Gujarat High Court
Honourable Justice R.J. Shah (Retd.) ... vs G.S.F. Medical And Paramedical Asso. ... on 12 September, 2005
Equivalent citations: AIR2006GUJ40, (2006)1GLR33, [2006(3)JCR157(NULL)], AIR 2006 GUJARAT 40, 2006 (3) AIR BOM R 654, 2006 (2) AJHAR (NOC) 407 (GUJ), 2006 (6) AIR KANT HCR 158, (2006) 1 GUJ LR 33, (2005) 8 SERVLR 595, (2006) 3 JCR 157 (GUJ), (2006) 40 ALLINDCAS 243 (GUJ)
Author: M.S. Shah
Bench: M.S. Shah, D.H. Waghela
JUDGMENT M.S. Shah, J.
1. Justice RJ Shah (Retd.) Fee/Admission Committee (Medical), appointed pursuant to the directions of the Hon'ble Supreme Court in Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697, has filed this application for certain directions on the basis that so-called admission procedure followed by the members of GSF Medical and Para Medical Association, either in number, was not fair and transparent and, therefore, the alleged admissions given by the said self-financed institutions as communicated vide their letters dated 2.9.2005 be quashed and set aside and to direct admissions to be granted to the said institutions on a centralized counseling basis strictly according to merit-cum-preference as held by the Apex Court in Islamic Academy's judgment and as reiterated in PA Inamdar's case. The Committee has also prayed for taking action against office bearers of the association and the members of the said association under Article 215 of the Constitution.
2. The facts giving rise to this application stated in two parts -
(i) the sequence of events upto the order dated 22.8.2005 of the Hon'ble Supreme Court;
(ii) events relevant to eligibility criteria and common counselling.
3.1 After the judgment of the Apex Court in Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697, the association of self-financed medical and para-medical colleges in Gujarat (having eleven member-institutions, out of which three were not recognized or had not received renewal of recognition from the competent authorities) had requested Justice RJ Shah (Retd.) Fee/Admission Committee (the Committee for brevity) to permit the association to take Common Entrance Test (SCET for brevity) for admissions to the colleges run by the member-institutions for the academic year 2004-05. Such permission was not granted on the basis that permission could be granted only if the association had a majority of the self-financed medical/dental/physiotherapy colleges in the State as its members and that since the association did not have such majority of self-financed medical and para-medical colleges in the State, admissions were to be grated through joint committee for centralized admissions. The petition filed by the association against the said decision of the Committee came to be dismissed. The Letters Patent Appeal was admitted, but interim relief was not granted. The Hon'ble Supreme Court by order dated 23.7.2004 permitted the association to conduct CET. The CET was accordingly conducted by the association on 28.7.2004. However, in view of the complaints made before the Committee that the CET was not conducted by the association in a fair and transparent manner, after hearing the association, the Committee by their order dated 16.8.2004 unanimously decided that the CET carried out by the association on 28.7.2004 stood cancelled as it was not held in a fair and transparent manner. (For instance, for almost all the questions in the test which were objective questions, the correct option was SC, so that the candidates who had access to such information secured more marks and also that such students had left the examination hall within 45 minutes as against the stipulated time of two hours for answering 200 questions). That order of the Committee came to be challenged by the association before the Hon'ble Supreme Court on the date of hearing of the interlocutory applications challenging the said decision of the Committee (i.e. on 16.9.2004) the Apex Court observed that everybody was racing against time, because no admissions could be granted after 30th September as per the schedule fixed by the Medical Council of India in compliance with the directions of the Hon'ble Supreme Court in Madhu Singh's case. Hence, the Apex Court held that it was not possible to disturb the results of the CET which was already conducted and on the basis of which admissions were already granted for the year 2004-05. The Apex Court accordingly stayed the order dated 16.8.2004 of the Committee and the question about the powers of the Committee to cancel the examination was referred to the Larger Bench of the Apex Court.
3.2 For the current academic year 2005-06, the association again requested the Committee for permission to hold CET for granting admissions to the first MBBS/BDS/B. Physiotherapy courses in the colleges run by the members of the association. It appears that in April-May, 2005, there were two associations of self-financed colleges and the Committee rejected the application of GSF Medical and Para-medical Association for permission to conduct the CET. The Committee also referred to the fact that all the 27 self-financed medical/dental/physiotherapy colleges in the State were not members of the said association, but only 8 were members of the said association and that the remaining 3 member-institutions had not yet received any recognition. When that decision dated 15.6.2005 of the Committee came to be challenged in Special Civil Application No. 10583 of 2005 which ultimately came to be referred to this Bench, after considering the events in the academic year 2004-05 and after considering that the admissions to medical and dental colleges in the open merit category had stopped at more than 88% and in the physiotherapy colleges at more than 73%, by way of an interim order, and at the request of the State Government and Justice RJ Shah (Retd.) Committee, this Court by order dated 15.7.2005 permitted the CET to be conducted on 14.8.2005, inter alia, subject to the following conditions :-
(1) Only the students who have obtained at least aggregate 70% marks in the theory papers of Physics, Chemistry and Biology at the qualifying examination (e.g. HSC (Science Stream) examination conducted by the Gujarat Higher Secondary Education Board/Central Board of Secondary Education or other equivalent examinations specified in the Admission Rules as contained in the Government Resolution dated 28.4.2005) shall be permitted to appear at the Common Entrance Test for the year 2005-06. For this purpose, a student having obtained 69.5% or higher marks shall be treated as having obtained 70& marks.
