Rajasthan High Court - Jaipur
Dr. Abhishek Saini & Ors. vs . State Of Rajasthan & Ors. on 11 March, 2015
Bench: Sunil Ambwani, Prakash Gupta
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
JUDGMENT
(1) D.B. SPECIAL APPEAL(WRIT) NO.798/2014
IN
S.B. CIVIL WRIT PETITION NO.8117/2011
MAHATMA GANDHI UNIVERSITY OF MEDICAL SCIENCES
AND TECHNOLOGY, JAIPUR & ORS.
Vs.
STATE OF RAJASTHAN & ORS.
(2) D.B. SPECIAL APPEAL(WRIT) NO.797/2014
IN
S.B. CIVIL WRIT PETITION NO.8117/2011
DR. ABHISHEK SAINI & ORS. Vs. STATE OF RAJASTHAN & ORS.
(3)D.B. CIVIL SPECIAL APPEAL NO.820/2014
IN
S.B. CIVIL WRIT PETITION NO.8117/2011
DR. YOGENDRA SINGH GURJAR & ANR. Vs. STATE OF RAJASTHAN & ORS.
DATE: :: MARCH 11th , 2015
REPORTABLE
HON'BLE THE ACTING CHIEF JUSTICE MR. SUNIL AMBWANI
HON'BLE MR.JUSTICE PRAKASH GUPTA
Mr. Ashok Gaur, Senior Counsel assisted by
Mr. Ajatshatru Mina,
Mr. A.K. Sharma, Senior Counsel assisted by
Mr. Rachit Sharma,
Mr. Saransh Saini, for the appellants.
Mr. S.K. Gupta, Additional Advocate General, for the State.
Mr. Angad Mirda, for the respondent-MCI.
Mr. M.A. Khan, for the respondent-RUHS.
Mr. Rajendra Soni with
Mr. Nitesh Kumar Garg &
Mr. Mohit Soni,
Mr. B.S. Chhaba, for the respondents.
*****
BY THE COURT:(PER HON'BLE THE ACTING CHIEF JUSTICE)
1. D.B. Special Appeal(Writ) No.798/2014, filed by the Mahatma Gandhi University of Medical Sciences and Technology, Jaipur (for short, 'the MG University'), is directed against the judgment dated 25.04.2014, passed by learned Single Judge in S.B. Civil Writ Petition No.8117/2011- Dr. Yogendra Singh Gurjar & Anr. Vs. State of Rajasthan & Ors., whereby the writ petition was allowed with directions to the Medical Council of India to take action in compliance of para No.8.4 of the order of the Government of India, dated 14.05.2003, for those Post Graduate Medical admissions, which were granted in pursuance to the advertisement dated 27.05.2011 by the appellant-University declaring that the admissions given by the appellant-University and the Medical College, are in violation of the time schedule, fixed by the Hon'ble Supreme Court in Mridul Dhar(Minor) And Another Vs. Union of India And Others, (2005) 2 SCC 65. Learned Single Judge directed the MG University to deposit the entire fees collected from these students with the Medical and Health Department, State of Rajasthan, within six weeks.
2. D.B. Special Appeal(Writ) No.820/2014 is an intra-Court appeal, arising out of the same judgment of learned Single Judge dated 25.04.2014, by which he had allowed the S.B. Civil Writ Petition No.8117/2011, filed by Dr. Yogendra Singh Gurjar and Dr. Richa Singh, the unsuccessful candidates seeking admission in MD/MS/MDS Courses in the MG University. They had appeared in MBBS Examination of the Rajasthan University of Health Sciences(RUHS) in the year 2008 and 2009, and had secured 85.66% and 83.33% marks respectively in the Pre-PG Entrance Examination, 2011, conducted by the RUHS vide Notification dated 30.12.2010, but failed to secure admissions in the desired subjects.
3. D.B. Special Appeal(W) No.797/2014, has been filed by Dr. Abhishek Saini & 11 others, the PG students in the MG University, against the same judgment dated 25.04.2014, by which their admissions to PG Course, dated 31.05.2011, were declared by learned Single Judge, to be against the time schedule and the procedure, prescribed by the Hon'ble Apex Court in Mridul Dhar(Minor) And Another Vs. Union of India And Others(supra), as well as in violation of clause 9 of the MCI Regulations, 2009, and the decision of the Government of India dated 14.05.2003, in pursuance to the judgment of the Apex Court in Medical Council of India Vs. Madhu Singh And Others, (2002) 7 SCC 258. They have prayed to set aside the judgment of learned Single Judge, and to declare their result of the Final Year PG Course, which was directed by the Court to be kept in a sealed cover in pursuance to an interim order passed by this Court in the Special Appeal on 12.05.2014.
4. Learned Single Judge, by a judgment dated 25.04.2014,, held that the admissions given by the respondent Nos.9 to 11 in pursuance to the advertisement dated 27.05.2011, were in violation of the Regulations of the MCI, and the time schedule and procedure provided by the Hon'ble Supreme Court in Mridul Dhar Vs. Union of India & Ors.(supra), and thus, the MG University was directed to deposit the the entire fee collected from students with the Medical And Health Department, Government of Rajasthan, within six weeks from the date of judgment, to be used for advancement of studies in medical sciences. It was further held that the relief for admissions in PG Courses could not be given to the petitioners for the concerned year, but as directed by the Honb'le Supreme Court, they are required to be indemnified, and thus, the MG University through its Registrar and the Mahatma Gandhi Medical College and Hospital through its Principal and Registrar, being respondent Nos.9 to 11, were directed to pay the cost of litigation to the petitioners, quantified at Rs.10,000/-. Learned Single Judge further directed the Medical Council of India to take action in compliance of para No.8.4 of the order of the Government of India dated 14.05.2003, against the MG University for the admissions, which were granted in pursuance to the advertisement dated 27.05.2011, and to take up the matter against the respondent Nos.9 to 11 for violation of the order of the Government of India, the Notification of the MCI and the judgment of the Hon'ble Apex Court, as per law, within three months, and the compliance report to be filed in the Court.
5. In pursuance to the directions issued by learned Single Judge for depositing the amount, which was not stayed in the appeal, the MG University has deposited Rs.2.16 crores with the Medical & Health Department, Government of Rajasthan, subject to this appeal.
6. An interim order was passed in this appeal on 12.05.2014, allowing the 12 students (appellants), who were admitted to the PG Courses for the year 2011-12, to appear in the examination of their respective PG Courses, commencing from 19.05.2014, with further directions that their result of participation be kept in a sealed cover and not to be declared without permission of the Court.
7. It is stated that all the 12 students, who have filed D.B. Special Appeal(Writ) No.797/2014- Dr. Abhishek Saini & Ors. Vs. State of Rajasthan & Ors., had appeared in the final examinations of the PG Courses, and have also submitted their thesis. Their results are, however, still kept in a sealed cover, awaiting decision of this Special Appeal.
8. The facts, giving rise to this Special Appeal, filed by the MG University, are that the RUHS issued a Notification on 30.12.2010 for Pre-PG Medical/Dental Entrance Examination for the year 2011 for admission to the PG Courses in the Colleges/University of Rajasthan. Dr. Yogendra Singh Gurjar and Dr. Richa Singh, the petitioners in S.B. Civil Writ Petition No.8117/2011, appeared with Roll Nos.6366 and 6576 respectively. The result of the test was declared on 11.02.2011, in which they secured 1028 (85.66%) and 1000 (83.33%) marks, out of 1200 marks respectively. The RUHS published a Notification dated 02.04.2011 for the first round of Medical & Dental P.G. Counselling, 2011, informing all the in-service candidates, non-service candidates and Dental P.G. candidates, the dates for the first round of counselling for admissions to the State Medical Colleges and Private Medical Colleges to be held on 11.04.2011, 12.04.2011 and 13.04.2011 respectively. The petitioners were not successful in admission to the State Medical Colleges and Private Medical Colleges in the first round of counselling.
