Madras High Court
Nihaal Ahamed vs The Medical Council Of India on 5 June, 2014
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:- 05-06-2014
CORAM
THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU
W.P.(MD) No.16509 of 2013
and
W.P.(MD) No.16039, 16470 and 16322 of 2013
and
M.P.Nos.1,1,1 and 1 of 2013
W.P.(MD)No.16509 of 2013
Nihaal Ahamed ... Petitioner
Versus
1.The Medical Council of India,
Represented by its Secretary,
Pocket 14, Sector 8,
Dwaraka Phase-I,
New Delhi 110 077.
2.The Chairman,
Committee to Regulate/Monitor the Admission of
Students to Professional Courses by
Self Financing Professional, Arts and Science Colleges,
F-1, DOTE Staff Quarters,
Gandhi Mandapam Road,
Guindy, Chennai 600 025.
3.The Registrar,
Tamil Nadu Dr.M.G.R. Medical University,
Guindy, Chennai.
4.The Secretary,
Tamil Nadu Private Professional Colleges Association-
Health Sciences,
Prasanna Enclave, 1st Floor,
No.30, Bharathi Avenue 2nd Street,
Kotturpuram, Chennai-85.
5.The Dean,
Velammal Medical College Hospital Research Institute,
Madurai-Tuticorin Wring Road,
Anuppanadi, Madurai 625 009. ... Respondents
Prayer
Writ Petition filed under Article 226 of the Constitution of
India for the relief of issuance of writ of mandamus to direct the fifth
respondent herein to admit the petitioner in the 1st year M.B.B.S. Course for
the academic year 2013-2014 in the fifth respondent college pursuant to the call
letter given by the fifth respondent dated 24.09.2013.
!For Petitioner - Mr.E.Mohammed Abbas for
Mr. Jana @ B.Janath Ahmed
^For Respondents - Mr.V.P.Raman for R1
Mr.R.Anandraj for R2
Government Advocate
No Appearance for R4
Mr.Vijay Narayanan for R5
Senior Counsel
for M/s.Victory Associates
Mr.C.Karthik for R3
W.P.(MD)No.16039 of 2013
Minor E.Sneha Preethi,
rep. By her father and next friend
N.Elangovan ... Petitioner
Versus
1.The State of Tamilnadu,
rep. By the Secretary to Government,
Health & Family Welfare Department,
Secretariat, Chennai-9.
2.The Selection Committee,
represented by the Secretary,
Director of Medical Education,
Kilpauk, Chennai 10.
3.The Medical Council of India,
represented by the Secretary,
Pocket-14, Sector-8,
Dwaraka Phase-I,
New Delhi 110 077.
4.The Registrar,
M.G.R. Medical University,
Chennai.
5.The Special Officer,
Committee to Regulate-Monitor the Admissions of
Students to Professional Courses by
Self Financing Professional, Arts and Science Colleges,
F-1, DOTE Staff Quarters,
Gandhi Mandapam Road,
Guindy, Chennai 600 025.
6.The Secretary,
Tamil Nadu Private Professional Colleges Association-
Health Sciences,
Prasanna Enclave,
No.30, Bharathi Avenue II Street,
Kotturpuram, Chennai.
7.The Dean,
Velammal Medical College,
Madurai.
Prayer
Writ Petition filed under Article 226 of the Constitution of India for
the relief of issuance of writ of mandamus to direct the sixth and seventh
respondent to admit the petitioner's daughter Sneha Preethi in the M.B.B.S.
Course for the period 2013-2014 in the seventh respondent's college.
For Petitioner - Mr.T.Govindasamy
For Respondents - Mr.R.Anandraj for R1 and R2
Government Advocate
Mr.V.P.Raman for R3
No Appearance for R5 and R6
Mr.Vijay Narayanan for R7
Senior Counsel
for M/s.Victory Associates
Mr.C.Karthik for R4
W.P.(MD)No.16470 of 2013
Minor Gayathri,
rep. By her father and natural guardian
P.Ramar ... Petitioner
Versus
1.The Secretary to Government of Tamilnadu,
Health & Family Welfare Department,
Chennai-9.
2.The Selection Committee,
represented by its Secretary,
Director of Medical Education,
Kilpauk, Chennai 10.
3.The Medical Council of India,
represented by the Secretary,
Pocket-14, Sector-8,
Dwaraka Phase-I,
New Delhi 110 077.
4.The Registrar,
M.G.R. Medical University,
Chennai 600 085.
5.The Special Officer,
Committee to Regulate-Monitor the Admissions of
Students to Professional Courses by
Self Financing Professional, Arts and Science Colleges,
F-1, DOTE Staff Quarters,
Gandhi Mandapam Road,
Guindy, Chennai 600 025.
6.The Secretary,
Tamil Nadu Private Professional Colleges Association-
Health Sciences,
Prasanna Enclave,
No.30, Bharathi Avenue II Street,
Kotturpuram, Chennai.
7.The Dean,
Velammal Medical College,
Vellammal Village,
Madurai.
Prayer: Writ Petition filed under Article 226 of the Constitution of India for
the relief of issuance of writ of mandamus to direct the sixth and seventh
respondents to admit the daughter of the petitioner Gayathri in the M.B.B.S.
Course for the academic year 2013-2014 in the seventh respondent college.
For Petitioner - Mr.N.Satish Babu
For Respondents - Mr.R.Anandraj for R1 and R2
Government Advocate
Mr.V.P.Raman for R3
No Appearance for R5 and R6
Mr.Vijay Narayan for R7
Senior Counsel
for M/s.Victory Associates
Mr.C.Karthik for R4
W.P.(MD)No.16322 of 2013
S.Rajendran ...Petitioner
Versus
1.Government of Tamilnadu,
Rep. By its Principal Secretary,
Health & Family Welfare Department,
Fort St.George,
Chennai.
2.The Director of Medical Education,
Kilpauk, Chennai.
3. The Committee to Regulate-Monitor the Admissions of
Students to Professional Course by
Self Financing Professional, Arts and Science Colleges,
Rep. By its Chairman,
F-1, DOTE Staff Quarters,
Gandhi Mandapam Road,
Guindy, Chennai 600 025.
4.The Tamil Nadu Private Professional Colleges Association-
Health Sciences,
Rep. By its Secretary,
Prasanna Enclave,
No.30, Bharathi Avenue,
Near Kotturpuram Railway Station,
Kotturpuram,
Chennai.
5.The Medical Council of India,
represented by its Secretary,
Pocket-14, Sector-8,
Dwaraka Phase-I,
New Delhi 110 077.
6.Chennai Medical College Hospital & Research Centre,
Rep. By its Principal,
Irungalur Village,
Mannachanallur Taluk,
Trichy.
7.Karpaga Vinayaga Institute of Medical Sciences & Research,
Rep. By its Principal,
Chinna Kolambakkam,
Palayanoor Post,
Madhuranthagam Taluk,
Kanchipuram 603 308.
8.Velammal Medical College Hospital & Research Institute,
Rep. By its Principal,
Velammal Village,
Madurai-Tuticorin Ring Road,
Anuppanadi,
Madurai 625 009.