(2) The Common Entrance Test shall be conducted on 14th August, 2005 as per the detailed program already worked out by the petitioner association in consultation with respondent No. 2 Committee (which is taken on record). The petitioner Association shall at its own expenses give public notice in a prominent manner in all the leading newspapers having wide circulation in the State of Gujarat (at least 5 Gujarati and 2 English newspapers) announcing the detailed program of the Common Entrance Test and the admission procedure and also specifying that only the students referred to in condition (1) above shall be permitted to appear at the Common Entrance Test.
(3) The Common Entrance Test shall be conducted in a fair and transparent manner as per the detailed procedure worked out by the Association and respondent No. 2 Committee. The petitioner Association and all its members shall abide by the statements made before this Court on the basis of which this order is passed. Respondent No. 2 Committee shall have and exercise all the powers envisaged in the judgment of the Hon'ble Supreme Court in the case of Islamic Academy of Education v. State of Karnataka (2003) 6 SCC 697 to ensure that the Common Entrance Test and the admission process are conducted in a fair and transparent manner.
3.3 Aforesaid direction No. 1 came to be challenged by some students and by order dated 22.8.2005, the Hon'ble Supreme Court, while granting leave on the SLP, passed the following interim order after hearing the parties :-
In so far as the eligibility to participate in the common entrance test is concerned, the direction of the High Court in paragraph 27(1) is varied to the extent that instead of aggregate 70% marks', for the present Academic Year, it would be taken as aggregate 50% marks.
4.0 Events relevant to common counselling.
4.1 The detailed program for the CET and the admission process as produced before this Court was as under :-
Time Schedule :
(A) Publication of Advertisement in Prominent : 15th July 2005 Gujarati & English Newspapers (B) Distribution of Forms from centres in : 25th July to Ahmedabad, Baroda, Rajkot, 2nd August, 2005 Surendranagar & Surat (C) Last Date of collection of Forms : 3rd August, 2005 (D) Date of Examination : 14th August, 2005 (Sunday) (E) Assessment of Answer books : 16th August, 2005 onwards (F) 1st Counselling (List to be submitted to University Committee (Hon. Justice RJ Shah (Retd.)/Centralized Medical Admission Committee) : 20th August, 2005 Onwards (G) Commencement of Classes : 22nd August, 2005 (H) All colleges to submit vacant position : 10th Sept., 2005 (I) 2nd Counselling for Reshuffling : 15th Sept., 2005 (List to be submitted to University Committee (Hon. Justice RJ Shah (Retd.)/Centralized Medical Admission Committee) 4.2 Pursuant to the above order dated 15.7.2005 of this Court, the association issued prospectus containing Rules for Admission to MBBS / BDS / B. Physiotherapy Courses in Self-finance Institutes (For Management Quota) in the State of Gujarat (2005-2006). Preamble of the said Rules reads as under :-
To provide single window admission arrangement for the aspirants to Medical and Indian System of Medicine course in the State of Gujarat by the Self Financed Institutes (for management quota). The rules are based on various policies and directions of Government of India, State Government and all the concerned Apex National councils (like MCI, DCI) and latest ruling of the Hon'ble Courts in this regards. The form attached to the rules envisage submission of only the relevant information and certificates which are normally needed to assign such priority or benefit to the applicant. These will facilitate smooth and transparent admission procedure in the medical field in the State.
Rule 2.5 in the prospectus also contained the following schedule :-
2.5 Calendar for the academic year 2005 and important dates a. Distribution of Prospectus & Application .. for CET 2005, 22nd July 2005.
b. Last date of receiving application by Regd./speed post/in person upto 3rd August, 2005.
c. Date of Entrance Examination Schedule on 14th August, 2005.
d. Date for First Counselling 20th August 2005.¬ Rule 4.2 provided for the following eligibility criteria for admission :-
SIn case of admission on the basis of qualifying examination a candidate for admission to respective course must have passed in the Theory subjects of Physics, Chemistry, Biology individual and must have obtained a minimum of 69.5% marks taken together in Physics, Chemistry and Biology at the qualifying examination as per High Court judgment and in addition must have come in the merit list prepared as a result of such competitive entrance examination.
(the minimum percentage was modified to 50% as indicated in para 2.3 hereinabove).
The form which was prescribed by the association alongwith the Rules provided for options to be exercised as under :-
SELECTION OF CATEGORY MBBS AND PREFERENCE THEREOF BDS B.Physio PREFERENCE OF THE COLLEGE 1.