9. The Mahatma Gandhi Medical College and Hospital, Sitapura, Jaipur, a recognized private medical college, having 48 seats in MD/MS courses in various disciplines, did not take part in the first counselling. It had filled up its 50% seats in Management Quota. The remaining 50% seats, to be given on the basis of institutional preference and reservation for SC/ST and others, were not filled up by the College. On 08.04.2011, the MG Medical College & Hospital, wrote a letter to the Principal Secretary, Medical Education, Govt. of Rajasthan, Jaipur, and the Convener, Central P.G. Admission Board, Principal & Controller, Govt. Medical College, Kota, in response to their letter dated 06.12.2010, and in continuance to its letters dated 08.12.2010, 13.12.2010, 11.03.2011 and 16.03.2011, that the details of PG seats available for the allotment of Pre-PG candidates of Govt. of Rajasthan, were intimated on 08.12.2010. The Government of Rajasthan had issued a Letter of Intent (LOI) for establishment of Mahatma Gandhi University of Medical Sciences and Technology, Jaipur. The approval of the MG University by the Government of Rajasthan was at final stage and is likely to be issued very shortly. In the circumstances, the information was given that Mahatma Gandhi Medical College and Hospital, Sitapura, Jaipur, will not be able to participate in the PG counselling to be held from 11th April to 13th April, 2011. A request was made to the Convener, PG Admission Board, not to allot any Pre-PG qualified candidates to the Mahatma Gandhi Medical College & Hospital and Mahatma Gandhi Dental College & Hospital, Sitapura, Jaipur in the first counselling, to avoid any litigation at the later stage regarding the enrollment of the candidates. In the letter, it was further stated as follows:-
On the approval of Mahatma Gandhi University of Medical Sciences and Technology, Jaipur we will be able to conduct the procedure for PG Admission as per the MCI/DCI guide lines at our own level and enroll the PG students in the proposed Mahatma Gandhi University of Medical Sciences and Technology, Jaipur. It is also submitted that the Hon'ble Supreme Court of India in the case of Magan Malhotra has mentioned the preference to be given to the candidates of same university college for 50% seats. Hence, we will not take candidates from other medical colleges under Rajasthan University of Health Sciences, Jaipur.
However, if due to any unforeseen reasons our approval of establishment of proposed Mahatma Gandhi University of Medical Sciences and Technology, Jaipur is delayed beyond 30th April, 2011 i.e. before the commencement of PG courses on 01st May 2011, we will intimate your good self accordingly to include our name in the second counselling of PG students conducted at your level.
10. The second round of counselling for PG Medical/Dental Courses, to be conducted by the RUHS, was scheduled to be held from 26.05.2011 to 28.05.2011. On 24.05.2011, the Government of Rajasthan, issued an Ordinance, notifying approval of Mahatma Gandhi University of Medical Sciences and Technology, Jaipur, on which Dr. D.P. Punia, Principal & Controller, Mahatma Gandhi Medical College & Hospital, sent a letter on the same day i.e. 24.05.2011, to the Convener, Central P.G. Admission Board and Principal & Controller, Govt. Medical College, Kota, that in view of the Ordinance for the approval of the MG University, the College will not participate in the second round of counselling, to be held on 26th, 27th and 28th May, 2011. The Convener, C.P.G.A. Board-2011 & Principal & Controller, Govt. Medical College, Kota, on the same day on 24.05.2011, informed the Principal Secretary, Medical Education Department, Govt. of Rajasthan, Jaipur, that the Dean, M.G. Medical College, Jaipur, had informed that they will not participate in the second round of P.G. counselling, and sought instructions whether to include the Medical/Dental P.G. Seats of M.G. College, Jaipur in the second round of P.G. counselling.
11. A meeting of the Central P.G. Admission Board, 2011, was held, as Pre-Counselling Meeting, for second round of counselling, to fill up the seats, which had remained vacant, and which may be filled up in the second round of counselling, to begin from 26th to 28th May, 2011. In this meeting, the letter of the Mahatma Gandhi Medical College, Jaipur, dated 24.05.2011, intimating that it will not take part in the second round of counselling on the ground that an Ordinance approving the establishment of MG University has been issued, was discussed. In the proceedings of the meeting dated 26.05.2011, it was recorded that the Coordinator has personally spoken to the Principal Secretary, Medical Education, Govt. of Rajasthan, who had directed him not to include the Mahatma Gandhi Medical/Dental College in the PG Counselling, 2011, and accordingly, a decision was taken that the letter of the Mahatma Gandhi Medical/Dental College, be sent to the State Government by 'fax' for necessary instructions.
12. The Mahatma Gandhi Medical College & Hospital did not participate in the second round of counselling, and on its constitution as MG University by an Ordinance issued on 24.05.2011, decided to hold its own entrance examination vide notice issued on 28.05.2011, as follows:-
Notice- PG Course(MD/MS/MDS) 2011-12 It is notified to all the eligible candidates of Pre-PG(MD/MS/ MDS) Examination, 2011 that the Entrance examination will be conducted by the University on Tuesday the 31st May, 2011.
The examination will be held in the examination hall of Mahatma Gandhi Medical College from 11.00 AM to 2.00 PM.
Admission cards may be collected by the candidates in person on the date of exam at 10.00 AM from the office of the Registrar.
Result of the examination along with the merit list would be declared on the same day, and will be displayed on the Notice Board.
Counselling for selection of candidates will be held soon after the declaration of result. Candidates are required to bring their original documents.
Selected candidates are required to deposit fee as per Fee Regulatory Committee, Govt. of Rajasthan, MD/MS- Rs. 6.0 Lacs/ MDS- Rs. 4.0 Lacs per annum, on the same day along with cash security/Bank Guaranty for balance years of course as per the directions of Hon'ble Supreme Court of India.
13. The MG University, in order to fill up 22 seats, for which an entrance examination was to be conducted on 31.05.2011, which was the last date for admissions in the Schedule for admissions, fixed by the Hon'ble Supreme Court in Mridul Dhar(Minor) And Another Vs. Union of India And Others(supra), issued admit cards to 51 candidates to participate in the examination to be held on 31.05.2011. The examination for admissions was held from 11.00 AM to 2.00 P.M.. The result of the examination was declared, and the counselling for admission to various disciplines, was held on the same day, and that 12 students, who were admitted to the PG Courses, deposited their fees of Rs. 6.00 lacs for MD/MS Course, and submitted cash security and a bank guarantee on the same day on 31.05.2011. In this manner, the MG University completed its admissions of PG Courses, leaving 10 out of 22 seats unfilled.
14. Mr. Ashok Gaur, learned Senior Counsel appearing for the MG University, states that there were total 48 seats, recognized by the Medical Council of India in Mahatma Gandhi Medical College, out of which 7 seats were reserved for Non-Resident Indian (NRI) Quota. From the remaining 41 seats, 20 seats were allocated to the Management Committee, out of which 19 were filled up and one seat remained vacant. The entrance examination was conducted for 22 seats, out of which only 12 could be filled up and 10 seats remained vacant.