9.Dhanalakshmi Srinivasan Medical College & Hospital,
Rep. By its Principal,
NH-47, Trichy-Chennai Highway,
Siruvachur,
Perambalur District 621 113.
Prayer
Writ Petition filed under Article 226 of the Constitution of India for
the relief of issuance of writ of mandamus to direct the respondents to provide
a seat to the petitioner's son Dharmaseelan in the first year MBBS course for
the academic year 2013-2014 in any one of the college of 6 to 9 respondents.
For Petitioner - Mr.Saravanan
for Mr.C.Asaithambi
For Respondents - Mr.R.Anandraj for R1 and R2
Government Advocate
No Appearance for R3 and R4
Mr.V.P.Raman for R5
M/s.B.Saraswathi for R6
Mr.R.P.Ramachanthiran for R7
Mr.A.Thirumurthy for R8
Mr.Muthukumarasamy for R9
Senior Counsel
for Mr.S.Sethuraman
:COMMON ORDER
The prayer in W.P.(MD) No.16509 of 2013 is for a mandamus to direct the fifth respondent to admit the petitioner in the 1st year M.B.B.S. Course for the academic year 2013-2014 in the fifth respondent college pursuant to the call letter given by the fifth respondent dated 24.09.2013.
2. The prayer in W.P.(MD) No.16039 of 2013 is for a mandamus to direct the sixth and seventh respondent to admit the petitioner's daughter Sneha Preethi in the M.B.B.S. Course for the period 2013-2014 in the seventh respondent's college.
3. The prayer in W.P.(MD) No.16470 of 2013 is for a mandamus to direct the sixth and seventh respondents to admit the daughter of the petitioner Gayathri in the M.B.B.S. Course for the academic year 2013-2014 in the seventh respondent college.
4. The prayer in W.P.(MD) No.16322 of 2013 is for a mandamus to direct the respondents to provide a seat to the petitioner's son Dharmaseelan in the first year MBBS course for the academic year 2013-2014 in any one of the colleges of respondents 6 to 9.
5.The case of the petitioner in W.P.(MD) No.16509 of 2013 is as follows:
He has completed Higher Secondary Examination in March 2013 and scored 944 marks out of 1200. He submitted application to the fourth respondent for admission to M.B.B.S. Course on 26.08.2013 with application No.3006. The fourth respondent viz., Tamil Nadu Private Professional Colleges Association-Health Sciences is a consortium of private Health Sciences Professional Colleges in Tamil Nadu, affiliated to the Tamil Nadu Dr.M.G.R.Medical University. The fourth respondent published the result on 23.09.2013 in which the petitioner was placed in Rank No.731. He approached the fourth respondent on 24.09.2013 and requested for providing necessary orders for allotting seat in the fifth respondent college. The petitioner was directed to approach the fifth respondent college for admission by stating that provisional list of selection was already sent to the fifth respondent college. The petitioner's father approached the fifth respondent college on 24.09.2013 and requested them to furnish status of his son in the selection list. No reply was given by the college. Hence, the petitioner approached the second respondent and complained. Based on such request, the second respondent sent a communication dated 24.09.2013 to the fifth respondent and directed them to offer their remarks, forthwith, by fax. Even thereafter, the fifth respondent did not give any response and thereby denied the seat to the petitioner. Hence, the petitioner approached the fourth respondent and made a complaint against the fifth respondent college through the complaints dated 26.09.2013 and 27.09.2013.
There was no fruitful response from any of the respondents. On the other hand, the fifth respondent instructed the petitioner to appear for counselling on 26.09.2013 through a letter dated 24.09.2013 posted on 29.09.2013 and received by the petitioner on 01.10.2013. Immediately after receiving the said letter, the petitioner approached the fifth respondent and requested him to allot the seat. But the fifth respondent refused by stating that the petitioner did not approach them within the stipulated time. The petitioner was very much available in the fifth respondent college from 24.09.2013 to 30.09.2013 except on 29.09.2013. But he was not given a seat. Hence, the present writ petition is filed with the relief as stated supra.
6. The fifth respondent filed a counter affidavit wherein it is stated as follows:
The fifth respondent college is a self financing college and admission sought for in this writ petition is under the management quota on the basis of common rank list prepared by the fourth respondent, a Consortium of the Private Health Sciences Professional College in Tamil Nadu. 150 M.B.B.S. seats were sanctioned in total to the fifth respondent college out of which 65% of seats (97 seats) were filled under Government quota through Single Window System. The remaining 35% of seats (53 seats) have been allotted as Management Quota and the same have to be filled up based on the common rank list prepared by the fourth respondent Association and preference will be given to the first choice college opted by the candidates as per clause 11 of the Prospectus issued for M.B.B.S course for the year 2013-14 Session, published by the fourth respondent. Accordingly, 53 candidates out of 65 candidates opted to the fifth respondent college as first choice and they have been admitted. The petitioner did not come forward for admission with relevant certificates while the admission was going on from 24.09.2013 to 26.09.2013. The petitioner approached the fifth respondent on 23.09.2013 with downloaded copy of his rank statement. Since the rank statement did not reveal as to whether the petitioner had chosen the fifth respondent college as first choice, he was informed that the admission will be made on receipt of the choice/rank list from the fourth respondent. The petitioner was also advised to confirm the receipt of the said list over phone and come for admission. The petitioner did not turn up to the college later for admission. On 24.09.2013, evening, a letter dated 24.09.2013 was received from the second respondent stating that the petitioner was denied admission by this respondent. Therefore, this respondent sent a letter dated 24.09.2013 to the petitioner and the petitioner did not come to the college till 26.09.2013 and in the meantime, admission to 53 seats under management quota was completed based on the first choice preferred by the candidates. The fifth respondent signed the letter on 24.09.2013 calling upon the petitioner to come for admission on 26.09.2013 fore Noon and directed the office to post them immediately. However, only from the affidavit of the petitioner, the fifth respondent came to know that the post office seal was affixed only on 29.09.2013. On verification, it was found that the despatch of the said letters have been properly recorded on 24.09.2013. Now the matter is under enquiry to find out was there any lapse and if so, to punish the delinquent.
7.The case of the petitioner in W.P.(MD) No.16039 of 2013 is as follows:
The petitioner passed Higher Secondary examination in March 2013 and secured 1147 marks. She decided to apply for M.B.B.S. Course in the self financing medical colleges under management quota. Accordingly, she made an application on 20.08.2013 vide Application No.3003 to the sixth respondent. The petitioner made her first preference to the seventh respondent college for joining the M.B.B.S. course. On 23.09.2013, the result was published and the petitioner got 131st rank in the merit list. She approached the seventh respondent in person and requested for admission. She was asked to come after 26.09.2013 by stating that processing was going on. The seventh respondent malafidely denied admission to the petitioner. Therefore, she made a complaint to the fifth respondent who in turn, through communication dated 24.09.2013, directed the seventh respondent to offer their remarks, forthwith, by fax. The seventh respondent unlawfully denied seat to the petitioner. Hence, the present writ petition.
