Madras High Court
Dr.M.Hemalatha vs / on 2 May, 2017
Author: N.Kirubakaran
Bench: N.Kirubakaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.05.2017
CORAM
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
W.P.Nos.5314, 5971, 5972 & 6995 of 2017
and
Connected Miscellaneous Petitions
W.P.No.5314/2017
1.Dr.M.Hemalatha
2.Dr.P.Sakthi Prakash
3.Dr.I.G.Sam Victor
4.Dr.M.Venkatesh
5.Dr.S.Karthika
6.Dr.A.Shanmugasundaram
7.Dr.N.Arulkumar
8.Dr.R.Ranjith
9.Dr.N.Kavitha
10.Dr.Nadheem Ahamed
11.Dr.A.Balasubramani
12.Dr.V.Mohanraj
13.Dr.R.Suresh Kumar
14.Dr.R.Anbarasu
15.Dr.D.K.Thangadurai
16.Dr.Rajkumar
17.Dr.Arunkumar ...Petitioners
/versus/
1.State of Tamil Nadu
Represented by Secretary to Government
Health and Family Welfare Department
Chennai 600 009.
2.The Secretary
Selection Committee
Office of the Directorate of Medical Education
162, EVR Periyar Salai
Kilpauk, Chennai 600 010.
3.The Secretary
Medical Council of India
Pocket 14 Sector 8
Dwaraka
New Delhi
4.The Dean
PSG Institute of Medical Sciences and Research
Peelamedu
Coimbatore, Tamil Nadu 641 004.
5.The Dean
SRM Medical College
Potheri, SRM Nagar,
Kattan Kulathur,
Tamil Nadu 603 203.
6.The Dean
Aravind Eye Hospital
Post Graduate Institute of Opthamology
1, Anna Nagar Main Road
Kuruvikaran Salai
Sathyamangalam
Madurai 625020
Tamil Nadu
7.The Dean
Chennai Medical College Hospital
and Research Institute
Irungalur Village
Manachanallur Taluk
Near Toll Booth
Trichy
Tamil Nadu 621 105.
8.The Dean
Chettinad Medical College
Rajiv Gandhi Salai
Kelambakkam
Kanchipuram Post
Tamil Nadu 603 103.
9.The Dean
Sri Ramachandra Medical University
No.1, Ramachandra Nagar
Chennai
Tamil Nadu 600 116.
10.The Dean
Sree Balaji Medical College
and Hospital
7, Clc Works Road, Chrompet,
Chennai, Tamil Nadu 600 044.
11.The Dean
Dhanalakshmi Srinivasan
Medical college and Hospital
Tiruchi Chennai Highway
Siruvachur
Perambalur, Tamil Nadu 621 113.
12.The Dean
Sri Sathya Sai Medical College
Thiruporur Guduvancherry
Main Road, Ammapettai
Chengalpet Taluk, Nellikuppam,
Kancheepuram Dt.
Tamil Nadu 603 108.
13.The Dean
Sree Mookambika Institute
of Medical Sciences
Padanilam
Kulasekharam
Kanyakumari 629 161
Tamil Nadu
14.The Dean
Joseph Eye Hospital
Institute of Ophthalmology
Mealapudur
Tiruchirapalli
Tamil Nadu 620 001.
15.The Dean
Melmaruvathur Adhiparasakthi
Institute of Medical Sciences
Melmaruvathur
Tamil Nadu 603 319.
16.The Dean
Saveetha Medical College
No.162, Ponamallee High Road
Velappanchavadi
Chennai, Tamil Nadu 0- 600 077.
17.The Dean
Vinayaka Mission's Kirupananda
Variyar Medical college and Hospitals
NH-47, Sankari Main Road
Seeragapadi
Salem, Tamil Nadu 636 308.
18.The Dean
Karpaga Vinayaga Institutes
of Medical Sciences
GST Road, Chinna Kolambakkam
Palayanoor Post Office
Kanchipuram St.,
Madurantagam
Tamil Nadu 603 308.
19.The Dean
Dr.ALM PG Institution of Basic Medical Sciences
University of Madras -
Sekkizhar (Taramani) Campus
Tharamani Road
IBMS, Tharamani, Chennai
Tamil Nadu 600 113.
20.The Dean
Karpagam Medical College Hospital
Madukkarai Road
Annai Indira Nagar
Sundarapuram
Kurichi, Coimbatore
Tamil Nadu 641024.
21.The Dean
Regional Centre for Cancer Research
and Treatment
No.1, East Canal Bank Road
Gandhi Nagar
Adayar
Chennai 600 020.
22.The Dean
Christian Medical College
Ida Scudder Road
Sripuram
Vellore, Tamil Nadu 632 004.
23.The Dean
Sankara Nethralaya Medical Research Foundation
No.18, College Road
Nungambakkam
Chennai, Tamil Nadu 600 006.
24. Union of India,
represented by its Secretary,
Ministry of Health and Family Welfare,
New Delhi
25.The Tamil Nadu Dr.M.G.R. Medical University
represented by its Vice-Chancellor,
69, Anna Salai, Little Mount,
Guindy, Chennai
26.The University Grants Commission (UGC),
represented by its Chairman,
Bahadur Shah Zafar Marg,
New Delhi 110 002 .. Respondents
[R24 is Suo Motu impleaded as per order dated 07.04.2017
by NKKJ in WP.Nos.5971 & 5972/2017 and WMP.Nos.6395 &
6396/2017 and W.P.No.5314/2017 and W.M.P.No.5628/2017]
[R25 & R26 are Suo Motu impleaded as per order dated 10.04.2017
by NKKJ in W.P.Nos.5314, 5971, 5972 & 6995/2017]
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Mandamus directing the first respondent to appropriate 50% of seats in the recognized Post Graduate Degree and Diploma courses in respect of each Specialty from the Respondents 4 to 23, formulating a methodology in the matter of sharing of seats between Government and non-Governmental Medical Institutions to make a admission on the basis of the merit list to be prepared by the 1st respondent based on the NEET (PG) (National Eligibility cum Entrance Test P.G) in compliance of proviso to clause 9 of the Post Graduate Medical Education Regulations, 2000.
For Petitioner : Mr.R.N.Amarnath
For Respondents : Mr.T.N.Rajagopalan, Spl.G.P, for R1 & R2
Mr.V.P.Raman, for R3
Mr.Jenasenan, for R4, R9, R11 & R20
Mr.V.T.Gopalan, Senior Counsel,
for Ms.B.Saraswati for R5 & R7
Mr.K.Surendranath, for R6
Mr.T.Mohan, for Mr.T.Balaji, for R8
Mr.K.Kumaresh Babu, for R10
Mr.V.Ramesh, for R12
Mr.P.Godson Swaminathan, for R13
Mr.Anand David, for R14
Mr.Balaji, for R15
Mr.R.Krishnamoorthi, Senior Counsel
for Mr.V.P.Sengottuvel, for R16
Mr.Prahalad Bhat, for R17
Mr.S.Udayakumar, for R18
Mr.R.Gopinath, for R19
Mr.E.Jayashankar, for R21
Mr.Krishan Srinivasan, for R22
No Appearance - R23
Mr.Su.Srinivasan, ASGI, for R24
Mr.D.Ravichander, for R25
Mr.P.R.Gopinath, for R26
W.P.No.5971/2017
Dr.M.Kamaraj
S/o.K.Markandan ... Petitioner
/Versus/
1.State of Tamil Nadu
Represented by Secretary to Government
Health and Family Welfare Department
Chennai 600 009.
2.The Director of Medical Education
Directorate of Medical Education
Kilpauk
Chennai 600 010.
3.The Secretary
Selection Committee
Office of the Directorate of Medical Education
162, EVR Periyar Salai
Kilpauk, Chennai 600 010.
4.The Secretary
Medical Council of India
Pocket 14 Sector 8
Dwaraka
New Delhi
5.The Dean
PSG Institute of Medical Sciences and Research
Peelamedu
Coimbatore, Tamil Nadu 641 004.
6.The Dean
SRM Medical College
Potheri, SRM Nagar,
Kattan Kulathur,
Tamil Nadu 603 203.
7.The Dean
Aravind Eye Hospital
Post Graduate Institute of Opthamology
1, Anna Nagar Main Road
Kuruvikaran Salai
Sathyamangalam
Madurai 625020
Tamil Nadu
8.The Dean
Chennai Medical College Hospital
and Research Institute
Irungalur Village
Manachanallur Taluk
Near Toll Booth
Trichy
Tamil Nadu 621 105.
9.The Dean
Chettinad Medical College
Rajiv Gandhi Salai
Kelambakkam
Kanchipuram Post
Tamil Nadu 603 103.
10.The Dean
Sri Ramachandra Medical University
No.1, Ramachandra Nagar
Chennai
Tamil Nadu 600 116.
11.The Dean
Sree Balaji Medical College
and Hospital
7, Clc Works Road, Chrompet,
Chennai, Tamil Nadu 600 044.
12.The Dean
Dhanalakshmi Srinivasan
Medical college and Hospital
Tiruchi Chennai Highway
Siruvachur
Perambalur, Tamil Nadu 621 113.
13.The Dean
Sri Sathya Sai Medical College
Thiruporur Guduvancherry
Main Road, Ammapettai
Chengalpet Taluk, Nellikuppam,
Kancheepuram Dt.
Tamil Nadu 603 108.
14.The Dean
Sree Mookambika Institutes
of Medical Sciences
Padanilam
Kulasekharam
Kanyakumari 629 161
Tamil Nadu
15.The Dean
Joseph Eye Hospital
Institute of Ophthalmology
Mealapudur
Tiruchirapalli
Tamil Nadu 620 001.
16.The Dean
Melmaruvathur Adhiparasakthi
Institute of Medical Sciences
Melmaruvathur
Tamil Nadu 603 319.
17.The Dean
Saveetha Medical College
No.162, Ponamallee High Road
Velappanchavadi
Chennai, Tamil Nadu 0- 600 077.
18.The Dean
Vinayaka Mission's Kirupananda
Variyar Medical college and Hospitals
NH-47, Sankari Main Road
Seeragapadi
Salem, Tamil Nadu 636 308.
19.The Dean
Karpaga Vinayaga Institutes
of Medical Sciences
GST Road, Chinna Kolambakkam
Palayanoor Post Office
Kanchipuram St.,
Madurantagam
Tamil Nadu 603 308.
20.The Dean
Dr.ALM PG Institution of Basic Medical Sciences
University of Madras -
Sekkizhar (Taramani) Campus
Tharamani Road
IBMS, Tharamani, Chennai
Tamil Nadu 600 113.
21.The Dean
Karpagam Medical College Hospital
Madukkarai Road
Annai Indira Nagar
Sundarapuram
Kurichi, Coimbatore
Tamil Nadu 641024.
22.The Dean
Regional Centre for Cancer Research
and Treatment
No.1, East Canal Bank Road
Gandhi Nagar
Adayar
Chennai 600 020.
23.The Dean
Christian Medical College
Ida Scudder Road
Sripuram
Vellore, Tamil Nadu 632 004.
24.The Dean
Sankara Nethralaya Medical Research Foundation
No.18, College Road
Nungambakkam
Chennai, Tamil Nadu 600 006.
25.Union of India
Represented by the Secretary to Government
Ministry of Health and Family Welfare
New Delhi
26.The Tamil Nadu Dr.M.G.R. Medical University
represented by its Vice-Chancellor,
69, Anna Salai, Little Mount,
Guindy, Chennai
27.The University Grants Commission (UGC),
represented by its Chairman,
Bahadur Shah Zafar Marg,
New Delhi 110 002 .. Respondents
[R25 is Suo Motu impleaded as per order dated
15.03.2017 by NKKJ in WP.No.5971/2017]
[R26 & R27 are Suo Motu impleaded as per order dated
10.04.2017 by NKKJ in W.P.Nos.5314, 5971, 5972 & 6995/2017]
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Mandamus directing the first respondent to appropriate 50% of seats in the recognized Post Graduate Degree and Diploma courses in respect of each Specialty from the Respondents 5 to 24, formulating a methodology in the matter of sharing of seats between Government and non-Governmental Medical Institutions to make a admission on the basis of the merit list to be prepared by the 1st respondent based on the NEET (PG) (National Eligibility cum Entrance Test P.G) in compliance of proviso to clause 9 of the Post Graduate Medical Education Regulations, 2000.
For Petitioner : Mr.G.Sankaran
For Respondents : Mr.T.N.Rajagopalan, Spl.G.P, for R1, R2 & R3
Mr.V.P.Raman, for R4
Mr.Jenasenan, for R5, R10, R12 & R21
Mr.V.T.Gopalan, Senior Counsel,
for Ms.B.Saraswati, for R6 & R8
Mr.K.Surendranath, for R7
Mr.T.Mohan, for Mr.T.Balaji, for R9
Mr.K.Kumaresh Babu, for R11 & R13
Mr.V.Ramesh, for R12
Mr.P.Godson Swaminathan, for R13
Mr.Issac Mohanlal, for R14
Mr.Anand David, for R15
Mr.A.S.Balaji, for R16
Mr.R.Krishnamoorthi, Senior Counsel
for Mr.V.P.Sengottuvel, for R17
Mr.Prahalad Bhat, for R18
Mr.S.Udayakumar, for R19
Mr.R.Gopinath, for R20
Mr.E.Jayashankar, for R22
Mr.Krishan Srinivasan, for R23
No Appearance - R24
Mr.Su.Srinivasan, ASGI, for R25
Mr.D.Ravichander, for R26
Mr.P.R.Gopinath, for R27
W.P.No.5972/2017
Dr.D.Dhivya Sharona
W/o.Dr.S.K.Anoop ... Petitioner
/Versus/
1.State of Tamil Nadu
Represented by Secretary to Government
Health and Family Welfare Department
Chennai 600 009.
2.The Director of Medical Education
Directorate of Medical Education
Kilpauk
Chennai 600 010.
3.The Secretary
Selection Committee
Office of the Directorate of Medical Education
162, EVR Periyar Salai
Kilpauk, Chennai 600 010.
4.The Secretary
Medical Council of India
Pocket 14 Sector 8
Dwaraka
New Delhi
5.The Dean
PSG Institute of Medical Sciences and Research
Peelamedu
Coimbatore, Tamil Nadu 641 004.
6.The Dean
SRM Medical College
Potheri, SRM Nagar,
Kattan Kulathur,
Tamil Nadu 603 203.
7.The Dean
Aravind Eye Hospital
Post Graduate Institute of Opthamology
1, Anna Nagar Main Road
Kuruvikaran Salai
Sathyamangalam
Madurai 625020
Tamil Nadu
8.The Dean
Chennai Medical College Hospital
and Research Institute
Irungalur Village
Manachanallur Taluk
Near Toll Booth
Trichy
Tamil Nadu 621 105.
9.The Dean
Chettinad Medical College
Rajiv Gandhi Salai
Kelambakkam
Kanchipuram Post
Tamil Nadu 603 103.
10.The Dean
Sri Ramachandra Medical University
No.1, Ramachandra Nagar
Chennai
Tamil Nadu 600 116.
11.The Dean
Sree Balaji Medical College
and Hospital
7, Clc Works Road, Chrompet,
Chennai, Tamil Nadu 600 044.
12.The Dean
Dhanalakshmi Srinivasan
Medical college and Hospital
Tiruchi Chennai Highway
Siruvachur
Perambalur, Tamil Nadu 621 113.
13.The Dean
Sri Sathya Sai Medical College
Thiruporur Guduvancherry
Main Road, Ammapettai
Chengalpet Taluk, Nellikuppam,
Kancheepuram Dt.
Tamil Nadu 603 108.
14.The Dean
Sree Mookambika Institutes
of Medical Sciences
Padanilam
Kulasekharam
Kanyakumari 629 161
Tamil Nadu
15.The Dean
Joseph Eye Hospital
Institute of Ophthalmology
Mealapudur
Tiruchirapalli
Tamil Nadu 620 001.
16.The Dean
Melmaruvathur Adhiparasakthi
Institute of Medical Sciences
Melmaruvathur
Tamil Nadu 603 319.
17.The Dean
Saveetha Medical College
No.162, Ponamallee High Road
Velappanchavadi
Chennai, Tamil Nadu 0- 600 077.
18.The Dean
Vinayaka Mission's Kirupananda
Variyar Medical college and Hospitals
NH-47, Sankari Main Road
Seeragapadi
Salem, Tamil Nadu 636 308.
19.The Dean
Karpaga Vinayaga Institute
of Medical Sciences
GST Road, Chinna Kolambakkam
Palayanoor Post Office
Kanchipuram St.,
Madurantagam
Tamil Nadu 603 308.
20.The Dean
Dr.ALM PG Institution of Basic Medical Sciences
University of Madras -
Sekkizhar (Taramani) Campus
Tharamani Road
IBMS, Tharamani, Chennai
Tamil Nadu 600 113.
21.The Dean
Karpagam Medical College Hospital
Madukkarai Road
Annai Indira Nagar
Sundarapuram
Kurichi, Coimbatore
Tamil Nadu 641024.