15. In these circumstances, S.B. Civil Writ Petition No.8117/2011 was filed by the petitioners, to quash the action of the respondents of not filling up 50% seats of PG Course of Mahatma Gandhi Medical College & Hospital, in MD/MS/MDS from the merit list of the Rajasthan Pre-PG Entrance Examination, 2011; to quash the advertisement dated 27.05.2011 issued by the Mahatma Gandhi Medical College & Hospital, for filling the seats by any method than the merit of Rajasthan Pre-PG Test, 2011, and to give admission to the petitioners and other similarly situated persons on the basis of merit of the Rajasthan Pre-PG Test, 2011, by considering them in the counselling started from 26.06.2011 vide notification dated 16.06.2011, or on any other date, with consequential benefits. The petitioners also prayed for an appropriate action including holding an enquiry from the CBI, or by any other authority in the matter of recruitment and corruption in Pre-PG admissions in MD/MS/MDS Courses by the Mahatma Gandhi Medical College & Hospital, in the name of MG University.
16. In the reply given by the State of Rajasthan and the Principal Secretary, Medical Education, Government of Rajasthan, Jaipur, the admissions made by the MG University by holding examination, were defended on the ground that there is no nexus between the authorities in the State Government and the RUHS with the MG University. As per the decision of the Hon'ble Supreme Court in Magan Malhotra' case, preference to the candidate of the same University/College is allowed. After establishment of the MG University on 24.05.2011, the Mahatma Gandhi Medical College conveyed its inability to the participate in the second round of counselling.
17. The RUHS, Jaipur has referred to the policy communication dated 14.05.2003, issued by the Ministry of Health and Family Welfare, Government of India, providing for the time schedule for holding examinations and counselling for MBBS/MDS PG Course, and Super-speciality Course in accordance with the judgment of the Supreme Court in Mridul Dhar(Minor) And Another Vs. Union of India And Others(supra), in which the last date upto which the students can be admitted in the vacancies arising due to any reason in PG Courses, was 31st May. It has also referred to the judgment of Hon'ble Supreme Court, dated 11.09.2002 in Medical Council of India Vs. Madhu Singh And Others, (supra), in which directions were issued that (i) there is no scope for admitting students mid-stream as that would be against the spirit of statutes governing the medical education. Even if, seats are unfilled that cannot be a ground for making mid sessions admissions. There cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year, and further that the MCI shall esnure that the examining bodies fix a time schedule specifying the duration of the course, the date of commencement of the course and the last date for admission, working out different modalities for admission and necessary steps of holding examination if prescribed, counselling and the like have to be completed within the specified time. No variation of the schedule so far as admissions are concerned, shall be allowed, and in case of any deviation by the concerned institution, action, as prescribed, shall be taken by the MCI.
18. Mr. Angad Mirdha, learned counsel appearing for the Medical Council of India, referred to the MCI Regulations of 2009, made by the Medical Council of India(MCI) under Section 33 of the Indian Medical Council Act, 1956 (for short, 'the Act of 1956'),which are statutory in nature. He submitted that the MG University acted illegally in giving admission in PG Course as it violated not only MCI Regulations, but also the directions of the Supreme Court. It had made admission even without ensuring fairness and transparency. The entrance test, declaration of result and merit could not be held and admissions made within four days. The College should have given admission from the meritorious candidates of Pre-PG Entrance Examination, conducted by the RUHS. The admission beyond prescribed schedule was not accepted by the Apex Court in Medical Council of India Vs. Madhu Singh And Others(supra). Pursuant to the Regulations made under Section 33 of the Act of 1956, an order was issued by the Government of India, Ministry of Health & Family Welfare on 14.05.2003, followed by a Notification dated 25.02.2004, which has been referred to and approved by the Supreme Court in Mridul Dhar's case(supra). The entrance examination was to be conducted from the middle of January to the middle of February for State Quota, and for All India Quota the examination was to be held on second Sunday of January, followed by declaration of result by 28th February, and first round of counselling by 25th April for State Quota. The course must start from 1st May. The second counselling was not permissible, and 7th April was the last date for All India Quota to join the course, and in case of unfilled seats of All India Quota, it must be surrendered for State Quota. The last date for commencement of academic sessions was as 2nd May. The admissions have been given by the MG University in deviation and violation of the schedule and the directions given by the Supreme Court, para 8.1 to 8.5 of the Government decision dated 14.05.2003, and the MCI's Notification dated 25.02.2004. The admissions were made in ignorance of clause-6 of the Regulations of 2009, as amended vide Notification dated 21.07.2009. Clause (ii), provides for each institution to seek recognition of Post Graduate Medical Qualification through an affiliated university. So far as the MG University is concerned, it is not an affiliated university of MCI, and thus, there was no question of recognition of the institution under it. The recognition and affiliation under the university would be after first batch appears in the examination conducted by the affiliated university. The MG University was thus not even authorized to award degrees unless affiliation is given along with recognition as per the amended Regulations of 2009.
19. Learned counsel appearing for the RUHS and the Convener, Rajasthan Pre-PG Medical/Dental Entrance Examination, 2011, also submitted before learned Single Judge that the MG University acted in violation of the Regulations framed by the MCI as well as the judgment of Hon'ble Supreme Court. The University was established much beyond the scheduled date for holding entrance test and thus, there was violation of the judgment of the Apex Court in Mridul Dhar(Minor) And Another Vs. Union of India And Others(supra), and in Dr. Preeti Srivastava Vs. State of M.P., (1999) 7 SCC 120, wherein it was held that MCI has the authority to prevent sub-standard entrance test for medical courses. The MG University could not have conducted the entrance test at their own level, and that too, within a period of four days. The schedule for admission was required to be maintained in view of the judgment of the Apex Court in Madhu Singh's case(supra). The admissions were given in violation of the schedule provided by the Apex Court. The last date for admission was 31st May, which was not a normal date but as an exception when vacancy arises due to any reason. In the case in hand, no vacancy arose subsequent to crucial date fixed for admission. The students for PG Courses admitted by the MG University, were not entitled for recognition of their qualifications by the MCI. Under Regulation 9 of the MCI Regulations, the Management and the State Quota are to be filled by the competent authority in equal ratio. The MG University was not authorized to fill the quota meant for competent authority of the State.
20. Learned Single Judge held that the Ordinance establishing the University was issued on 24.05.2011, after all the scheduled dates for entrance test for admission were over. The entrance test was required to be conducted in mid January to mid February, 2011, and that the academic session was to start from 2nd May, 2011 for PG Courses. The MG University was under an obligation to act as per law and in accordance with the judgment of the Apex Court. The advertisement dated 27.05.2011 by the MG University provided an entirely different mode of admission, which was not recognized by the MCI. Rejecting the preliminary objection that none of the admitted candidates was impleaded as party respondents, learned Single Judge held that since the examination was held contrary to the MCI Regulations and the judgment of the Apex Court, and the admissions have been given beyond the schedule, non-impleadment of such persons cannot frustrate the issue raised by the petitioners as allegations have been made against the MG University. Learned Single Judge thereafter quoting extensively from Mridul Dhar(Minor) And Another Vs. Union of India And Others(supra) and the time schedule given in para 31 of the judgment, held that the advertisement issued by the MG University could not have provided for admission procedure and dates, contrary to the schedule and the manner prescribed by the MCI/Government of India and referred by the Apex Court in its judgment. Learned Single Judge referred to the undertaking given by the Mahatma Gandhi Medical College in its letter dated 08.04.2011, that if due to any unforeseen reasons, approval of establishment of the proposed MG University is delayed beyond 30th April, 2011 i.e. before the commencement of PG Courses on 1st May, they will intimate to include the Mahatma Gandhi Medical College in the second counselling of PG students. It held that the College had no intension to give admission pursuant to the counselling conducted by the RUHS, as there was no date for counselling after 30th April and the course had to commence from 1st May, 2011. The advertisement dated 27.05.2011, did not specify the date of entrance test and the result apart from the date of counselling. The advertisement was unspecific, and that the MG University filled all the seats by holding examination, counselling, and deposit of fees on the same day on 31.05.2011 i.e. within four days of issuance of the advertisement, dehors the procedure of admission, provided in the Regulations and the directions issued by the MCI/Central Government, as approved by the Apex Court.