8.The seventh respondent filed a counter affidavit wherein it is stated as follows:
53 candidates out of 65 candidates who opted the seventh respondent college as their first choice have been admitted and the petitioner did not come for admission with relevant certificates while the admission was going on from 24.09.2013 to 26.09.2013. The petitioner has approached this respondent on 23.09.2013 along with the downloaded copy of her rank statement without any other certificates. Since the said rank statement did not reveal as to whether the petitioner had chosen the seventh respondent college as first choice, she was informed that the admission will be made on receipt of the choice/rank list from the sixth respondent. The petitioner was advised to confirm the receipt of the said list by the college over phone and come for admission. While so, a letter dated 24.09.2013 was received from the second respondent stating that the petitioner was denied admission. Therefore, the seventh respondent sent a communication to the petitioner to report for admission on 26.09.2013 but the petitioner did not come to the college for admission till 26.09.2013 and in the meanwhile, admission to 53 seats were filled up.
9. The case of the petitioner in W.P.(MD) No.16470 of 2013 is as follows:
The petitioner passed the Higher Secondary examination conducted in March 2013 and secured 1080 marks and made her application on 22.08.2013 with the application No.3027 to the sixth respondent. She preferred the seventh respondent college as her first choice. On 23.09.2013, results were published and the petitioner got 551st rank in the merit list. When the petitioner approached the seventh respondent college and sought admission, she was directed to come after 26.09.2013 as the process was going on. The seventh respondent acted with malafide and denied admission to the petitioner. Hence, a complaint was made to the fifth respondent who in turn sent a communication to the seventh respondent on 24.09.2013 to offer their remarks. On 30.09.2013, the petitioner received a letter dated 24.09.2013 from the seventh respondent college instructing her to appear for counselling at the college on 26.09.2013. The post office seal affixed on the cover would show that it was posted only on 29.09.2013. Thus, it is crystal clear that the seventh respondent has acted with malafide.
10. The seventh respondent filed a counter affidavit wherein it is stated as follows:
53 candidates out of 65 candidates who opted seventh respondent college as their first choicehave been admitted and the petitioner did not come for admission with relevant certificates while the admission was going on from 24.09.2013 to 26.09.2013. The petitioner approached the seventh respondent on 23.09.2013 along with downloaded copy of her rank statement. Since the said rank statement did not reveal as to whether the petitioner had chosen the seventh respondent as first choice, she was informed that the admission will be made on receipt of the rank list from the sixth respondent and the petitioner was advised to confirm the receipt of the said list by this respondent over phone. But the petitioner did not turn to the college later for admission. On 24.09.2013, a letter was received from the fifth respondent stating that the petitioner was denied admission. Therefore, the seventh respondent sent a letter dated 24.09.2013 to the petitioner. But the petitioner did not come to the college till 26.09.2013 and in the meanwhile, the admission to 53 seats under management quota was over.
11.The case of the petitioner in W.P.(MD) No.16322 of 2013 is as follows:
The petitioner's son by name Dharmaseelan obtained 1116 marks out of 1200 in +2 examination conducted in March 2013. The petitioner's son applied for admission to the first year M.B.B.S. course in self financing medical colleges in Application No.3018 On 23.09.2013, results were published and the petitioner's son was assigned the rank of 311. Immediately, the petitioner along with his son went to the respondents 6 to 9 seeking for admission. But they were dodging by giving one reason or other. The petitioner learnt that the students who got lesser marks than his son have been given admission in the colleges of respondents 6 to 9. The petitioner gave a complaint to the third respondent on 27.09.2013. On the very same day, the third respondent sent a communication to the respondents 6 to 9 stating that a complaint was received from the petitioner complaining that his son was denied admission in the colleges of respondents 6 to 9. On 28.09.2013, the petitioner and his son went to the Office of the respondents 6 to 9 at Chennai and requested them to furnish copy of the rank list. But the authorities refused to listen to them. On the same day, they went to the seventh respondent college and received similar reply. The petitioner's wife went to the office of the eighth respondent on 28.09.2013, but there was no response from them.
12.The ninth respondent has filed a counter affidavit wherein it is stated as follows:
The ninth respondent college is a minority private self financing medical college. The fourth respondent rescheduled the dates for M.B.B.S. Course for admission for the year 2013-2014 session according to which, the merit list has to be published on 23.09.2013 by fixing the last date for admission as 26.09.2013. As per the rescheduled dates, 27.09.2013 was the last date for giving details of lapsed seats. As per the above said schedule, the rank list was published by the fourth respondent through website on 26.09.2013. From the next day, the students found place in the ranking list and who have opted the ninth respondent college as their first preference have started coming. Accordingly, the students who came on 24th, 25th and 26th September 2013 have been considered and accordingly, admissions were given on 25th and 26th September 2013. All the 53 seats belonging to the management quota were filled up from among the meritorious candidates according to their ranking and the admitted students list was submitted to the third respondent on 27th September 2013. The petitioner or anyone on his behalf, did not visit or report to this respondent college seeking admission on any of those admission dates. This respondent has not received any letter from the third respondent as claimed by the petitioner.
13. A reply affidavit is filed by the petitioner wherein it is stated as follows:
On 24.09.2013, the petitioner went to the ninth respondent college at about 10 a.m. and met the Administrative Officer. He informed the petitioner that their college has been recognized as a minority Private Self financing Medical College and hence, the petitioner's son could not be admitted therein. Thereafter, the petitioner went to the sixth respondent and there also, the petitioner was refused admission. The petitioner's wife went to the eighth respondent college on 24.09.2013 and the petitioner and his son visited the eighth respondent college on 25th and 26th September 2013. The eighth respondent college informed the petitioner that they would first admit the students who opted their college as their first choice and they would inform the petitioner if there was any vacancy to admit his son. Since the respondents 6 to 9 did not furnish proper information and did not admit the petitioner's son, the petitioner made a complaint to the third respondent in person on 27.09.2013. The petitioner has mistakenly stated that they have also visited the office of third respondent on 28.09.2013.
14.The Medical Council of India, the third respondent in W.P.(MD)Nos.16039 and 16470 of 2013, filed separate counter affidavits wherein, after narrating the stand of Medical Council of India and extracting various case laws dealing with Medical College admission in general, has further stated as follows:
As per the time schedule, the academic session/class has to be started in August of each particular academic session and by any reason whatsoever, the seats falling vacant shall also be filled latest by 30th of August of that particular academic session. Such deadline for admission was framed with the rational that a medical student has to attend certain minimum number of theory and practical classes and other related assignments before being eligible to appear for the examinations. A student has to have 75% cumulative attendance for appearing in the examination in a particular subject and therefore, it is not possible to secure the statutory minimum attendance by any student, if he is admitted after 30th September of that particular academic year. In the case of Priya Gupta v. State of Chattisgarh reported in 2012(7) SCC 433, the Hon'ble Supreme Court has held that any violation of the time-schedule laid down in the MCI Regulations would amount to contempt of the order of the Supreme Court and would be punishable under the Contempt of Courts Act. In the case of FAIZA CHAUDHARY V. STATE OF J. & K. (2012) 10 SCC 149, the Hon'ble Supreme Court has held that the life of a seat in MBBS Course is till the last date of admission i.e., 30th September of that particular academic year only and it cannot be filled up later and cannot be carried forward to next academic session as an extra seat, in the absence of any rule or regulation, as the same will be at the expense of other meritorious candidates waiting for admission in the succeeding years. Therefore, admission in medical courses shall have to be made in accordance with the regulations framed by the MCI including the time schedule appended to the MCI regulations. It is a settled law that all admission in the medicine course which are in disregard of the statutory regulations and/or law laid down by the Hon'ble Supreme Court would deserve to be discontinued. If the prayer of the petitioners in these writ petitions is contrary to the statutory provisions and the principles of law laid down by the Hon'ble Supreme Court, it is not maintainable however, the admission has to be done on merit alone. If the college has violated the principles of merit, then this court may take appropriate action against the college.