22.The Dean
Regional Centre for Cancer Research
and Treatment
No.1, East Canal Bank Road
Gandhi Nagar
Adayar
Chennai 600 020.
23.The Dean
Christian Medical College
Ida Scudder Road
Sripuram
Vellore, Tamil Nadu 632 004.
24.The Dean
Sankara Nethralaya Medical Research Foundation
No.18, College Road
Nungambakkam
Chennai, Tamil Nadu 600 006.
25.The Tamil Nadu Dr.M.G.R. Medical University
represented by its Vice-Chancellor,
69, Anna Salai, Little Mount,
Guindy, Chennai
26.The University Grants Commission (UGC),
represented by its Chairman,
Bahadur Shah Zafar Marg, New Delhi 110 002
27.The Union of India,
represented by its Secretary,
Ministry of Health and Family Welfare,
New Delhi ... Respondents
[R25 to R27 are Suo Motu impleaded as per order dated 10.04.2017
by NKKJ in W.P.Nos.5314, 5971, 5972 & 6995/2017]
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Mandamus directing the first respondent to appropriate 50% of seats in the recognized Post Graduate Degree and Diploma courses in respect of each Specialty from the Respondents 5 to 24, formulating a methodology in the matter of sharing of seats between Government and non-Governmental Medical Institutions to make a admission on the basis of the merit list to be prepared by the 1st respondent based on the NEET (PG) (National Eligibility cum Entrance Test P.G) in compliance of proviso to clause 9 of the Post Graduate Medical Education Regulations, 2000.
For Petitioner : Mr.G.Sankaran
For Respondents : Mr.T.N.Rajagopalan, Spl.G.P, for R1, R2 & R3
Mr.V.P.Raman, for R4
Mr.Jenasenan, for R5, R10, R12 & R21
Mr.V.T.Gopalan, Senior Counsel,
for Ms.B.Saraswati, for R6 & R8
Mr.K.Surendranath, for R7
Mr.T.Mohan, for Mr.T.Balaji, for R9
Mr.K.Kumaresh Babu, for R11 & R13
Mr.V.Ramesh, for R12
Mr.Issac Mohanlal, for R14
Mr.Anand David, for R15
Mr.A.S.Balaji, for R16
Mr.R.Krishnamoorthi, Senior Counsel
for Mr.V.P.Sengottuvel, for R17
Mr.Prahalad Bhat, for R18
Mr.S.Udayakumar, for R19
Mr.R.Gopinath, for R20
Mr.E.Jayashankar, for R22
Mr.Krishan Srinivasan, for R23
No Appearance - R24
Mr.Su.Srinivasan, ASGI, for R25
Mr.D.Ravichander, for R26
Mr.P.R.Gopinath, for R27
W.P.No.6995/2017
Dr.K.K.Pravin
S/o.K.Karuppannasamy ...Petitioner
/versus/
1.Union of India, represented by
Secretary to Government
Health and Family Welfare Department
Nirman Bhavan
New Delhi 110 011.
2.State of Tamil Nadu
Represented by Secretary to Government
Health and Family Welfare Department
Chennai 600 009.
3.The Director of Medical Education
Directorate of Medical Education,
Kilpauk, Chennai 600 010.
4.The Secretary
Selection Committee
Office of the Directorate of Medical Education
162, EVR Periyar Salai
Kilpauk, Chennai 600 010.
5.The Secretary
Medical Council of India
Pocket-14 Sector-8
Dwaraka, New Delhi
6.The Dean
PSG Institute of Medical Sciences and Research
Peelamedu
Coimbatore, Tamil Nadu 641 004.
7.The Dean
SRM Medical College
Potheri, SRM Nagar,
Kattan Kulathur,
Tamil Nadu 603 203.
8.The Dean
Aravind Eye Hospital
Post Graduate Institute of Opthamology
1, Anna Nagar Main Road
Kuruvikaran Salai
Sathyamangalam
Madurai 625020
Tamil Nadu
9.The Dean
Chennai Medical College Hospital
and Research Institute
Irungalur Village
Manachanallur Taluk
Near Toll Booth
Trichy
Tamil Nadu 621 105.
10.The Dean
Chettinad Medical College
Rajiv Gandhi Salai
Kelambakkam
Kanchipuram Post
Tamil Nadu 603 103.
11.The Dean
Sri Ramachandra Medical University
No.1, Ramachandra Nagar
Chennai
Tamil Nadu 600 116.
12.The Dean
Sree Balaji Medical College
and Hospital
7, Clc Works Road, Chrompet,
Chennai, Tamil Nadu 600 044.
13.The Dean
Dhanalakshmi Srinivasan
Medical college and Hospital
Tiruchi Chennai Highway
Siruvachur
Perambalur, Tamil Nadu 621 113.
14.The Dean
Sri Sathya Sai Medical College
Thiruporur Guduvancherry
Main Road, Ammapettai
Chengalpet Taluk, Nellikuppam,
Kancheepuram Dt.
Tamil Nadu 603 108.
15.The Dean
Sree Mookambika Institutes
of Medical Sciences
Padanilam
Kulasekharam
Kanyakumari 629 161
Tamil Nadu
16.The Dean
Joseph Eye Hospital
Institute of Ophthalmology
Mealapudur
Tiruchirapalli
Tamil Nadu 620 001.
17.The Dean
Melmaruvathur Adhiparasakthi
Institute of Medical Sciences
Melmaruvathur
Tamil Nadu 603 319.
18.The Dean
Saveetha Medical College
No.162, Ponamallee High Road
Velappanchavadi
Chennai, Tamil Nadu 0- 600 077.
19.The Dean
Vinayaka Mission's Kirupananda
Variyar Medical college and Hospitals
NH-47, Sankari Main Road
Seeragapadi
Salem, Tamil Nadu 636 308.
20.The Dean
Karpaga Vinayaga Institutes
of Medical Sciences
GST Road, Chinna Kolambakkam
Palayanoor Post Office
Kanchipuram St.,
Madurantagam
Tamil Nadu 603 308.
21.The Dean
Dr.ALM PG Institution of Basic Medical Sciences
University of Madras -
Sekkizhar (Taramani) Campus
Tharamani Road
IBMS, Tharamani, Chennai
Tamil Nadu 600 113.
22.The Dean
Karpagam Medical College Hospital
Madukkarai Road
Annai Indira Nagar
Sundarapuram
Kurichi, Coimbatore
Tamil Nadu 641024.
23.The Dean
Regional Centre for Cancer Research
and Treatment
No.1, East Canal Bank Road
Gandhi Nagar
Adayar
Chennai 600 020.
24.The Dean
Christian Medical College
Ida Scudder Road
Sripuram
Vellore, Tamil Nadu 632 004.
25.The Dean
Sankara Nethralaya Medical Research Foundation
No.18, College Road
Nungambakkam
Chennai, Tamil Nadu 600 006.
26.The Dean
Meenashi Medical College Hospital &
Research Institute Enathur
Karrapatti Post, Kanchipuram
Tamil Nadu 631552
27.The Tamil Nadu Dr.M.G.R. Medical University
represented by its Vice-Chancellor,
69, Anna Salai, Little Mount,
Guindy, Chennai
28.The University Grants Commission (UGC),
represented by its Chairman,
Bahadur Shah Zafar Marg, New Delhi 110 002
29.The Union of India,
represented by its Secretary,
Ministry of Health and Family Welfare,
New Delhi ... Respondents
[R27 to R29 are Suo Motu impleaded as per order dated 10.04.2017
by NKKJ in W.P.Nos.5314, 5971, 5972 & 6995/2017]
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Mandamus directing the respondents 2 to 5 to appropriate 50% of seats in the recognized Post Graduate Degree and Diploma courses in respect of each Specialty from the Respondents 6 to 25 by formulating a methodology in the matter of sharing of seats between Government and non-Governmental Medical Institutions to make admission in compliance of Post Graduate Medical Education Regulations, 2000, as amended.
For Petitioner : Mr.R.N.Amarnath
For Respondents : Mr.Su.Srinivasan, for R1
Mr.T.N.Rajagopalan, Spl.G.P, for R2, R3 & R4
Mr.V.P.Raman, for R5
Mr.Jenasenan, for R6, R11, R13 & R22
Mr.V.T.Gopalan, Senior Counsel,
for Ms.B.Saraswati, for R7 & R9
Mr.K.Surendranath, for R8
Mr.T.Mohan, for Mr.T.Balaji, for R10
Mr.K.Kumaresh Babu, for R12 & R14
Mr.V.Ramesh, for R12
Mr.P.Godson Swaminathan, for R13
Mr.Issac Mohanlal, for R15
Mr.Anand David, for R16
Mr.A.S.Balaji, for R17
Mr.R.Krishnamoorthi, Senior Counsel
for Mr.V.P.Sengottuvel, for R18
Mr.Prahalad Bhat, for R19
Mr.S.Udayakumar, for R20
Mr.R.Gopinath, for R21
Mr.E.Jayashankar, for R23
Mr.Krishan Srinivasan, for R24
No Appearance R25
Mr.Meikandan, for R26
Mr.D.Ravichander, for R27
Mr.P.R.Gopinath, for R28
COMMON ORDER
nehaw;w thH;nt Fiwtw;w bry;tk; goes a tamil saying which means that disease free life is plenty of wealth. Human beings are bound to suffer from diseases during their life time. To diagnose diseases, treat and cure, medical professionals are necessary. The role of doctors have been recognized 2000 years ago by ancient tamils and one such evidence is found in Immortal Thirukkural written by Saint Thiruvalluvar.
neha;eho neha;Kjy; eho mJjzpf;Fk;
tha;eho tha;g;gr; bray; Disease, its cause, what may abate the ill:
Let leech examine these, then use his skill. The medical experts should be in a position to diagnose the disease and its cause and to treat the root which causes the disease is the duty of the doctor. When such is the importance of doctors, naturally and definitely the role of doctors in the modern life to treat fellow human beings is very essential. For that, eminent doctors have to be produced. Only meritorious and intelligent students alone could make good doctors and therefore, meritorious and intelligent students alone have to be admitted in the medical colleges so that when they come out, they would be well trained and qualified to do service to the society.
2.Only to enable meritorious, deserving and intelligent students to get accommodated in medical colleges, many ways and means have been introduced to filter less meritorious, half-baked students from entering into medical colleges. One such step is the introduction of common entrance examination by the Medical Council of India, so that the students are selected by a single window system which is applicable throughout India and the merit of the students is determined on an all India level.
3.Though, initially Government medical colleges alone have been in existence, in view of the importance of health, increase in human population and consequently diseases and advancement in medical treatment, more and more doctors are necessary. Resultantly, more medical colleges are started to be established. In view of expanding role of Government, the Government is not in a position to establish more medical colleges and cater to the medical needs of the increasing population of India, private stake holders are permitted to establish medical colleges/institutions/universities. Advent of private medical institutions eventually leads to commercialization of medical education, wherein merit has been pushed to back seat and money started playing a prominent role enabling the less meritorious students getting into medical education and keeping out more meritorious and deserving students who have definite chances of becoming better doctors than those who get admitted.
4.The privatization of professional education has been recognized as occupation with marginal profit by the Hon'ble Apex Court in the case of T.M.A.Pai Foundation and Others v. State of Karnataka and Others. Experience shows lesser meritorious students infiltrate into medical colleges, degrading and denting the standards of medical education and consequently, the medical services come to be rendered to common public by those less meritorious students. Therefore, more strict measures are being introduced by the Central Government and the Medical Council of India which is an expert body responsible for giving approval for medical colleges, prescribing minimum standard for medical education etc., One such measure to enhance the quality of medical education is the introduction of The Postgraduate Medical Education Regulations, 2000 [hereinafter referred to as 'Regulation']. The said Regulation speaks about the programmes to be observed by Postgraduate teaching institutions, prescription of curriculum, procedure for starting postgraduate medical courses and their recognition, the nomenclature of postgraduate medical courses and especially, the procedure for selection of candidates for postgraduate courses as per Regulation 9. More procedures/modalities have been given in Regulation 9 for selection of candidates for postgraduate courses. The procedure speaks about single eligibility cum entrance examination namely, National Eligibility cum Entrance Test [hereinafter referred to as 'NEET'] under the control of a single authority, prescription of minimum marks to enter the courses including the sharing of seats between the State Government and Non-Governmental medical colleges/institutions in the ratio of 50-50 percentage, as per clause (2)/(vi) of Regulation 9. The said Regulation 9(2)/9(vi) is required to be followed by the first and second respondent/State Government as prescribed by the third respondent/Medical Council of India by getting 50% seats from Non-Governmental medical colleges/institutions including the deemed universities which are all arrayed as R4 to R23. The seat sharing regulation 9(vi) is the basis for the Writ Petitions filed by the petitioners.
5.W.P.No.5314/2017 is taken as the lead case and the respondents are referred as arrayed in the said writ petition. The writ petitioners would submit that they completed MBBS degree course and they are presently working as Assistant Surgeons under the Directorate of Medical Education, Directorate of Public Health and Preventive Medicines. They got qualified in the NEET [PG] conducted by National Board of Examination for the purpose of selection of candidates for Postgraduate courses and Postgraduate [Diploma] courses 2017-2018. As the private respondents/Medical colleges/Institutions/Deemed Universities are not sharing 50% of their total Postgraduate seats with the first respondent/State which failed to demand the said seats and the third respondent/Medical Council of India failed to enforce the seat sharing regulations, the petitioner have approached this Court by these writ petitions seeking for a Writ of Mandamus directing the first respondent to appropriate 50% of the Postgraduate seats in respect of each speciality, formulate methodology for sharing the seats between the Government and the Non-Governmental institutions based on the merit list prepared by the first respondent, as per the marks obtained by the candidates in NEET.
6.Mr.R.N.Amarnath and Mr.G.Sankaran, learned counsels appearing for the petitioners in the above writ petitions would make the following submissions:
1.Postgraduate Medical Education Regulations, 2000 is binding on all the non-governmental institutions, including the deemed universities to share 50% of Postgraduate medical seats with the State Government.
2.A common counseling has to be done as per the judgment of the Hon'ble Apex Court in Modern Dental College and Research Centre and Others v. State of Madhya Pradesh and Others reported in (2016) 7 Supreme Court Cases 353.
3.Though the entire Regulation 9 as a whole was struck down by the Hon'ble Apex Court in Christian Medical College, Vellore and Others v. Union of India and Others, reported in (2014) 2 Supreme Court Cases 305, the said judgment was recalled by the Hon'ble Apex Court on 11.04.2016 reviving the entire Regulation 9 of the Postgraduate Medical Education Regulations, 2000, amended in 2016.
4.Though the Regulation with regard to sharing of medical seats at the rate of 50-50 has been challenged before the Hon'ble Apex Court by Matha Gurji Memorial Medical College in W.P.(Civil).No.245/2010, the interim stay petition to stay the regulation was rejected.
5.Though a Division Bench of Karnataka High Court in St.John's Medical College v. State of Karnataka and two others in W.A.No.2773 of 2005 held that 50-50 sharing of seats as per then Regulation 9(2) was not applicable to the minority institutions, Regulation 9 as a whole was revived by the Hon'ble Apex Court by an order dated 11.04.2016 by recalling the judgment rendered in the case of Christian Medical College, Vellore and Others v. Union of India and Others.
6.The Hon'ble High Court of Kerala had dismissed the writ petition filed by the individual candidates challenging the order of Kerala State in canceling admission made by the private institutions for contravention of seat sharing as per Regulation 9(2).
7.Though the Medical Council of India supported the seat sharing Regulation before the High Court of Kerala, High Court of Karnataka and even before the Hon'ble Apex Court in Christian Medical College, Vellore and Others v. Union of India and Others, the Medical Council of India takes a different stand in the present proceedings alleging that Hon'ble Division Bench Judgment of the Karnataka High Court had set aside the seat sharing regulation, which is not sustainable.
8.The Regulation 9 is wholly upheld by the Hon'ble Apex Court in the case of State of Uttar Pradesh v. Dinesh Singh Chauhan reported in (2016) 9 Supreme Court Cases 749.
9.The Medical Council of India regulation is binding on Deemed Universities also and they cannot state that they are not bound by the MCI Regulation claiming to be deemed universities.
10.Based on the recommendations of the diocese, even the minority students with less merit are given preference in the admissions and the more meritorious students belonging to the minority classes are not given admission in the Christian Medical College, Vellore. Further, additional test is being conducted by the Christian Medical College, Vellore which is contrary to the regulations.
Making the above submissions, the respective counsel would seek for a writ of mandamus as prayed for.
7.On the other hand, Mr.V.P.Raman, learned counsel appearing for R3/Medical Council of India would make the following submissions:
1.50-50 seat sharing was originally introduced in the year 2000 as second proviso to clause 2 of Regulation 9 and was challenged before the High Court of Karnataka and the High Court of Karnataka which had struck down the said Regulation 9(2); the said judgment was challenged before the Hon'ble Apex Court by the Medical Council of India, wherein no stay was granted even though the Special Leave Petition has been admitted. Therefore, as on date, 50-50 seat sharing is no more available under the Regulation.