21. Learned Single Judge also accepted the argument of learned counsel appearing for the MCI that the seats on which the admissions were given by the MG University, were not recognized by the MCI, and that their qualification may not be recognized by the MCI.
22. Learned Single Judge left the matter, to be decided by the MCI in the light of the amended Regulations of 2009, in which the admissions have to be based on academic merit. The writ petition was allowed with the cost of Rs.10,000/-, with direction that the MCI will take action in compliance of para 8.4 of the order of the Government of India, for whose admissions, which were granted in pursuance to the advertisement dated 27.05.2011. The MCI will take up the matter against respondent Nos.9 to 11 for violation of order of the Government of India, Notification of the MCI, and the judgment of the Apex Court, as per law, within a period of three months, and thereafter compliance report be placed before the Court. It will not involve any person interested in the case for compliance of the order. Learned Single Judge thereafter held that the admissions given by the MG University in pursuance to the advertisement dated 27.05.2011, to be in violation of the schedule and the procedure referred by the Apex Court in Mridul Dhar's case(supra), thus the MG University was directed to deposit the entire fees collected from the PG Students, admitted illegally, with the Medical and Health Department, Government of Rajasthan, within six weeks. So far as the petitioners are concerned, learned Single Judge held that they cannot be given admission in the concerned year at this stage, but since they are required to indemnified, they will be paid the cost of litigation, quantified at Rs.10,000/-.
23. In Medical Council of India Vs. Madhu Singh And Others,(supra), the Supreme Court, after considering all its previous judgments, was of the view that necessity for providing the time schedule for the course and fixing the period during which admissions can take place, must be provided, and gave directions as follows:-
23. There is, however, a necessity for specifically providing the time schedule for the course and fixing the period during which admissions can take place, making it clear that no admission can be granted after the scheduled date, which essentially should be the date for commencement of the course.
In conclusion:
(i) there is no scope for admitting students mid-stream as that would be against very spirit of statutes governing the medical education;
(ii) even if, seats are unfilled that cannot be a ground for making mid session admissions;
(iii) there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year;
(iv) MCI shall ensure that the examining bodies fix a time schedule specifying the duration of this course, the date of commencement of the course and the last date for admission;
(v) different modalities for admission can be worked out and necessary steps like holding of examination if prescribed, counseling and the like have to be completed within the specified time;
(vi) no variation of the schedule so far as admissions are concerned shall be allowed;
(vii) in case of any deviation by the concerned institution, action as prescribed shall be taken by the MCI.
24. The High Court was obviously in error in directing mid-session admission. The impugned order is, therefore, set aside. But as was earlier directed by this Court, the admission of respondent No.1 would not be affected by allowing the appeal.
24. In Mridul Dhar(Minor) And Another Vs. Union of India And Others(supra), decided on 12.01.2005, the Supreme Court, following Madhu Singh'a case(supra), and considering Paras 8.4 and 8.5 of the order of the Government of India dated 14.05.2003, provided for a time schedule for completion of the admission process for Medical and Dental Courses, as follows:-
TIME SCHEDULE FOR POSTGRADUATE AND SUPERSPECIALTY COURSE ADMISSIONS Schedule for admission Postgraduate courses Superspeciality
---------------------------------- courses All-India quota State quota Conduct of entrance examination Second Sunday of January Mid- Jan to Mid-Feb May-June Declaration of result of qualifying exam Third week of February By 28th February By 30th June First round of counselling/ admissions 5th March to 22nd March To be over by 25th April To be over by 25th July Last date for joining the allotted college and course 7th April 1st May 31st July Second round of counselling or allotment of seats from waiting list No second counselling No second counselling No second counselling Last date for joining for candidates allotted seats in second round of counselling or from the waiting list After 7th April vacant seats will be stand surrendered back to the State/colleges Not applicable Not applicable Commencement of academic sessions 2nd May 1st August Last date up to which students can be admitted against vacancies arising due to any reason 31st May 30th September
25. In Mridul Dhar(Minor) And Another Vs. Union of India And Others(supra), after providing for a time schedule for Postgraduate Courses and Superspeciality Courses, as aforesaid, the Supreme Court issued further directions as follows:-
35. Having regard to the aforesaid, we issue the following directions:-
1. All participating States and Union Territories, Board of Secondary Education shall declare 10 + 2 result by 10th June of every year and make available the marksheet to the students by 15th June.
The aforesaid condition would not apply to West Bengal for the year 2005. As already noticed, the West Bengal would make available to the concerned students the marksheets by 15th June, 2005 Heads of Boards would be personally liable to ensure compliance.
2. The time table mentioned in Notification dated 25th February, 2004 shall be strictly adhered to by all concerned including States and Union Territories and results of State Medical/Dental Entrance Examination shall be declared before 15th of June.
3. The States/Union Territories shall complete the admission process of first round of State Level Medical/Dental College admission by 25th July i.e. a week before start of second round counseling or allotment of seats under All India Quota. The correct vacancy position shall be intimated by the Chief Secretary to the DGHS by 26th July. It shall be verified by the Head of the Institution/or Head of the Medical Institution/Health Department in the State.
4. It shall be the responsibility of all concerned including Chief Secretaries of each State/Union Territories and/or Health Secretaries to ensure compliance of the directions of this Court and requisite time schedule as laid down in the Regulations and non-compliance would make them liable for requisite penal consequences.
5. All seats in All India Quota must be fully disclosed giving details of the date of recognition/renewal to DGHS before a date to be notified by DGHS and the same shall be duly published.
6. By 31st October, the State through Chief Secretaries/Health Secretaries shall file a report in regard to admissions with the DGHS giving details about the adherence to a time schedule and admission granted as per the prescribed quota. The recalcitrant States, particularly officers personally will have to face consequences for violation.
7. The DGHS shall file by 31st January, 2005 report in regard to feasibility of conducting counseling through the process of video conferencing.
8. The DGHS shall file report within three months on the aspect of Section 10-A seats being subjected to 15 per cent All India Quota and about the increase of the quota from 15 per cent to 20 per cent.
9. The DGHS shall also file a report within three months on the aspect of constitution of high-power Committee/Ombudsman.
10. The seats allotted upto 15th July, shall also be subjected to respective State Quotas.
11. If any private medical college in a given academic year for any reason grants admission in its management quota in excess of its prescribed quota, the management quota for the next academic year shall stand reduced so as to set off the effect of excess admission in the management quota in the previous academic year.
12. The time schedule for grant of admission to postgraduate courses shall also be adhered to.
13. For granting admission, the merit determined by competitive examination shall not be tinkered with by making a provision like grant of marks by mode of interview or any other mode.
14. Time schedule for establishment of new college or to increase intake in existing college, shall be adhered to strictly by all concerned.
15. Time schedule provided in Regulations shall be strictly adhered to by all concerned failing which defaulting party would be liable to be personally proceeded with.