(from the list of colleges) 2.
3.
N.B. : Preference of the Branch and Name of the Institution will not be eligible to change in any circumstances i.e. if any one opted for any branch with specific college will not be permitted to change later on before or after the declaration of the results & counselling.
The candidate who left the preference at the time of first counselling and the candidate who remained absent at the time of first counselling will not be entertained at the time of reshuffling procedure.
4.3 After the aforesaid prospectus and blank forms were issued, the Committee addressed a letter dated 5.8.2005 calling upon the association to delete the instructions for giving preference of college in the CET form at the time of applying for the CET and also calling upon the association to remove the entire instructions contained in the N.B. and also to give wide publicity about deletion of the above instructions. The Committee specifically directed the association through the aforesaid letter that all the students be allowed to give their preference/to change the preference of institution/college at the time of counselling as well as at the time of reshuffling without any restriction and directed that the choice of college/institution has to be open till the students come for final counselling. (The Committee gave the above directions on the ground that the students cannot be expected to indicate their preference without appearing at the CET and knowing their merit position and also because out of the 11 colleges, 3 dental colleges and 1 medical college had yet not received recognition from the competent authority like the Dental Council of India/Medical Council of India). The association did not raise any objection to the aforesaid letter dated 5.8.2005 nor did the association challenge the aforesaid directions of the Committee by filing any application before this Court or any other Court.
4.4 After the CET was conducted on 14.8.2005, the Committee addressed letter dated 17.8.2005 informing the Chairman of the association that the Committee had called for the details about the marks at the HSC (Science) examination of all the candidates whose names were included in the merit list prepared on the basis of the results of the CET, but such particulars were not received till 17.8.2005. The Committee also referred to the decision of the Committee taken on 16.8.2005 for giving the following instructions to the association :-
1. Wide publicity be given to the merit list.
2. Wide publicity be given in two Gujarati newspapers and 2 English newspapers regarding the counselling program.
3. Individual call letters be sent to the candidates and sufficient time be given to them.
4. The names of 3 members of the committee were intimated who were going to remain present at the time of counselling. The association was to give advance intimation of one week.
5. Common counselling of all the self-financed institutions was to be done at the place where the CET was held i.e. at the Faculty of Technology, MS University at Baroda.
6. Students would be free to give preference of college/course at the place of counselling and admissions will be given on the basis of merit-cum-preference.
4.5 By letter dated 24.8.2005, the committee reiterated that common counselling be done at the aforesaid place on 3rd/4th September, 2005. On 29.8.2005, the Committee addressed individual letters to each of the 8 self-financed colleges, who are members of the association, to send their representative at the time of counselling at the Faculty of Technology, MS University, Baroda on 3rd/4th September, 2005 and also enclosed a copy of the letter dated 24.8.2005 of the Committee send to the association. Neither the association nor its members ever objected to the aforesaid directions of the Committee to arrange common counselling. Again on 31.8.2005, the Committee informed the association and its members that the procedure for admissions was being carried out in defiance of the schedule which was placed before the Full Bench of the High Court.
4.6 By another letter dated 31.8.2005, the Committee also informed the association and its members that in spite of repeated reminders, the association and its members were not sending break up of the marks of the students at the HSC examination and, therefore, the said requisition be immediately complied with. In the said letter, the Committee also noted that the list sent by the association alongwith the preference given by the students at the time of issuance of forms for CET was not acceptable to the committee as the preference was required to be permitted to be given by the students at the time of counselling in presence of members of the committee and that the arrangement was also accepted by the learned advocate for the association. The Committee also informed the association that the committee would be constrained to approach the High Court.
4.7 Suddenly on 2.9.2005, all the eight members of the association sent their separate individual letters dated 2.9.2005 informing the Committee that the respective institutions had completed the admission procedure for the management quota in their institutions for the academic year 2005-06 by operating the merit list which was prepared and signed by a member of the Committee and which list was forwarded by the association to the concerned institutions. The letters sent by all the institutions were identically worded. The Committee immediately informed all the eight institutions that the action on the part of the concerned institutions was in breach of the orders of the Full Bench of the High Court and that the self-financed institutions were acting with mala fide intention of collecting capitation fees; that the actions of the institutions were also in breach of the commitments given by the counsel for the institutions before the High Court. The Committee stated that the institutions had acted in a unilateral, sham and fraudulent manner and that the institutions were also acting in breach of the commitments made before the High Court and also in clear breach of essence of the judgments of the Hon'ble Supreme Court in Islamic Academy's case and in PA Inamdar's case. The Committee further informed the institutions that all Vice Chancellors are advised not to recognize any admissions given by the association as they are, per se, illegal and fraudulent. The Committee, thereafter moved this application on Monday, 5th September, 2005 with the prayers summarized in the first paragraph of this judgment.
