Madhya Pradesh High Court
Abha Dwivedi vs The State Of Madhya Pradesh on 4 July, 2012
Equivalent citations: AIR 2012 MADHYA PRADESH 177
W.P. No.14248.11
Writ Petition No. 14248 of 2011
( A b h a D w i v ed i Vs . T h e S ta t e o f M . P . a n d ni n e o t h e r s)
04/07/2012
Shri Vishal Dhagat, learned counsel for the
petitioner.
Shri Rahul Jain, learned Dy. Advocate
General, for the respondents No. 1, 2 and 5 to 10.
None for the respondents No. 3 and 4. Heard.
Petitioner, a student of Peoples College of Dental Science, Bhopal, prosecuting her course in Bachelor of Dental Science, vide this petition seeks direction to the respondents to consider her case for admission in MBBS course which had fallen vacant and to rusticate suspicious candidates from MBBS Course and allow the seat in MBBS course to deserving candidates who were deprived of opportunity of admission in MBBS course because of fraudulent candidates and to direct the respondents to consider the case of the petitioner for allotment of MBBS seat as per rule 3.5 and 3.6 of the Madhya Pradesh Medical and Dental Undergraduate Entrance Examination Rules, 2009 (hereinafter referred to as the Rules of 2009).
Relevant facts giving rise to filing of the petition are that in pursuance to Pre Medical Test 2009 petitioner obtained 128 marks and was placed at Serial No. 3390 in the merit list in respect of Government/Autonomous and Medical W.P. No.14248.11 College in unreserved category and in respect of Private Medical and Dental College in unreserved category was placed at Merit No. 3067. Vide allotment letter dated 05- 09-2009 petitioner was allotted a seat under State quota of Private Medical and Dental College viz., Peoples College of Dental Science, Bhopal.
Desirous of prosecuting studies in MBBS course the petitioner on 07-09- 2009 gave an application to Director, Medical Education, Madhya Pradesh, Bhopal, opting for waiting in MBBS course, in pursuance to clause 3.7 of the Rules of 2009 (Clause 3.7 provides for "the candidate admitted to B.D.S. course at the time of counseling will be entitled for re-allocation for vacant seats of MBBS Course in the second counseling only as per their merit/category/class.") The second and third round of counseling scheduled in September, 2009 did not reap any outcome to the petitioner in respect to her seat in MBBS course.
On 21-10- 2009 the petitioner represented to Director, Medical Education M.P., Bhopal, for considering her claim against 21 seats for MBBS course in Private Medical College, which as per the petitioner has fallen vacant because of students of Private Medical College taking admission in Sagar Medical College in a counseling held on 20- 10-2009. The request of the petitioner W.P. No.14248.11 since was not acceded to she filed a writ petition No. 11204/2009 seeking direction to the respondents to allot a seat in MBBS course in Private Medical College in accordance with her merit.
The writ petition was disposed of on 19-11- 2009 in the following terms :-
"By this writ petition preferred under Article 226 of the Constitution of India the petitioner has praye d for the following reliefs :
"(i) That, the Hon'ble Court may be pleased to issue a writ in the nature of mandamus directing the respondents to allot a seat in MBB S course to the petitioner at Private Medical College's vacant seat in accordance with her merit.
(ii) That, any other order or relief which the Hon'ble Court may deem fit and proper in the facts and circumstance s of the case."
Mr. Kaurav, learned Deputy Advocate General submitte d that counseling is going to be held by the Director, Medical Education, State of M .P . for R.D. Gardi Medical College, Ujjain on 30.1 1 .2 0 0 9 . Be it noted, the aforesaid counseling is done in pursuance of the order passe d by the Apex Court in S.L .P .(Civil) (s) No. 27561- 27 58 0/ 20 09 . In this context, we may profitably reproduce the order passed by their Lordships :
"Respon dent i.e . R .D. Gardi Medical College, Surasa, Ujjain is directed to release original documents and fees deposited by the eight petitioner/students who seek admission at the Government Medical College, Sagar immediately and Government Medical College, W.P. No.14248.11 Sagar will complete the admission process within a week in respect of these eight students. Consequently, there may be eight vacancies in the R.D. Gardi College, Ujjain .
If there is a list of eligible candidate with the State Government, the seats may be filled up strictly on the basis of norms given for admission to Medical Colleges.
Further, Aurobindo College, Indore and L . N. Medical College and Research Centre, Bhopal are directed to return the fees of 12 students immediately .
The special leave petitions are dispose d of accordingly ."