15.Mr.E.Mohammed Abbas Jana, learned counsel appearing for the petitioner in W.P.(MD) No.16509 of 2013 submitted as follows:
The merit list has to be placed in the notice board and only the meritorious students have to be admitted. The very posting of the letter dated 24.09.2013 on 29.09.2013, calling upon the petitioner to appear for counselling on 26.09.2013, would show that the college has acted with malafide intention.
The petitioner was in fact available in the college on 25.09.2013. The college has given admission to the students with lesser marks. There was no transparency in the admission. In support of his submission, the learned counsel relied on 2003 (6) SCC 697, Islamic Academy of Education v. State of Karnataka and 2012 (3) MLJ 1236, M.Satishkumar v. Director of Medical Education.
16.Mr.Sathish Babu, learned counsel appearing for the petitioner in W.P.(MD)No.16470 of 2013 submitted as follows:
Out of 53 students admitted by the college, 32 students have secured lesser marks than the petitioner.
17. Mr.Saravanan, learned counsel appearing for the petitioner in W.P.(MD) No.16322 of 2013 has reiterated the contention raised in the affidavit filed in support of the writ petition.
18.Mr.Vijay Narayan, learned Senior Counsel appearing for Velammal Medical College Hospital and Research Institute shown as the fifth and seventh respondent in W.P.(MD) Nos.16509, 16039 and 16470 of 2013 respectively, submitted as follows:
i) The admission to the M.B.B.S. course is being made through three streams viz., All India Quota, State Quota and Management Quota. Because of the three stream admission, the role of the colleges to admit in management quota always comes little later. Paragraph 11 of the Prospectus for the MBBS course 2013-14 Session, issued by the Tamilnadu Private Professional Colleges Association-Health Sciences, deals with method of admission. According to the said method, preferences will be given to the first choice opted the candidates.
Before 30.09.2013, the college has to fill up all the seats. All these three petitioners have reported on 23rd or 24th September 2013 and they were asked to report on 26.09.2013. Apart from this oral communication, a written communication was also sent on 24.09.2013, however, by mistake, it was posted on 29.09.2013. The petitioners did not report to the college on 26.09.2013. Since oral intimation was given to the petitioners to report on 26.09.2013, the call letter dated 24.09.2013 has no consequences. The letter dated 26.09.2013 addressed by the petitioner to the Committee did not refer anything about the presence of the petitioners in the college on 26.09.2013. Even in the affidavit filed in support of the writ petitions, it is not stated as to whether the petitioners were present in the college on 26.09.2013. 30th September 2013 being the cut off date, the court cannot extend the date of admission on any reason or circumstances. Even assuming that there is any deliberate denial, only damages can be claimed and the petitioners cannot seek admission. The petitioners were not able to prove that they were present in the college on 26.09.2013. The denial of admission is not proved. The burden is on them to prove. In the absence of any proof, no other conclusion is possible. The prayer in these writ petitions is for the academic year 2013-2013. Therefore, the prayer has become infructuous. As the last date for admission is already over, the court cannot sanction extra seat. The writ petitions will not lie against the respondent institution.
ii) In support of his submission, the learned senior counsel relied on an unreported decision of the learned Single Judge made in W.P.No.24158 and 23216 of 2010 dated 17.03.2011, and the decisions of the Apex Court reported in 2005(2)SCC 65,Mridul Dhar (Minor) and Others v. Union of India and 2003 (10) SCC 733, Federal Bank Ltd. v. Sagar Thomas and Others.
19. Mr.R.Muthukumarasamy, learned Senior Counsel appearing for the ninth respondent in W.P.(MD) No.16322 of 2013 submitted as follows:
After publishing the list on 23rd September 2013, only three days time was given for the students to get admitted. The petitioner did not give details of his presence in the college in his affidavit. The petitioner had given complaint to the Committee only on 27.09.2013 i.e., after completion of the admission. With regard to the presence of the petitioner in the college, it is a disputed question of fact and therefore, no writ can be issued. The ninth respondent is not having any office at Chennai and it did not receive any communication from the Committee. All 149 students have been admitted without any complaint except the petitioner. In support of his submission, the learned Senior Counsel relied on 1962 (1) SCR 744, Union of India v. Ghaus Mohd., 2005(12) SCC 725, Orissa Agro Industries Corpn. Ltd. v. Bharati Industries, the unreported decision of the learned Single Judge made in W.P.No.24158 and 23216 of 2010, dated 17.03.2011 and 2005(2) SCC 65, Mridul Dhar (Minor) and Others v. Union of India.
20. The learned counsel appearing for the Medical Council of India has reiterated the contentions raised in the counter affidavit filed by MCI.
21.Neither the Committee nor the Consortium has filed any counter affidavit. No argument was advanced either.
22. I have heard all the learned counsels appearing for the petitioners and the learned Senior counsels appearing for the contesting colleges. I have perused the materials placed before me with careful consideration.
23. In all these cases, the grievance of the individual petitioners is against the particular Private Medical College in not admitting them into that college inspite of being meritorious and having been selected, provisionally, by the Tamilnadu Professional College Association-Health Sciences. Before going into the merits and contentions of the individual cases, let me first consider the procedure for admission to the MBBS course 2013-2014 into the private medical colleges. It is seen that 12 institutions including the contesting private medical colleges in these writ petitions, formed themselves as an Association called Tamilnadu Private Professional Colleges Association-Health Sciences, a Consortium of Private Health Sciences Professional Colleges in Tamilnadu affiliated to Tamilnadu Dr.M.G.R. Medical University. The said Association has been registered under the Tamilnadu Societies Act, 1975. For the academic year 2013-2014, the said Consortium of Medical Colleges issued a prospectus for admission to the M.B.B.S course. The candidate should apply to the Secretary of the said Consortium seeking for admission to MBBS course. The eligibility criteria for admission is as prescribed by the the Tamilnadu Dr.M.G.R. Medical University. The method of selection and method of admission are stated under Serial Nos.10 and 11 of general instructions issued in the prospectus which read as follows:
"10.Method of Selection:
a) Ranking of the Candidate will be done based on the total marks obtained in the Science subjects after normalization of marks computed to a maximum of 200.
ii) In the case of candidates who have furnished the mark sheets of the qualifying examination, only in GRADES, the minimum marks of the grades alone will be taken into consideration while determining the marks in the science subjects of Physics, Chemistry and Biology or Botany and Zoology.
iii) The marks obtained through different boards will be taken into account after normalization.