5. When the application came up for first hearing on 6.9.2005, we passed an ad-interim order restraining the association and its members from taking any further steps in the matter of granting admissions to the 1st year MBBS/1st year BDS/1st year Physiotherapy courses in the colleges run by the members of the association (who were also permitted to be joined as party opponents) and directed those institutions to place on the notice board of the respective colleges notices indicating pendency of the present proceedings and also calling upon the members of the association to place on record the particulars about the serial number in the merit list as per CET and percentages of marks at the CET examination, and also the percentage of marks at the HSC (Science) examination and the amount of fees accepted so far.
6. At the hearing of this application on 9.9.2005, Mr Bhaskar Tanna, learned counsel for the applicant Committee placed the following details.
6.1 The admissions in the management quota in the self-financed medical colleges had stopped at CET merit No. 220. In self-financed dental colleges (management quota) admissions stopped at CET merit No. 347 and in self-financed physiotherapy college (management quot) admissions stopped at CET merit No. 495. However, from the particulars given by the colleges to the Committee, the following picture emerges :-
(i) 4 students having their CET merit rank between Sr.No. 1 to 220, are not given admission to any college.
(ii) 74 students having their CET merit rank between Sr No. 221 to 347, are not given admission to any college.
(iii) 141 students between Sr.No. 348 and 495 are not given admissions to any college.
6.2
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Name Total Management Admission Fees
Seats Quota (50%) granted collected
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MEDICAL COLLEGES 1. Kesar Sal Medical 100 50 43 22 2. CU Shah Medical 100 50 39 29 3. BK Shah Medical 150 75 64 60
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Total 350 175 146 111--------------------------------------------
DENTAL COLLEGES 1. Ahmedabad Dental 40 20 17 16 2. Karnavati Dental 100 50 43 40 3. KM Shah Dental 100 50 43 40 4. MP Patel Dental 40 20 17 16
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Total 280 140 120 112--------------------------------------------
PHYSIO COLLEGE
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1. KJ Pandya Physio 30 15 13 12------------------------------------------------------------------------------
6.3 The above figures are complied by the Committee on the basis of the information given by the respective self financed institutions to the Committee.
7. Apart from the total 74 students having been left out from admissions to any medical or dental college, several students and their guardians appeared at the hearing of this application on 9th September and made a serious grievance that at the time of filling in the CET application forms, Kesar Sal Medical College at Ahmedabad had not received the recognition from the Medical Council of India and, therefore, they were not in a position to give first or other preference for that college. Some of the students and their guardians also made a grievance that the CET application forms had required the students to indicate only 3 preferences of institutions out of 8 institutions. Hence, after giving preference for the course such as (1) Medical, (2) Dental and (3) Physiotherapy, the students opting for medical course had given the names of three medical colleges in the column for preferences for colleges/institutions and, therefore, they had no occasion for giving any preference for any of the dental colleges. Those students with much higher ranking in the CET merit list have been totally kept out of consideration for admissions to dental colleges, while less meritorious students have been granted admissions for extraneous considerations.
8. Eight students have made a grievance through learned advocate Mr JR Nanavati that they had received telephonic instructions to appear before the CU Shah Medical College at Surendranagar on 3.9.2005 and they had gone there. Although they were ready to pay the initial fee deposit of Rs. 15,000/-, the management were not prepared to give them receipts, but called upon them to produce the Provisional Eligibility Certificate (PEC) from Saurashtra University at Rajkot and the students rushed to Rajkot. Saurashtra University authorities informed them that first they have to secure admission and thereafter they will be given the provisional eligibility certificate, but when they again went back to the college at Surendranagar, the college authorities still insisted that without provisional eligibility certificate, they cannot be granted admissions. All those 8 students are more meritorious as compared to many other students with less merit at the CET examination who have been granted admissions to the said college at Surendranagar.
9. In reply, the learned counsel for the association who also appears for some of the self-financed colleges (being opponent Nos. 4, 5, 7, 8 and 9) brazenly submitted that the association or its members were not bound to follow the common counselling procedure and that the respective self financed institutions for which some students had given first preference, admissions were given to those students on the basis of their inter se merit at the CET examination. It is submitted that this procedure is rational and that the institutions have the fundamental right to choose students who have shown their liking for the respective institutions by indicating first preference for those institutions and that even more meritorious students as per the CET merit list who had not given first preference for those institutions were not entitled to have their cases considered for admission merely because they were higher up in the CET merit list. When the learned counsel for the association and the learned advocates for the respective institutions were confronted with the prospectus of the association which was circulated by all the colleges while distributing blank forms to the students specifically mentioning single window admission procedure for transparency (quoted in para 4.2 hereinabove), they had no answer.
10. When they were also confronted with the figures produced by the learned counsel for the Committee on the basis of the data submitted by the self-financed institutions to the Committee indicating that 74 more meritorious students were left out when the less meritorious students were granted admissions to the medical and dental colleges, the only answer was that they had considered the first preference given by the students and their inter se merits as per the CET merit list. When pointed queries were put to the learned counsel for the association and the institutions that if a student has given preference for the course as (1) medical, (2) dental and (3) physiotherapy and he was asked to indicate only 3 preferences for the colleges, naturally he would given the names of three medical colleges and, therefore, if as per the merit, he was not getting admission to any medical college, and as per the merit, he was entitled to get admission to a dental college, why he was not considered for admission to a dental college, again the answer was that because the student had not given the names of any dental college in the preference column for colleges, he was not entitled to be considered for admission to a dental college, notwithstanding his higher rank in the CET merit list.