16. Copy of the judgment shall be sent to Chief Secretaries of all States/Union Territories for compliance.
26. In Priya Gupta Vs. State of Chhattisgarh And Others, (2012) 7 SCC 433, the Supreme Court, after noticing Mridhul Dhar's case(supra), and the time schedule fixed by the Supreme Court, took notice of the violation of schedule by the State Government of Chhattisgarh, and by various institutions, which were trying to frustrate the rule of merit, sought to be maintained, was compelled to make the observations in para 46, and the consequences and penal actions for failing to adhere to the time schedule in para 47 and 48, as follows:-
46. Keeping in view the contemptuous conduct of the relevant stakeholders, their cannonade on the rule of merit compels us to state, with precision and esemplastically, the action that is necessary to ameliorate the process of selection. Thus, we issue the following directions in rem for their strict compliance, without demur and default, by all concerned:
46.1. The commencement of new courses or increases in seats of existing courses of MBBS/BDS are to be approved/recognised by the Government of India by 15th July of each calendar year for the relevant academic sessions of that year.
46.2. The Medical Council of India shall, immediately thereafter, issue appropriate directions and ensure the implementation and commencement of admission process within one week thereafter.
46.3. After 15th July of each year, neither the Union of India nor the Medical or Dental Council of India shall issue any recognition or approval for the current academic year. If any such approval is granted after 15th July of any year, it shall only be operative for the next academic year and not in the current academic year. Once the sanction/approval is granted on or before 15th July of the relevant year, the name of that college and all seats shall be included in both the first and the second counseling, in accordance with the Rules.
46.4. Any medical or dental college, or seats thereof, to which the recognition/approval is issued subsequent to 15th July of the respective year shall not be included in the counseling to be conducted by the concerned authority and that college would have no right to make admissions in the current academic year against such seats.
46.5. The admission to the medical or dental colleges shall be granted only through the respective entrance tests conducted by the competitive authority in the State or the body of the private colleges. These two are the methods of selection and grant of admission to these courses. However, where there is a single Board conducting the state examination and there is a single medical college, then in terms of Clause 5.1 of the Medical Council of India Eligibility Certificate Regulations, 2002 the admission can be given on the basis of 10+2 exam marks, strictly in order of merit.
46.6. All admissions through any of the stated selection processes have to be effected only after due publicity and in consonance with the directions issued by this Court. We vehemently deprecate the practice of giving admissions on 30th September of the academic year. In fact, that is the date by which, in exceptional circumstances, a candidate duly selected as per the prescribed selection process is to join the academic course of MBBS/BDS. Under the directions of this Court, second counseling should be the final counseling, as this Court has already held in the case of Ms. Neelu Arora v. Union of India and third counseling is not contemplated or permitted under the entire process of selection/grant of admission to these professional courses.
46.7. If any seats remain vacant or are surrendered from All India Quota, they should positively be allotted and admission granted strictly as per the merit by 15th September of the relevant year and not by holding an extended counseling. The remaining time will be limited to the filling up of the vacant seats resulting from exceptional circumstances or surrender of seats. All candidates should join the academic courses by 30th September of the academic year.
46.8. No college may grant admissions without duly advertising the vacancies available and by publicizing the same through the internet, newspaper, on the notice board of the respective feeder schools and colleges, etc. Every effort has to be made by all concerned to ensure that the admissions are given on merit and after due publicity and not in a manner which is ex-facie arbitrary and casts the shadow of favouritism.
46.9. The admissions to all government colleges have to be on merit obtained in the entrance examination conducted by the nominated authority, while in the case of private colleges, the colleges should choose their option by 30th April of the relevant year, as to whether they wish to grant admission on the basis of the merit obtained in the test conducted by the nominated State authority or they wish to follow the merit list/rank obtained by the candidates in the competitive examination collectively held by the nominated agency for the private colleges. The option exercised by 30th April shall not be subject to change. This choice should also be given by the colleges which are anticipating grant of recognition, in compliance with the date specified in these directions.
47. All these directions shall be complied with by all concerned, including Union of India, Medical Council of India, Dental Council of India, State Governments, Universities and medical and dental colleges and the management of the respective universities or dental and medical colleges. Any default in compliance with these conditions or attempt to overreach these directions shall, without fail, invite the following consequences and penal actions:
47.1. Every body, officer or authority who disobeys or avoids or fails to strictly comply with these directions stricto sensu shall be liable for action under the provisions of the Contempt of Courts Act. Liberty is granted to any interested party to take out the contempt proceedings before the High Court having jurisdiction over such Institution/State, etc. 47.2. The person, member or authority found responsible for any violation shall be departmentally proceeded against and punished in accordance with the Rules. We make it clear that violation of these directions or overreaching them by any process shall tantamount to indiscipline, insubordination, misconduct and being unworthy of becoming a public servant.
47.3. Such defaulting authority, member or body shall also be liable for action by and personal liability to third parties who might have suffered losses as a result of such default.
47.4. There shall be due channelization of selection and admission process with full cooperation and coordination between the Government of India, State Government, Universities, Medical Council of India or Dental Council of India and the colleges concerned. They shall act in tandem and strictly as per the prescribed schedule. In other words, there should be complete harmonisation with a view to form a uniform pattern for concerted action, according to the framed scheme, schedule for admission and Regulations framed in this behalf.
47.5. The college which grants admission for the current academic year, where its recognition/approval is granted subsequent to 15th July of the current academic year, shall be liable for withdrawal of recognition/approval on this ground, in addition to being liable to indemnify such students who are denied admission or who are wrongfully given admission in the college.
47.6. Upon the expiry of one week after holding of the second counseling, the unfilled seats from all quotas shall be deemed to have been surrendered in favour of the respective States and shall be filled thereafter strictly on the basis of merit obtained in the competitive entrance test.
47.7. It shall be mandatory on the part of each college and University to inform the State and the Central Government/competent authority of the seats which are lying vacant after each counseling and they shall furnish the complete details, list of seats filled and vacant in the respective states, immediately after each counseling.
47.8. No college shall fill up its seats in any other manner.
48. Having dealt with, in general, the directions that this Court would issue to prevent the evils of arbitrariness and discrimination from creeping into these selection/admission processes, which are required to be transparent, fair and non-exploitatory, we shall now proceed to deal with the facts of the present case.
27. In Asha Vs. Pt. B.D. Sharma University of Health Sciences And Others, (2012) 7 SCC 389, the Supreme Court, considering the fact that admissions were made after the cut off date in violation of the directions issued in Mridhul Dhar's case(supra), and Priya Gupta's case(supra), directed in paragraph 39 to 40.4, as follows:-
39. With all humility, we reiterate the request that we have made to all the High Courts in Priya Gupta's case (supra) that the courts should avoid giving interim orders where admissions are the matter of dispute before the Court. Even in case where the candidates are permitted to continue with the courses, they should normally be not permitted to take further examinations of the professional courses. The students who pursue the courses under the orders of the Court would not be entitled to claim any equity at the final decision of the case nor should it weigh with the courts of competent jurisdiction.
40. Besides providing the above answers to the questions, we also issue the following directions to put the matters to rest beyond ambiguity and to ensure that the authorities act in accordance with law:
40.1. From the records of this case, it is clear that two different records are being maintained at the time of counseling. Firstly, the attendance register and thereafter photography and thumb impressions are taken and, secondly, the Committee maintains a record of the counseling where the students are actually given a specific college/course of his/her preference. We direct that the second set of records shall be maintained more accurately. It shall not only contain the signatures of the candidate and the Committee members but also the date and time when the candidate is given a seat and it shall also be signed by the candidate with the course clearly written by the Committee and signed by the candidate in the remarks column.
40.2. The essence of all the judgments dealing with this issue is to nurture discipline, fairness and transparency in the selection and admission process and avoid prejudice to any of the stake-holders. Thus, while we expect the authorities to be perfect, fair and transparent in the discharge of their duties, we make it clear that the students who adopt malpractices in collusion with the authorities or otherwise for seeking admissions and if their admissions are found to be irregular or faulty in law by the courts, they shall normally be held responsible for paying compensation to such other candidates who have been denied admission as a result of admission of the wrong candidates.
