Madhya Pradesh High Court
Ms. Prachi Singh Parihar vs The State Of Madhya Pradesh on 23 March, 2018
Author: R. S. Jha
Bench: Rajeev Kumar Dubey, R. S. Jha
1 W.P No.14687/2017 &
Bunch
HIGH COURT OF MADHYA PRADESH AT JABALPUR
WRIT PETITION NO.14687/2017
PETITIONER : KU. SAISHREE SOORI
Vs.
RESPONDENTS : THE STATE OF M.P.
AND OTHERS.
WRIT PETITION NO.14836/2017
PETITIONER : PRATHIVI NAYAK
Vs.
RESPONDENTS : THE STATE OF M.P.
AND OTHERS.
WRIT PETITION NO.15635/2017
PETITIONER : AADISH JAIN
Vs.
RESPONDENTS : THE STATE OF M.P.
AND OTHERS.
WRIT PETITION NO.15638/2017
PETITIONER : MS. PRACHI SINGH PARIHAR
Vs.
RESPONDENTS : THE STATE OF M.P.
AND OTHERS.
WRIT PETITION NO.15735/2017
PETITIONER : PRANSHU AGRAWAL
Vs.
RESPONDENTS : THE STATE OF M.P.
AND OTHERS.
Present : Hon'ble Shri Justice R.S. Jha,
Hon'ble Shri Justice Rajeev Kumar Dubey.
For the petitioners : Shri Aditya Sanghi, Shri Y. M. Tiwari,
Advocate.
For respondent/State : Shri Deepak Awasthi, Dy.Advocate
General and Shri Piyush
Dharmadhikari, Govt. Advocate.
For the respondent MCI : Smt. Indira Nair, Senior Counsel
with Ms. Shikha Sharma, Advocate.
For respondent Index & : Shri R. N. Singh, Sr. Counsel with
2 W.P No.14687/2017 &
Bunch
Amaltas Medical College Shri A. Rajeshwar Rao, Advocate.
For respondent People's : A. P. Shroti, Advocate.
College
For respondent LNMC : Shri R. P. Mishra, Advocate.
For respondent Chirayu
Medical College : Shri Ajay Gupta, Advocate.
For respondent Aurbindo:
Institute of Medical : Shri Shashank Verma, Advocate.
Science
For respondent R.D.Gardi
College : Shri Jubin Prasad, Advocate.
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Whether approved for reporting: Yes
Law laid down :
Significant paragraph numbers :
ORDER
(23/03/2018) Per R. S. Jha, J.
These bunch of petitions raise similar and inter- related questions for adjudication and are, therefore, heard and decided concomitantly by this common order.
2. By way of these petitions, the petitioners have assailed the procedure adopted and the manner in which admissions have been made by the respondent authorities in the MBBS/BDS Course in the State of M.P. in various Private Medical Colleges in the left out round and mop-up round. It is alleged that the authorities, in connivance with the management of Private Medical Colleges, have committed several illegalities and irregularities with a view to facilitate the private colleges to grant admission to ineligible non-domicile candidates contrary to law after taking huge amounts of money. It is alleged that the private medical colleges have practically auctioned each and every MBBS Seat for a sum of 3 W.P No.14687/2017 & Bunch Rupees 80 to 90 lacs to ineligible, non-meritorious, non domicile candidates and granted them admission contrary to law by ignoring the statutorily conferred prior claim of more meritorious domicile candidates of the State of M.P. It is alleged that though eligible and meritorious, the petitioners could not obtain admission on account of the totally unworkable counselling schedule notified by the authorities. The petitioners have sought for cancellation of the admission made in the left out and mop up round and claimed admission for themselves.
3. Though we have considered each aspect in detail in the judgment for the sake of brevity and clarity, it is at the very outset stated that after analysing the facts and the law in detail from paragraph 104 onwards of this judgment and summarizing most of the conclusions in paragraphs 131, 132 & 133, these petitions are partly allowed to the extent stated in paragraph 147. We hereinafter proceed to consider the issues in detail.
4. Before we advert to the facts of the present case and the issues raised therein, it would be appropriate to take into consideration the background facts leading to the filing of the petitions.
5. The Central Board of Secondary Education conducted the NEET Examination 2017 sometime in the month of March 2017, result of which was declared on 23.6.2017. According to the scheme of examination, the result thereof was forwarded to the Director, Medical Education of the State of M.P. After declaration of the 4 W.P No.14687/2017 & Bunch result, the State of M.P. notified the Regulations governing admission to Private Medical Colleges in the State of M.P. on 7.7.2017 which are known as the Madhya Pradesh Main Sahayata Na Paanae Waalae Niji Chikitsa Mahavidhyalaya Evam Dant Chikitsa Mahavidyalaya Main MBBS Tatha BDS Pathyakramo Main Pravesh Ki Paatrata, Pravesh Ki Reeti Evam Sthano Kea Aarakshan (Aniwasi Bharti Ki Liyea Sthano Ka Aarakshan Sammillit Hai) Kea Viniyam 2017 (hereinafter referred to as the Regulations of 2017). Undisputedly, these Regulations were framed in exercise of powers under section 13 of the M.P. Niji Vyasayik Shikshan Sansthan (Pravesh Ke Viniyam Evam Shulk Ka Nirdharan Adhiniyam) 2007 (hereinafter referred to as 'the Adhiniyam of 2007'). On the basis of the Rules and the Regulations, a Statewise merit list of the candidates who appeared and cleared the NEET examination was prepared on 8.7.2017.
6. The State thereafter undertook the first and second round of counselling for making admissions in the MBBS and BDS seats in the private medical colleges on 18.7.2017 and 18.8.2017.
7. Under Regulation 6 of the Regulations of 2017, permanent residents of M.P. have a prior and first claim on admissions and it is only in case permanent residents and domiciles of M.P. are not available that seats can be offered to registered non-domicile candidates. Regulation 3(5) lays down that information given by a candidate regarding permanent residence in the NEET form shall be treated to be final and binding.