11. We are more than satisfied and convinced that the association and its members have not undertaken the admission procedure in a fair and transparent manner. We have no hesitation in observing that the association and its members seem to believe that they can grant admissions in an unfair, non-transparent and exploitative manner and then present the Courts with a 'fait accompli' and rely upon the dead line of 30th September after which no admissions are to be given to medical/dental colleges in view of the decisions of the Apex Court in Medical Council of India v. Madhu Singh, (2002) 7 SCC 258 and Mridhul Dhar v. Union of India, 2005 (2) SCC 65.
12. When the association was seeking permission to conduct CET, assurance was given to this Court that the CET will be conducted in a fair and transparent manner and also that the admissions will be given in a fair and transparent manner. That is why the prospectus issued by the association itself alongwith the blank CET application forms also specifically mentioned that single window procedure i.e. common counselling procedure will be followed for transparency. When the number of students seeking admissions to in self financed medical and dental colleges is large and the number of seats is limited, and the number of self-financed institutions is more than one (8 in the present case), it is only by following the procedure of granting admissions by common counselling that the directions given by the Hon'ble Supreme Court can be followed. By requiring the students to indicate preferences not only for the course, but also preferences for the colleges and that too only 3 colleges to be indicated (out of 8), the association and its members had prepared their game plan and, therefore the Committee was justified in calling upon the association to delete the column for preferences at the time of submitting CET application forms and the committee was also justified in insisting that the students must be allowed to indicate their preference at the time of first counselling and at the time of subsequent counselling. At the time of submitting the CET application forms, a student would have no idea about his possible number in the CET merit list; therefore, he would not even know whether he will be entitled to get admission to medical course or to dental course or to physiotherapy course. Hence, when the student opting for medical course as his first choice, (dental course as the second choice and physiotherapy as the third choice), is asked to give preference for only 3 colleges out of 8 self-financed institutions (3 medical colleges, 4 dental colleges and 1 physiotherapy college), he would naturally give his preference for 3 medical colleges, but while operating the merit list, if he does not get admission to a medical college, he is entitled to be considered on merits for admission to dental college and he cannot be denied admission on the ground that he had not shown any dental college as one of the three preferred colleges. Similarly, a number of students have been denied admission to physiotherapy course (only one physiotherapy college is a member of the association) when admittedly less meritorious students as per the CET merit list have been granted admission. The so-called admission procedure followed by the members of the association must, therefore, be held to be unfair, non-transparent and even mala fide. There is no manner of doubt that such arbitrary, unfair and non-transparent procedure was followed in order to give admissions to less meritorious students at the cost of more meritorious students and then present the Court with fait accompli and plead the dead line of 30th September. Hence, the action of the opponent colleges and their association must also be held to be mala fide. Fortunately, there is time for us to give appropriate directions to see that common counselling procedure is followed on 17th/18th September, 2005 so that reshuffling procedure in the Government medical colleges and in the Government quota seats in the self-financed institutions can also take place within a week thereafter and everything is completed before 30th September, 2005. It bears mentioning at this stage that some students who have secured admissions to Government dental colleges or to Government quota in self-financed dental colleges are getting admissions to self-financed medical colleges (management quota) and, therefore, there would be resultant vacancies in the dental colleges (government colleges/government quota in self-financed institutions) and, therefore, timely completion of the common counselling for self-financed medical/dental colleges at the earliest will make the resultant vacancies available to other meritorious students. Similarly, students who have secured admissions to physiotherapy colleges (government colleges/govt. quota in self-financed colleges) are getting admission to self-financed dental colleges (management quota) and, therefore, once their admissions in management quota are finalized, the resultant vacancies in physiotherapy course can become available to other meritorious students.
13. It has also been brought to our notice that although the order dated 22.8.2005 of the Hon'ble Supreme Court modified our order dated 15.7.2005 regarding eligibility to appear at the CET only to the extent by substituting the figure S50%¬ instead of S70%¬, meaning thereby only those who had obtained at least 50% marks in the theory papers of Physics, Chemistry and Biology at the qualifying examination like HSC (Science Stream) examination were eligible to appear at the CET and, therefore, eligible for admission to medial and para-medical colleges, the association permitted even those students who had obtained less than aggregate 50% marks in the theory papers of Physics, Chemistry and Biology and that many such students have even been granted admissions to the opponent Nos 3 to 10 colleges. When we asked the learned counsel for the association as to how this could be permitted and how many such students have secured admissions in spite of being ineligible to appear at the CET, the learned counsel for the association stated that an application has been filed before the Hon'ble Supreme Court for modification of the order dated 22.8.2005 to include the marks in practicals also.