11.Mode of Admission:
a) Admission will be made by member institutions on the basis of common rank list prepared by the Association.
b) The selected candidates should produce all the original documents at the time of admission.
c) All selections and admission are only provisional. The selection is liable to be cancelled at any time as and when the eligibility conditions are found to be defective or incorrect or there has been suppression or misrepresentation of facts.
d) Preference will be given to first choice opted by the candidate.
e) After the publication of merit list, the candidates should contact the respective colleges."
24. From the above procedure contemplating the method of admission, it is seen that admission is being made by member institutions on the basis of common rank list prepared by the Association and preference will be given to the candidate who has opted the member institution as his or her first choice. It is also seen that after the publication of merit list by the Association, the candidates themselves should contact the respective colleges for further admission process. Thus, it is seen from the above referred method of selection and admission that once the merit list is published by the Association then it is for the candidates to contact the respective colleges to know about their fate of admission. In all these cases, it is an admitted fact that the said Association published the merit list on 23.09.2013 wherein these petitioners have found their names placed at various rank position. With these undisputed facts and procedure for admission, let me analyse the facts and circumstances of individual cases, to find out as to whether the petitioners have made out a case for issuing the writ as prayed for.
25. Let me first consider the facts and circumstances of the writ petition in W.P.(MD) No.16509 of 2013:
In this case, the petitioner's rank was placed at Serial No.731. It is his case that on the very next day, his father approached the fifth respondent college on 24.09.2013 and requested them to furnish his status in the selection list and that the fifth respondent has not given the information. It is his further case that he approached the Chairman of the Committee to regulate/monitor the admission of the students to Professional Courses by Self financing Colleges on the same day and made a complaint alleging denial of admission. Based on such complaint, it is seen that the second respondent had sent a communication on the very same day to the college and directed them to offer their remarks forthwith by facts. At this juncture, it is useful to refer to the communication dated 24.09.2013 issued by the Committee to Velammal Medical College, Madurai, which reads as follows:
COMMITTEE TO REGULATE MONITOR THE ADMISSION OF STUDENTS TO PROFESSIONAL COURSES BY SELF FINANCE PROFESSIONAL ARTS AND SCIENCE COLLEGES DOTE Staff quarters, Gandhi Mandapam Road, Guindy, Chennai 600 025. To The Dean, Velammal Medical College, Madurai.
Letter No.COA/521/2013-5 DATED 24.09.2013 Sir, Sub:Complaints in respect of admissions to M.B.B.S. Course As per the proceedings of the committee dated 18.07.2013, the committee was given commission to the Tamil Nadu Professional Colleges Association Health Sciences (TNPPCA-HS) to carry out the admission process for M.B.B.S. course for the academic year 2013-2014. Accordingly, the said Association has prepared the rank list and allotted the students to its member institutions. The parents of the following candidates has complained to the committee, that the candidates has denied admission in your institution for the M.B.B.S. course. The copies of the complaints is enclosed. You are directed to offer your remarks forthwith by fax.
SI.No. Name of the candidates
1. Miss.E.Seethapreetal D/o.Elangovan
2. Mr.Nihaar Ahamed
3. Miss.R.Gayathri D/o.Ramar Sd/-Chairman Copy to
1. Mr.N.Elangovan, Sivakasi Dt.
2. Mr.Nihaar Ahamed, Kilakkarai,
3. Miss R.Gayathri D/o.P.Ramar Madurai District.
/By order/ Sd...Special Officer
26. From the above communication, it is seen that the petitioner and two others who are other writ petitioners in W.P.Nos.16039 and 16470 of 2013 have made complaint against the fifth respondent college complaining that they were denied admission even though they were selected in the merit list. Based on such complaint, the Committee called for remarks from the fifth respondent college as could be seen from the above letter. The fifth respondent college admitted the receipt of the said communication from the Committee on the very same day by evening and there is a specific admission to that effect in the counter affidavit also. Therefore, it is clear that the complaint made by the petitioner alleging denial of admission has resulted in calling for remarks from the fifth respondent college by the Committee on 24.09.2013 itself. But the reason assigned by the College for not admitting the petitioner is that he did not come forward for admission with relevant certificates while the admission was going on from 24.09.2013 to 26.09.2013. If the College has kept quiet with this factual background alone, there is a possibility for this Court to come to a conclusion that there is a disputed question of fact with regard to the petitioner's presence in the college on those days. But such conclusion cannot be made in view of the consequential action/conduct of the College pursuant to the communication received from the Committee on 24.09.2013. Admittedly, the fifth respondent college, after receiving the communication from the Committee, sent a letter dated 24.09.2013 to the petitioner which reads as follows:
Date:24.09.2013 From The Dean VMCH & RI Madurai.
To Mr.Nihal Ahamed, Kilakkarai, Ramnad District.
Dear Mr.Nihal Ahamed, With reference to your rank list, you are instructed to appear for counselling/Selection at the College on 26.09.2013, with all the Original Certificates.
DEAN Dr.A.Srinivasan, Dean, Velammal Medical College Hospital and Research Institute, Madurai 625 009.
CC:The Chairman/COA"
27.A perusal of the said letter would show that the allegations made by the petitioner in his complaint filed before the Committee against the College has not been referred to or denied and on the other hand, the petitioner was called upon to appear for counselling/selection at the College on 26.09.2013 with all the original certificates. It is also to be noted that copy of the said communication was marked to the Committee as well. Thus, from the above said communication dated 24.09.2013, it is crystal clear that the petitioner was specifically called upon to appear for counselling only on 26.09.2013 and not on any other dates. It is also admitted by the fifth respondent college that the petitioner had approached the College on 23.09.2013 along with downloaded copy of his rank statement and he was informed by the College that the admission will be made only after receipt of the choice /rank list from the Association and he should confirm the receipt of the said list by the College over phone and come for admission thereafter. Thus, from these admitted pleadings of the fifth respondent college, it is crystal clear that the petitioner was present very much at the fifth respondent college on 23rd on which day he was only asked to come on some other day after confirming the receipt of the rank list by the College. This is what the version of the College. But the petitioner's version is that the College denied admission when he approached the College on 23.09.2013. This has driven the petitioner in making a complaint against the fifth respondent college before the Committee.
28.In this case, from the perusal of the application submitted by the petitioner, it could be seen that he has chosen the fifth respondent college as his first choice. Therefore, the petitioner is also satisfying Clause 11(d) of the general instructions of the prospectus which contemplates that preference will be given to the students who has chosen the particular college as their first choice. Therefore, from the above facts and circumstances, it is clear that after getting selected in the merit list, the petitioner approached the fifth respondent college on 23.09.2013 on which day he was not given admission. When a complaint was made to the Committee against such denial, the petitioner was issued with a call letter dated 24.09.2013 by the College calling upon him to appear for counselling/selection at the College on 26.09.2013. Had the letter been sent on the very same day and it reached the petitioner on the very next day and if the petitioner did not come to the College till 26.09.2013, then the fifth respondent college is justified in contending that the petitioner did not come to the fifth respondent college till 26.09.2013 and in the meanwhile, the admission to the 53 seats under the Management Quota has been filled up. But the mischief starts by posting the said letter dated 24.09.2013 only on 29.09.2013. The petitioner has filed the xerox copy of the envelope sent by the fifth respondent college to the petitioner showing the date of posting as 29.09.2013. This fact is also not disputed by the College and on the other hand, in the counter affidavit, they admit that the cover contains the post office seal affixed on 29.09.2013, even though the despatch of the said letter has been recorded on 24.09.2013 and that the matter is under enquiry to find out if any lapse has been occurred at the office and if so, to punish the delinquent.
