUKA SINGH, , it has been held by the Supreme Court that admission capacity of a College is fixed by the statutory authorities like the Dental Council of India or Medical Council of India by taking into consideration the infrastructure, equipment and the staff employed in such Institutions and the Court cannot disturb that balance between the capacity of the Institution and the number of admissions on compassionate grounds. It has further been held that the High Court or the Supreme Court cannot be generous or liberal in issuing Directions which in substance amounts to directing the authorities concerned to violate their own statutory Rules and Regulations in respect of admissions of students.
37. Therefore, keeping in view the law laid down by the Supreme Court and the respective statutory provisions, decision of the University in not approving the admissions of the remaining 11 petitioners, being at Sl.Nos. 4 to 11 and 13 to 15 cannot be interfered with.
38. In the result, Writ Petitions Nos. 31024 to 31026 and 31035 of 1995 are allowed and Writ Petitions Nos. 31028 to 31034 and 31036 to 31038 of 1995 are dismissed. No costs.