5 W.P No.14687/2017 &Bunch
8. The State thereafter inserted a proviso under Rule/Regulation 3(5) of the Regulations of 2017, by Gazette Notification dated 11.7.2017, to the effect that in case the details regarding permanent residence (Sthaniya Nivasi) was not given by the students in the NEET form, the State could take information in that regard from the candidate at the time of counselling.
9. Several domicile candidates filed W.P No.12601/2017 and 12774/2017 before this Court alleging that the authorities of the State, in connivance with the private medical colleges and with a view to circumvent and dilute Regulation 6 of the Regulations of 2017, was deliberately adopting the procedure under the proviso to Regulation 3(5) of the Regulations of 2017, and giving benefit to non-domicile students who had procured false and fabricated domicile certificates for obtaining admission.
10. In view of the allegations made by the petitioners in the aforesaid writ petitions this Court passed a detailed order on 24.08.2017 in W.P.No.12601/2017 and 12774/2017 directing the respondents to conduct the entire counselling by strictly preparing the list of candidates of the State of M.P. in accordance with the provisions of the Rules and Regulations specifically Rule/Regulation 3(5) of the Regulations of 2017, and to apply the newly added proviso to Rule/Regulation 3(5) only in case where there was absence of information in the NEET form regarding permanent residence.
6 W.P No.14687/2017 &Bunch
11. The order passed by this Court on 24.08.2017 in W.P.No. 12601/2017 and 12774/2017 was challenged by the State of Madhya Pradesh before the Supreme Court by filing SLP Nos.22438/2017 and 22439/2017 which was dismissed by the Supreme Court on 29/08/2017 granting ten days time, on the request of the State to complete the counseling in accordance with the Rules and Regulations.
12. Pursuant to the aforesaid order passed by this Court and the Supreme Court, the State took up denovo counselling and admission to MBBS and BDS courses and for that purpose published the revised merit list of candidates who were permanent residents of M.P. on 31.8.2017 in accordance with the information regarding permanent residence given in the NEET application form and thereafter published the schedule of counseling on 31.08.2017.
13. The first round of fresh counselling was undertaken on 31.8.2017 and 1.9.2017 and the result thereof was published on 2.9.2017. The candidates were granted time upto 3.9.2017 for reporting to the allotted college for scrutiny of admission. The second round of counselling was undertaken on 4.9.2017 and 5.9.2017 result whereof was published on 6.9.2017 and the students were granted time upto 7.9.2017 for reporting to the college.
14. On 07.09.2017, on an application being filed by the authorities of the State in SL.P. No.22438/2017 and 22439/2017, the Apex Court extended time for a further 7 W.P No.14687/2017 & Bunch period of three days from 07.09.2017 to complete the remaining part of the admission process.
15. According to the respondents, the counsel for the State of MP informed the authorities, although there is no mention of this fact in the order passed by the Supreme court on 07.09.2017, that in view of the submission of the counsel for the APDMC, which incidentally was not a party in the petition, the remaining admissions should be made and completed by taking into consideration the order passed by the Supreme Court in the Case of Dar- Us-Salam Educational Trust and others Vs. Medical Council of India and others, (W.P (Civil) No.267/2017 and connected matters).
16. Pursuant to the aforesaid extension of time and letter of the Standing Counsel for the State of M.P., Shri Saurabh Mishra, the counselling for the left out round was held on 09.09.2017 which was conducted online and the result of the same was declared on the same day and the candidates were granted time up till 9.30 A.M. on 10.09.2017 to take admissions. Thereafter the authorities took up the process of granting admissions on the remaining vacant seats in the mop-up round which was held on 10.09.2017 by the private medical colleges and all the seats in the private medical colleges were filled up.
17. At this stage the remaining bunch of the petitions that are being heard today were filed before this Court challenging the procedure and manner in which the 8 W.P No.14687/2017 & Bunch State and private colleges have conducted the left-out and mop-up round of counselling.
18. The aforesaid sequence of events and facts are not in dispute and are admitted by the petitioners and all the respondents and, therefore, are taken to be established for the purpose of further adjudication.
19. It is alleged and submitted by Shri Aditya Sanghi, the learned counsel for the petitioners that the State, while conducting the left out round of counselling, had deliberately not followed the procedure prescribed by law as a result of which 94 seats out of 163 seats said to have been allotted and filled up in the left out round of counselling were vacated by the students 15-20 minutes after allotment under the left out round was over and the final list was published, in connivance with the private medical colleges in a pre-planned manner so that the said 94 seats could be filled up in the mop-up round. It was further alleged that in the mop-up round the authorities, totally ignored the provisions of the rules and regulations as well as the directions issued by the Supreme Court in the case of Dar-Us-Salam Educational Trust (supra) and published a list of as many as 3746 students for filling up 94 seats as against a limited list of 940 students which was required to be published and conducted several mop-up rounds of counselling as a result of which the petitioners, in several petitions, who were more meritorious and being domicile candidates had prior right to admission, were deliberately and forcefully denied admission by the private medical colleges even though they approached 9 W.P No.14687/2017 & Bunch them for the same and that in front of the eyes of the students these seats were practically auctioned and sold to less meritorious non-domicile students after demanding and accepting a sum of Rs.80-90 lac per seat.
20. It is alleged that the rule of merit has been totally destroyed and over looked and the private medical colleges have been permitted to admit students dehors the rules and regulations by charging a huge amount of money inspite of the fact that they are non meritorious, non-domicile students and were infact not even entitled to be considered for admission.
21. It is alleged that the petitioners were not informed about the final meritlist of the mop-up round upto 7.30 P.M on 10.9.2017 whereafter a list of 3746 students was published and the petitioners were granted hardly 2 to 3 hours to rush to the private medical colleges for obtaining admission and join the college by 11.59 P.M. on 10.9.2017.