29.From these admitted facts on the side of the fifth respondent college, the following conclusion emerges:
a) The petitioner was admittedly present in the College on 23.09.2013 on which day he was not given admission;
b) The College has asked the petitioner to come on some other day after confirming the receipt of the rank list;
c) The College sent a call letter dated 24.09.2013 inviting the petitioner for counselling on 26.09.2013 and the said call letter itself was posted only on 29.09.2013;
d) In the said call letter, the stand taken by the college in this writ petition has not been stated. On the other hand, it is a simple and plain call letter.
When these are the admitted facts, I fail to understand as to how the College is justified in stating that the petitioner was not present in the College between 24.09.2013 and 26.09.2013 when the admission was going on. Further, I am not able to appreciate the argument that there was no necessity for the college to send such call letter, especially under the facts and circumstances of the present case. Therefore, I find that the fifth respondent college is at fault in not sending proper communication to the petitioner in time which in all probabilities has denied his legitimate right of getting admission into the fifth respondent college even though he has chosen the fifth respondent college as his first choice. Even though the learned Senior Counsel for the fifth respondent college argued that the petitioners were orally asked to report on 26.09.2013, when they reported on 23rd and 24th September 2013, no such averment is made in the counter affidavit but on the other hand, it is only stated that the petitioner was advised to confirm the receipt of the list by the fifth respondent college and come for admission. Thus, it has to be concluded that except the communication dated 24.09.2013, the petitioner was not informed to come for counselling on 26.09.2013 by any other mode. When that being the factual position, the College cannot contend that the petitioners were not present in the College on 26.09.2013, having posted the call letter only on 30.09.2013. Thus, it is crystal clear that the College is at fault.
30. Let me next consider the facts and circumstances of the writ petition in W.P.(MD) No.16039 of 2013:
In this case, the petitioner was placed at Serial No.131 in the rank list. It is the case of the petitioner that immediately on publishing the result, she approached the seventh respondent college in person and requested for admission. The application submitted by the petitioner also shows that she has opted the seventh respondent college as her first choice. It is her further case that the seventh respondent college did not offer the admission immediately and on the other hand, asked the petitioner to come after 26.09.2013 as the process was going on. Therefore, the petitioner made a complaint to the Committee against the denial of admission which in turn sent a communication on 24.09.2013 itself to the seventh respondent college and called for remarks forthwith by fax. The said communication dated 24.09.2013 issued by the Committee has already been extracted supra while dealing with the writ petition in W.P.(MD) No.16509 of 2013. In fact, it is a common communication in respect of three writ petitioners in W.P.(MD) No.16509 of 2013, 16039 of 2013 and 16470 of 2013. The seventh respondent college in the counter affidavit admitted the receipt of the said communication from the Committee and consequent upon the receipt of the said communication, it is stated that the seventh respondent college sent a communication calling upon the petitioner to report for admission on 26.09.2013. Here again, the fact remains that such communication dated 24.09.2013 issued by the seventh respondent college was in fact sent only on 30.09.2013 as proved by the materials placed before this Court as in the case of other two writ petitioners. The identical communication was issued by the seventh respondent college to all the three writ petitioners. Therefore, here also, the facts and circumstances with dates and events are similar to the other case in W.P.(MD) No.16509 of 2013. Therefore, I find that the seventh respondent college is at fault in not sending the communication to the petitioner in time and thereby denying her legitimate right of getting admission into the seventh respondent college.
31. Let me next consider the facts and circumstances of the writ petition in W.P.(MD) No.16470 of 2013:
In this case, the petitioner got 551 rank in the merit list published by the Association. Here also, the petitioner has chosen the seventh respondent college as her first choice. Immediately after publication of the result, she approached the seventh respondent college and requested for admission. The seventh respondent college asked the petitioner to come after 26.09.2013 by stating that the process was going on. Therefore, she also made a complaint to the Committee which in turn sent common letter dated 24.09.2013 to the seventh respondent college calling for remarks. The seventh respondent college in turn sent a call letter dated 24.09.2013 as in the case of other writ petitioners and posted it only on 29.09.2013 and called upon the petitioner to attend for counselling on 26.09.2013. In the counter affidavit filed by the seventh respondent college, the receipt of the communication from the Committee on 24.09.2013 has been admitted so also with regard to the communication sent to the writ petitioner dated 24.09.2013. In all other aspects, viz., the facts and circumstances with dates and events are similar to the other cases in W.P.(MD) Nos.16509 and 16039 of 2013. Therefore, I find that the seventh respondent college is at fault in not sending the communication to the petitioner in time and thereby denying her legitimate right of getting admission into the seventh respondent college.
32. In so far as these three writ petitions are concerned, I have found that the concerned college which has been arrayed as the fifth respondent in W.P.(MD) No.16509 of 2013 and Seventh respondent in W.P.(MD) Nos.16039 of 2013 and 16470 of 2013 is at fault. Consequently, this Court has to find out as to what could be the relief that could be given to the petitioners in these three writ petitions.
33.In all these three writ petitions, the petitioners seek for a mandamus to admit them in the M.B.B.S. Course for the period 2013-2014 in the respective respondent college. It is not in dispute that the last date for admission into the MBBS Course, under all circumstances, is 30th September of that particular year as held by the Hon'ble Supreme Court and such cut off date cannot be extended by this Court under any circumstances. Even though these writ petitions were filed seeking for admission to the M.B.B.S. Course for the academic year 2013-2014, they approached the Court and filed these writ petitions on 26th September 2013 (W.P.(MD) No.16039 of 2013), on 04th October 2013 (W.P.(MD) No.16509 of 2013) and on 03rd October 2013 (W.P.(MD)No.16470 of 2013). By the time, when these writ petitions were taken up for final disposal, the cut off date fixed by the Hon'ble Supreme Court is already over and therefore, this Court cannot grant the relief of directing the concerned respondent college to grant admission to these petitioners. Whether the college can be directed to accommodate these petitioners in the next academic year is the next question. Even that is also not possible in view of the settled law laid down by the Hon'ble Supreme Court as held in Priya Gupta vs. State of Chhattisgarh and Others reported in 2012(7) SCC 433, more particularly at paragraph No.45 which reads as follows:
"45. The maxim boni judicis est causas litium dirimere places an obligation upon the Court to ensure that it resolves the causes of litigation in the country. 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 abovestated principles."