2.Regulation 9(2) has been amended in the year 2008 and thereafter, in the year 2010, the seat sharing sub-regulation has been incorporated as Regulation 9(vi) and the said seat sharing Regulation is retained inspite of quashing of the same by the High Court of Karnataka as it is an issue at large before the Hon'ble Apex Court.
3.The Hon'ble Division Bench of the High Court of Karnataka in St.John's Medical College not only held that the Regulation violates Article 30 but also violates Article 19(1)(g) of the Constitution and therefore, the Regulation has been struck down and it is not applicable to private institutions, including the deemed universities.
4.The High Court of Karnataka declared that 50-50 seat sharing sub-regulation in Regulation 9 is based on Unnikrishnan Judgment which has been over-ruled by the decision rendered in the case of T.M.A.Pai Foundation and Others v. State of Karnataka and Others and therefore, the said Regulation is deemed to have been struck down.
5.The Central Government had already filed an affidavit in the Special Leave Petition filed by the Medical Council of India against the judgment of the Hon'ble Division Bench of the High Court of Karnataka in St.John's Medical College case stating that the Medical Council of India has got no power to make Regulation 9(vi) prescribing seat sharing with the Government.
6.Even though the entire Regulation 9 was struck down by the Hon'ble Apex Court in the case of Christian Medical College, Vellore and Others v. Union of India and Others reported in (2014) 2 Supreme Court Cases 305 and it was recalled by an order dated 11.04.2016 by the Hon'ble Apex Court, the position of seat sharing regulation, after the recalling order passed by the Hon'ble Apex Court is post Karnataka High Court judgment i.e., Regulation 9 is revived except the seat sharing regulation, as it was struck down by the High Court of Karnataka.
7.In view of the judgment rendered in the case of T.M.A.Pai Foundation and Others v. State of Karnataka and Others, the seat sharing cannot be enforced against the Non-Governmental institutions and therefore, the regulation is not enforceable.
8.Substantial compliance of the prayer sought for by the petitioners have been made by all the private respondents by submitting all their seats except R5, R13 and R16.
9.Already the Medical Council of India has framed the Regulation 9(A) whereby a common counseling is required to be done for All India quota as well as the State quota seats.
Making the above submissions, it is contended that the seat sharing regulation is no more available and therefore, the writ of mandamus as prayed for cannot be issued.
8.Mr.Abishek, learned counsel appearing for the 4th respondent/PSG Institute of Medical Sciences and Research would submit that the 4th respondent institution had surrendered all the seats to the State Government, except the 15% NRI quota and a memo has been filed to that effect.
9.Mr.V.T.Gopalan, learned Senior Counsel appearing for the 5th respondent/SRM Medical College would make the following submissions:
(a)The 5th respondent is a deemed university and hence, it is outside the purview of the seat sharing regulation.
(b)The notification of the Central Government dated 10.03.2017 making single centralized counseling cannot be given effect retrospectively as the 5th respondent has already completed the admission to the Postgraduate medical courses 2017-2018.
(c)The subsequent law/notification cannot annul the process which has been done legally earlier viz., admission of students to the Postgraduate medical courses.
(d)Only NEET qualified candidates have been admitted to the PG courses.
(e)Totally 1382 students applied for postgraduate course, out of which 61 candidates have been selected and admitted.
(f)At no point of time, the 5th respondent deemed university had shared the seats with the Government.
(g)No committee has been formed by the State Government as per the MCI Regulations so far.
(h)The only designated counseling authority is the 5th respondent University.
(i)The seat sharing Regulation 9(vi) is inchoate and is in contravention of the larger Bench Judgment in T.M.A.Pai Foundation and Others v. State of Karnataka and Others reported in (2002) 8 Supreme Court Cases 481 and hence, it is invalid.
(j)Even the Medical Council of India in Paragraphs 25 to 28 of the counter affidavit has stated that the seat sharing regulation cannot be enforced.
(k)About Rs.500 to Rs.800 Crores is necessary to establish a private Medical College and lakhs and lakhs of rupees have to be spent on each student to make him as postgraduate in medicine by providing proper infrastructures including teaching staff on higher payment. Therefore, it is impossible for a deemed university to share seats with the State Government.
(l)Moreover, the counseling was notified through publication and students were admitted in the month of February 2017 following the procedure on merits. Hence, the rights of the third party students got accrued.
Making the above contentions, the learned Senior Counsel appearing for the 5th respondent seeks for dismissal of the writ petition.
10.The learned counsel appearing for the 6th respondent would submit that 50% seats available in the 6th respondent institution has been surrendered to the State Government.
11.Similarly, it is submitted that the 7th respondent/Chennai Medical College Hospital and Research Institute, Trichy has surrendered 50% seats to the State Government.
12.The 8th respondent/Chettinad Medical College, Chennai is said to have surrendered 100% seats to the State Government.
13.The 9th Respondent/Sri Ramachandra Medical College and Research Institute is said to have surrendered all the seats except the 15% NRI seats on 24.03.2017.
14.R10/Sri Balaji Medical College and Hospital, R11/Dhanalakshmi Srinivasan Medical College and Hospital, Perambalur and R12/Sathya Sai Medical College, Thiruporur are said to have surrendered all the seats to the State Government for allotment.
15.The 13th respondent/Sree Mokambiga Institute of Medical Sciences, Kulasekaram, Kanyakumari submitted that it is to challenge the seat sharing Regulation before the Hon'ble Apex Court and thereby impliedly submitted that it is not going to act as per the Regulation.
16.The 14th respondent/Joseph Eye Hospital, Institute of Opthamology, Trichy would submit that 100% seats in postgraduate diplomas have been surrendered.
17.The 15th respondent/Melmaruvathur Adhiparasakthi Institute of Medical Sciences has got no postgraduate medical courses.
18.The 16th respondent/Saveetha Medical College, Chennai submitted that it has already filled up all the seats on its own.
19.The 18th respondent/Karpaga Vinayaga Institute of Medical Sciences, Madhuranthagam would submit that 50% seats have already been surrendered to the State Government.
20.It is submitted that the 19th respondent/Dr.ALM Postgraduate Institute of Basic Medical Sciences, University of Madras, Taramani is not conducting any postgraduate courses.
21.The 20th respondent/Karpagam Medical College, Coimbatore would submit that 100% seats regarding non-clinical courses have been surrendered to the State Government.
22.The 21st respondent/Regional Centre for Cancer Research and Treatment, Adyar, Chennai has surrendered 50% seats to the State Government.
23.The 22nd respondent/Christian Medical College, Vellore is said to have completed the admission process.
24.The 23rd respondent/Shankara Nethrayala Medical Research Foundation, Chennai, though was served, has not chosen to appear before this Court.
25.Mr.R.Krishnamoorthi, learned Senior Counsel appearing for the 16th respondent/Saveetha Medical College and Hospital would make the following submissions:
1.Based on the NEET examination results, as many as 1117 applications were received and 17 were rejected; Only 95 students alone turned up for the counseling and all the seats were filled up on 23.02.2017 as per merit.
2.The Tamil Nadu Admission in Professional Educational Institutions Act, 2006 which mandated sharing of seats between the institutions and the State Government was struck down by a Hon'ble Division Bench of this Court in Madha Engineering College, Chennai v. State of Tamil Nadu reported in 2007-4-L.W.643, dated 02.07.2007.
3.Regulation 9(vi) is contrary to the judgment made in P.A.Inamdar v. State of Maharashtra reported in (2005) 6 Supreme Court Cases 537.
4.In view of P.A.Inamdar judgment, Regulation 9(vi) could be ignored and no right flows to the petitioners from the invalid regulation. In this regard, the learned Senior Consel relied upon the decisions of the Hon'ble Supreme Court reported in (1994) 6 Supreme Court Cases 77; (1996) 11 Supreme Court Cases 428 and (2003) 6 Supreme Court Cases 790.
5.The counseling schedule given in Ashish Ranjana Case by the Hon'ble Supreme Court is applicable only to the Government Colleges and not for the deemed universities like R16.
6.Paragraphs 21, 22, 23 and 24 of the counter affidavit filed by the Medical Council of India would state that Regulation 9(vi) has become inoperative and therefore, no right flows to the petitioners based on the invalid and inoperative Regulations. The stand of the MCI is contrary to its stand before the Hon'ble Apex Court and other Courts.
Making the above submissions, the learned Senior Counsel would plead that bases on the invalid regulation, the writ petition is not maintainable.
26.Mr.Krishna Srinivasan, learned counsel appearing for the 22nd respondent/Christian Medical College would make the following submissions:
1.The institution had already completed the admission based on merit from the NEET qualified candidates. Moreover, admissions to the minority institutions cannot be regulated by the State Government as per the dictum laid down in P.A.Inamdar v. State of Maharashtra reported in (2005) 6 Supreme Court Cases 537 as well as T.M.A.Pai Foundation and Others v. State of Karnataka and Others reported in (2002) 8 Supreme Court Cases 481.
2.The 22nd respondent institution is a reputed minority institution and only nominal fees lower than the fees payable in the Government Colleges is charged and its status as a well reputed institution has been recognized by very many judgments of the Hon'ble Apex Court.
3.If sharing of 50% seats to the State Government is made, then the minority status of the institution will be lost and therefore, it is practically impossible to follow the said regulation which is contrary to the judgments of the Hon'ble Apex Court.
27.Mr.Kumaresh Babu, learned counsel appearing for the 10th respondent/Sri Balaji Medical College and Hospital and the 12th respondent/Sri Sathya Sai Medical College, Thiruporur would make the following submissions:
1.Regulation 9(vi) does not envisage seat sharing and it only contemplates filling up of seats by the State.
2.Surrendering of seats to the State Government would enable the State Government to treat the respondent college seats as Government allotted seats and only the fees prescribed by the Government alone is applicable.
3.The seat sharing as per the State Government Act was already struck down by the Division Bench of this Court in Madha Engineering College, Chennai v. State of Tamil Nadu reported in 2007-4-L.W.643 = 2007 (4) CTC 13 and inspite of that the State Government is relying upon the G.O.Ms.No.58, dated 02.03.2015 and seek seat sharing in the ratio of 65:35 in case of non-minority institutions and 50:50 in case of minority institutions. Therefore, it is invalid.
28.Mr.J.Abishek, learned counsel appearing for R4/PSG Institute of Medical Sciences and Research; R9/Sri Ramachandra Medical College and Research Institute; R11/Dhanalakshmi Srinivasan Medical College and Hospital, Perambalur and R20/Karpagam Medical College, Coimbatore would submit that the seat sharing formula was first introduced as per the decision of the Hon'ble Apex Court in Unnikrishnan case reported in (1993) 1 Supreme Court Cases 645, whereas the same was reversed by the Hon'ble Apex Court in the case of T.M.A.Pai Foundation and Others v. State of Karnataka and Others reported in (2002) 8 Supreme Court Cases 481. Therefore, the seat sharing regulation 9(2) which was introduced as per the decision made in Unnikrishnan case is not valid. The learned counsel would further submit that the Regulation 15 of UGC (Institutions deemed to be Universities) Regulation speaks about the admission into institutions on all India basis as the institutions are all India institutions and therefore, the sharing of 50% seats with the State Government is not possible. Further, the UGC Regulation would prevail over the Medical Council of India regulation.
29.Mr.Prahalad Bhat, learned counsel appearing for R17/Vinayaga Missions Kirupanandhavariar Medical College and Hospital would submit that R17 is a minority and deemed university and the minority status would be lost, if 50-50 sharing of seats is made. In view of the dictum laid down in P.A.Inamdar v. State of Maharashtra reported in (2005) 6 Supreme Court Cases 537 as well as T.M.A.Pai Foundation and Others v. State of Karnataka and Others reported in (2002) 8 Supreme Court Cases 481, the seat sharing regulation is invalid.
30.Mr.Su.Srinivasan, learned Assistant Solicitor General of India appearing for R24/Union Government would make the following submission:
(a)All the institutions including the deemed universities and minority institutions are covered by the regulation.
(b)The time schedule in Annexure 1 and 2 as per the notification for counseling has to be adhered to and the same was issued on 10.03.2017.
(c)In order to make a uniform procedure for admission to higher education courses, a uniform methodology has to be envisaged and the same has been done as per the direction of the Hon'ble Apex Court.
(d)The Union Government by letter dated 10.03.2017 informed that NEET qualification and common counseling would be the criteria for admission to Postgraduate medical courses.
Thus, making the above submissions he would submit that the entire regulation is binding on all the Universities/Institutions and therefore, pray for allowing these writ petitions.
31.By way of reply, Mr.G.Sankaran, learned counsel appearing for the petitioner in a writ petition would submit that the deemed universities could not be heard saying that they had completed the admission even before the counseling date was notified by the Central Government. The petitioner had issued notice on 27.01.2017 calling upon the respondent institutions to surrender 50% seats to the State and only thereafter, R16/Saveetha Medical College and Hospital had completed the counseling process on 23.02.2017; R5/SRM Medical College and Hospital had completed the counseling process on 01.03.2017 and R22/Chritian Medical College and Hospital, Vellore had completed the counseling process. Therefore, these respondents had hurriedly completed the counseling and admitted the students contrary to the regulation and the schedule for counseling.
32.Mr.T.N.Rajagopalan, learned Special Government Pleader appearing for R1 and R2 would make the following submissions:
(a)The State Government had insisted upon sharing of 65% of seats from Non-Minority institutions and 50% seats from the Minority institutions. The students are selected as per merit and the fees is being fixed by the committee appointed by the State Government.
(b)In view of the judgment of the Hon'ble Apex Court made in the case of P.A.Inamdar v. State of Maharashtra reported in (2005) 6 Supreme Court Cases 537 as well as T.M.A.Pai Foundation and Others v. State of Karnataka and Others reported in (2002) 8 Supreme Court Cases 481, unaided institutions cannot be compelled to share the seats.
(c)In order to overcome these judgments of the Hon'ble Apex Court, the State of Tamil Nadu passed an Act called the Tamil Nadu Admission in Professional Educational Institutions Act, 2006 mandating seat sharing arrangement by the State in the Self-financing Medical and Engineering Colleges. The said Act was struck down by the Hon'ble Division Bench of this Court in the writ appeal filed by the Madha Engineering College, Chennai reported in 2007-4-L.W.643, holding that as per the judgment of the Hon'ble Apex Court in the case of P.A.Inamdar v. State of Maharashtra reported in (2005) 6 Supreme Court Cases 537, the seat sharing arrangement cannot be imposed by the State unilaterally.
(d)The seats are got by the State from the Non-Governmental institutions coming under Dr.MGR Medical Universities on consensus.
(e)The State Government had issued G.O.Ms.No.88, dated 27.03.2017 prescribing 65% and 50% seat sharing in respect of non-minority and minority institutions respectively.
(f)Since the deemed universities are all India institutions, the students have to be admitted from all over India and they could not be compelled to share the seat with the State.
(g)The deemed universities can fix their own fees by themselves.
(h)Regulation 9(vi) does not speak about the inclusion of deemed universities, whereas they has been included for the first time in Regulation 9A.
(i)The Deemed Universities will not come under the Regulation 9(vi) and common counseling and NEET have to be followed by the deemed universities as per Regulation 9A.
(j)After introduction of Clause 9A of the Regulations, the State Government has issued two prospectus seeking 100% seats which has been elaborately stated in paragraph 4 of the counter affidavit and one prospectus for counseling for Deemed Universities.
(k)The counseling has to be held on 17th April for Government Colleges.
Making the above submissions, he would submit that all the Non-Governmental institutions except the deemed universities have to submit 50% seats to the State and most of the institutions have surrendered their seats.
33.Mr.T.Mohan, learned counsel appearing for R8/Chettinad Medical College would make the following submissions:
(a)R8 institution is a deemed university established under Section 3 of the UGC Act and UGC Act alone is applicable and it would prevail over the MCI Act.
(b)No statutory power has been given to the Medical Council of India to regulate the admission and for fixing the fees.
(c)Introduction of Section 10(d) in the MCI Act has given power to the Medical Council of India only for prescribing NEET examination and not for seat sharing.
(d)No amendment has been introduced in the MCI Act for single counseling and seat sharing and if at all, it should be consensual between the institution and the State.
(e)Nationalization of seats by seat sharing has already been deprecated by the Hon'ble Supreme Court.
(f)All along, the fee is determined only by the R8 Institution.
(g)Though the 8th respondent received 977 applications for Postgraduate medical courses, the sanctioned Postgraduate medical seats have been submitted to the State and it should not be termed as surrendering of all the seats.
Making the above submissions, he would submit that neither the Medical Council of India nor the State has got power to seek for seat sharing from R8.
34.Mr.P.R.Gopinath, learned counsel appearing for the R25/UGC would make the following submissions:
(a)Under Section 20(1) of the UGC Act, the Central Government has given a direction, by communication dated 15.09.2016, directing all the institutions including the deemed universities to follow common counseling.