22. The petitioners namely; Vikash Rathod, petitioner no.8 and Sheikha Isra,r petitioner no.9 in W.P No.14836/2017, Aadish Jain, petitioner of W.P No.15635/2017 and Pranshu Agrawal the petitioner in W.P No.15735/2017 have filed affidavits alleging that when they reached L.N. Medical College, Chirayu Medical College and Peoples Medical College they were thrown out by bouncers engaged by the Colleges when the management came to know that they were domicile students and were unable to pay as much as non-
10 W.P No.14687/2017 &Bunch domiciles and that in front of their eyes the non-domicile students, who were willing to pay Rs.80-90 lac, were granted admissions although they were less meritorious than the petitioners.
23. It is alleged that as many as 33 students were granted admission in the MBBS course by the Index and Amaltas Medical colleges whose name were not even included in the list of 3746 students published for the mop-up round.
24. The learned counsel for the petitioners submits that Regulation 6 of the Regulations of 2017 specifically provides that admissions have to be granted first to students who are permanent residents of M.P. and only after the list of M.P domicile candidates is exhausted and in case seats remain vacant even thereafter, admissions can be granted to the non-domicile students. It is alleged that inspite of the aforesaid clear stipulation in the Regulation, the authorities did not publish a separate lists of domicile and non-domicile students, as a result of which the private medical colleges were able to manipulate the rules and grant admissions to the less meritorious non-domicile candidates who were willing to pay huge amounts of money thereby indulging in auctioning and selling of MBBS seats which is not permissible in law.
25. The petitioners have also alleged that though all the petitioners have obtained more marks than the last student who has been granted admission in the mop-up round, they have been denied their rights in view of the illegal and faulty procedure adopted by the respondent 11 W.P No.14687/2017 & Bunch authorities for conducting admission in the left out and mop-up round of counselling.
26. In W.P. No. 14687/2017 the petitioners had alleged that the admissions made by the Private Medical Colleges in the NRI Quota were also contrary to law and had been made by taking huge amounts of money from ineligible non-domicile students who were not NRIs.
27. In view of the aforesaid serious allegations made by the petitioners in the petitions, this Court apart from issuance of notice to the respondents/State and asking them to file a return had also directed the authorities to look into the complaints made by various petitioners in respect of the alleged illegalities that had been committed in the admission process including admissions made under the NRI Quota.
28. Pursuant to the directions issued by this Court all the records relating to admissions made in the mop-up round and under the NRI quota were seized by the authority concerned and an enquiry into the complaint was made whereafter an interim report dated 10.11.2017 was submitted before this Court and thereafter a detailed report in respect of the allegations made by the petitioners and the complaint made by them has been filed before this Court by the State on 29.11.2017.
29. In an enquiry conducted by the State, the State itself found that out of the total 114 admissions made by the private medical colleges under the NRI quota, 107 admissions were illegal and contrary to law and, 12 W.P No.14687/2017 & Bunch therefore, the State on its own and without any directions being issued in this regard by this Court cancelled as many as 107 admissions made by various private medical colleges under the NRI quota by order dated 25.9.2017.
30. In view of the order dated 25.9.2017 the grievance regarding admissions made by the private medical colleges against the NRI quota has ceased to exist in the present bunch of petitions and, therefore, we are not required to address the said issue in this bunch of petitions moreso as the order dated 25.9.2017 cancelling the NRI admissions has been challenged by the effected students by filing W.P No.21787/2017 and a whole bunch of petitions which are being heard and decided separately.
31. As far as the admissions made in the left out round and mop-up round are concerned, the State has filed a return and three additional affidavits before this Court in response to the allegations made in the petitions.
32. The learned Deputy Advocate General appearing for the State submits that when this Court issued notices in W.P.12601/2017 which had been filed alleging grant of admissions to non-domicile candidates on the basis of fabricated domicile certificates, the State had requested the CBSE to clarify the issue regarding information relating to domicile of the candidates, whereupon the CBSE issued a letter on 23.8.2017 Annexure A/11, informing the State that information regarding domicile was not obtained from the candidate as most of them 13 W.P No.14687/2017 & Bunch were claiming more than one domicile in respect of which only the State alone could verify the eligibility and not the CBSE and therefore, the clarification was issued by the CBSE asking candidates to register with their domicile State for counseling, whereafter, the authorities would verify their eligibility. It is stated that it is on this count that the State was obtaining domicile certificate from the candidates at the time of counseling in terms of the proviso to Regulation-3 (5) and granting admissions to students.
33. At this stage itself it is clarified that this contention raised by the State is apparently incorrect as information regarding permanent address/residence was infact sought and obtained by the CBSE and is also in conflict with the clear mandate of the provisions of Regulation 3 (5) which provides that information given in the form shall be treated as final and binding as has been held by this Court in order dated 24.8.2017 passed in W.P. No.12601/2017 which has been affirmed and confirmed by the Supreme Court and therefore, the plea and contention of the respondent/State in this regard stands rejected and concluded by the order passed by this Court in the order dated 24.8.2017 passed in W.P. No.12601/2017 and W.P. No.12774/2017 and confirmed by the Supreme Court.
34. It is submitted by the respondents that pursuant to the orders passed by this Court and the Supreme Court, as the State was required to complete the entire admission process afresh within a period of 10 days, it hurriedly took up the process of admissions by 14 W.P No.14687/2017 & Bunch conducting the first and second round of counselling by 7.9.2017. It is submitted that inspite of the aforesaid, there are no complaints by any person in respect of the admissions made by the respondent authorities in the first and second round of counselling as well as the left out round of counselling which was conducted on 9.9.2017 for 163 seats that remained vacant after the first and second round of counselling in private medical colleges.