(emphasis supplied)
34.Again, the Hon'ble Supreme Court in a decision reported in (2012) 10 SCC 149, FAIZA CHAUDHARY V. STATE OF J. & K. has held that a medical seat has life only in the year it falls, that too, only till the cut off fixed by the Supreme Court i.e., 30th September in the respective year. The Hon'ble Apex Court has held in clear and categorical terms that carry-forward principle is unknown to the professional courses like medicine, engineering and dentist, etc., The relevant paragraph Nos. 14, 15 and 16 are as follows:
"14. A medical seat has life only in the year it falls, that too only till the cut-off date fixed by this Court i.e., 30th September in the respective year. Carry forward principle is unknown to the professional courses like medical, engineering, dental etc. No rule or regulation has been brought to our knowledge conferring power on the Board to carry forward a vacant seat to a succeeding year. If the Board or the Court indulges in such an exercise, in the absence of any rule or regulation, that will be at the expense of other meritorious candidates waiting for admission in the succeeding years.
15. The Medical Council of India Act provides that admission can be made by the medical colleges only within the sanctioned capacity for which permission under Section 10A/recognition under Section 11(2) has been granted. This Court in State of Punjab and Others v. Renuka Singla and Others (1994) 1 SCC 175, held that the High Court or the Supreme Court cannot be generous or liberal in issuing such directions which in substance amount to directing authorities concerned to violate their own statutory rules and regulations, in respect of admissions of students. In Medical Council of India v. State of Karnataka (1988) 6 SCC 131, this Court held that the number of students admitted cannot be over and above that fixed by the Medical Council as per the Regulations and that seats in the medical colleges cannot be increased indiscriminately without regard to proper infrastructure as per the regulations of the Medical Council. In Medical Council of India v. Madhu Singh and Others (2002) 7 SCC 258, this Court held that there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year. Recently, this Court in Satyaprata Sahoo and Others v. State of Orissa and Others JT 2012 (8) SCC 203:2012(@) SCC (L&S) 570, has reiterated that it would not be possible to increase seats at the expense of candidates waiting for admission in the succeeding years.
16. The learned senior counsel appearing for the appellant referred to few judgments of this Court stating that this Court had previously given certain directions to accommodate candidates in the succeeding years, but that was done in our view only in extraordinary circumstances and issued in view of the mandate contained in Article 141 of the Constitution which cannot be treated as a precedent for this Court or the High Courts to follow. We, therefore, hold that a seat which fell vacant in a particular year cannot be carried forward or created in a succeeding year, in the absence of any rule or regulation to that effect."
35.In the unreported decision made in W.P.No.24158 and 23216 of 2010 dated 17.03.2011, a learned Single Judge of this Court has observed at paragraph Nos.6,7,8 and 10 as follows:
"6.Though the case pleaded by the petitioners may require sympathetic consideration, but this Court is unable to grant any relief to the petitioner in the context of series of judgments of the supreme court rendered in this regard. At an earlier point of time, the Supreme Court under Article 142 of the Constitution of India had granted directions to admit such unfortunate candidates. But in the subsequent decisions of the Supreme Court, (which are squarely on the point) there is no scope for any court to shift the cut off date on account of particular personal predilections or situations which were beyond the control.
7.In the light of the judgment of the Supreme Court in Medical Council of India v. Madhu Singh reported in MANU/SC/0761/2002: 2002 (7) SCC 258 that all admissions should be over by 30.09.2009.
8.The Supreme Court, vide its judgment in State of Punjab v. Renuka Singla MANU/SC/0131/1994: (1994) 1 SCC 175, forewarned the High Courts from giving any directions for creating additional seats which would amount to violating relevant provisions of the Act under which such colleges are functioning.
10.In the light of the above legal precedents, the relief claimed by the petitioners cannot be countenanced by this Court. Hence, the entire writ petitions stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed. However, if the petitioners were able to prove that there was deliberate denial of seats by the colleges concerned, they can always claim damages by filing appropriate petitions before the appropriate forum."
36. No doubt, the learned counsel appearing for the petitioners relied on a decision reported in 2012(3) MLJ 1236, M.Sathiskumar v. Director of Medical Education, Chennai 10, of a learned Single Judge of this Court. But, a perusal of the said decision would show that the said case was in respect of admission for MBBS course in Government Medical Colleges where sending of call letters was mandatory and such call letter was not sent in that case. Further perusal would also disclose that the learned Judge has issued a direction to admit the petitioner therein within the cut off date itself. Therefore, there was no impediment to issue such direction in that writ petition. Therefore, I am of the view that the facts of the above case are totally different and the same cannot be applied to the present case.
37. Likewise, the other unreported decision of the learned Single Judge made in W.P.Nos.16688 and 16695 of 2011 dated 27.07.2011 is also not relevant to the facts and circumstances of the present case, since the issue involved in that case was as to whether the admission of students under lapsed seats category due to non joining of Government sponsored students could be treated as Management Quota or not. Therefore, I find no relevance of the above said case to the facts and circumstances of the present case.
38.Considering all these facts and circumstances and considering the law laid down by the Hon'ble Supreme Court in the above case laws, it is crystal clear that the petitioners cannot get the relief of admission into the concerned respondent college. But, at the same time, having found that the said respondent College was at fault in sending the communication calling upon the petitioners to come for counselling, belatedly i.e. admittedly after the counselling was over, this Court is of the view that the petitioners cannot be left without any relief and that they need to be compensated for the loss of one academic year sustained by them due to fault committed by the concerned respondent college. In these three cases, the relevant facts are not in dispute viz., the presence of the petitioners on the particular day, receipt of communication from the Committee and the consequential belated communication sent by the College to the petitioners calling upon them for counselling. When these are the admitted facts, I find that the petitioners need not be driven to establish their case before the competent Civil Court for claiming compensation from the respondent college as this Court can safely come to a conclusion that the College has committed the mischief which has resulted in great damage to these writ petitioners. At this juncture, it is relevant to note the decision of the Apex Court reported in 2006(2) SCC 269, L.K.VERMA vs. HMT LTD. AND ANOTHER wherein it is held that things admitted need not be proved. Therefore, this Court comes to the conclusion that by the conduct of the concerned respondent college in sending the belated communication, the petitioners were denied of their legitimate right, opportunity and chance of getting admitted into the MBBS course. Consequently, they need to be compensated for the loss of one academic year. Even though no prayer is sought for in these writ petitions seeking for compensation, considering all the facts and circumstances and in order to meet the ends of justice, this Court moulded the relief as discussed supra and holds that these three writ petitioners are entitled for compensation.
39. Finally, let me consider the facts and circumstances of the writ petition in W.P.(MD) No.16322 of 2013:
In this case, the petitioner's son was assigned the rank of 311. The petitioner's son has chosen the ninth respondent college as his first choice. It is the case of the petitioner that he went to the respondents 6 to 9 along with his son and sought for admission immediately after the publication of the result by the Committee on 23.09.2013. But the respondents 6 to 9 were dodging by giving one reason or other. Therefore, the petitioner made a complaint to the third respondent viz., the Committee on 27.09.2013 which in turn said to have sent a communication to the respondents 6 to 9 and directed those colleges to show the rank list to the candidates. It is the further case of the petitioner that they went to the colleges once again on 28.09.2013 and requested for admission which they refused to consider.