When we asked about the number of such students, the learned counsel for the association stated that there were 15 to 20 such students whose admissions would have to be cancelled if the application for modification is dismissed by the Hon'ble Supreme Court. The learned counsel also referred to the application filed by the association before the Hon'ble Supreme Court for granting admissions to 15% of the management quota as NRI seats.
14. Mr Purohit, learned advocate appearing for three students who claim to have secured admissions to the opponent colleges submits that since his clients have already secured admissions, their admissions may not be disturbed. Similarly, a few other students present at the hearing on 9.9.2005 made submissions on the same lines.
On the other hand, as already pointed out in paras 7 and 8 hereinabove, a large number of students submitted that since the opponent colleges have granted admissions in an arbitrary and mala fide manner, all such admissions will be quashed and set aside and that the entire admission procedure be taken up de nova by following common counselling to be conducted by the Committee.
15. We may now refer to the defence urged on behalf of the association and its members that in the faculty of medicine, dental science and physiotherapy, in some medical and physiotherapy colleges which are not members of the association, admissions in the management quota are granted by the individual colleges on the basis of the inter se merits of the students who have applied for admission to the concerned colleges.
16. Mr Tanna, learned counsel for the committee has pointed out that the facts are being twisted without pointing out that the Charutar Arogya Mandal running Karamsad Medical college had filed a petition contending that it wants to give admission to the first MBBS course only on the basis of the HSC marks in the theory papers of three subjects - Physics, Chemistry & Biology and not on the basis of aggregate HSC marks in the theory papers of four subjects - Physics, Chemistry, Biology and Mathematics which is the formula for Government Medical Colleges and for the Government quota in self-financed colleges. When that relief was not granted by this Court, in SLP (C) No. 12294 of 2004 filed by the said college, the Hon'ble Supreme Court has permitted the said college to grant admissions on the basis of the HSC marks obtained in the theory papers of Physics, Chemistry & Biology and, therefore, the said institution could not be compelled to join the centralized admission committee where admissions are granted on the basis of the HSC marks (theory) in the four subjects of Physics, Chemistry, Biology and Mathematics. At the same time, Karamsad Medical college is not a member of GSF Medical and Para-medical Association and, therefore, in compliance with the directions given by the Hon'ble Supreme Court, the said college has been permitted to grant admissions on the basis of the HSC marks in the theory papers of the three subjects - Physics, Chemistry and Biology.
Similarly, as regards the admissions to physiotherapy colleges are concerned, Mr Tanna with Ms Mahrook Keravala for the Admission Committee states that physiotherapy colleges had received recognition after common counselling procedure was over for medical and dental colleges and they wanted to grant admission to the management quota only on the basis of the HSC marks in the theory papers of Physics, Chemistry, Biology and Mathematics and, therefore, they were permitted to grant admissions after issuance of advertisement and in presence of the members of the Joint Admission Committee for centralized admissions. It is, therefore, submitted that grant of such admissions on the basis of HSC marks in the presence of the representatives of the Joint Admission Committee for centralized admissions has ruled out any scope for any unfair and non-transparent manner, much less for any mala fide manner, being followed by any self-financed institution which is not a member of the GSF Medical and Para-medical Association.
17. The submissions based on the procedure followed in the colleges other than medical, dental and physiotherapy colleges is not relevant, more particularly when the Hon'ble Supreme Court has accepted the procedure of common counselling as the fair and transparent procedure for admissions to medical and dental colleges as per the judgments in Islamic Academy's case and reiterated it in PA Inamdar's case. It is clear that the procedure followed by the association and its members of applying the preference-cum-merit test is a negation of the merit-cum-preference test accepted by the Hon'ble Supreme Court. The principle enunciated by the Apex Court in TMA Pai Foundation case that the self-financed institutions cannot forgo or discard the principle of merit has been clarified in Islamic Academy's case and again in PA Inamdar's case.
18. In Islamic Academy's case, the Apex Court observed in para 16 of SCC as under :-
After holding the common entrance test and declaration of results the merit list will immediately be placed on the notice board of all colleges, which have chosen to admit as per this test. A copy of the merit list will also be forthwith sent to the concerned authority and the committee. Selection of students must then be strictly on basis of merit as per that merit list. Of course, as indicated earlier, minority colleges will be entitled to fill up their quota with their own students on basis of inter-se merit amongst those students. (none of the 8 self financed institutions in this case is the minority institution). The list of students admitted, alongwith the rank number obtained by the student, the fees collected and all such particulars and details as may be required by the concerned authority or the committee must be submitted to them forthwith. The question papers and the answer papers must be preserved for such period as the concerned authority or committee may indicate. If it is found that any student has been admitted de horse merit penalty can be imposed on that institute and in appropriate cases recognition/affiliation may also be withdrawn.