35. It is submitted that in accordance with the provisions of the Rules and the Regulations in the first, second and left out round of counselling, admissions were granted strictly in accordance with the merit only to domicile candidates. It is submitted that all the 163 seats that were available to be filled up in the left out round of counselling were duly allotted only to candidates who were permanent residents of M.P., online and the admissions on the same were duly completed and the result thereof was published at 9.30 A.M on 10.9.2017. It is submitted by the learned Dy. Advocate General on affidavit that the 163 M.P. domicile students who had been allotted colleges and granted admission in the left out round were required to take admission in the college concerned by 4.00 P.M. on 10.9.2017. It is submitted that at about 4.00 P.M. the M.P. Online informed the authorities of the State that out of the 163 seats allotted in the left-out round, 94 students had not taken admission and, therefore, on 10.9.2017 at 4.30 P.M. the vacancy of 94 seats was notified.
15 W.P No.14687/2017 &Bunch
36. It is submitted that though there is no provision in the Rule or Regulation regarding holding of any further counselling or making any admission after the left-out round, however in view of the directions issued by the Supreme Court in Paragraph-7 in the case of Dar-Us- Salam Educational Trust (supra) wherein it has been directed that in case stray seats remain vacant after the left out round, a mop-up round of counselling should be held for which purpose a list of 1:10 candidates of the number of seats remaining vacant have to be sent to the college concerned which is required to grant admission from the aforesaid list and the letter issued by the Standing Counsel for the State of M.P. Shri Saurabh Mishra, wherein he had directed the authorities of the State to conduct a mop-up round of counselling and fill up the seats in accordance with the directions issued in the case of Dar-Us-Salam Educational Trust (supra), a mop-up round of counselling was conducted.
37. It is submitted that the authorities of the State published a list of 940 candidates on all india merit basis and not of M.P. domicile who had obtained marks between 685 and 508 against the 94 seats remaining vacant and circulated the same to all private medical colleges at 4.30 PM on 10.9.2017 for conducting the mop-up round.
38. According to the affidavit filed by the authorities of the State, the colleges on their own conducted the mop- up round of counselling and granted admissions to 12 students out of the list of 940 candidates circulated by the State. It is stated that as many as 82 seats still remained vacant, therefore, the authorities sent and 16 W.P No.14687/2017 & Bunch circulated another list of 940 candidates including non- domicile candidates to the private medical colleges, containing names of the students who had obtained marks between 448 to 422 in the NEET examination.
39. It is stated that on such a list being circulated several students who had obtained marks between 508 and 448 raised objections regarding their non-inclusion in the list and, therefore, the authorities of the State issued a consolidated third list containing a total number of 3746 students having secured marks between 685 and 422 including the first and second list of 940 candidates each, which was published and sent to all the colleges between 6.30 P.M and 7.30 P.M on 10.9.2017.
40. It is stated that all the remaining seats were filled up by the private medical colleges by conducting mop-up round of counselling at their own level from the students whose names were included in the list of 3746 students and the students so admitted took admissions by 11.59 PM on 10.9.2017.
41. The State in its synopsis with affidavit filed in W.P. No.14687/2017 has given the following explanation for conducting the college level mop-up round of counselling in the following terms:-
"That,the State Government in spite of the position in the Rules and Regulation that Left Out Round should be offline decided to opt for online counseling due to the compelling circumstances that if they will adhere to the counseling process then they would have to call for the registered eligible candidates who have not been allotted 17 W.P No.14687/2017 & Bunch any seat and all these candidates are required to call in the sequence wherein firstly the ST candidates, then the SC candidates, then the OBC candidates and thereafter the remaining reserved seats to be converted to the unreserved category. The entire exercise as stated above would have consumed considerable time beyond the schedule published. Since the domicile students who were not allotted any seats in the colleges were 5297 in number (total registered candidates MP domiciles 8456-3159 allotted in first and Second Round = 5297 remaining to be called in the left out round for manual counseling) and all those students are required be called in the manual counseling to remain personally present and only after following the sequence of counseling as stated above the final allocation would have been completed and the Whole process would require much more time then provided in the schedule. Thus the deviation from manual offline counseling to online counseling is decided in order to complete the left out round within a short period of 2 days. It is submitted that in the online left out round counseling the sequence of counseling is that the candidates are required to give the choice filling for the colleges in order of preference and as per the computer program the students will be allotted college as per merit and preference. Thus, the said process was more transparent and less time consuming and under the peculiar compelling circumstances have met the time constraints as prescribed in the schedule online counseling was adhered by the state govt. keeping in view the bonafide intention of ensuring 18 W.P No.14687/2017 & Bunch that maximum opportunity should be extended to the students.
It is also pertinent to mention that the "Counseling Procedure" as uploaded on the web site of Director Medical of Education and MP online are in the nature of "Executive Instructions"
prescribing the procedure to be followed in the counseling in light of Regulation 9 of Regulation, 2017. The Director Medical Education was competent to issue necessary direction from time to time for conducting counseling, Thus in view of the same the DME having all the power and authority to relax and adopt alternate procedure for counseling which will not cause prejudice to any candidates.
That, the state govt. was having the statutory right to conduct a left out round of counseling which is defined in Regulation 2 (m) of the Regulation 2017 applicable to the private colleges and also in Regulation 6 (6) which provides for the eligibility for students who are eligible to participate in the said counseling. The said provision contained in the regulation have not been challenged by any petitioner by contending that the State Govt. could not have provided for left out round."
"That, on perusal of the instructions sent by the Director, Medical Education, it is clear that the Nodal Officer appointed by the Department has very limited role and he has to ensure attendance of all the candidates and to see that the students who are coming to the college for admission are the students, whose names are reflected in the 19 W.P No.14687/2017 & Bunch merit list prepared by the Department. It is also mentioned that no incident of obstruction by the Colleges to the eligible and meritorious students is reported by the Nodal Officers. The aforesaid facts are relevant for the adjudication of the case and therefore, the documents may kindly be taken on record."
"After the completion of Mop-Up Round counselling the position of admission is as under:
12 students admitted with cut off marks 509 +18 students admitted with cut off marks between 509 to 448 +64 students admitted with cut off marks between 448 to 442 ............................................................ 94 students admitted in total."