(b)As per Regulation 6 of the UGC [Institutions Deemed to be Universities] Regulations, 2016, charging of capitation fees has been prohibited. The fees would be fixed either by the Central Government or by the Commission.
(c)Further, UGC had already written a letter dated 15.09.2016 informing all the deemed universities that all the admissions in the medical institutions and the deemed universities have to be made through NEET, as prescribed by the Medical Council of India.
(d)In the case of medical colleges/institutes, the Medical Council of India is the appropriate statutory authority and the deemed universities shall be part of the common counseling for admission organized by the State Government or Central Government.
Making the above contentions, the learned counsel would submit that the deemed universities cannot escape from the NEET examination and single common counseling.
35.Mr.G.Sankaran, learned counsel appearing for one of the petitioners, by way of reply, made the following submissions.
(a)As per Section 11 of the Medical Council of India Act, irrespective of the nature of Universities/Institution, the medical qualifications granted by the medical institutions have to be recognized by the Medical Council of India, if they are included in the first schedule of the MCI Act.
(b)The Central Government as well as the Medical Council of India has got statutory power to prescribe procedures and to regulate admission.
(c)The sharing of 50-50 seats between the State and the Non-Governmental medical colleges/institutions would also be applicable to the deemed universities.
(d)The prospectus issued by the State Government is not sustainable, as the prospectus of the deemed universities does not state any seat sharing with the State.
Heard the parties from 14.03.2017, 15.03.2017, 27.03.2017 and continuously from 03.04.2017 till 11.04.2017 and perused the records.
36.The whole issue in these writ petitions relate to Regulation 9 of the Postgraduate Medical Education Regulations, 2000. Regulation 9(vi) of the Postgraduate Medical Education Regulations, 2000 mandates the sharing of 50-50 seats between the Non-Governmental institutions and the respective states. Before going into the issue, it is appropriate to consider the power of MCI to frame the rules and regulations.
POWER OF MCI TO FRAME RULES AND REGULATIONS
37.Medical Council of India is a statutory body which has been created to ensure that the admissions to medical courses are made in accordance with the provisions of the Indian Medical Council Act, 1956, apart from discharging the duty of maintaining the standards of medical institutions. The Hon'ble Apex Court in State of Kerala v. T.P.Roshna reported in (1979) Supreme Court Cases 580, held that Medical Council of India is an expert body to control the minimum standards of medical education and to regulate their observance. Paragraph 16 of the aforesaid judgment is usefully extracted hereunder:
16.The Indian Medical Council Act, 1956 has constituted the Medical Council of India as an expert body to control the minimum standards of medical education and to regulate their observance. Obviously, this high-powered Council has power to prescribe the minimum standards of medical education. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. Thus there is an overall invigilation by the Medical Council to prevent sub-standard entrance qualifications for medical courses.
38.To discharge the statutory responsibility under the Act, the Medical Council of India framed various Regulations under Section 33 of the Indian Medical Council Act, 1956.
39.The Regulations framed by the Medical Council of India with the prior approval of the Central Government are held to be statutory in character, binding and mandatory on all universities and colleges conducting medical courses, as held by the Hon'ble Apex Court in the case of Medical Council of India v. State of Karnataka reported in (1998) 6 Supreme Court Cases 131. A Constitution Bench of the Hon'ble Apex Court in Dr.Preeti Srivatsava v. State of Madhya Pradesh and others reported in (1999) 7 Supreme Court Cases 120 held that as an expert body, the Medical Council of India is empowered to supervise the qualifications or eligibility standards for admission into the medical institutions. Paragraphs 55 to 57 of the aforesaid judgment is extracted here under:
55.We do not agree with this interpretation put on Section 20 of the Indian Medical Council Act, 1956. Section 20(1) (set out earlier) is in three parts. The first part provides that the Council may prescribe standards of post-graduate medical education for the guidance of universities. The second part of sub-section(1) says that the Council may advise universities in the matter of securing uniform standards for post-graduate medical education throughout. The last part of sub- section (1) enables the Central Government to constitute from amongst the members of the Council, a post-graduate medical education committee. The first part of sub-section(1) empowers the Council to prescribe standards of post-graduate medical education for the guidance of universities. Therefore, the universities have to be guided by the standards prescribed by the Medical Council and must shape their programmes accordingly. The scheme of the Indian Medical Council Act, 1956 does not give an option to the universities to follow or not to follow the standards laid down by the Indian Medical Council. For example, the medical qualifications granted by a university or a medical institution have to be recognised under the Indian Medical Council Act, 1956. Unless the qualifications are so recognised, the students who qualify will be not be able to practice. Before granting such recognition, a power is given to the Medical Council under Section 16 to ask for information as to the courses of study and examinations. The universities are bound to furnish the information so required by the Council. The post-graduate medical committee is also under Section 17, entitled to appoint medical inspectors to inspect any medical institution, college, hospital or other institution where medical education is given or to attend any examination held by any university or medical institution before recommending the medical qualification granted by that university or medical institution. Under Section 19, if a report of the Committee is unsatisfactory the Medical Council may withdraw recognition granted to a medical qualification of any medical institution or university concerned in the manner provided in Section 19. Section 19A enables the Council to prescribe minimum standards of medical education required for granting recognised medical qualifications other than post-graduate medical qualifications by the universities or medical institutions, while Section 20 gives a power to the Council to prescribe minimum standards of post-graduate medical education. The universities must necessarily be guided by the standards prescribed under Section 20(1) if their degrees or diplomas are to be recognised under the Medical Council of India Act. We, therefore, disagree with and overrule the finding given in Ajay Kumar Singh & Ors. v. State of Bihar & Ors. (supra), to the effect that the standards of post-graduate medical education prescribed by the Medical Council of India are merely directory and the universities are not bound to comply with the standards so prescribed.
56.In State of Madhya Pradesh & Anr. v. Kumari Nivedita Jain & Ors. (supra), the provisions of Indian Medical Council Act and the regulations framed for under-graduate medical courses were considered by the Court. The Court said that while regulation 1 was mandatory, regulation 2 was only recommendatory and need not be followed. We do not agree with this line of reasoning for the reasons which we have set out above.
57.In the case of Medical Council of India v. State of Karnataka & Ors. ([1998] 6 SCC 131) a bench of three judges of this Court has distinguished the observations made in Kumari Nivedita Jain (supra). It has also disagreed with Ajay Kumar Singh & Ors. v. State of Bihar & Ors (supra) and has come to the conclusion that the Medical Council Regulations have a statutory force and are mandatory. The Court was concerned with admissions to the M.B.B.S. course and the Regulations framed by the Indian Medical Council relating to admission to the M.B.B.S. course. The Court took note of the observations in State of Kerala v. Kumari T.P. Roshana & Anr. ([1979] 1 SCC 572 at page 580) to the effect that under the Indian Medical Council Act, 1956, the Medical Council of India has been set up as an expert body to control the minimum standards of medical education and to regulate their observance. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. There is, under the Act an overall vigilance by the Medical Council to prevent sub-standard entrance qualifications for medical courses. These observations would apply equally to post-graduate medical courses. We are in respectful agreement with this reasoning. A similar dictum has been laid by the Hon'ble Apex Court in the following decisions:
1.Dr.Narayan Sharma and Another v. Dr.Pankaj Lehkar and Others reported in (2000) 1 Supreme Court Cases 44.
2.State of Punjab v. Dayanand Medical College reported in (2001) 8 Supreme Court Cases 664.
3.State of Madhya Pradesh and Others v. Gopal D Pirthani and others reported in (2003) 7 Supreme Court Cases 83.
4.Harish Verma v. Ajay Srivastava and others reported in (2003) 8 Supreme Court Cases 69.
40.In the above background, enforceability of seat sharing in the ratio of 50-50 between the Non-Governmental medical institutions and the State, as per Regulation 9(2)/9(vi) is raised in this case. As Regulation 9 is the basis for the writ petition, the same is usefully extracted as follows:
9.Procedure for selection of candidate for Postgraduate courses shall be as follows:
I.There shall be a single eligibility cum entrance examination namely 'National Eligibility-cum-Entrance Test for admission to Postgraduate Medical Courses' in each academic year. The overall superintendence, direction and control of National Eligibility-cum-Entrance Test shall vest with Medical Council of India. However, Medical Council of India with the previous approval of the Central Government shall select organization/s to conduct 'National Eligibility-cum-Entrance Test for admission to Postgraduate Medical Courses'.
II.3% seats of the annual sanctioned intake capacity shall be filled up by candidates with locomotory disability or lower limbs between 50% to 70%.
Provided that in case any seat in this 3% quota remains unfilled on account of unavailability of candidates with locomotory disability of lower limbs between 50% to 70% then any such unfilled seat in this 3% quota shall be filled up by persons with locomotory disability of lower limbs between 40% to 50% - before they are included in the annual sanctioned seats for General Category candidates.
Provided further that this entire exercise shall be completed by each medical college / institution as per the statutory time schedule for admissions.
III.In order to be eligible for admission to any postgraduate course in a particular academic year, it shall be necessary for a candidate to obtain minimum of 50th percentile in National Eligibility-cum-Entrance Test for Postgraduate courses held for the said academic year. However, in respect of candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, the minimum percentage marks shall be 40th percentile. In respect of candidates as provided in clause 9(II) above with locomotory disability of lower limbs, the minimum percentage marks shall be at 45th percentile. The percentile shall be determined on the basis of highest marks secured in the All-India common merit list in 'National Eligibility -cum- Entrance Test for Postgraduate courses' Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility-cum-Entrance Test held for any academic year for admission to Post Graduate Courses, the Central Government in consultation with Medical Council of India may at its discretion lower the minimum marks required for admission to Post Graduate Course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the said academic year only.
IV.The reservation of seats in medical colleges/institutions for respective categories shall be as per applicable laws prevailing in States/ Union Territories. An all India merit list as well as State-wise merit list of the eligible candidates shall be prepared on the basis of the marks obtained in National Eligibility-cum-Entrance Test and candidates shall be admitted to Post Graduate courses from the said merit lists only.
Provided that in determining the merit of candidates who are in service of government/public authority, weightage in the marks may be given by the Government/Competent Authority as an incentive at the rate of 10% of the marks obtained for each year of service in remote and/or difficult areas upto the maximum of 30% of the marks obtained in National Eligibility-cum-Entrance Test. The remote and difficult areas shall be as defined by State Government/Competent authority from time to time.
V.No candidate who has failed to obtain the minimum eligibility marks as prescribed in Sub Clause (II) above shall be admitted to any Postgraduate courses in the said academic year.
VI.In non-Governmental medical colleges/institutions, 50% (Fifty Percent) of the total seats shall be filled by State Government or the Authority appointed by them, and the remaining 50% (Fifty Percent) of the seats shall be filled by the concerned medical colleges/institutions on the basis of the merit list prepared as per the marks obtained in National Eligibility-cum-Entrance Test.
VII.50% of the seats in Post Graduate Diploma Courses shall be reserved for Medical Officers in the Government service, who have served for atleast three years in remote and/or difficult areas. After acquiring the PG Diploma, the Medical Officers shall serve for two more years in remote and/or difficult areas as defined by State Government/Competent authority from time to time.
VIII.The Universities and other authorities concerned shall organize admission process in such a way that teaching in postgraduate courses starts by 2nd May and by 1st August for super specialty courses each year. For this purpose, they shall follow the time schedule indicated in Appendix-III.
IX.There shall be no admission of students in respect of any academic session beyond 31st May for postgraduate courses and 30th September for super specialty courses under any circumstances. The Universities shall not register any student admitted beyond the said date.
X.The Medical Council of India may direct, 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 qualification granted to such a student shall not be a recognized qualification for the purpose of the Indian Medical Council Act, 1956. The institution which grants admission to any student after the last date specified for the same shall also be liable to face such action as may be prescribed by MCI including surrender of seats equivalent to the extent of such admission made from its sanctioned intake capacity for the succeeding academic year. The above extract is the Regulation 9, as it stands today.
41.However, when the regulation was introduced in the year 2000, 50-50 sharing of seats was included in the second proviso to sub-regulation 2 of Regulation 9 and the said proviso to sub-regulation is extracted here under:
Provided further that in non-Governmental institutions fifty percent of the total seats shall be filled by the competent authority and the remaining fifty per cent by the management of the institution on the basis of merit
42.Subsequently, an amendment was introduced on 20.10.2008 by which in the second proviso to Regulation 9(2), the following terms were inserted:
notified by the State Government and Inter-se Academic Merit The second proviso to Regulation 9(2), after the above amendment is extracted hereunder:
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 percent by the management(s) of the institution on the basis of Inter-se Academic Merit
43.By virtue of the second amendment, dated 21.12.2010, the entire Regulation 9 has been re-arranged and the seat sharing clause which has been included as second proviso to 9(2) has been made as sub-regulation (vi) to Regulation 9 and the said clause is usefully extracted here under:
VI. In Non-Governmental medical colleges/institutions, 50% (Fifty Percent) of the total seats shall be filled by the State Government or the Authority appointed by them, and the remaining 50% (Fifty Percent) of the seats shall be filled by the concerned medical colleges/institutions on the basis of the merit list prepared as per the marks obtained in the National Eligibility-cum-Entrance Test.
44.Thereafter only clause 9A was introduced by terms of notification published in the Gazette of India on 11.03.2017 making common counseling for admission to all Postgraduate Courses in all Medical Educational Institutions, including the deemed universities. The said clause is usefully extracted hereunder:
9A. Common Counseling (1) There shall be a common counseling for admission to all Postgraduate Courses (Diploma/ MD/ MS/ DM/ M.Ch.) in all Medical Educational Institutions on the basis of merit list of the National Eligibility-cum-Entrance Test.
(2) The designated authority for counselling for the 50% All India Quota seats of the contributing States shall be conducted by the Directorate General of Health Services. Such counselling as per the existing scheme shall be only for Diploma and MD/MS courses.
(3) The counseling for all Postgraduate Courses (Diploma/ MD/ MS/ DM/ M.Ch.) in all Medical Educational Institutions in a State/Union Territory, including Medical Educational Institutions established by the Central Government, State Government University, Deemed University, Trust, Society or a Company/ Minority Institutions/ Corporations shall be conducted by the State Government. Such common counselling shall be under the over-all superintendence, direction and control of the State Government. Thus, the present status of Regulation 9 has been achieved.
Proceedings and Orders regarding seat sharing Regulation 9(2)/9(vi) before the various Courts 45(a). The second proviso to Regulation 9(2) which compels sharing of 50% of the total seats between the State and the Non-Governmental Medical Institutions on the basis of the merit was subjected to scrutiny before the High Court of Karnataka in the year 2003 and 2005 in the case of St.John's Medical College v. State of Karnataka and two others in W.A.No.2773 of 2005. By an order dated 10.11.2005, the High Court of Karnataka in W.A.No.2773 of 2005 held that the appellant viz., St.John's Medical College is a minority private educational institution and hence, it could not be forced to submit to seat sharing and reservation policy of State, as it is violative of Article 30 and 19(1)(g) of the Constitution. Against the aforesaid Division Bench judgment of the High Court of Karnataka, the Medical Council of India filed SLP(Civil). No.7826/2016, in which only notice has been ordered on 09.05.2006 and interim stay was granted and the same is pending. In W.P.No.41058-41101 of 2003, Dr.Biju Poulose and others v. State of Karnataka and others, a bench of Karnataka High Court approved the filling up of the seats by St.John's Medical College.
(b). Madha Gurji Memorial Medical College filed a Writ Petition under Article 32 of the Constitution of India before the Hon'ble Apex Court in W.P.(Civil).No.245/2010 challenging the proviso to Clause 9(2) of Regulations and by an order dated 23.07.2010, while issuing notice, the Hon'ble Apex Court rejected the prayer for stay of the Regulation and the Writ Petition is still pending.
(c). Kerala Christian College Management Federation and Others challenged the State's action in cancelling the admission made by the concerned colleges for the 50% State quota in violation of Regulation 9(vi) of the MCI Act in W.P.(C).No.15103 of 2011. By an order dated 15.02.2012, the High Court of Kerala upheld the State action of canceling the admission made by the private medical institutions and directed the State Government to apply MCI Regulation 9(vi) to all medical colleges in the State.
(d). The entire Regulation 9, after amendment made by virtue of MCI notification dated 31.05.2012, was challenged in Transfer cases.(c).No.98/2012 along with other cases by the Christian Medical College and others, including all the deemed universities and minority institutions. The Hon'ble Apex Court by an order dated 18.07.2013 quashed the entire Regulation 9 by majority judgment 2:1 and the same has been reported in (2014) 2 Supreme Court Cases 305, Christian Medical College, Vellore and Others v. Union of India and Others.
(e). Review Petition No.2159/2013 filed by the Medical Council of India to recall the judgment dated 18.07.2013 made in the case of Christian Medical College, Vellore was allowed and the said judgment was recalled on 11.04.2016 making the MCI Regulation 9 to be active.