19. In P.A. Inamdar and Ors. v. State of Maharashtra and Ors., Civil Appeal No. 5041 of 2005 decided by a Bench of Seven learned Judges of the Hon'ble Supreme Court, the decision in TMA Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 and the subsequent decision in Islamic Academy of Education v. State of Karnataka, (2003 ) 6 SCC 697 have been elaborately considered with reference to a number of propositions which required clarification. Question No. 2 formulated by the Apex Court in the Inamdar case is as under :-
(2) Whether unaided (minority and non-minority) educational institutions are free to devise their own admission procedure or whether direction made in Islamic Academy for compulsorily holding entrance test by the State or association of institutions and to choose therefrom the students entitled to admission in such institutions, can be sustained in light of the law laid down in Pai Foundation ?
Dealing with the above question, after laying down that the State cannot interfere with the admission of students to minority unaided institution upto the level of undergraduate education, the Apex Court held as under in so far as the observations are relevant to the present controversy :-
However, different considerations would apply for graduate and post-graduate level of education, as also for technical and professional educational institutions. Such education cannot be imparted by any Institution unless recognized by or affiliated with any competent authority created by law, such as a University, Board, Central or State Government or the like. Excellence in education and maintenance of high standards at this level are a must. To fulfill these objectives, the State can and rather must, in national interest, step in. The education, knowledge and learning at this level possessed by individuals collectively constitutes national wealth.
The Apex Court thereafter considered the observations in Pai Foundation case relied upon on behalf on the association in the present proceedings and after observing that a common entrance test being held for one group of institutions imparting same or similar education in a State will prevent unnecessary and avoidable expenditure and inconvenience to students, the Apex Court laid down the following propositions :-
SOut of such common merit list the successful candidates can be identified and chosen for being allotted to different institutions depending on the courses of study offered, the number of seats, the kind of minority to which the institution belongs and other relevant factors. Such an agency conducting Common Entrance Test (CET, for short) must be one enjoying utmost credibility and expertise in the matter. This would better ensure the fulfillment of twin objects of transparency and merit. CET is necessary in the interest of achieving the said objectives and also for saving the student community from harassment and exploitation. Holding of such common entrance test followed by centralized counselling or, in other words, single window system regulating admissions does not cause any dent in the right of minority unaided educational institutions to admit students of their choice. Such choice can be exercised from out of list of successful candidates prepared at the CET without altering the order of merit inter se of the students so chosen. All institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the above said triple tests (fair, transparent and non-exploitative). The State can also provide a procedure of holding a common entrance test in the interest of securing fair and merit-based admissions and preventing mal-administration. The admission procedure so adopted by private institutions or group of institutions, if it fails to satisfy all or any of the triple tests, indicated hereinabove, can be taken over by the State substituting its own procedure. The second question is answered accordingly. It needs to be specifically stated that having regard to the larger interest and welfare of the student community to promote merit, achieve excellence and curb mal-practices, it would be permissible to regulate admissions by providing a centralized and single window procedure. Such a procedure, to a large extent, can secure grant of merit basis admissions on a transparent basis. Till regulations are framed, the admission committees can oversee admissions so as to ensure that merit is not the casualty.
20. We may also refer to the stand of the State Government as indicated by Mr Kamal Trivedi, learned Addl. Advocate General that the Government is inclined to hold a CBI inquiry in the procedure followed by the self-financed institutions. The State Government has not indicated anything more and it appears to us that the State Government wants to side track the issue of setting aside the so called admissions granted by the self financed institutions in an unfair, non-transparent and mala fide manner in order to give admissions to less meritorious students at the cost of more meritorious students, which issue requires immediate and top-priority attention.
21. In view of the principles enunciated in the decision of the Apex Court in PA Inamdar's case as quoted in the preceding paragraph, and in the facts of this case highlighted in paras 6 to 13 and 20 hereinabove, we are of the view that the admission procedure by following the method of common counselling is required to be entrusted to the Committee appointed pursuant to the orders of the Hon'ble Supreme Court in Islamic Academy's case.
22. When the Hon'ble Supreme Court passed order dated 16.9.2004, the challenge was to the decision of the Committee cancelling the CET conducted on 23.7.2004. Hence, the period of two weeks (deadline being 20.9.2004) was too short for conducting another CET and thereafter for holding common counselling. However, this year there is no challenge to the CET and the CET merit list is already available. Hence, common counselling can be done within a period of one week from today.
ORDER
23. We, therefore, allow this application in the following terms :-
i. Justice RJ Shah (Retd.) Committee for fees/admissions (the Committee) shall hold on 17th/18th September, 2005 common counselling for the students whose names are included in the common merit list prepared on the basis of the results of the CET examination held on 14.8.2005 which list has been produced as an annexure to Civil Application No. 7977 of 2005. The Deans/Principals of the opponent Nos. 3 to 10 colleges shall remain present at the time of common counselling.
ii. While considering the case of students for admission to opponent Nos. 3 to 10 colleges, only those students will be considered eligible who obtained at least aggregate 50% marks in the theory papers of Physics, Chemistry and Biology at the qualifying examination (e.g. HSC (Science Stream) examination conducted by the Gujarat Higher Secondary Education Board/Central Board of Secondary Education or other equivalent examinations specified in the Admission Rules as contained in the Government Resolution dated 28.4.2005). This direction is, however, subject to any orders which may be passed by the Hon'ble Supreme Court.