42. The State alongwith this affidavit on page 52 has also placed on record the directions and schedule dated 8.9.2017 issued by the DME relating to the manner and procedure to be followed in the college level mop-up round wherein it has been clearly specified that the same procedure that was followed in the previous rounds of counselling must be followed but admissions be made on the basis of the All India merit list.
43. It has been submitted that Amaltas Medical College and Index Medical College granted admissions to as many as 33 students whose names were not included in the list of 3746 candidates/students as a result of which their admissions were cancelled by the authorities of the State by order dated 14.9.2017 against which the 20 W.P No.14687/2017 & Bunch aggrieved 33 students had filed a petition before the High Court of Madhya Pradesh, which was dismissed.
44. It is however informed that an SLP has been filed by the aforesaid students before the Supreme Court namely WP (S) Civil No.1049/2017, 1001/2017 & 1047/2017 in which the Supreme Court has issued an interim order of stay on 6.11.2017.
45. The learned Deputy Advocate General as well as the learned counsel for the petitioners have also stated that 64 students of RKDF Medical College had filed a writ petition directly before the Supreme Court under Article 32 of the Constitution of India in view of the fact that after granting them admissions, the recognition of RKDF Medical College was not continued and the Supreme Court in the said writ petition has issued an order to adjust not just the 64 petitioners but all the other students of RKDF Medical College in other medical colleges of Madhya Pradesh. It is however informed that out of 150 students granted admissions in RKDF Medical College, 24 students have been granted admissions in the mop-up rounds and certain other admissions have been granted under the NRI quota both of which are under scrutiny in various petitions filed before this Court.
46. The learned Senior Counsel appearing for the MCI submits that in accordance with the schedule prescribed by the Regulations of Graduate Medical Education Amendment 2017 as notified by the MCI vide notification dated 4.7.2017 published in Gazette of India of the same date, and approved by the Supreme Court by order 21 W.P No.14687/2017 & Bunch dated 5.7.2017 in the case of Dr.Ashish Ranjan and others Vs. Union of India and others, W.P. (C) No.76/2015 and Daru-Us-Salam (supra), only two regular rounds of counseling are permissible whereafter one manual mop-up round of counseling can be undertaken by the State and, therefore, the procedure followed by the State in conducting a left-out round and mop-up round of counselling is dehors the MCI regulations and has no sanction of law as the MCI regulations are binding on the States and violation thereof is impermissible.
47. It is also contended that now that the last date for granting admission is over, no relief can be granted to the petitioners as the last date for granting admission as prescribed in the schedule, is over. The learned Senior Counsel for the MCI has relied upon the decision of the Supreme Court rendered in the cases of Ashish Ranjan (supra), State of Kerala vs. T. P. Roshna, (1979) 1 SCC 572, Medical Council of India vs. State of Karnataka (1998) 6 SCC 131, Dr. Preeti Shrivastava vs. State of M.P. and others, (1999) 7 SCC 120, State of Punjab vs. Dayanand Medical College, (2001) 8 SCC 664, State of M.P. and others vs. Gopal D. Tirthani and others, (2003) 7 SCC 83, Medical Council of India vs. Madhu Singh and others, (2002) 7 SCC 258, Mridul Dhar and another vs. Union of India and others, (2005) 2 SCC 65, Royal Medical Trust (Regd) and another vs. Union of India, (2015) 10 SCC 19, D. Y. Patil Medical College vs. Medical Council of India and another, (2015) 10 SCC 51 and Poonaiyah Ramajayam 22 W.P No.14687/2017 & Bunch Institute of Science & Technology Trust vs. Medical Council of India and another, (2015) 10 SCC
83.
48. The learned Senior Counsel for the MCI, by taking this Court through para-62 of the return filed by the MCI and para-6 of the decision rendered in the case of Mridul Dhar and another (2) vs. Union of India and others, (2005) 2 SCC 87, submits that a candidate who has been granted admission in any college in India, cannot thereafter be permitted to cancel or withdraw admission and obtain admission in some other college. The learned Senior Counsel for the MCI submits that the petitioner Pranshu Agrawal in W.P No.15735/2017 had initially obtained admission in Telangana, however after the order passed by this Court on 24.8.2017, he got his admission cancelled and tried to obtain admission in M.P and on being unsuccessful has filed the present petition before this Court. It is submitted that in view of the law laid down by the Supreme Court in the case of Mridul Dhar (2) (supra) which has subsequently been approved in the case of Priya Gupta vs. State of Chattisgarh and others, (2012) 7 SCC 433, the petitioner Pranshu Agrawal is not entitled to any relief.
49. The learned Senior Counsel for the MCI, further, submits that the third round of counseling which is the left-out round in the instant case should have been conducted by the respondent State manually as provided and mandated by the MCI Regulations of 2017 notified on 4.7.2017 by the MCI and that several rounds of mop- up counseling at college level could not have been 23 W.P No.14687/2017 & Bunch permitted to be conducted as the same is contrary to the aforesaid MCI Regulations and the law laid down by the Supreme Court in the case of Modern Dental College and Reasearch Centre vs. State of M.P., (2016) 7 SCC 353 and State of M.P. vs. Jainarayan Chouksey and others, (2016) 9 SCC 412 and the Rules and Regulations governing admissions. It is stated that if at all, only stray vacancy could be filled up by the college, that too from the list of pre-selected 10 candidates notified by the State for each college and vacancy.
50. The learned counsel appearing for the CBSE submits that they have very little role to play in the matter, however, as it is the duty of the counseling committee of the concerned State to verify and scrutinize the documents relating to permanent residence and domicile, therefore, in the year 2017 the CBSE left it open to the States to determine the issue of permanent residence or domicile.
51. However, the fact that information regarding permanent address and State of residence was sought and furnished by the candidate in the NEET form is not denied and infact admitted. The information in that respect has also been placed on record by the State vide Annexure AR-27.