40.3. The law requires adherence to a settled protocol in the process of selection and grant of admission. None should be able to circumvene or trounce this process, with or without an ulterior motive. The courts are duty bound to ensure that litigation relating to academic courses, particularly, professional courses should not be generated for want of will on the part of the stake holders to follow the process of selection and admission fairly, transparently and without exploitation.
40.4 Keeping in mind the hard reality that there are number of petitions filed in each High Court of the country, on the one hand challenging the admissions on varied grounds while, on the other, praying for grant of admission on merit to the respective professional courses of MBBS/BDS, the Court cannot lose sight of the fact that the career of the meritorious youth is at stake. These are matters relating to adherence to the rule of merit and when its breach is complained of, the judiciary may be expected to deal with the said grievances preferentially and effectively. The diversity of our country and the fact that the larger population lives in rural areas and there being demand for consistent increase in the strength of qualified medical practitioners, we are of the considered view that such cases, at least as of now and particularly for a specific period of the year require higher priority in the heavy business of court cases. We are not oblivious of the fact that the Hon'ble Judges of the High Court are working under great pressure and with some limitations. However, we would still make a request to the Hon'ble Chief Justices of the respective High Courts to direct listing of all medical admission cases before one Bench of the Court as far as possible and in accordance with the Rules of that Court. It would further be highly appreciable if the said Bench is requested to deal with such cases within a definite period, particularly during the period from July to October of a particular year. We express a pious hope that our request would weigh with the Hon'ble Chief Justices of the respective High Courts as it would greatly help in serving the ends of justice as well as the national interest.
28. In Rohilkhand Medical College & Hospital, Bareilly Vs. Medical Council of India & Another, JT 2013(12) SC 199, considering the challenge to the letter of the MCI dated 13.07.2013, by which the permission granted for approval of admission for additional intake of students in academic sessions 2013-14 was revoked, expressing its concern, the Supreme Court, while dismissing the writ petition, had observed in paragraphs 38 to 43 as follows:-
38. We think, this is an apt occasion to ponder over whether we have achieved the desired goals, eloquently highlighted by the Constitution Bench judgments of this Court in T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. [JT 2002 (9) SC 486: (2002) 8 SCC 481] P.A. Inamdar and Ors. v. State of Maharashtra and Ors. [JT 2005(7) SC 313 : (2005) 6 SC 537]. TMA Pai Foundation case (supra) has stated that there is nothing wrong if the entrance test being held by self financial institutions or by a group of institutions but the entrance test they conduct should satisfy the triple test of being fair, transparent and not exploitative. TMA Pai Foundation (supra) and Inamdar (supra) repeatedly stated that the object of establishing an educational institution is not to make profit and imparting education is charitable in nature. Court has repeatedly said that the common entrance test conducted by private educational institutions must be one enjoined to ensure the fulfillment of twin object of transparency and merits and no capitation fee be charged and there should not be profiteering. Facts, however, give contrary picture. In Inamdar, this Court, in categorical terms, has declared that no capitation fee be permitted to be charged and no seat can be permitted to be appropriated by payment of capitation fee.
39. The CBI's investigation, however, reveals a sorry state of affairs, which is an eye-opener for taking appropriate remedial measures in future so that medical education may attain the goals envisaged by the IMC Act and the Regulations and serve the community. CBI had to charge-sheet none other than the then Union Minister of Health and Family Welfare, itself which depict how the educational system in this country is deteriorating. Many of regulatory bodies like MCI, AICTE, UGC etc. were also under serious clout in the recent years. CBI, in the year 2010, had to arrest the President of the MCI for accepting bribe to grant recognition to one Medical College in Punjab. Later, it is reported that the CBI found that the President of the MCI and its family members possessed disproportionate assets worth of 24 crores. We have referred to these instances only to indicate the falling standards of our educational system at the highest level, sometime even at the level of the Central Government making a serious inroad to the right to life guaranteed to the citizens of the country under Article 21 of the Constitution of India.
40. Mushrooming of large number of medical, engineering, nursing and pharmaceutical colleges, which has definitely affected the quality of education in this country, especially in the medical field which call for serious introspection. Private medical educational institutions are always demanding more number of seats in their colleges even though many of them have no sufficient infrastructural facilities, clinical materials, faculty members, etc. Reports appear in every now and then that many of the private institutions which are conducting medical colleges are demanding lakhs and sometimes crores of rupees for MBBS and for post-graduate admission in their respective colleges. Recently, it is reported that few MBBS seats were sold in private colleges of Chennai. We cannot lose sight of the fact that these things are happening in our country irrespective of the constitutional pronouncements by this Court in TMA Pai Foundation that there shall not be any profiteering or acceptance of capitation fee etc. Central Government, Ministry of Health and Family Welfare, Central Bureau of Investigation or the Intelligence Wing have to take effective steps to undo such unethical practices or else self-financing institutions will turn to be students financing institutions.
41. We notice that the current policy of the Central Government in the higher education is to provide autonomy of institutions, but adoption of unfair practices is a serious violation of the law. Few States, like Karnataka, Tamil Nadu, Andhra Pradesh, Maharashtra, Kerala, Delhi etc. have passed some legislation to prohibit demand/collection of capitation fee which have no teeth, the institutions who indulges in such practices can get away by paying some fine, which is meager.
42. We, therefore, emphasise the extreme necessity of a Parliamentary Legislation for curbing these unfair practices, which is the demand of our society. "The Prohibition of Unfair Practices in Technical Educational Institutions, Medical Educational Institutions and University Bill, 2010" has already been presented to both the Houses of Parliament. It is reported that the States have welcomed such a legislation, but no further follow up action has been taken. We are confident, earnest efforts would be made to bring in proper legislation, so that unethical and unfair practices prevalent in higher technical and medical institutions can be effectively curbed in the larger public interest.
43. We, therefore, find no good reason to invoke Article 32 of the Constitution of India and none of the fundamental rights guaranteed to the Petitioners stand violated. The Petition, therefore, lacks merits and is dismissed.
29. Before proceedings to consider the challenge to the judgment of learned Single Judge, and the directions given by it, it will be useful to quote Clause 9 of the MCI Regulations, 2009, which have been held to be statutory in nature by the Hon'ble Supreme Court for Selection of Post Graduate Students, as follows:-
Clause 9 under the heading Selection of Post Graduate Students, shall be substituted as under:-
(1)(a) Students for Post Graduate medical courses shall be selected strictly on the basis of their Inter-se Academic Merit.
(b) 50% of the seats in Post Graduate Diploma Courses shall be reserved for Medical Officers in the Government service, who have served for at least three years in remote and difficult areas. After acquiring the PG Diploma, the Medical Officers shall serve for two more years in remote and/or difficult areas.
(2) For determining the 'Academic Merit', the University/Institution may adopt the following methodology:-
(a) On the basis of merit as determined by a 'Competitive Test' conducted by the State Government or by the competent authority appointed by the State Government or by the University/group of Universities in the same State; or
(b) On the basis of merit as determined by a centralized competitive test held at the national level; or
(c) On the basis of individual cumulative performance at the first, second and third MBBS examinations provided admissions are University wise;
Or
(d) Combination of(a) and (c):
Provided that wherever 'Entrance Test' for postgraduates admission is held by a State Government or a University or any other authorized examining body, the minimum percentage of marks for eligibility for admission to postgraduate medical course shall be 50 per cent for general category candidates and 40 per cent for the candidates belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes :
Provided further that in Non-governmental institutions fifty percent of the total seats shall be filled by the Competent Authority notified by the State Government and the remaining fifty per cent by the management(s) of the institution on the basis of Inter-se Academic Merit.