(f). In State of Uttar Pradesh v. Dinesh Singh Chauhan reported in (2016) 9 Supreme Court Cases 749, by an order dated 16.08.2016, the Hon'ble Apex Court upheld Regulation 9 as a whole in paragraphs 24, 39 and 44, by observing that the procedure evolved in Regulation 9 in general and proviso to clause 4 in particular is just, proper and reasonable and fulfills the test of Article 14 of the Constitution.
(g). In Modern Dental College and Research Centre and Others v. State of Madhya Pradesh and Others reported in (2016) 7 Supreme Court Cases 353, dated 02.05.2016, a Constitution Bench of the Hon'ble Apex Court has held in paragraphs 49 to 55 that professional, minority educational institutions are also bound by State's regulatory measures. Further, even reservation of SC, ST and OBC in educational institutions has been upheld in the paragraphs 95 of the said judgment.
Seat Sharing Regulation 9(2)/9(vi) is valid and enforceable
46.As the first respondent/State is not enforcing the Regulation 9(vi) namely, the seat sharing between the States and the Institutions, these writ petitions have been filed. It is contended by the fourth respondent/Medical Council of India that the pre-amended second proviso to Regulation 9(2) which compels 50-50 seat sharing has been struck down by the Hon'ble Division Bench of the High Court of Karnataka in the case of St.John's Medical College v. State of Karnataka and two others in W.A.No.2773 of 2005, by an order dated 10.11.2005. A close scrutiny of the above judgment would reveal that the judgment is only confined to minority institutions as seat sharing in the ratio of 50-50 between the State and the minority institution is violative of Article 30 of the Constitution of India, as the St.John's Medical College is a minority institution. Paragraph 65(1) of the said judgment is usefully extracted hereunder:
65.In the result, therefore, all these matters stand disposed of in the following terms:
1.The three writ petitions filed by the petitioner institutions in W.p.Nos.52149 of 2003, 25691 of 2004 and 14160 of 2005 are disposed of in the light of the latest pronouncement of the decision by the Apex Court in the case of P.A.INAMDAR Vs. STATE OF MAHARASHTRA reported in 2005 AIR SCW 3923 holding that the petitioner institution cannot be forced to submit to seat sharing and reservation policy of the State Government and forcing such quota upon the institution either in the form of any Act or the Rules framed by the State Government or in the form of Regulations framed by the MCI would be violative of Article 30 of the Constitution. The State Government cannot compel the petitioner institution to given up a share of seats available in the college to the students chosen by it. The petitioner institution can have its own admission if the same is fair, transparent, non exploitative and based on merit. But the admissions which have already been made to the petitioner college cannot be disturbed at this stage. Thus the 3 writ petitions filed by the petitioner institution in W.P.Nos.52149 of 2006, 25691 of 2004 and 14160 of 2005 shall stand disposed of in the above terms; Thus, the aforesaid judgment is confined only to minority institutions as the sharing of seats would offend Article 30 of the Constitution of India. Moreover, the second proviso to 9(2) was not quashed and it was merely held that the State Government could not compel the petitioner institutions to give up its share of seats available in the minority college. Therefore, by no stretch of imagination, the judgment of the High Court of Karnataka would be applicable to Non-Governmental institutions. Neither the State Government nor the Medical Council of India or other respondents could enlarge the scope of the Division Bench judgment of the High Court of Karnataka in St.Stephen's Medical College.
47.Even in the case of Dr.Biju Poulose and others v. State of Karnataka and others in W.P.No.41058-41101/2003 and batch, by an order dated 17.12.2003, a Division Bench of the High Court of Karnataka merely directed the State of Karnataka; Director General of Medical Education, Karnataka and Rajiv Gandhi University of Health Sciences not to interfere with the admission of the petitioner students therein to Postgraduate medical courses in St.Johns Medical College. Even in the aforesaid Dr.Biju Poulose case, the Division Bench of the High Court of Karnataka did not quash or set aside the seat sharing provision viz., second proviso to Regulation 9(2) and that has been taken note of in the subsequent judgment made in the case of St.John's Medical College v. State of Karnataka and two others in W.P.No.14160/2005 on 10.11.2005, as evident from paragraph 46 of the said judgment.
46.It is to be seen therefore that the Committee which has observed that the procedure followed by the petitioner institution for admission of students is fair and transparent, had permitted the petitioner institution to proceed to finalize the selection and to fill up the management quota as per law with regard to the Post Graduate entrance test for 2004-05. It is no doubt true that the Division Bench of this Court in the above batch of writ petitions decided on 17.12.2003 has observed in paragraph 22 of the judgment that the Post Graduate Admission Rules issued by the State Government and gazetted on 3.7.2003 would be invalid for the factual aspects mentioned in the said paragraph. But admittedly the Division Bench did not declare the said rules to be invalid which is very clear from the following observations:
As these petitions do not challenge the validity of the PG Rules there is no need to pronounce upon their validity. Therefore, even the earlier judgment of Dr.Biju Poulose case did not declare the seat sharing proviso as null and void. Further, a special leave petition has been filed by MCI against the said judgment of the High Court of Karnataka in Biju Poulose case in Civil Appeal No.667/2007 [SLP(C).No.15865-15908/2004] in Medical Council of India v. Biju Poulose and others. The said Special Leave Petition was also disposed on 01.03.2012 taking note of the passing out of the students who are the original writ petitioners, however leaving open the question of law. Therefore, the contention of the R4/Medical Council of India that the High Court of Karnataka had already quashed the seat sharing proviso in Regulation 9(2) is without any substance. If at all, it could be stated that the seat sharing regulation could not be made applicable to minority institutions alone.
48.Another attempt has been made by the learned counsel for Medical Council of India by relying upon St.John's Medical College v. State of Karnataka and two others in W.A.No.2773/2005 to putforth his contention that the seat sharing regulation not only offends Article 30 but also Article 19(1)(g) of the Constitution of India. In Paragraph 53 of the said decision, it has been observed that forcing of such quota on institution in question, in view of the law laid down by the Hon'ble Apex Court in P.A.Inamdar v. State of Maharashtra reported in (2005) 6 Supreme Court Cases 537, is violative of Article 30 and 19(1)(g) of the Constitution. The observation regarding Article 19(1)(g) along with Article 30 is incidental and even otherwise that is only confined to institution in question namely, minority institution. In view of the above, the contention of the learned counsel appearing for R4/Medical Council of India is liable to be rejected.
Therefore, this Court holds that the seat sharing second proviso of Regulation 9(2) has not been set aside by Karnataka High Court and the pre-amended Regulation 9(2)/post-amended Regulation 9(vi) is enforceable.
DELIBERATE INACTION AND FALLACIOUS STAND OF MCI
49.It is not understandable as to how the Medical Council of India would contend that the seat sharing pre-amended second proviso to 9(2), proviso to 9(2)(d) and the present Regulation 9(vi) cannot be enforced, especially when it was framed by the Medical Council of India in exercise of power conferred under Section 33 of the MCI Act r/w Section 20 of the Indian Medical Council Act, after getting prior permission from the Central Government.
50.Apart from the above reasons given by this Court, the following facts would also prove as to how the Medical council of India is blowing hot and cold at the same time to deprive the State Government from getting 50% seats from Non-Governmental institutions including deemed universities.
(a)Regulations are framed by the Medical Council of India with the prior approval of the Central Government.
(b)Medical Council of India defended the Regulations before the Karnataka High Court in St.John's Medical College case as well as in Dr.Biju Poulose case.
(c)Canvassing the validity of Regulation 9(2), Medical Council of India filed an appeal before the Hon'ble Apex Court against St.John's Medical College case as well as in Dr.Biju Poulose case of which St.John's Medical College case is pending before the Hon'ble Apex Court.
(d)The Medical Council of India has failed to note the dismissal of stay petition on 23.07.2010 by the Hon'ble Apex Court in W.P.(C).No.245/2010 filed by Matha Gurji Memorial Medical College challenging Regulation 9(2).
(e)Similarly, Katihar Medical College also challenged the said Regulation 9(2) in W.P.(C).No.584/2009 and the same is also pending before the Hon'ble Apex Court without any interim order.
(f)In Christian Medical College, Vellore and Others v. Union of India and Others, reported in (2014) 2 Supreme Court Cases 305 the entire regulation was challenged, including the seat sharing clause. In paragraphs 60, 61 and 77, the seat sharing regulation 9(vi) was attacked by the petitioners therein. In fact, the Medical Council has defended introduction of NEET, before the Hon'ble Apex Court. Though, the entire Regulation 9 was quashed by the above judgment, what has to be seen is the stand taken by the Medical Council in favour of Regulation 9 before the Hon'ble Apex Court in the above case.
(g)The judgment made in the case of Christian Medical College, Vellore and Others v. Union of India and Others, reported in (2014) 2 Supreme Court Cases 305, dated 18.07.2013 was challenged by the Medical Council of India by filing review petition before the Hon'ble Apex Court in Review Petition No.2159/2013. The Hon'ble Apex Court, by an order dated 11.04.2016 had recalled the judgment made in the case of Christian Medical College, Vellore and Others v. Union of India and Others. Thereafter, the entire Regulation 9 is reactivated.
51.Hence, the Medical Council of India could not contend that after the recall order by the Hon'ble Apex Court, the Regulation 9 has come to life, except 9(vi) the seat sharing proviso, as it was struck down by the High Court of Karnataka. As already observed, the said provision was not struck down either in the Dr.Biju Poulose case or in the St.John's Medical College case and it was only observed that seat sharing could not be enforced against the minority institutions alone. As per Article 15(5) and 30 of the Constitution also, minority institutions are not bound by seat sharing Regulation 9(2)/9(vi).
52.Only to overcome the judgment of the Hon'ble Apex Court made in T.M.A.Pai Foundation and Others v. State of Karnataka and Others reported in (2002) 8 Supreme Court Cases 481 as well as P.A.Inamdar v. State of Maharashtra reported in (2005) 6 Supreme Court Cases 537 which held that appropriation of seats by the State or imposing reservation policy of the seat on available seats in unaided professional institutions was unconstitutional, Parliament brought the Constitution (Ninety-Third Amendment) Act, 2005 inserting clause (5) in Article 15 to enable the State to give equal opportunity to socially and economically backward classes of citizens or to the Scheduled Castes and Scheduled Tribes to study in all educational institutions than minority educational institutions. The said Ninety-Third Constitution Amendment Act, 2005 has been upheld by a Constitution Bench of the Hon'ble Apex Court in Pramati Educational and Cultural Trust and Others v. Union of India and others reported in (2014) 8 Supreme Court Cases 1 and paragraphs 27, 28 and 30 are usefully extracted as follows:
27.The reasoning adopted by this Court in P.A. Inamdar (supra), therefore, is that the appropriation of seats by the State for enforcing a reservation policy was not a regulatory measure and not reasonable restriction within the meaning of clause (6) of Article 19 of the Constitution. As there was no provision other than clause (6) of Article 19 of the Constitution under which the State could in any way restrict the fundamental right under Article 19(1)(g) of the Constitution, Parliament made the Constitution (Ninety-third Amendment) Act, 2005 to insert clause (5) in Article 15 of the Constitution to provide that nothing in Article 19(1)(g) of the Constitution shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State. Clause (5) in Article 15 of the Constitution, thus, vests a power on the State, independent of and different from, the regulatory power under clause (6) of Article 19, and we have to examine whether this new power vested in the State which enables the State to force the charitable element on a private educational institution destroys the right under Article 19(1)(g) of the Constitution.
28.According to Dr. Dhavan, the right of a private educational institution under Article 19(1)(g) of the Constitution as laid down by this Court in T.M.A. Pai Foundation (supra) has a voluntary element. In fact, this Court in P.A. Inamdar (supra) has held in paragraph 126 at page 601 of the SCC that the observations in paragraph 68 of the judgment in T.M.A. Pai Foundation (supra) merely permit unaided private institutions to maintain merit as the criterion of admission by voluntarily agreeing for seat-sharing with the State or adopting selection based on common entrance test of the State and that there are also observations in T.M.A. Pai Foundation (supra) to say that they may frame their own policy to give freeships and scholarships to the needy and poor students or adopt a policy in line with the reservation policy of the State to cater to the educational needs of the weaker and poorer sections of the society. In our view, all freedoms under which Article 19(1) of the Constitution, including the freedom under Article 19(1)(g), have a voluntary element but this voluntariness in all the freedoms in Article 19(1) of the Constitution can be subjected to reasonable restrictions imposed by the State by law under clauses (2) to (6) ofArticle 19 of the Constitution. Hence, the voluntary nature of the right under Article 19(1)(g) of the Constitution can be subjected to reasonable restrictions imposed by the State by law under clause (6) of Article 19 of the Constitution. As this Court has held in T.M.A. Pai Foundation (supra) and P.A. Inamdar (supra) the State can under clause (6) of Article 19 make regulatory provisions to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of the management. However, as this Court held in the aforesaid two judgments that nominating students for admissions would be an unacceptable restriction in clause (6) of Article 19 of the Constitution, Parliament has stepped in and in exercise of its amending power under Article 368 of the Constitution inserted clause (5) in Article 15 to enable the State to make a law making special provisions for admission of socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes for their advancement and to a very limited extent affected the voluntary element of this right under Article 19(1)(g) of the Constitution. We, therefore, do not find any merit in the submission of learned counsel for the petitioners that the identity of the right of unaided private educational institutions under Article 19(1)(g) of the Constitution has been destroyed by clause (5) of Article 15 of the Constitution.
.....
30.We may now examine the contention of Mr. Nariman that clause (5) of Article 15 of the Constitution fails to make a distinction between aided and unaided educational institutions and treats both aided and unaided alike in the matter of making special provisions for admission of socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. The distinction between a private aided educational institution and a private unaided educational institution is that private educational institutions receive aid from the State, whereas private unaided educational institutions do not receive aid from the State. As and when a law is made by the State under clause (5) of Article 15 of the Constitution, such a law would have to be examined whether it has taken into account the fact that private unaided educational institutions are not aided by the State and has made provisions in the law to ensure that private unaided educational institutions are compensated for the admissions made in such private unaided educational institutions from amongst socially and educationally backward classes of citizens or the Scheduled Castes and the Scheduled Tribes. In our view, therefore, a law made under clause (5) of Article 15 of the Constitution by the State on the ground that it treats private aided educational institutions and private unaided educational institutions alike is not immune from a challenge under Article 14 of the Constitution. Clause (5) of Article 15 of the Constitution only states that nothing in Article 15 or Article 19(1)(g) will prevent the State to make a special provision, by law, for admission of socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes to educational institutions including private educational institutions, whether aided or unaided by the State. Clause (5) of Article 15 of the Constitution does not say that such a law will not comply with the other requirements of equality as provided in Article 14 of the Constitution. Hence, we do not find any merit in the submission of the Mr. Nariman that clause (5) of Article 15 of the Constitution that insofar as it treats unaided private educational institutions and aided private educational institutions alike it is violative of Article 14 of the Constitution.
53.Further, in State of Uttar Pradesh v. Dinesh Singh Chauhan reported in (2016) 9 Supreme Court Cases 749, dated 16.08.2016, a three Judges Bench of the Hon'ble Apex Court has categorically held that Regulation 9 is a complete code regarding the procedure to be followed for admission to medical courses and it prescribes the basis for determining the eligibilities of the candidates, including the method to be adopted for determining the inter-se merits. In paragraph 44, it declared the procedures evolved in Regulation 9 in general and proviso to clause IV in particular as just, proper and reasonable and fulfills the test of Article 14 of the Constitution of India.
54.When the above judgments, including the recent Apex Court judgment is in favour of the entire Regulation 9, it is surprising to note that the Medical Council of India as well as the Central Government without whose permission the Regulations would not have been framed had filed an affidavit before the Hon'ble Apex Court [Affidavit of Dhruv Chakravarty, Under Secretary in the Ministry of Health and Family Welfare, New Delhi] in Civil Appeal No.667/2007 [SLP(C).No.15865-15908/2003 and 7826/2006] in Medical Council of India v. Biju Poulose and others, stating that the Ministry of Health and Family Welfare is of the opinion that the Medical Council of India stands denuded of power to impose seat sharing quota on Non-Governmental institutions. The said affidavit itself is contrary to clause (5) of Article 15 which has been introduced in the year 2005 to overcome the decision of the Hon'ble Apex Court made in T.M.A.Pai Foundation and Others v. State of Karnataka and Others reported in (2002) 8 Supreme Court Cases 481 as well as P.A.Inamdar v. State of Maharashtra reported in (2005) 6 Supreme Court Cases 537. The aforesaid case was disposed by the Hon'ble Apex Court on 01.03.2012 observing that all the students who are the respondents in the appeal have already passed in the year 2003-04 batch.