52. Shri Amalpushp Shroti, learned counsel appearing for the RKDF and People's College, by placing reliance on the order dated 5.7.2017 passed by the Supreme Court in the case of Dr. Ashish Ranjan Vs. Union of India, W.P. (C) No.76/2015 and the orders reported in Christian 24 W.P No.14687/2017 & Bunch Medical College, Vellore Association vs. Medical Council of India and others, 2017 (8) SCC 627, as well as on the basis of the Regulation of Graduate Medical Education Amendment, 2017 published in the Gazette of India on 4.7.2017 notifying the revised scheduled for making admission to MBBS and BDS courses that was approved by the Supreme Court in the above mentioned cases, submits that the authorities of the State are entitled to carry out only three rounds of counselling i.e. two rounds of regular online counselling and a third mop- up round which has to be conducted manually.
53. It is submitted that a perusal of the definition contained in Regulation 2 (B) of the Regulations of 2017, makes it abundantly clear that the left-out round prescribed by the Regulations is the same as the mop-up round that has been specified and notified by the MCI in the above mentioned Regulations. Relying upon the aforesaid provisions, it is submitted by the learned counsel that apart from the aforesaid three rounds of counselling, the State is not entitled or authorized to conduct any further round of counselling.
54. It is submitted that the directions issued by the Supreme Court in the second part of paragraph 23.7 in the case of Dar Us Salam (supra), is infact in addition to and apart from the procedure of admission notified by the Regulations published by the MCI. It is submitted that as the process of filling up stray vacancies is controlled and regulated only by the aforesaid directions issued by the Supreme Court and not by the Regulations framed by the MCI or the State, therefore, the State was free to 25 W.P No.14687/2017 & Bunch adopt any procedure or process for filling these vacancies, including ignoring the provisions of Regulations and granting a free hand to the colleges to fill-up the seats vacant in the colleges.
55. The learned counsel for the college however does not dispute the fact that the direction issued by the Supreme Court in case of Dar Us Salam (supra) clearly requires the State to ascertain stray vacancies, if any in a particular college and send a list numbering 1:10 of the vacancies prepared on the basis of merit to that particular college. He also does not dispute the fact that in the instant case, the State published three consolidated lists of a total number of 3746 candidates, which is far in access of the ratio of 1:10 prescribed and laid down by the Supreme Court in the case of Dar Us Salam (supra).
56. The learned counsel for the college submits that in such circumstances, as the State was free to adopt any procedure and permit the college themselves to conduct counselling and grant admission on the stray vacancies in the college concerned, no fault can be found with the procedure adopted by the State, as the procedure for filling-up stray vacancies is not governed by the Rules and Regulations including the regulations providing for giving precedence and first chance to candidates who are permanent residents of the State of M.P.
57. It is submitted that the admissions by People's College in the mop-up round of counselling has been granted strictly in accordance with the merit of the 26 W.P No.14687/2017 & Bunch candidate, who had approached the authorities of the People's College.
58. It is submitted that as far as the allegations of taking huge amount of money against People's college is concerned, the allegations are unsubstantiated and vague and no particular incident has been stated or mentioned in the petition and therefore, the same be ignored.
59. It is submitted that out of petitioners, Adesh Jain, Preeti Singh Parihar and P. Agrawal had approached the People's College but as they have obtained only 429, 429 and 416 marks respectively which are much less than the marks obtained by students who have been granted admissions therefore, they were not granted admissions. It is submitted that in such circumstances, the procedure adopted by the college is in accordance with law and no fault can be found with the same as the admissions to be carried out at the college level were not regulated by the Rules and Regulations.
60. On behalf of the RKDF College, the learned counsel for the respondent submits that 24 admissions were made in the mop-up round of counselling by the college out of which 7 candidates are domicile of M.P.. It is submitted that the marks obtained by the 24 candidates who have been admitted by the RKDF college range from 499 to 423 out of which the first candidate who has obtained 499 marks is a domicile of M.P.
61. It is submitted that in view of the aforesaid facts, it is apparent that the colleges have strictly followed the 27 W.P No.14687/2017 & Bunch directions and mandate of the State Government and granted admissions strictly on the basis of merit to all those candidates who approached the college. It is further stated that as the respondent authorities had clearly and specifically directed the colleges to grant admission strictly on the basis of All India merit and had not directed the colleges to grant preference or priority for admission to the candidates who are permanent residents of M.P and as the respondent colleges have honestly and simply complied with all the directions issued by the State authorities which have been duly approved by the Nodal officer present in the college, therefore, no fault can be found with the admissions made by the colleges.
62. The learned counsel for the R. D. Gardi Medical College submits that two seats were filled up by the R.D. Gardi Medical College in the mop-up round of counselling from the merit list of 10 candidates out of the list of 3746 candidates who had appeared before the college. It is submitted that the name of the 10 candidates was considered in accordance with the merit list that was prepared and two candidates Sonali Gupta and Pooja Kesarwani, who had obtained 544 marks each were granted admission in accordance with merit by the college. It is submitted that out of the 10 candidates that had appeared before the authorities of R. D. Gardi Medical College, 4 candidates namely; Shashank Nayak (2604), Muskan Jaisinghani (1322) Sapna Solanki (7821) and Ratnanjay Sarvate (1648), were permanent residents of M.P. However, as they had obtained less than 544 28 W.P No.14687/2017 & Bunch marks, they were not granted admission. Rest of the arguments of the other colleges have been adopted and reiterated by the learned counsel for the R.D. Gardi Medical College.
63. Shri R. P. Mishra, the learned counsel for the L.N. Medical College submits that 23 students were admitted by them in the mop-up round of counselling who had obtained marks between 536 to 435 out of which 5 students were permanent residents of M.P. who had obtained 535, 452, 450, 445 and 436 marks respectively. He has also adopted and reiterated the arguments made by the other colleges.
64. The learned counsel for the People's College, by placing reliance on para-42.1 in the case of Nidhi Kaim vs. State of M.P. and others, (2016) 7 SCC 615, submits that the students who have been granted admissions in the mop-up round have not been made the respondents in the petitions and, therefore, the petitions be dismissed.