30. The Mahatma Gandhi Medical College, prior to its constitution as MG University under the MG University Ordinance, 2011, notified on 24.05.2011, had filled up 50% of its seats (19) under the Management Quota, as a non-Government institution, allegedly on merit. The remaining 50% seats, in terms of the procedure for admission under Clause 9 of the MCI Regulations, 2009, on the basis of inter se academic merit, had to be filled up on the basis of the merit, as determined by the competitive test conducted by the State Government, and for which the RUHS was appointed as an authority for holding the competitive test. The RUHS, as the authority set up in Rajasthan to hold the Pre-PG Entrance Examination, 2011, adhered to the schedule, in which Pre-PG Entrance Examination, 2011 was held in accordance with the schedule, fixed by the Apex Court, on 10.02.2011, and result of which was declared by the Convenor of the Pre-PG Medical/Dental Entrance Examination, 2011, and first round of counselling was fixed for in-service candidates on 11.04.2011, and for non-service candidates on 12.04.2011. The Mahatma Gandhi Medical College & Hospital, made a request, in writing, to the Convenor, Central P.G. Admission Board, Principal & Controller, Govt. Medical College, Kota, on 08.04.2011, that it will not take part in the counselling PG counselling, as on the approval of the MG University, they will be able to conduct the procedure for PG admissions as per the MCI/DCI guidelines at their own level, with an undertaking that if due to any unforeseen reason, approval of establishment of the proposed MG University is delayed beyond 30.04.2011 i.e. before the commencement of PG Course on 1st May, 2011, they will intimate accordingly, to include their name in the second counselling of PG students conducted by the RUHS.
31. According to the schedule of admission, provided by the Supreme Court in Mridhur Dhar's case(supra), the entrance examination was to be conducted between the mid January to mid February, declaration of result of the qualifying examination by 28th February, first round of counselling to be over by 25th April, and the last date for joining the allotted college and course was 1st May. No second counselling was either proposed, or required to be held, and that the last date upto which students could be admitted against the vacancies arising due to any reasons was 31st May, notified for PG Courses.
32. In order to fill the vacant seats, the Coordinator of the RUHS held a meeting of the Central P.G. Admission Board, 2011, on 26.05.2011 to hold the second round of counselling from 26th to 28th May, 2011. This second round of counselling was by way of exception, to fill up the vacants setas and did not give any permission to any private Medical College, to fill up the seats. The Mahatma Gandhi Medical College did not participate in the meeting and wrote a letter on 24.05.2011, that since an Ordinance has been notified on the same day approving the establishment of the MG University, it will hold its on entrance examination.
33. The record of the meeting of the Central PG Admission Board, 2011, shows that the State Government was a willing violator of the time schedule and the procedure prescribed for the PG admissions in the State of Rajasthan in the 2011, inasmuch as despite expiry of the last date for counselling and the admissions, the Coordinator was told by the Principal Secretary, Medical Education, Government of Rajasthan, not to include the Mahatma Gandhi Medical/Dental College in the PG Counselling, 2011. The letters written by the Mahatma Gandhi Medical College and thereafter the MG University, which was set up by an Ordinance dated 24.05.2011, clearly demonstrated that it had no intention to take part in the counselling for PG admissions, and to admit the students on merit from the competitive examination held by the RUHS in the year 2011-12. It was only buying time in active colloboration with authorities in the State Government, while efforts were made to constitute the University even after the last date for admissions i.e. 01.05.2011 was over.
34. We are surprised with the urgency, in which the Ordinance was issued by the State Government for constitution of the MG University. An Ordinance under Article 213(1) of the Constitution of India, is issued only in emergent situations when the State Assembly is not in session. There could be no such urgency to issue the Ordinance to constitute the MG University, except for the oblique purposes of allowing its Management Quota, to be filled in by the University. It is apparent that the State Government was more than willing and obliged to the promoters of the MG University by issuing an Ordinance on 24.05.2011, and on which, the MG University, before it could have set up the its authorities, such as Board of Management, Academic Council and Faculties, which could have taken a decision for making the provisions regarding policy of admissions including regulation of reservation of seats under Section 29(k) of the Ordinance by making the statutes for that purpose, or making the Ordinances under Section 30(1)(a)(b) for admission of students to the University and their enrolment, and the courses of study, decided to hold an entrance examination of its own, much beyond the date for entrance examination, to be held in accordance with the time schedule fixed for the admissions, and the last date for joining the allotted college and the PG Course on 1st May, 2011.
35. We have examined, with curiosity, the manner, in which the entrance examination was held by the MG University. A notice dated 28.05.2011, alleged to be published in the newspaper and pasted on the Notice Board of the University, invited candidates for an entrance examination for unspecified number of seats for PG Courses to be conducted three days later, on 31.05.2011, from 11.00 AM to 2.00 PM; admission cards to be collected on the date of examination at 10.00 AM i.e. one hour before the examination; result of the examination to be declared on the same day, and to be displayed on the Notice Board, counselling for selection of the candidates to be held soon after the declaration of the result, in which the candidates were required to bring their original documents, and to deposit fee as per the Fee Regulatory Committee, Government of Rajasthan, for MD/MS of Rs.6 lacs, and for MDS Rs. 4 lacs per annum, on the same day along with cash security/ bank guarantee for balance years of course also on the same day.
36. Learned counsel appearing for the MG University took pains to explain to us as to how the University could have conducted the entire process of examination within a period of three days, to hold the examination, declare the results, conduct counselling, and deposit of fees on the same day i.e. on 31.05.2011, and further made an effort to explain that since 31.05.2011 was the last date, upto which admissions could be given, the MG University, which was established on 24.05.2011, was not at fault in holding its own entrance examination in terms of Regulation 9 of the MCI Regulation, 2009, and to admit the students on merit. He submits that the bonafide of the University could be seen from the fact that only 12 students could be admitted, leaving 10 seats vacant.
37. The list of PG students, who were admitted by holding an entrance examination on 31.05.2011, has been provided to us, and is reproduced as follows:-
LIST OF PG STUDENTS: PG MD MS 2011-12 S.NO.
NAME OF STUDENTS MBBS PASSED FROM QUALIFIED OR OUTSIDE STATE REMARKS 1 Ritika Agrawal MGMCH Qualified Raj. Pre PG Marks- 677/1200 2 Sulabh Bansal NIMS Qualified Raj. Pre PG Marks- 1028/1200 3 Neha Gupta MGMCH Qualified Raj. Pre PG 4 Priyanka Sharma Ukarain Out side State 5 Bhawna Solanki Pt. BD Sharma Rohtak Out side State 6 Abhishek Saini Nepal Ganj Medical College Out side State 7 Nishant Khurana Mauritius Out side State 8 Ankur Punia Faridkot Out side State 9 Sameer Kapoor Pt. BD Sharma Rohtak Out side State 10 Utsav Joshi Devangiri Out side State Not allowed to appear in Rajasthan Pre PG Exam.11
Puneet Agarwal MGMCH Not qualified Raj. Pre PG 12 Rajayshree Singh MGMCH Not appeared Raj. Pre PG
38. The list shows that whereas Ritika Agrwal and Sulabh Bansal had qualified the Rajasthan Pre-PG Examination of RUHS with 677 and 1028 marks respectively out of 1200, Puneet Agarwal at S.No.11, did not qualify the Rajasthan Pre-PG Examination, and Rajayshree Singh did not even appear in the Rajasthan Pre-PG Examination. Only one of the candidates, namely Neha Gupta had qualified the Raj. Pre-PG Examination. The others were from outside the State, and had not appeared in the Rajasthan Pre-PG Examination conducted by RUHS.