55.Even though the Government of India took a decision and wrote a letter on 21.02.2017 to the States and Union Territories regarding the seat sharing between the States and the Non-Governmental medical institutions, as per Regulation 9(vi), the MCI replied on 23.02.2017 stating that challenge to the validity of the sub-provision of Regulation 9 is still pending adjudication before the Hon'ble Apex Court and it will operate as bar from applying second proviso to Regulation 9(2) of the Regulation. As stated earlier, though the High Court of Karnataka has not struck down the Regulation 9(2) either in Dr.Biju Poulose case or in the St.John's Medical College case, it is not known as to why the Medical Council of India has taken a stand contrary to law, for unknown reasons probably to help the private medical lobby. It is ridiculous to contend that its own regulation was quashed, especially when the High Court of Karnataka did not quash it. Thus, the act of the Medical Council of India is prejudicial to the public interest, especially when the statutory body has been constituted for maintaining higher standards and excellence in medical education.
56.The stand of MCI that seat sharing regulation 9(2)/9(vi) is not enforceable before this Court itself is exhibition of malice, especially when High Court of Karnataka did not quash the seat sharing regulation and the Hon'ble Apex Court in State of Uttar Pradesh v. Dinesh Singh Chauhan reported in (2016) 9 Supreme Court Cases 749 upheld Regulation 9 and held that Regulation 9 is a self contained code regarding procedure to be followed for admission to medical courses. This Court has got every reason to believe that without any legality or ground, in view of insertion of clause (5) in Article 15 in the year 2005 which has been upheld in Pramati Educational and Cultural Trust (Registered) and Others v. Union of India and others reported in (2014) 8 Supreme Court Cases 1, the MCI is trying to disown the Regulation 9(2)/9(vi). If the Regulation 9(2)/9(vi) is not enforced, the beneficiaries would be the Non-Governmental medical institutions. Hence, the Medical Council of India with a malafide intention to help the private medical lobby who sells the medical seats for crores of rupees is disowning its own regulation.
57.Mere framing of regulations by MCI is not sufficient and it is the duty of the Medical Council of India to over see that the Regulations framed with the approval of the Central Government is followed by all concerned. When the seat sharing regulation is framed in the year 2000, till the year 2003, when it was not challenged before the High Court of Karnataka, there was no proceedings and hence, the seat sharing regulation 9(2) should have been acted upon or enforced. If really the Medical Council of India was interested in safeguarding the quality of medical education, and in regulating and guiding the medical institutions, it should have then and there followed up the matter. Admittedly, it is not brought to the notice of the Court that all the medical institutions in the country were sharing 50% of their medical seats with the respective State Governments. Right from the year 2000, no efforts were taken to over see the implementation of seat sharing regulations by the Medical Council of India. The reason is obvious, only to help the private players. It is also an instance of proof of malice. If from the year 2000 onwards, seats were shared between the institutions and the respective States, thousands of seats would have been available to poor meritorious students or meritorious students in a less/affordable rate of fees. Here also, the Medical Council of India had deliberately failed and neglected to discharge its obligation and went against the interest of the public. Therefore, Medical Council of India is imposed with an exemplary cost of a sum of Rupees One Crore payable to The Spastics Society of Tamil Nadu.
58.It is a known fact that some of the medical institutions have been selling medical seats through brokers/touts as per the rates fixed by them, dehors merits, thereby more meritorious students were shunted out and less meritorious students got into the system. The worrisome and dangerous trends in medical education and failure of MCI have been elaborately stated in Dr.Ranjit Roy Choudhry committee report dated 25.09.2014 and the said report has been relied upon in para 109 of the Constitution bench judgment in Modern Dental College and Research Centre and Others v. State of Madhya Pradesh and Others reported in (2016) 7 Supreme Court Cases 353.
CONSIDERATION OF CONTENTIONS OF PRIVATE INSTITUTES INCLUDING DEEMED UNIVERSITIES AND MINORITY INSTITUTIONS
59.The private respondents as well as MCI have argued that Regulation 9(2), now presently Regulation 9(vi) is contrary to larger bench judgment of the Hon'ble Apex Court made in P.A.Inamdar v. State of Maharashtra reported in (2005) 6 Supreme Court Cases 537 as well as T.M.A.Pai Foundation and Others v. State of Karnataka and Others reported in (2002) 8 Supreme Court Cases 481 and therefore, they can ignore the seat sharing regulation. There is no dispute with regard to the dictum that the law which is contrary to law could be ignored as laid down in (1994) 6 Supreme Court Cases 77, Bhubaneshwar Singh & Another v. Union of India & Others; (1996) 11 Supreme Court Cases 428, K.Sankaran Nair (Dead) through LRs v. Devaki Amma Malathy Amma & Others and (2003) 6 Supreme Court Cases 790, State of Karnataka v. Dr.T.M.A.Pai Foundation & Another relied on by Mr.R.Krishnamoorthi, learned Senior Counsel appearing for R16. Even then, if Regulation 9 is contrary to the larger Bench judgment given in the year 2002 and 2005, the individual institutions should have challenged the said seat sharing regulation. So far, the seat sharing Regulation viz., pre-amended second proviso to Regulation 9(2) or the present Regulation 9(vi) has not been challenged by any of the respondents/universities.
60.Though much has been argued regarding the validity of seat sharing provision in Regulation 9 relying upon the larger bench judgment of Hon'ble Apex Court in P.A.Inamdar v. State of Maharashtra reported in (2005) 6 Supreme Court Cases 537, the same has to be negatived in view of the amendment to Article 15 by inclusion of Clause V by virtue of Constitution [93rd amendment], Act 93 of 2005. The said amendment was also upheld by the constitution Bench judgment of Hon'ble Apex Court in Pramaty Educational and Cultural Trust (Registered) and others v. Union of India and Others reported in (2014) 8 Supreme Court Cases 1. In Modern Dental College case, the aforesaid judgment have been referred and appropriation of seats by the State and fixation of quota reservation have been upheld and paragraph 95 of Modern Dental College case is extracted here under:
95.In any case, since this Court in P.A. Inamdar has held that there cannot be any fixation of Quota or appropriation of seats by the State, reservation which inheres setting aside Quotas, would not be permissible. It is, thus, argued that the provisions seek to bring back the Unni Krishnan system of setting up State Quotas which has been expressly held by this Court to be impermissible. This argument is to be noted to be rejected. In fact, as can be seen from the impugned judgment having regard to the provisions of Clause (5) of Article 15 of the Constitution, there was no serious challenge laid to Section 8 read with Rules 4(2), 7 and 15 of the Rules, 2008. In fact, counsel for the appellants conceded that they had not challenged 93rd Constitutional Amendment vide which Article 15(5) was inserted into the Constitution. In any case, there is hardly any ground to challenge the said constitutional amendment, which has already been upheld by a Constitution Bench judgment in the case of Pramati Educational and Cultural Trust. The only other argument raised was that a reading of the reservation provisions in Rule 7 of Rules, 2009 would show that it would be difficult to work out said percentage having regard to the fact that number of seats in the post-graduate dental and medical courses in different specialized disciplines are few. The High Court has successfully dealt with this argument by appropriately demonstrating, by means of charges, that not only it was possible to work out extent of reservation provided for different categories, sufficient number of seats were available for general categories as well. We, thus, do not find any merit in the challenge to the reservation of seats for SC/ST and OBC etc. which is in consonance with Article 15(5) of the Constitution.
61.Assuming for a moment that Regulation 9(vi) is contrary to P.A.Inamdar judgment, it is a well settled law that even if the law or order is erroneous and unsustainable, the same is required to be challenged as per the law and get it set aside by the Courts. Even if the regulation is voidable, it has to be declared by the competent forum as null and void and unless the order is set aside, it is not permissible to ignore the said order as held in Krishna Devi Malchand Kamathia and others v. Bombay Environmental Action Group and others reported in (2011) 3 Supreme Court Cases 363. Paragraphs 16 to 19 of the said decision is usefully extracted here under:
16.It is settled legal proposition that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvil (dead) & Ors., AIR 1996 SC 906; Tayabbhai M. Bagasarwalla & Anr. v. Hind Rubber Industries Pvt. Ltd. etc, AIR 1997 SC 1240; M. Meenakshi & Ors. v. Metadin Agarwal (dead) by L.Rs. & Ors. (2006) 7 SCC 470; and Sneh Gupta v. Devi Sarup & Ors., (2009) 6 SCC 194, this Court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum.
17. In State of Punjab & Ors. v. Gurdev Singh, Ashok Kumar, AIR 1991 SC 2219, this Court held that a party aggrieved by the invalidity of an order has to approach the court for relief of declaration that the order against him is inoperative and therefore, not binding upon him. While deciding the said case, this Court placed reliance upon the judgment in Smith v. East Ellore Rural District Council, [1956] 1 All ER 855 wherein Lord Radcliffe observed:-
"...An order, even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."
18.In Sultan Sadik v. Sanjay Raj Subba & Ors., AIR 2004 SC 1377, this Court took a similar view observing that once an order is declared non-est by the Court only then the judgment of nullity would operate erga omnes i.e. for and against everyone concerned. Such a declaration is permissible if the court comes to the conclusion that the author of the order lacks inherent jurisdiction/competence and therefore, it comes to the conclusion that the order suffers from patent and latent invalidity.
19.Thus, from the above it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person. A three Judge Bench of the Hon'ble Apex Court in State of Punjab and other v. Gurdev Singh reported in (1991) 4 Supreme Court Cases 1 had held that even an action which is ultravires remains operative unless and until it is declared to be so by the Court. Paragraphs 8 to 10 of the said judgment are extracted here under:
8.But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court. In Smith v. East. Elloe Rural District Council, [1956] AC 736 at 769 Lord Redcliffe observed:
"An order even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its fore- head. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."
9.Apropos to this principle, Prof. Wade states: "the principle must be equally true even where the 'brand' of invalidity' is plainly visible; for their also the order can effectively be resisted in law only by obtaining the decision of the Court (See: Administrative Law 6th Ed. p. 352). Prof. Wade sums up these principles:
"The truth of the matter is that the court will invalidate an order only if 'the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plain- tiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another."
10.It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for. In Sultan Sadik v. Sanjay Raj Subar and others reported in (2004) 2 Supreme Court Cases 377 it was held that an invalid order need not necessarily be non-est but has to be declared as such.
62.Therefore, in the light of the above pronouncement made by the Hon'ble Apex Court, unless the Regulation 9 is declared as null and void by the appropriate Court, it is deemed to be valid. As already stated, the judgment of the Karnataka High Court in St.John's Medical College case in no way would help the private respondents, Medical Council of India or the Central Government.
63.As contended by the private respondents, especially by Mr.R.Krishnamoorthi, learned Senior Counsel appearing for R16 and Mr.Kumaresh Babu, learned Counsel appearing for R10 and R12, the 68% reservation brought by the Government of Tamil Nadu by the Tamil Nadu Admission in Professional Educational Institutions Act, 2006 which was struck down by the Hon'ble Division Bench of this Court by an order dated 02.07.2007 made in Madha Engineering College, Chennai reported in 2007-4-L.W.643 has got nothing to do with the seat sharing regulation as per Regulation 9(2) and 9(vi), as the Postgraduate Medical Education Regulations, 2000 was framed as per Section 33 r/w Section 20 of the India Medical council Act, which is a special Central Act and it overrides the State Act.
64.The Hon'ble Apex Court in State of Uttar Pradesh v. Dinesh Singh Chauhan reported in (2016) 9 Supreme Court Cases 749 while considering the sustainability of the statutory rule framed by the Uttar Pradesh Government by G.O. dated 28.02.2014, whereby 30% seats in Postgraduate courses in medicine and other disciplines have been reserved for in-service candidates who have three years or more of rural service in notified and difficult area, in view of the Regulation 9 of the Postgraduate Medical Education Regulations, 2000, held that State has no authority to enact any law, much less by executive instruction that may undermine the procedures for admission to Postgraduate medical courses enunciated by the Central legislation and the regulation framed thereunder.
65.Therefore, de hors striking down of the Tamil Nadu State Act by the Division Bench of this Court in the case of Madha Engineering College, Chennai reported in 2007-4-L.W.643, the 50-50 seat sharing regulation 9(2)/9(vi) would stand independently and the judgment of the Division Bench of this Court does not affect the enforceability of the regulation 9(2). Therefore, the respondents cannot take advantage out of the above position and they are bound by the said seat sharing arrangement as envisaged under Regulation 9(2)/9(vi).
66.Further, 50-50 seat sharing Regulation 9(2)/9(vi) as it stands today is valid as declared by the Hon'ble Apex Court in State of Uttar Pradesh v. Dinesh Singh Chauhan reported in (2016) 9 Supreme Court Cases 749, decided on 16.08.2016 and the relevant paragraphs are 22, 24, 34 and 44 and they are usefully extracted here under:
22.Reverting to Regulation 9 of the Post Graduate Medical Education Regulations, 2000, which have been framed by the Medical Council of India in exercise of power conferred by Section 33 read with Section 20 of the Indian Medical Council of India Act, 1956, it is noticed that the same has undergone amendment from time to time. The decisions pressed into service have considered the stipulations as applicable at the relevant time. The recent decision in the case of Sudhir N. (supra) also dealt with Regulation applicable to admission process commenced in the year 2009-2010. We are, however, concerned with the admission process for the subsequent academic years and covered by the Regulations as in force. .....
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24.By now, it is well established that Regulation 9 is a self-contained Code regarding the procedure to be followed for admissions to medical courses. It is also well established that the State has no authority to enact any law muchless by executive instructions that may undermine the procedure for admission to Post Graduate Medical Courses enunciated by the Central Legislation and Regulations framed thereunder, being a subject falling within the Entry 66 of List I to the Seventh Schedule of the Constitution (See: Preeti Srivastava (Dr.) V. State of M.P.[2]). The procedure for selection of candidates for the Post Graduate Degree Courses is one such area on which the Central Legislation and Regulations must prevail.
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34.The crucial question to be examined in this case is: whether the norm specified in Regulation 9 regarding incentive marks can be termed as excessive and unreasonable? Regulation 9, as applicable, does not permit preparation of two merit lists, as predicated in the case of Tirthani (supra). Regulation 9 is a complete Code. It prescribes the basis for determining the eligibilities of the candidates including the method to be adopted for determining the inter se merit, on the basis of one merit list of candidates appearing in the same NEET including by giving commensurate weightage of marks to the in-service candidates.
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44.Dealing with this contention, we find that the setting in which the proviso to Clause IV has been inserted is of some relevance. The State Governments across the country are not in a position to provide health care facilities in remote and difficult areas in the State for want of Doctors.[11] In fact there is a proposal to make one year service for MBBS students to apply for admission to Post Graduate Courses, in remote and difficult areas as compulsory. That is kept on hold, as was stated before the Rajya Sabha. The provision in the form of granting weightage of marks, therefore, was to give incentive to the in-service candidates and to attract more graduates to join as Medical Officers in the State Health Care Sector. The provision was first inserted in 2012. To determine the academic merit of candidates, merely securing high marks in the NEET is not enough. The academic merit of the candidate must also reckon the services rendered for the common or public good. Having served in rural and difficult areas of the State for one year or above, the incumbent having sacrificed his career by rendering services for providing health care facilities in rural areas, deserve incentive marks to be reckoned for determining merit. Notably, the State Government is posited with the discretion to notify areas in the given State to be remote, tribal or difficult areas. That declaration is made on the basis of decision taken at the highest level; and is applicable for all the beneficial schemes of the State for such areas and not limited to the matter of admissions to Post Graduate Medical Courses. Not even one instance has been brought to our notice to show that some areas which are not remote or difficult areas has been so notified. Suffice it to observe that the mere hypothesis that the State Government may take an improper decision whilst notifying the area as remote and difficult, cannot be the basis to hold that Regulation 9 and in particular proviso to Clause IV is unreasonable. Considering the above, the inescapable conclusion is that the procedure evolved in Regulation 9 in general and the proviso to Clause (IV) in particular is just, proper and reasonable and also fulfill the test of Article 14 of the Constitution, being in larger public interest.
67.An important direction has been given in paragraph 47 of the above judgment, (2016) 9 Supreme Court Cases 749 wherein the Hon'ble Apex Court had directed the State that the admission process for academic year 2016-17 onwards to the Postgraduate Medical Courses in the State should proceed as per Regulation 9. The said paragraph is usefully extracted here under:
47.We must hold that the High Court was justified in quashing the stated Government Order providing for reservation to in- service candidates, being violative of Regulation 9 as in force. However, we modify the operative direction given by the High Court and instead direct that admission process for Academic Year 2016-17 onwards to the Post Graduate Degree Course in the State should proceed as per Regulation 9 including by giving incentive marks to eligible in-service candidates in terms of proviso to Clause IV of Regulation 9 (equivalent to third proviso to Regulation 9(2) of the Old Regulations reproduced in the interim order dated 12th May 2016). We, accordingly, mould the operative order of the High Court to bring it in conformity with the direction contained in the interim order dated 12th May, 2016 but to be made applicable to Academic Year 2016-17 onwards on the basis of Regulation 9 as in force. We are conscious of the fact that this arrangement is likely to affect some of the direct candidates, if not a large number of candidates whose applications were already processed by the competent Authority for concerned Post Graduate Degree Course for Academic Year 2016-17. However, their admissions cannot be validated in breach of or disregarding the mandate of Regulation 9, as in force. The appeals against the judgment of the High Court of Judicature at Allahabad dated 7th April, 2016 are disposed of accordingly. From the above, it is clear that
(a)The seat sharing Regulation per-amended 9(2) or 9(vi) is applicable to all Non-Governmental medical institutions except minority institutions right from 07.10.2000.