40. The ninth respondent filed a counter affidavit and denied those contentions raised by the petitioner. It is the specific case of the ninth respondent that after the publication of the rank list on 23.09.2013, admissions were given on 25th and 26th September 2013 to those students who came to the ninth respondent college and have shown the ninth respondent college as their first preference. It is the case of the ninth respondent that all the 53 seats, being the 35% Management Quota, were filled up on 25th and 26th September 2013 itself and the list of the admitted students was also submitted to the Committee on 27.09.2013 itself. It is specifically stated by the ninth respondent that neither the petitioner nor anyone on his behalf visited or reported to the ninth respondent college seeking admission on any of those admission dates. It is also specifically stated by the ninth respondent college that they have not received any letter from the third respondent committee as claimed by the petitioner. The Committee has not filed any counter to deny such statement.
41. No doubt, the petitioner has filed a reply affidavit wherein it is stated that they went to the ninth respondent college on 24.09.2013 and eighth respondent college on 25th and 26th September 2013. In this case, from the perusal of the pleadings of the respective parties, it could be seen that the ninth respondent college has categorically denied the claim made by the petitioner both in respect of his alleged presence in the college on the relevant dates as well as the issuance of the alleged communication by the Committee on 27.09.2013. Unless there is a clear cut admission in the counter affidavit, this Court while exercising jurisdiction under Article 226 of the Constitution of India, cannot decide the matter when the facts are in dispute. It is nothing but oath against oath which requires leading of evidence in support of their respective pleadings, for which purpose, this is not the forum to establish their case. It has to be agitated and established only before a competent civil court by adducing material evidences. Therefore, I am of the view that in so far as this writ petition is concerned, since the facts are in dispute, the relief sought for by the petitioner cannot be granted while exercising the discretionary jurisdiction of the Article 226 of the Constitution of India.
42. At this juncture, it is useful to refer the decision relied on by the learned Senior Counsel appearing for the ninth respondent in Union of India v. Ghaus Mohd. reported in 1962 (1) SCR 744, , the Hon'ble Supreme Court at paragraph No.7 has held as follows:
"7. The question whether the respondent is a foreigner is a question of fact on which there is a great deal of dispute which would require a detailed examination of evidence. A proceeding under Article 226 of the Constitution would not be appropriate for a decision of the question. In our view, this question is best decided by a suit and to this course neither party seems to have any serious objection. As we propose to leave the respondent free to file such a suit if he is so advised, we have not dealt with the evidence on the record on the question of the respondent's nationality so as not to prejudice any proceeding that may be brought in the future."
43. Likewise, the Hon'ble Supreme Court has held in 2005(12) SCC 725, Orissa Agro Industries Corpn. Ltd. v. Bharati Industries, at paragraph No.7 as follows:
"7.A bare perusal of the High Court's judgment shows that there was clear non-application of mind. On one hand the High Court observed that the disputed questions cannot be gone into a writ petition. It was also noticed that the essence of the dispute was breach of contract. After coming to the above conclusions, the High Court should have dismissed the writ petition. Surprisingly, the High Court proceeded to examine the case solely on the writ petitioner's assertion and on a very curious reasoning that though the appellant-Corporation claimed that the value of articles lifted was nearly Rupees 14.90 lakhs no details were specifically given. From the counter- affidavit filed before the High Court, it is crystal clear that relevant details disputing claim of the writ petitioner were given. Value of articles lifted by the writ petitioner is a disputed factual question. Where a complicated question of fact is involved and the matter requires thorough proof on factual aspects, the High Court should not entertain the writ petition. Whether or not the High Court should exercise jurisdiction under Article 226 of the Constitution would largely depend upon the nature of dispute and if the dispute cannot be resolved without going into the factual controversy, the High Court should not entertain the writ petition. As noted above, the writ petition was primarily founded on allegation of breach of contract. Question whether the action of the opposite party in the writ petition amounted to breach of contractual obligation ultimately depends on facts and would require material evidence to be scrutinized and in such a case writ jurisdiction should not be exercised. (See: State of Bihar v. Jain Plastic and Chemicals Ltd., [2002] 1 SCC 216).
44. Considering the above settled proposition of law, I am of the view that the petitioner in W.P.16322 of 2012 cannot be granted any relief in this writ petition. However, it is open to the petitioner to go before the competent Civil Court and establish his case by adducing material evidences in support of his claim and seek appropriate relief against the ninth respondent institution. With these observations, W.P.No.16322 of 2013 deserves to be dismissed.
45. In the result, I hold that the petitioners in W.P.(MD) Nos.16509, 16039 and 16470 of 2013 are not entitled for admission in the M.B.B.S., Course and on the other hand they are only entitled to a sum of Rs.3,00,000/- (Rupees Three lakhs only) each as compensation payable by the Dean, Velammal Medical College Hospital and Research Institute, Madurai who is the fifth respondent in W.P.(MD) No.16509 of 2013 and seventh respondent in W.P.(MD) Nos.16039 and 16470 of 2013. Thus, the above respondent College is directed to pay the said sum of Rs.3,00,000/- each to the above writ petitioners within a period of eight weeks from the date of receipt of copy of this order. The writ petitions in W.P.(MD) Nos.16509, 16309 and 16470 of 2013 are ordered as indicated above. No costs.
46. W.P. (MD) No. 16322 of 2013 is dismissed by granting liberty to the petitioner to approach the competent Civil Court for appropriate relief against the ninth respondent college, if the petitioner is having material evidence to substantiate his case. No costs. The connected miscellaneous petitions are closed.
vri To
1.The State of Tamilnadu, rep. By the Secretary to Government, Health & Family Welfare Department, Secretariat, Chennai-9.
2.The Selection Committee, represented by the Secretary, Director of Medical Education, Kilpauk, Chennai 10.
3.The Medical Council of India, represented by the Secretary, Pocket-14, Sector-8, Dwaraka Phase-I, New Delhi 110 077.
4.The Registrar, M.G.R. Medical University, Chennai.
5.The Special Officer, Committee to Regulate-Monitor the Admissions of Students to Professional Courses by Self Financing Professional, Arts and Science Colleges, F-1, DOTE Staff Quarters, Gandhi Mandapam Road, Guindy, Chennai 600 025.
6.The Secretary, Tamil Nadu Private Professional Colleges Association- Health Sciences, Prasanna Enclave, No.30, Bharathi Avenue II Street, Kotturpuram, Chennai.
7.The Dean, Velammal Medical College, Madurai.
8.Chennai Medical College Hospital & Research Centre, Rep. By its Principal, Irungalur Village, Mannachanallur Taluk, Trichy.
9.Karpaga Vinayaga Institute of Medical Sciences & Research, Rep. By its Principal, Chinna Kolambakkam, Palayanoor Post, Madhuranthagam Taluk, Kanchipuram 603 308.
10.Velammal Medical College Hospital & Research Institute, Rep. By its Principal, Velammal Village, Madurai-Tuticorin Ring Road, Anuppanadi, Madurai 625 009.
11.Dhanalakshmi Srinivasan Medical College & Hospital, Rep. By its Principal, NH-47, Trichy-Chennai Highway, Siruvachur, Perambalur District 621 113.