39. Learned Single Judge has not considered the malafides in the admissions of the students, who were close to high ups, we also do not propose to go into such allegations. We may only observe here that Ankur Punia at S.No.8 in the list, was from outside the State and had passed the MBBS Examination from Faridkot, is the son of the Principal of the Mahatma Gandhi Medical College, who had signed all the correspondences with the State Government on behalf of the MG University. We are not inclined to make any enquiries about the remaining candidates, as to whether they were close to the Minister of Higher Education, Government of Rajasthan, brother-in-law of the son of the Vice Chancellor of the RUHS, or near relative of a Central Minister. The manner in which the Ordinance establishing the University was established and the entrance examination was conducted allegedly to look like the admissions to be merit based speak out loudly of the design and purpose of withholding the 22 PG seats to be given to the candidates in the merit list of common entrance examination conducted by RUHS.
40. The manner in which the Mahatma Gandhi Medical College and the MG University, had refused to adhere to the time schedule, and in which the MG University was constituted on the eve of the second counselling, and the entrance examination was conducted within four days of the notice, in which almost everything was done, beginning from collection of admission cards, deposit of fees, and also arranging cash security/bank guarantee on the same day, speaks volume of the deception in which the MG University had succeeded in admitting 12 students to the PG Course on a single day on 31.05.2011. Out of five candidates belonging to Rajasthan, only three had qualified the Rajasthan Pre-PG Examination. One of the candidates had not even appeared in the Pre-PG Examination, and they were found meritorious amongst 51 candidates, who appeared in the examination, the result of which was declared on the same day by the University. It is not far to visualise as to in what manner and for what consideration, admissions were made by the MG University, giving admission to 12 favoured students, who are the appellants before us in connected D.B. Civil Special Appeal(W) No.797/2014.
41. In the facts and circumstances, we entirely agree with learned Single Judge that the entrance examination conducted by the MG University, was a farce. A fraud was played by the University on the RUHS as well as MCI in active connivance of State authorities. The entire procedure adopted by the MG University flies on the face of the MCI Regulations and the orders passed by the Supreme Court, beginning from Madhu Singh' case(supra), to Asha' case(supra). The Officers of the University, despite the undertaking given to participate in the second counselling, if the University is not constituted by 30.04.2011, succeeded in getting an Ordinance issued constituting the MG University on 24.05.2011, and completed the entire selection process, allegedly on merits, within a week of the alleged last date assumed by them admitting 12 candidates on their purported merit in a make belief procedure, and allowing 10 seats to go as waste. There is no explanation as to why if 12 out of 51 candidates were admitted, the 10 seats were not offered to the next in the merit list.
42. It is submitted by learned counsel appearing for the MG University, relying on Ramjas Foundation And Another Vs. Union of India And Others, (2010) 14 SCC 38, and Dalip Singh Vs. State of Uttar Pradesh And Others, (2010) 2 SCC 114, that exemplary cost can be imposed only in special facts. In Ramjas Foundation And Another Vs. Union of India And Others(supra), it was held by the Supreme Court that on an incorrect statement on denial of opportunity of hearing and playing a game of hide and seek with the Courts as well as failing the large number of cases filed challenging the acquisition, exemplary cost should not have been imposed on a running educational institution for the benefit of the community.
43. In Dalip Singh Vs. State of Uttar Pradesh And Others(supra), in an effort to mislead the authorities and the Courts, the appellants were held to have succeeded in polluting the course of justice, but keeping in view that the possession of the surplus land was taken, and was distributed among landless poor persons, the Supreme Court refrained to impose such cost.
44. In the present case, the cost imposed by learned Single Judge on the University (respondent Nos.9 to 11) of Rs.10,000/-, to be paid to the petitioners as cost of litigation, is neither prohibitive nor exemplary. It is the cost by way of compensation of the expenses incurred by the petitioners, who were seeking admission in the PG Courses. The deposit of entire fees collected from the 12 students by the University, with the Medical and Health Department, Government of Rajasthan, is not the cost, but the fruits of fraud and deception which the University played with the system in getting the 12 students admitted, and leaving 10 seats vacant. The Supreme Court in its judgments, cited as above, had severely warned the institutions not to adopt a procedure, in which seats recognized by the MCI, are allowed to be wasted. In the present case, we find that the MG University had in fact, after diviating from the procedure to avoid the MCI Regulations and the directions of the Supreme Court, not only filled up the 12 seats illegally to the chosen candidates, but also wasted 10 seats, which could have gone to the students, who were in the merit list of the Rajasthan Pre-PG Examination, 2011. The directions issued to deposit the entire fees collected, and which has been deposited by the University with the Medical & Health Department, Government of Rajasthan, is by way of compensation to those students, who lost their chance, to be admitted to the PG Course, and for which, learned Single Judge has rightly observed that the amount deposited, will be used for advancement of the studies in medical sciences. The State Government may, at its discretion, use the amount, which had been deposited by the University, for advancement of the studies in medical sciences.
45. We also do not find any force in the argument that the students, who were admitted, have not been impleaded as party, as those students were fully represented by the University, defending their admissions, and that they were also given liberty to file a Special Appeal by accepting the application for leave to appeal, and their Counsel was heard at length.
46. We do not find the plea of equity, to succeed in their favour, relying on Khalid Hussin(Minor) Vs. Commissioner and Secretary to Government of Tamil Nadu, Health Department, Madras and others, AIR 1987 SC 3074, in which the admissions were protected on the ground that there was absence of any guidelines for the purposes of selections.
47. In the present case, the MG University had, despite its undertaking and having full knowledge of the time schedule and the procedure for admissions, not only disobeyed the orders of the Court, but succeeded in playing a fraud with the system, in getting 12 favoured candidates admitted to the PG Courses. They cannot be allowed to keep the fruits of the fraud on the pretext that the students have completed the course and had also submitted their thesis. A person who plays fraud with the system and reaps the benefits, cannot be allowed to keep the ill gotten gain to himself on the plea of equity.
48. As far as the prayer for CBI enquiry pressed by the petitioners in the writ petition who are respondents before us, and who have also completed their MD Courses from the Government Medical Colleges, is concerned, we leave the matter to the Central Government, to consider to initiate CBI enquiry in the matter. The CBI enquiry will not only unearth the conspiracy which may have been hatched between the functionaries of the State Government and the promoters of the MG University in succeeding to get an Ordinance issued, but also the arrangements which may have been made between the beneficiaries and the University.
49. We approve the directions issued by learned Single Judge, that the MCI must take action, as contemplated by the Hon'ble Supreme Court, and in compliance of para 8.4 of the order of the Government of India dated 14.05.2003, which was approved in Mridhul Dhar's case(supra), in which the Medical Council of India, or the Dental Council of India was directed that any student identified as having obtained admission after the last date for closure of admission be discharged from the course of study, or any medical or dental qualification granted to such a student shall not be a recognized qualification for the purpose of the India Medical Council Act, 1956, or the Dentists Act, 1948. The MCI will, thus, proceed in accordance with the directions issued by the Hon'ble Supreme Court with regard to admissions of these 12 students, who are appellants before us in D.B. Civil Special Appeal(W) No.797/2014, and will also take strict action against the MG University, in accordance with its policy, which it may have formulated for compliance of its Regulations and the directions of the Hon'ble Supreme Court.
50. All the Special Appeals are, accordingly, dismissed, with the observations made as above.
51. A copy of the judgment be placed in all the connected files.
(PRAKASH GUPTA),J. (SUNIL AMBWANI),ACTING C.J. /KKC/ (reserved) Certificate:
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
KAMLESH KUMAR P.A.