(b)The seat sharing regulations, right from its inception is valid till the Division Bench judgment of the High Court of Karnataka in St.John's Medical College v. State of Karnataka and two others in W.A.No.2773/2005, dated 10.11.2005, assuming that the Division Bench of the High Court of Karnataka had quashed the seat sharing provision as contended by the Medical Council of India.
(c)Only between July 2013 and April 2016, the seat sharing regulation was not in force or operation, as it was quashed by the Hon'ble Apex Court on 18.07.2013 in the case of Christian Medical College, Vellore and Others v. Union of India and Others, reported in (2014) 2 Supreme Court Cases 305 and subsequently, it was revived by the Hon'ble Apex Court by virtue of an order dated 11.04.2016 recalling the aforesaid judgment in Review Petition No.2159 to 2268/2013.
(d)Atleast from 11.04.2016, the seat sharing regulation 9(2)/9(vi) has become active and the same is directed to be followed, as stated in paragraph 47 of the judgment of the Hon'ble Apex Court in State of Uttar Pradesh v. Dinesh Singh Chauhan reported in (2016) 9 Supreme Court Cases 749.
68.Hence, this Court declares the seat sharing regulation 9(vi) was not in force from 18.07.2013 till 10.04.2016 and reactivated from 11.04.2016 by the Hon'ble Apex Court and the Central Government, Medical Council of India, State Government and all non-governmental institutions and deemed universities, except minority institutions are bound to follow and share 50% PG Medical seats with State Governments.
WHETHER DEEMED UNIVERSITIES ARE BOUND BY MCI REGULATIONS OR NOT?
69.The respondents/deemed universities would submit that they are not bound by the regulation and so far, no seat sharing has been done. The seat sharing arrangement is contrary to the judgment of the Hon'ble Supreme Court made in P.A.Inamdar v. State of Maharashtra reported in (2005) 6 Supreme Court Cases 537, wherein the seat sharing scheme has been categorically disapproved and therefore, they could ignore the regulation. However, what has to be seen is whether the Medical Council of India has got power to frame the rules and regulations which would also govern the deemed universities. Moreover, the regulation was framed in the year 2000 effective from 07.10.2000, when there was no larger bench judgment.
70.The case of the deemed universities is that they have been declared under Section 3 of the UGC Act, 1956 and therefore, only the UGC Act would apply and not the regulations framed by the Medical Council of India. First of all, the Medical Council of India is a statutory body established under the provisions of the Indian Medical Council Act, 1956. The preamble of the Act states that the Act has to provide for reconstitution of Medical Council of India and the maintenance of a medical register for India and for matters connected therewith. By virtue of Section 3 of the Act, the Council has been constituted. Section 10A(1) of the India Medical Council Act, 1956 is a non-abstante clause. Section 10A(1) is usefully extracted here under:
10A. PERMISSION FOR ESTABLISHMENT OF NEW MEDICAL COLLEGE, NEW COURSE OF STUDY ETC.- (1) Notwithstanding anything contained in this Act or any other law for the time being in force,-
(a) no person shall establish a medical college; or
(b) no medical college shall:-
(i) open a new or higher course of study or training (including a postgraduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or
(ii) increase its admission capacity in any course of study or training (including a postgraduate course of study or training), except with the previous permission of the Central Government obtained in accordance with the provisions of this section.
71.A perusal of Section 10A(1) makes it very clear that it overrides not only the other laws but also the other provisions of the Act itself. Section 10A deals with prior permission to be obtained from the Central Government for establishment of new medical college, new course of study etc., The Central Government after getting recommendations of the Council under Sub-Section 3 would grant permission for establishment of medical colleges. Therefore, the provisions of the Indian Medical Council Act, 1956 would prevail over the UGC Act which is comparatively a general Act, whereas the Indian Medical Council Act is a special enactment with an object to constitute an expert body, to govern, supervise and prescribe standards to enhance the medical education which are special in nature. The object of the UGC Act, 1956 is to make provision for the co-ordination and determination of students in Universities and for that purpose, the University Grants Commission was established. A perusal of the preamble to UGC (Institutions Deemed to be Universities) Regulation, 2016 would reveal that the regulation is to regulate in an orderly manner, the process of declaration of institutions as deemed to be universities, to maintain the quality of higher education imparted by the institutions deemed to be universities consistent with the ideals of the concept of university.
72.Further, Regulation 6.1 of UGC (Institutions Deemed to be Universities) Regulation, 2016 reads as follows:
6.1.No institution deemed to be university shall, for admission in respect of any course or programme of study conducted in such institution, accept payment towards admission fee and other fees and charges:-
(a) which is capitation fee or donation in whatever nomenclature or form;
(b) other than such fee or charges for such admission, which has been declared by it in the prospectus for admission against any such seat, and on the website of the institution, Provided if there are any fees prescribed in accordance with the Fee Regulations framed by the Government or by the Commission from time to time, then the fees or other charges for admission shall not exceed the same;
(c) without a proper receipt in writing issued for such payment to the concerned student admitted in such institution. From the above, it is evident, there shall not be collection of capitation fee and the fees charges by the deemed universities shall not exceed fees prescribed in accordance with the fee regulations framed by the Government or by the Commission. Hence, the deemed university status could not give any independent existence for the said universities as they are governed by MCI Regulations and the Indian Medical Council Act.
73.Apart from Section 10A, Section 20 namely, Post-graduate Medical Education Committee for assisting Council in matters relating to post-graduate medical education would speak about the powers of the Medical Council of India which is the only body responsible for prescribing standards of post-graduate medical education for the guidance of Universities/Institutions and may advise Universities in the matter of securing uniform standards for post-graduate medical education throughout India.
Section 16 of the Indian Medical Council Act, 1956 gives power to the Medical council of India to obtain information from every university or medical institution in India regarding the course of study and examinations to be undergone in order to obtain such qualification.
Section 18 of the Act empowers the Medical Council of India to appoint visitors at the time of examination to inspect any medical institution/college/hospital or other institution where medical education is given.
Section 19A of the Act gives power to the Medical Council to prescribe minimum standards of medical education required for granting recognized medical qualifications by universities or medical institutions in India.
74.From the above provisions, it is very clear that right from starting medical institutions/college, laying down standard for medical education, to make inspections at the time of examination and to get required information regarding the course of study from the medical institutions, the Medical Council of India alone is the authority for medical education and colleges and without permission to establish, recognition of course of study, the deemed universities cannot on their own declare that they are not bound by the MCI regulations as they are deemed universities.
75.Irrespective of their status as deemed universities, they are merely medical institutions like any other medical college before the Medical Council of India and no special status could be claimed by the deemed universities. By donning the mask of deemed university, the respondent/deemed universities cannot escape from the MCI regulations and if they ask for such protection, they cannot be called as medical institution at all. Constitution of India is supreme. To overcome the legal bar created by the Hon'ble Apex Court in T.M.A.Pai Foundation and Others v. State of Karnataka and Others reported in (2002) 8 Supreme Court Cases 481 as well as P.A.Inamdar v. State of Maharashtra reported in (2005) 6 Supreme Court Cases 537 prohibiting seat appropriation in educational institutions including private, aided or unaided institutions, Clause (5) to Article 15 was added. The said clause reads as follows:
(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30. Clause 5 mentions about educational institutions including private, aided or unaided institutions. The words employed viz., ''private educational institutions, whether aided or unaided by the State'' mean and include Deemed universities also. This is very clear by exclusion granted to minority educational institutions. Therefore Article 15(5) speaks about every type of educational institutions except minority educational institutions. The exception given to aided or unaided minority institutions alone in Article 15(5) has been upheld by the Hon'ble Apex Court in Pramati Educational and Cultural Trust and Others v. Union of India and others reported in (2014) 8 Supreme Court Cases 1, as admission of other community students would destroy minority character of the institutions. Therefore, this Court declares that Deemed universities are also educational institutions as stated in Article 15(5) which are bound by State policies.
The second proviso to Sub-Regulation 2 of Regulation 9 and Regulation 9(vi) are extracted as follows:
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 percent by the management(s) of the institution on the basis of Inter-se Academic Merit VI. In Non-Governmental medical colleges/institutions, 50% (Fifty Percent) of the total seats shall be filled by the State Government or the Authority appointed by them, and the remaining 50% (Fifty Percent) of the seats shall be filled by the concerned medical colleges/institutions on the basis of the merit list prepared as per the marks obtained in the National Eligibility-cum-Entrance Test. The above clause speaks about Non-Governmental medical colleges/institutions which would include all types of medical institutions/colleges including deemed universities, except minority institutions. The above interpretation is supported by Article 15(5).
In view of the above reasonings, the deemed universities are bound by the seat sharing regulation 9(2)/9(vi) framed by MCI.
FAILURE OF STATE GOVERNMENT TO GET 50% MEDICAL SEATS FROM NON-GOVERNMENTAL MEDICAL INSTITUTIONS
76.Further, the State Government issued three prospectus viz., (i) Prospectus for admission to Tamil Nadu Government Medical College, Government seats in self financing medical colleges; (ii) Prospectus for admission to management quota seats in self financing medical colleges; (iii) Prospectus for common counseling to deemed universities in Tamil Nadu. However, the Tamil Nadu Government deliberately did not include 50% State quota in deemed university institutions by issuing separate prospectus for deemed universities only for common counseling. Even in the list of colleges given in the prospectus, the deemed universities are not included. Furthermore, the State Government fixed three different counseling. However, as per the judgment of the Hon'ble Apex Court, as per Regulation 9, there should be centralized common counseling by the State except for all India quota, which would be done by the Director General of Health Services, New Delhi. Surprisingly the State argued that deemed universities could not be compelled to share 50% Postgraduate Medical Seats with the State much against the interest of public and issued a Prospectus for common counseling to Post Graduate Degree/Diploma courses in Deemed Universities in Tamil Nadu (Excluding NRI Quota) 2017-2018 session which is quashed for violation of Regulation 9(vi) and 9A. Seats available in Deemed Universities shall be allotted by State through centralized common counseling and appropriate 50% seats as Government quota and balance 50% seats as management quota.
77.The learned counsel appearing for the petitioners rightly pointed out that the States of Maharashtra, Odisha and Pondicherry had issued only one prospectus applicable for unaided/private/deemed universities and minority colleges. When the other states have acted upon and included 50% State quota seats in deemed universities, the Government of Tamil Nadu had deliberately, much against the public interest, definitely for extraneous considerations has not demanded or included 50% medical seats of the deemed universities/medical colleges which is condemnable and deprecated. The interest of the State, especially, the deserving and meritorious, students are the affected. There is a wanton failure on the part of successive State Governments in this regard. The elected Governments which should be responsible and expected to act in the interest of the public has not done its duty properly. A list of seats surrendered by the private institutions namely, Raja Muthiah Medical College; Aravind Eye Hospital; Cancer Institute, Adyar; Chennai Medical College, Trichy; Karpaga Vinayaga Institutes of Medical Sciences; PSG Institute of Medical Sciences and Research; Sankara Nethralaya Medical Research Foundation; Sree Mookambika Institute of Medical Sciences; Dhanalakshmi Srinivasan Medical college and Hospital; Karpagam Medical College Hospital would reveal that only a few seats, that too in non-clinical courses alone have given. In any event , only a few seats which could not be filled up by those institutions have been surrendered, it is contended.
78.The deemed universities, admitted before this Court that so far they have not shared any seats to the State Government pursuant to the Postgraduate Medical Education Regulations, 2000 which would prove the following points:
(a)The deemed universities did not offer 50% of the medical seats to the State Government right from 07.10.2000 till date. The very fact that they have not offered or surrendered 50% seats to the State would prove that they would have admitted students according to their whims and fancies by opaque and unfair methods to enrich themselves unjustly.
(b)The Medical Council of India deliberately failed to implement the regulation against the deemed universities, prejudicial to the interest of the State and it should be with ulterior motive only. If really MCI has enforced the regulation, its action would have been considered as bonafide.
(c)The State Government also for the reasons best known, possibly for other considerations have not so far demanded its share of 50% seats from all the private medical institutions, including the deemed universities, except a few unwanted/unclaimed seats, which would also establish the influence of the medical lobby.
(d)All the stake holders involved have acted with hidden agenda for benefiting some private players, defrauded and caused irreparable loss and injury to the meritorious and poor meritorious students of the respective States.
Therefore, for failure to safeguard the public interest viz., to get 50% Postgraduate medical seats from non-Governmental medical institutions, a sum of Rupees One Crore is awarded as cost payable by the State Government to be paid in favour of Archaeological Survey of India for utilizing the same for Keezhadi Excavation (Keezhadi, Sivaganga District, Tamil Nadu) payable within four weeks from the date of receipt of a copy of the order.
NRI QUOTA SEATS BE PART OF STATE'S COMMON COUNSELING
79.Many of the institutions, including some of the deemed universities submitted their seats except 15% NRI quota for common counseling, as per their affidavits filed before this Court. The Central Government by communication dated 10.03.2017 and 06.04.2017 informed all the State Governments that for all the seats including NRI quota seats, a common counseling should be done. In view of the decision taken by the Central Government, even NRI quota seats should be part of the common counseling. Thus, 1.15% NRI quota medical seats shall also form part of the common counseling to be done by the State.
2.The respondent institutions shall surrender NRI seats for common counseling.
3.If any admission has been made under the NRI quota, without common counseling, the same shall stand cancelled.
80.Though the decision of the Central Government to bring the NRI quota under common counseling is in the interest of the public, it has become a common practice for all the authorities including the State Government, Central Government, Medical Council of India to make decisions in the last minute, thereby creating chaos and confusion in the admissions to the medical institutions. 11th hour exercise in college admission should be avoided in the interest of the public. Then only admissions would take place very smoothly without any hiccup and it will go in a long way to avoid litigation before Courts.
CENTRALISED COMMON COUNSELING TO BE CONDUCTED BY THE STATE GOVERNMENT
81.(a). Conducting of single eligibility-cum-entrance examination namely, National Eligibility-cum-Entrance Test for admission to Postgraduate medical courses by virtue of amendment in Regulation 9 is mandatory pursuant to Regulation 9 and Constitution Bench judgment in Modern Dental College and Research Centre and Others v. State of Madhya Pradesh and Others reported in (2016) 7 Supreme Court Cases 353, dated 02.05.2016.
(b). Regulation 9(i) speaks about the single eligibility test for admission to postgraduate courses .
(c). Regulation 9(iii) speaks about obtaining of minimum marks of 50% in NEET examination to be eligible for admission to PG courses.
(d). Regulation 9(iv) speaks about reservation of seats in medical college institutions as per State wise local laws.
(e). The 50% seat sharing provisions has been rearranged and made as sub-clause (vi) in Regulation 9 by which 50% of the total seats shall be filled up by the State Government and the remaining 50% seats shall be filled by the concerned medical college on the basis of the merit list prepared as per the marks obtained in the NEET.
(f). Sub-clause (ix) states that admission can take place upto 31st May and the universities are prohibited from reinstating students beyond that date.
(g). However, the NEET regulations were quashed by the Hon'ble Apex Court in Christian Medical College, Vellore and Others v. Union of India and Others, reported in (2014) 2 Supreme Court Cases 305, but the said judgment was recalled by the Hon'ble Apex Court on 11.04.2016 reviving the Regulation 9.
(h). To avoid any technicality, the Central Government has come out with the amendment to the Indian Medical Council Act by introduction of Section 10D. Uniform entrance examination for undergraduate and post-graduate level, with effect from 24.05.2016.
82. The Medical Council of India introduced Regulation 9A Common Counseling in terms of notification published in the Gazette of India on 11.03.2017 which is extracted as follows:
9A. Common Counseling (1) There shall be a common counseling for admission to all Postgraduate Courses (Diploma/ MD/ MS/ DM/ M.Ch.) in all Medical Educational Institutions on the basis of merit list of the National Eligibility-cum-Entrance Test.
(2) The designated authority for counselling for the 50% All India Quota seats of the contributing States shall be conducted by the Directorate General of Health Services. Such counselling as per the existing scheme shall be only for Diploma and MD/MS courses.
(3) The counseling for all Postgraduate Courses (Diploma/ MD/ MS/ DM/ M.Ch.) in all Medical Educational Institutions in a State/Union Territory, including Medical Educational Institutions established by the Central Government, State Government University, Deemed University, Trust, Society or a Company/ Minority Institutions/ Corporations shall be conducted by the State Government. Such common counselling shall be under the over-all superintendence, direction and control of the State Government. Though arguments were advanced regarding Regulation 9A by the parties, this Court is not inclined to go into the issue, as the petitioners do not base their claim based on Regulation 9A.