iii. At such common counselling, students will be permitted to indicate their preference for any course or college looking to the number of vacancies available in a particular course/college at the time of common counselling, without being tied down to any preference which was indicated in the CET application form.
iv. The Committee shall conduct the admission procedure for all the seats in the management quota in the eight self financed institutions, opponent Nos. 3 to 10 herein. Looking to the limited number of vacancies in the eight institutions, it will be open to the Committee to restrict the number of candidates to be called at such common counselling. This direction is subject to any orders which may be passed by the Hon'ble Supreme Court in application for NRI seats. In other words, the common counselling procedure will be held by the Committee on 17th/18th September, 2005 for all the seats in the management quota in opponent Nos. 3 to 10 herein, unless there is any specific order of the Hon'ble Supreme Court permitting opponent Nos. 3 to 10 to grant admissions to any management quota seats from out of NRIs.
v. The Committee shall publish notices in leading newspapers so that all the candidates in the CET merit list (upto Sr.No. to be specified, having regard to the number of vacancies) are put to notice about the common counselling to be held as per these directions. In view of the paucity of time, it will not be necessary for the Committee to send individual notices to the candidates.
vi. If a student who claims to have already secured admission, is not found to be eligible for admission as per this order, his admission is hereby cancelled.
vii. If a student, who claims to have already secured admission earlier to any of the opponent colleges, is found to be eligible for admission and also entitled to secure admission to the same course in the same college even at the common counselling to be held by the Committee, the admission of such student shall be confirmed without requiring the student to again complete the procedural formalities or to pay additional fees other than the fees determined by Justice RJ Shah (Retd.) Committee.
viii. If a student who claims to have already secured admission earlier is found to be eligible but on the basis of CET merit list, he is not entitled to admission at the common counselling to that particular course in that particular college, his admission granted earlier shall be treated as cancelled, but his case will be considered strictly on the basis of his rank in the CET merit list and if on that basis he is found to be entitled to get admission to a particular college, the authorities of that college shall grant admission to that student. The fees already paid by that student to the other college (out of eight colleges herein) will be adjusted against the fees to be paid by the student to the college where he is granted admission at the common counselling conducted by the Committee. In any case, no such student shall be required to pay total fees in excess of the amount of fees determined by the Justice RJ Shah Committee for that particular college.
ix. The students, who have so far not been granted admission to any of the opponent colleges but are found eligible and entitled to admission in any particular college as per their rank in the CET merit list, shall be granted admission to the particular course/college to be decided by the Committee on the basis of the CET merit list. Such students shall not be required to pay fees in excess of the amount of fees determined by the Justice RJ Shah Committee for that particular college.
x. The students, who have already been granted admissions but who want to indicate their preferences on the basis of availability of seats at the time of common counselling, will be entitled to secure admission to the course/college of their preference indicated at the time of common counselling, provided seats in such course/college are available to them on the basis of their rank in the CET merit list being operated at the common counselling. The fees already paid by that student to the other college (out of eight colleges herein) will be adjusted against the fees to be paid by the student to the college where he is granted admission at the common counselling conducted by the Committee. In any case, no such student shall be required to pay total fees in excess of the amount of fees determined by the Justice RJ Shah Committee for that particular college.
xi. On the next date of hearing, the Committee shall place on the record of these proceedings, the list of students who are found to be eligible and entitled to admissions on the basis of the CET merit list at the common counselling, and who are granted such admissions, alongwith the particulars of their marks at CET and the percentage of marks at the HSC examination in the theory papers of the three Science subjects.
xii. The opponent colleges shall refund all the amounts except CET examination fees collected from the students whose admissions are cancelled under this order or from the students who were granted admissions earlier but who do not secure admissions at the common counselling to be conducted by the Committee.
xiii. All the opponents herein including the State of Gujarat, GSF Medical and Para-medical Association and all its eight members shall extend full cooperation to the Committee for implementing the directions given in this judgment, including handing over all the records regarding CET test, admission forms and all other documents by 14th September, 2005.
The question whether any proceedings should be initiated against any of the opponent colleges or office bearers of the Association for contempt of Court shall be decided at the next hearing.
S.O. to 19th September, 2005.
At this stage, the learned advocates for the association and the opponent-colleges and also Mr Mrugen Purohit for the three students who claim to have already secured admissions to the opponent-colleges pray for stay of operation of this judgment in order to have further recourse in accordance with law.
In the facts and circumstances of the case and more particularly in view of the deadline of 30th September, 2005 before which date all the admissions to the medical colleges are required to be completed and also considering the fact that the counselling on account of reshuffling of seats in the Government medical, dental and physiotherapy colleges is awaiting the finalization of admissions in the self-financed medical and para-medical colleges, which process also has to be completed before 30th September, 2005, we reject the prayer for stay.