65. Shri R. N. Singh, the learned Senior Counsel for the Index and Amaltas Medical Colleges, apart from reiterating the stand taken by the learned counsel for the People's College, submits that the petitions as far as they are concerned deserves to be dismissed on account of the fact that none of the petitioners have stated on affidavit as to in which college they seek to obtain admission or in which college they had in fact gone for obtaining admission but were denied. It is further submitted that the last date for making admissions are 29 W.P No.14687/2017 & Bunch over and, therefore, the relief of granting admission sought by the petitioners deserves to be rejected. The learned Senior Counsel submits that the entire procedure for granting admissions is conducted in accordance with the directions issued by the DME and the authorities of the State and that the DME had also appointed nodal officers who were present in the private colleges when the mop-up round of counselling was conducted by the colleges and, therefore, no fault can be found with the admissions made by the colleges. It is stated that vague and general allegations regarding taking an amount of Rs.80 to 90 lakhs by the colleges made by the petitioners are false and totally unsubstantiated and are emphatically denied.
66. The learned Senior Counsel submits that the contention of the petitioners that no domicile candidates were called in the mop-up round of counselling is incorrect as inasmuch as 942 domicile candidates were included in the list of 3746 candidates that was circulated for making admissions in the mop-up round of counselling, however the domicile candidates could not obtain admission as they were much below in the merit list in comparison with non-domicile candidates.
67. The learned Senior Counsel submits that as many as 27 candidates had appeared before the Index Medical College seeking admission out of which a total of 18 candidates have been granted admission. It is pointed out that as many as 9 candidates out of the 18 are candidates who are permanent residents of M.P.. However, he does not dispute the fact that the names of most of the students granted admission by the Index 30 W.P No.14687/2017 & Bunch Medical College did not appear in the list of 3746 candidates published by the State or that the name of 5 candidates out of the 18 candidates who have been granted admission by the Index Medical College does not appear in the list of 27 candidates had appeared before the Index Medical College seeking admission in the mop- up round.
68. The learned Senior Counsel submits that as far as Amaltas Medical College is concerned, 36 candidates appeared seeking admission before the college out of which 29 candidates were permanent residents of M.P. It is stated that out of the aforesaid candidates, 18 candidates were granted admission by the Amaltas College out of which 13 candidates are permanent resident of M.P. while 5 candidates are non-domicile of M.P. He however does not dispute the fact that the names of most of the candidates who have been granted admission by Amaltas Medical College did not find mention in the list of 3746 candidates mentioned by the State.
69. The learned Senior Counsel for the Index and Amaltas Medical College submits that several seats were lying vacant in the colleges and several candidates who were permanent residents of M.P. and domicile of M.P. and had obtained more than 50 percentile marks in the NEET Examination were available and desirous to obtain admission but in view of the arbitrary action on the part of the State authorities, their names were not included in the list of 3746 candidates though they being domiciles 31 W.P No.14687/2017 & Bunch of M.P were eligible and that in such circumstances the college has granted them admission.
70. The learned Senior Counsel submits that as far as 18 and 15 admissions made by the Index and Amaltas Medical College in the mop-up round of counselling is concerned, their admissions were cancelled by the DME by order dated 14.9.2017 which was challenged by the aforesaid 33 students before the Indore Bench of this Court which were dismissed against which they have filed an SLP before the Supreme Court which is pending and in which an interim order has been granted.
71. He, however, fairly states that the issue raised by the aforesaid 31 petitioners before the Supreme Court relates to cancellation of admission on account of non- inclusion of their names in the list of 3746 candidates but does not relate to the validity of the procedure followed by the State in the left-out round and the mop- up round of counselling which is under scrutiny in the present bunch of petitions and, therefore, there is no impediment in examining the issue involved in the present petition inspite of the SLP pending before the Supreme Court and both the issues are different.
72. The learned Senior Counsel reiterates that while the DME had the power to change the procedure of counselling however the schedule of counselling notified on 8.9.2017 was unworkable and has led to the present litigation. The learned Senior Counsel, by taking this Court through the counselling schedule declared by the DME on 8.9.2017 that has been placed before this Court at Page-26 of the synopsis with affidavit filed by the 32 W.P No.14687/2017 & Bunch State, submits that the Director Medical Education while notifying the mop-up round has not directed the college concerned to follow the same procedure as has been followed in the regular round of counselling. It is submitted that in such circumstances, the admissions granted by the private colleges are in accordance with law and does not call for any interference and therefore, the petitions filed by the petitioners, being meritless, deserve to be dismissed.
73. Similar stand and reply to the allegations made by the petitioners has been made by Shri Shashank Verma, learned counsel appearing for Sri Aurbindo Institute of Medical Science and Shri Ajay Gupta, learned counsel for Chirayu Medical College.
74. Shri Shashank Verma, learned counsel for the respondents, in addition, submits that the petitioner Priyanshu Agrawal in W.P. No.15735/2017 and Ku. Prachi of W.P.No.15638/2017 which relates to Sri Aurobindo College were infact disqualified from obtaining admissions in the mop-up round on account of the fact that Shri Priyanshu Agrawal had already obtained admission in Telangana and Ku. Prachi had obtained admission in the BDS course in Hitkarini Dental College, Jabalpur and therefore, were not entitled to be considered for admission in the mop-up round of counselling on account of which their names were not included in the list of 3746 candidates. It is stated that only one seat was vacant in Sri Aurobindo Institute, for being filled-up in the mop-up round of counselling which was ultimately allotted to one Shri Vijay Sharma who had obtained 545 marks in the NEET Examination and was 33 W.P No.14687/2017 & Bunch the most meritorious candidate who approached Sri Aurobindo College for obtaining admission. It is submitted that as the admission in the mop-up round of counselling was granted by the College strictly in accordance with the directions and instructions issued by the State Government, in accordance with merit, in the presence of the Nodal Officer of the State and as the Nodal Officer has clearly not given any report in respect of any illegality, no fault can be found with the admissions granted by the College. He submits that as the admissions were made on merit, the question of demand of any money from the student concerned for granting admission does not arise.