83.Is it open to the deemed universities to violate The Postgraduate Medical Education Regulations, wherein the time schedule is also prescribed. When the deemed universities as well as the minority institutions chose only NEET qualified candidates, the Deemed Universities are bound by Regulations and they should have waited for common counseling to be done by the State Government. In fact, the appendix to Postgraduate regulations, as amended in January 2016 speaks about the schedule for counseling. The time scheduled was also approved by the Hon'ble Apex Court on 18.01.2016 in the case of Ashish Ranjan & Others v. Union of India & Others in I.A.No.7 & 8 in W.P.(Civil).No.76/2015. In fact, the Constitution Bench of the Hon'ble Apex Court in State of Madhya Pradesh v. Jainarayan Chouksay and others, reported in (2016) 9 Supreme Court Cases 412 has held in paragraphs 5 and 6 as follows:
5.We have heard the learned counsel for the parties at length. We observe that mandate of our judgment was to hold centralised entrance test followed by centralised State counseling by the State to make it a one composite process. We, therefore, direct that admission to all medical seats shall be conducted by centralised counseling only by the State Government and none else.
6.If any counseling has been done by any college or university and any admission to any medical seat has been given so far, such admission shall stand cancelled forthwith and admission shall be given only as per centralised counseling done by the State Government.
84.In view of the approval of the time schedule by the Hon'ble Apex Court, by an order dated 18.01.2016 in the case of Ashish Ranjan & Others v. Union of India & Others and the Constitution Bench order dated 22.09.2016, canceling the admission made contrary to the centralized counseling by the State, it is not open to the deemed universities and minority institutions to state that they completed the counseling and students had already joined the course 2017-2018.
85.Further, it is not as if only after introduction of Regulation 9A on 11.03.2017, the deemed universities are aware of Centralized common counseling. Centralized state counseling has been directed to be followed, as per the constitution Bench judgment dated 02.05.2016 made in the case of Modern Dental College and Research Centre and Others v. State of Madhya Pradesh and Others reported in (2016) 7 Supreme Court Cases 353.
86.It is true that clause XVII of the Information Bulletin for National Eligibility cum Entrance Test (Post Graduate) for MD/MS/Post Graduate Diploma Courses, 2017 issued by National Board of Examinations, New Delhi speaks about the counseling for admissions to private medical colleges, institutes, universities and deemed universities shall be conducted by the designated counseling authority of the above institutes. National Board of Examinations is only the executing agency and it cannot speak about counseling. Further, immediately after the recall of the judgment made in Christian Medical College, Vellore and Others v. Union of India and Others by the Hon'ble Apex Court, the UGC wrote a letter on 15.09.2016 to all the deemed universities, informing that as per clause 6.3 of the UGC regulations, admission in the medical institutes and institutions deemed to be universities have to be made through NEET which is prescribed by Medical Council of India for such institution. In page 2 of the said communication, the UGC has given two directions for admission in the medical colleges which are as follows:
1. All the institutions deemed to be universities shall be part of the common counseling for admission in medical courses organized either by the State Government/Central Government or through its agencies based on the marks obtained in the NEET.
2. If for any reason, the common counseling is not being held by the State Government or the deemed to be universities are not covered in the State Government common counseling, the deemed to be universities of that State should put up a transparent system of admission in which no student is denied or deprived from applying for admission in that deemed to be university and the admission should be done based purely on the inter-se merit amongst the applicants based on marks obtained in NEET. In view of the above directions given by the UGC to the deemed universities vide above communication dated 15.09.2016, all the deemed universities shall be part of common counseling for admission in medical courses, based purely on inter-se merit.
87.Hence, it is very clear that the deemed universities including R5/SRM Medical College Hospital and Research Centre and R16/Saveetha Medical College and Hospital are aware of the law laid down by the constitution Bench in Modern Dental College and Research Centre and Others v. State of Madhya Pradesh and Others reported in (2016) 7 Supreme Court Cases 353. Inspite of that, they have chosen to ignore the UGC directions and the judgment of the constitution Bench of the Hon'ble Apex Court, which would only go to show that they are immensely benefited by conducting their own counseling and this Court has got every reason to believe that inter-se merit is not followed while admitting the students. The above act of the deemed universities R5 and R16 would fortify the apprehension of the general public that the private medical institutions are making money by selling medical seats. This is nothing but an instance of misuse and abuse of medical education for unjust enrichment by R5/SRM Medical College and Research Centre and R16/Saveetha Medical College and Hospital.
88.Another important fact is that Writ Petitions have been filed on 20.02.2017 and notice was ordered on 27.01.2017. Only during pendency of Writ Petitions, counseling is said to have been completed on 23.02.2017 by R16/Saveetha Medical College and Hospital and on 01.03.2017 by R5/SRM Medical College and Research Centre hurriedly, even before State Government's counseling notification.
89.This Court started hearing all the writ petitions from 15.03.2017 onwards. In the midst of the arguments, the respondents/institutions admitted before this Court that they have not filed any writ petition challenging either the Regulation 9(vi) or the Regulation 9A. Thereafter only R5/SRM Medical College Hospital and Research Centre and R16/Saveetha Medical College and Hospital seem to have filed the writ petitions in W.P.Nos.7617/2017 on 07.04.2017 and 8564/2017 on 28.03.2017 challenging Regulation 9A and obtained interim protection as an after thought. Judicial discipline requires not to go into the matter further, as orders have been passed by the Division Bench of this Court protecting the interest of the admitted students of R5/SRM Medical College and Research Centre and R16/Saveetha Medical College and Hospital. Moreover, the interim order would also reflect that the protection is subject to the result of the writ petition. That apart, a Special Leave Petition is said to have been filed by the Medical Council of India against the order of the Division Bench of this Court made in W.P.No.7617/2017.
90.The private respondents including the deemed universities and minority institutions have already surrendered either 50% or 100% of their seats to the State as evident from the memo submitted by the respective respondents before this Court. Those seats surrendered by the institutions for this academic year 2017-18 could not be taken back by them, as they had voluntarily on their own volition had surrendered the seats for State counseling
91.The conclusions reached by this Court, in nutshell, are as follows:
(a)The 50-50 seat sharing regulation between the States and the Non-Governmental medical institutions, as per the pre-amended 9(2)/9(vi) of Postgraduate Medical Education Regulations, 2000 has not been set aside by any Court and it is enforceable.
(b)A Division Bench of the High Court of Karnataka had not struck down the Regulation 9(2) in W.P.No.41058-41101/2003, dated 17.12.2003 in Dr.Biju Poulose and others v. State of Karnataka and the SLP preferred against the said judgment was disposed by the Hon'ble Apex Court by an order dated 01.03.2012 leaving open the question of law.
(c)The Division Bench of the High Court of Karnataka in the case of St.John's Medical College v. State of Karnataka and two others in W.A.No.2773/2005, by an order dated 10.11.2005 did not set aside the Regulation 9(2) and it held that Regulation 9(2) would violate Article 30 and therefore, the minority institutions alone are covered by the said judgment.
(d)The legal bar created for appropriation of seats in Non-Governmental educational institutions by the Hon'ble Apex Court in the case of T.M.A.Pai Foundation and Others v. State of Karnataka and Others reported in (2002) 8 Supreme Court Cases 481 as well as P.A.Inamdar v. State of Maharashtra reported in (2005) 6 Supreme Court Cases 537 stands removed by inclusion of Clause 5 in Article 15 of Constitution by Ninety-Third Constitution Amendment Act, 2005 which has been upheld by the Hon'ble Apex Court in Pramati Educational and Cultural Trust and Others v. Union of India and others reported in (2014) 8 Supreme Court Cases 1.
(e)Minority institutions/colleges need not share 50% of their seats to State, as it would affect their minority status in view of Articles 15(5) and 30.
(f)The Regulation 9 as a whole has been upheld by the Hon'ble Apex Court in the State of Uttar Pradesh v. Dinesh Singh Chauhan reported in (2016) 9 Supreme Court Cases 749, by an order dated 16.08.2016 and therefore, the Regulation 9(2)/9(vi) is valid and enforceable.
(g)In Modern Dental College and Research Centre and Others v. State of Madhya Pradesh and Others reported in (2016) 7 Supreme Court Cases 353, a Constitution Bench of the Hon'ble Apex Court has held that professional, minority educational institutions are also bound by State's regulatory measures. Further, even reservation of SC, ST and OBC in educational institutions has been upheld in the said judgment.
(h)The respondents have not so far challenged Regulations 9(2)/9(vi) at any point of time and therefore, they are bound to share 50% seats with the State.
(i)The deemed universities cannot claim any independent status and they are covered by MCI regulations including the seat sharing regulation.
(j)Right from the beginning, the Medical council of India, though framed Postgraduate Medical Education Regulations, 2000, failed to see that it is implemented properly.
(k)The State Government failed to get 50% of the seats from the Non-Governmental Medical Institutions deliberately to benefit the private institutions, thereby acting against the public interest.
(l)The private institutions have not followed seat sharing regulation for unknown reasons in connivance with the State Government and MCI.
(m)The private institutions should have benefitted unjustly because of non-sharing of 50% seats of the State.
(n)The issuance of separate prospectus for deemed universities by the State Government only for common counseling without inclusion of 50% seats for State quota is not only a fraudulent act but also an illegal act which is against public interest.
92.It is also submitted by the learned counsel for the petitioners that uncertainty and confusion exist during counseling, as the vacancy of seats [specialty wise and college wise] are not given properly. The fee structures are also not properly stated. Further, the details of the candidates who were absent and who did not join are not given by the authorities. Therefore, the State Government being the counseling authority should notify the following details in the counseling website.
(a)Availability of seats in each college/university/institution [specialty wise].
(b)Complete fee structure of all Non-Governmental institutions including the deemed universities which shall also include the expenses the student has to incur for pursuing his course.
(c)List of candidates absent during the counseling.
(d)List of candidates who have not joined in Governmental/Non-Governmental institutions including deemed universities.
(e)Details of seats alloted to NRI quota [specialty wise] If these details are given, the required information would be made available to all the candidates, so that everyone will be benefitted.
93.It is the impression of everybody that the medical education has become commercial involving Crores of rupees. However, there are many private institutions which are doing service by giving timely treatment to the needy patients. Definitely some of the private medical colleges and hospital do give much needed medical service. It is the duty of the Government to give proper health care. Because of manifold activities to be looked after by the Government, the health care could not be properly given and more medical colleges could not be established by the State. There arises the role of private players. The medical colleges are not sufficient enough to produce more doctors who are needed for public health care. The said gap is being filled up by the private medical colleges. It is stated by private institutions that Rupees 500 to 600 Crores are necessary to establish a medical college and Rupees 80 to 90 Lakhs are spent to make a doctor. What is required is only the fairness, transparency and non-exploitation of the students who get admitted in the private medical institutions.
94.Commercialization of professional education, especially the medical education continues to be a worrisome issue to the public. Even in this case, though most of the institutions have surrendered all their seats, they have not surrendered 15% NRI quota seats. Some of the institutions have surrendered only 50%. R5/SRM Medical College and Research Centre, R16/Saveetha Medical College and R13/Sree Mookambika Institute of Medical Sciences have not surrendered any seats and on the other hand, they have filled up all the seats by conducting a separate counseling contrary to the regulations and the judgment of the Hon'ble Apex Court. This kind of situation is an extra-ordinary situation, where the interest of meritorious students are at stake. Extraordinary situation requires extraordinary remedies as held by the Hon'ble Apex Court in Prithipal Singh v. State of Punjab [(2012) 1 SCC 10]. This Court has power and jurisdiction to issue such directions by moulding the relief. A Three Judges Bench of the Hon'ble Apex Court declare in Shivaji Rao Nilagekar Patil v. Dr.Mahes Madhan Gosavi and Others [(1987) 1 SCC 227] para 51 that when situation arises for providing remedies, Court should not remain a mute spectator. Para 51 of the said judgment is usefully extracted as follows:
51. This Court cannot be oblivious that there has been a steady decline of public standards or public morals and public morale. It is necessary to cleanse public life in this country along with or even before cleaning the physical atmosphere. The pollution in our values and standards in (sic is) an equally grave menace as the pollution of the environment. Where such situations cry out the courts should not and cannot remain mute and dumb. The power of this Court to do complete justice by moulding the relief has been recognized by a Three Judges Bench of the Hon'ble Supreme Court in B.C.Chaturvedi v. Union of India and Others [AIR 1996 SC 484]. Para 23 of the said judgment is usefully extracted as under:
23. It deserves to be pointed out that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice, and if moulding of relief would do complete justice between the parties, the same cannot be ordered. Absence of provision like Article 142 is not material, according to me. This may be illustrated by pointing out that despite there being no provision in the Constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo Singh case [Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909] that the High Courts too can exercise power of review, which inheres in every court of plenary jurisdiction. I would say that power to do complete justice also inheres in every court, not to speak of a court of plenary jurisdiction like a High Court. Of course, this power is not as wide as which this Court has under Article 142. That, however, is a different matter.
95.In view of above reasons, by moulding the prayer, in the public interest, this Court passes following directions/orders:
(1)Direction to the first respondent/State Government to appropriate 50% Postgraduate medical seats in respect of each specialty from Non-Governmental medical institutions in the State, excluding minority institutions and Respondents 15 & 19, as State quota and make admission on the basis of NEET merit list through centralized counseling done by the State.
(2)The State Government shall by notification include 50% seats in Deemed Universities, excepting minority institutions and R5 & R16, in the counseling to be conducted for Government seats in self-financing medical colleges and 50% institution quota seats in Deemed Universities, excepting minority institutions and R5 & R16, in the counseling to be conducted for management quota seats in self financing medical colleges.
(3)Minority institutions/colleges need not share 50% of their seats to the State Government except by voluntary share, in view of Articles 15(5) and 30 of the Constitution.
(4)(a).Admission made in respect of 15% NRI quota by Non-Governmental medical institutions in the State, excepting minority institutions and R15 & R19, is not valid and is set aside, as per Central Government Communications, dated 10.03.2017 and 06.04.2017.
(b).Non-Governmental institutions, except minority institutions and R15 & R19, shall surrender all their seats including 15% NRI quota seats for centralized common counseling to be conducted by the State.
(5)State Government's Prospectus for common counseling to Postgraduate Degrees/Diploma courses in Deemed Universities in Tamil Nadu (Excluding NRI Quota) 2017-2018 session is quashed, as it does not appropriate 50% State quota seats from Deemed universities.
(6)The State being the counseling authority, shall notify in the website the following details:
Availability of seats in each college/university/institution [specialty wise].
Complete fee structure of all Non-Governmental institutions including the deemed universities which shall also include the expenses the student has to incur for pursuing his course.
List of candidates absent during the counseling.
List of candidates who have not joined in Governmental/Non-Governmental institutions including deemed universities.
Details of seats alloted to NRI quota [specialty wise].
(7)All the authorities including the Central Government, State Government and Medical Council of India shall notify all the decisions and procedures/formalities well in advance from next year onwards, in order of avoid confusion in admission and avoid litigations.
(8)R1/State Government shall pay a sum of Rupees One Crore as cost for the reasons stated in paragraphs 77 & 78 and the same shall be payable to Archaeological Survey of India for utilizing the same for Keezhadi excavation [Keezhadi, Sivaganga District, Tamil Nadu] within four weeks from the date of receipt of a copy of this order.
(9)MCI shall pay a sum of Rupees One Crore as exemplary costs for the reasons given in paragraphs 55 to 58 and the same shall be paid in favour of The Spastics Society of Tamil Nadu [Institute to empower persons with disabilities], CSIR Road, Taramani, Chennai within four weeks from the date of receipt of a copy of this order.
96.Exemplary cost has been imposed only to make the respondents to follow the laws, especially when they are discharging public functions. Any negligence/default would affect many meritorious students and their valuable right to education as guaranteed by the Constitution. Cost is imposed only to deter the authorities as well as the institutions discharging public functions from violating the rule of law. Unless, every procedure is put in place and well oiled mechanism is made operational, all the stake holders and beneficiaries will be put to unnecessary hardship which has to be avoided.
Writ Petitions are disposed with the above directions and costs. For compliance regarding payment of cost, call on 12.06.2017.
02.05.2017 pgp Index : Yes Internet : Yes Note to Registry: Union of India, represented by Secretary to Government, Ministry of Health and Family Welfare, New Delhi which was already arrayed as R1 in W.P.No.6995/2017 was suo motu impleaded as R29 in W.P.No.6995/2017, vide order of this Court, dated 10.04.2017 and hence, R29 in W.P.No.6995/2017 stands deleted.
Issue order copy on 03.05.2017 N.KIRUBAKARAN, J pgp W.P.Nos.5314, 5971, 5972 & 6995 of 2017 and Connected Miscellaneous Petitions Dated : 02.05.2017 http://www.judis.nic.in