In view of the aforesaid and as further agreed to by Mr. Kaurav, petitioner is permitted to appear in the counseling which is going to be held on 30.1 1 .2 0 0 9 . Her case shall be considered on her own merit and on such terms and conditions which are in vogue .
The writ petition is accordingly
disposed of.
C.C. as per rules."
It is the contention of the petitioner that though there was a direction by this Court but since no counseling took place on 30-11- 2009 but a counseling took place on 08-12- 2009 and 09-12- 2009 wherein 44 students were present out of which 8 candidates were allotted MBBS seats. The petitioner was, however, not given seat in MBBS course in Private Medical College. It is contended that 18 seats were left vacant which was not disclosed but were subsequently filled in W.P. No.14248.11 by the Management of Aurobindo College, Indore ( 17 seats) and L. N. Medical College and Research Centre, Bhopal (1 seat).
It is further contended that in Sagar Medical College on an scrutiny it was found that 13 students have taken admission in MBBS course by adopting fraudulent means. It is contended that criminal prosecution has been launched against them. It is urged that out of these 13, 9 candidates are being proceeded against in a criminal case forming subject matter of Crime No. 728/2011, Police Station-Maharana Pratap Nagar, Bhopal. It is contended that on 06-08-2011 petitioner filed a representation before the Director, Medical Education, Bhopal stating therein that rules 3.5 and 3.6 of Rules of 2009 were violated and 26 seats in Private Medical College were reallocated out of which 3 fraudulent candidates were admitted in Sagar Medical College and only 8 seats in MBBS course were allotted in a counseling held on 08- 12-2009 and 09-12- 2009 whereas 18 seats were left vacant, which as per the petitioner, were utilized by the Management of Private Medical College towards Management Quota.
It is in the above backdrop the petitioner seeks direction for reallocation of MBBS course, for rusticating all such students who are found to have used unfair means or have got admission fraudulently and release the seats for other W.P. No.14248.11 meritorious candidates.
Respondents No. 1, 2, 4 & 5 have denied the entitlement of the petitioner for reallocation. It is urged that having prosecuted studies in BDS course from academic session 2009- 10 no reallocation to MBBS course can be permitted in a future academic session. It is contended that no rule permits for such telescoping.
Rejoinder affidavit has been filed by the petitioner reiterating the claim that all those seats which has fallen vacant because of cancellation of admission of students in the MBBS course of the academic session 2009 because of the fraud committed by them, the vacant seats now be utilized by reallocating to the petitioner and the like in accordance with their respective merit.
Submissions and counter submissions give rise to following aspect (i) as to whether the reallocation of seat in MBBS course is permissible in a future date. And (ii) the seat in MBBS course of the Academic Session 2009 in Government Medical Colleges having fallen vacant because of cancellation of admission of students, who were found having used fraudulent means to seek admission can be thrown open for reallocation to the students who appeared in the examination in the year 2009.
Admission to undergraduate course in Medical and Dental Colleges, Government/Autonomous and W.P. No.14248.11 Private, is governed by Entrance Examination Rules.
Whereas, for entrance in Government Medical and Dental College, the Rules are framed by the State Government in exercise of powers conferred by section 10 of Madhya Pradesh Chikitsa Shiksha Sanstha Niyantran Adhiniyam, 1973. For the year 2009 M. P. Medical and Dental Undergraduate Entrance Examination Rules, 2009 are framed.
For undergoing MBBS and BDS courses entrance in Private unaided Medical and Dental Colleges in the State of Madhya Pradesh Rules are framed in exercise of the power conferred by Section 12 of the Madhya Pradesh Niji Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007. For the year 2009 rules framed were the Madhya Pradesh Private Medical and Dental Undergraduate Course Entrance Examination Rules, 2009.
Since the petitioner was admitted to private Medical College in the first counseling Rules of 2009 pertaining to private unaided Medical and Dental College would be applicable.
Rule 18 of the Rules 2009 stipulates that the commencement of academic session would be from 01-08- 2009 and the last date upto which students can be admitted against vacancies arising due to any reason 30- 09-2009.
Rule 18.1 provides the schedule for admission W.P. No.14248.11 process as under :
1. First counseling By July 2009
2. Commencement of academic session By 1 s t Aug. 2009
3. Second counseling By August 2009
4. Last date upto which students can be admitted against vacancies arising due to any reason By 30 t h Sept. 2 00 9 Note 1 appended to Rule 18.1 stipulates that "As per direction of Hon'ble Supreme Court order dated 11-09-2002 in Medical Council of India v.
Madhu Singh and others, no admission shall be made in any condition beyond 30 t h September of the concerned year. After 30- 09-2009 the admission process will come to close irrespective of any vacancy."
In Medical Council of India vs. Madhu Singh and others : (2002) 7 SCC 258, it is held :
"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-
tream 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;
W.P. No.14248.11
(iv) the 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."
Later on, in Mridul Dhar (minor) and another vs. Union of India and others : (2005) 2 SCC 64, it was held :-
"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 mark sheet 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 mark sheets 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.
W.P. No.14248.11
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.
W.P. No.14248.11
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."
Recently, in Priya Gupta vs. State of Chhattisgarh and others : 2012 AIR SCW 3354 it is held by their Lordships :
"30..........Thus, we issue the following directions in rem for their strict compliance, without demur and default, by all concerned,.
i) The commencement of new courses or increases in seats of existing courses of MBBS/BDS are to be approved/recognised by the Government of India by 15th July of each calendar year for the relevant academic sessions of that year.
ii) The Medical Council of India shall, immediately thereafter, issue appropriate directions and ensure the implementation and commencement of admission process within one week thereafter.
iii) After 15th July of each year, neither the Union of India nor the Medical or Dental Council of India shall issue any recognition or approval for the current academic year. If any such approval is granted after 15th July of any year, it shall only be operative for the next academic year and not in the current academic year. Once the sanction/approval is granted on or before 15th July of the relevant year, the name of that college and all seats shall be included in both the first and the second counseling, in accordance with the Rules.
iv) Any medical or dental college, or seats thereof, to which the recognition/approval is issued subsequent to 15th July of the respective year shall not be included in the counseling to be conducted by the concerned authority and that college would have no right to make admissions in the current academic W.P. No.14248.11 year against such seats.
v) The admission to the medical or dental colleges shall be granted only through the respective entrance tests conducted by the competitive authority in the State or the body of the private colleges. These two are the methods of selection and grant of admission to these 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.
vi) 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 & Anr. v. UOI & Ors.
[(2003) 3 SCC 366] and third counseling is not contemplated or permitted under the entire process of selection/grant of admission to these professional courses.
vii) If any seats remain vacant or are surrendered from All India Quota, they should positively be allotted and admission granted strictly as per the merit by 15th September of the relevant year and not by holding an extended counseling. The remaining time will be limited to the filling up of the vacant seats resulting from exceptional circumstances or surrender of seats. All candidates should join the academic courses by 30th September of the academic year.
viii) No college may grant admissions without duly advertising the vacancies available and by publicizing the same through the internet, newspaper, on the notice board of the respective feeder schools and colleges, etc. Every effort has to be made by all concerned to ensure that the admissions are given on merit and after due W.P. No.14248.11 publicity and not in a manner which is ex-facie arbitrary and casts the shadow of favouritism.
ix) 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."
The consequences for not adhering to the above stipulations have also been mandated in paragraph 31 of Priya Gupta (supra).
We are presently, however, concerned with the aspect that whether the vacancy/vacancies of particular year can be telescoped and can be filled in any manner from the student of that particular year. Close reading of relevant rule i.e. 18.1 Note 1 and the decision in Madhu Singh, Mridul Dhar and Priya Gupta (supra) does not lend any support to the proposition that by telescoping the vacancies admission/reallocation can be granted. The claim of the petitioner that she should be accommodated against the seat falling vacant/unfilled therefore cannot be acceded to.
True it may be that by virtue of order dated 19-11- 2009 passed in Writ Petition No. 11204/2009 which was in pursuance to the order W.P. No.14248.11 passed in by the Supreme Court in S.L.P.(Civil)(s) No. 27561- 27580/2009, petitioner was permitted to appear in the counseling which was to be held on 30-11- 2009 that, however, will not create any right for seat falling vacant in future. In respect of counseling held on 08- 12-2009 and 09-12-2009 and as alleged that number of students were given admission in Private Medical College, the petitioner has remedy under the Act of 2007. Merely because of this, right, however, does not accrue in favour of the petitioner to seek admission in MBBS course by reallocation after the cut off date.
In respect of issue No. 2 the petitioner admittedly got admission in Private Dental College in first round of counseling. Thus, the Rules applicable to Private Medical and Dental College being applicable to the petitioner, she cannot as a matter of right seek reallocation in MBBS course in Government Medical College.
Having thus considered no case is made out for a mandamus to be issued to the respondents to reallocate seat in MBBS course to the petitioner.
In the result, petition fails and is hereby dismissed.
(AJIT SINGH) (SANJAY YADAV)
JUDGE JUDGE
W.P. No.14248.11
SC