75. Shri Verma, however, relying on paragraph-4 of the scheme for conducting counselling, notified by the Commissioner, Medical Education, which has been filed by the State on page-28 alongwith the synopsis with affidavit, that the State was infact required to conduct the left-out round of counselling manually and was also mandatorily required to ensure that the 163 seats allotted in the left-out round of counselling, were allotted to the candidates only after they had deposited the entire annual fees alongwith all the original documents. It is submitted that had the State Government followed the rules and conducted the left-out round of counselling in accordance with the mandate of paragraph-4 of the scheme of counselling, 94 seats would not have fallen vacant thereafter and the various issues that are involved and have been raised in the present petition, would not have arisen. It is submitted that the entire 34 W.P No.14687/2017 & Bunch problem has come up on account of the fact that the State failed to follow its own Rules and Regulations.
76. Shri Ajay Gupta, learned counsel appearing for the Chirayu Medical College, in addition to the submissions already made by the other counsel for the private medical colleges, submits that only three seats were available in the Chirayu Medical College for being filled up in the mop-up round of counselling. It is stated that Adesh Jain petitioner in W.P. No.15635/2017 in which Chirayu Medical College is a respondent, had approached their college for obtaining admission. He, however, states that out of the list of 3746 candidates published by the State, only 10 eligible candidates had approached Chirayu Medical College and two additional candidates whose names were not reflected in the list, had also approached them. It is stated that out of the 10 eligible candidates, Shri Ayushi Dalal, Shri Sajal Gupta and Ku. Kashmi Bhatanni, who were the most meritorious candidates having obtained 498, 451 and 448 marks respectively, were granted admission.
77. It is stated that all the aforesaid three candidates are non-domiciles. It is further stated that apart from Adesh Jain, the petitioner in W.P. No.15635/2017, who has obtained 429 marks, three other domicile candidates, namely Ashita Agrawal and Ishita Singhai, both of whom had obtained 446 marks and Yashika Sahu who had obtained 425 marks, had also approached Chirayu Medical College, however, all these domicile candidates were not granted admission as more meritorious non-domicile candidates were available, who had to be granted admission in view of the directions of 35 W.P No.14687/2017 & Bunch the authorities of the State regarding making admissions strictly in accordance with merit.
78. It is stated that the colleges have no role to play in either granting admissions to non-domicile candidates or denying admissions to domicile candidates, as they were simply directed by the State authorities to grant admissions on merit to the candidates whose names were shown in the list of 3746 candidates published by the State on merits. He submits that the Nodal Officer of the State, who was present during admissions has not made any complaint in respect of the admissions made by Chirayu Medical College and has also emphatically and categorically denied the allegation regarding demand of high amounts of money. In view of the factual details given by him in the preceding paragraphs.
79. The learned counsel for the petitioners in reply submits that practically all his allegations regarding irregularities in the left-out and mop-up round of counselling are established in view of the facts stated by the respondents in the affidavits filed by the State. In addition, he submits that the information furnished by the DME which has been placed before this Court on Page-52 of the synopsis with affidavit filed by the State and the reply to the query made by the Advocate General given by the Commissioner, Medical Education which has been placed before this Court as Annexure A- 29 on page-27 of the synopsis with affidavit, specifically the answer given by the authority to Question-B, it is apparent that the DME had clearly informed and directed the colleges to follow the same procedure in the mop-up round of counselling as was followed in the previous 36 W.P No.14687/2017 & Bunch rounds of counselling and, therefore, the contention of the learned counsel for the respondents that no procedure was prescribed to be followed in the mop-up round of counselling is factually incorrect.
80. It is further submitted that the authorities while publishing the list of 3476 candidates for the mop-up round, excluded the names of all domicile candidates, who had already been granted admissions in BDS and other courses, like Vatsala Shukla, Shubham Tiwari, Aditya Shrivastava, Sheikh Israr and Ritik Nayak, who are the petitioners in W.P. No.14836/2017 and Pranshu Agrawal, petitioner in W.P. No.15735/2017 as well as the other candidates who had either been granted admissions in BDS courses or allotted seats in other colleges but had either abandoned or resigned from the same or had not given any preference for admission in private medical colleges in their NEET Form. However, while these criteria were applied for excluding domicile candidates of Madhya Pradesh from the list of 3476 candidates, they were not applied by the authorities of the State in respect of non-domicile candidates and several non-domicile candidates who had either already been admitted in medical college in other States or had been allotted colleges in other States or those who had not given preference for any of the private colleges in M.P were included therein and have ultimately been granted admission. It is submitted that the respondents in the return have not given any information as to the fact that the students who had been granted admission in the private medical colleges in the mop-up round of counselling had in fact given preference for admission in 37 W.P No.14687/2017 & Bunch these private colleges in the NEET form though the petitioners and others have been excluded from the list or denied admission on this ground alone.
81. The learned counsel for the petitioners, on the basis of the information furnished by the State, submits that out of the total 94 seats put up for admission in the mop-up round of counselling, only 10 candidates who were eligible for being considered and have been granted admission as per Regulation 6 of the Regulations of 2017 being permanent resident of the State of M.P. while all the remaining 84 admissions are of students who were not entitled to be considered for admission till the list of domicile candidates which was 5296 available with the State was not exhausted.
82. The learned counsel for the parties have informed that out of the 94 admissions made in the mop-up round of counselling, 33 admissions made by the Index and Amaltas Medical Colleges were cancelled by the DME by order dated 14.9.2017 on account of the fact that their names were not included in the list of 3746 candidates which is the subject matter of SLP pending before the Supreme Court and that 24 admissions out of these 94 were made in the RKDF Medical College.
83. We propose to first deal with the objections raised by the learned counsel for the respondent College that the petitions filed by the petitioners deserve to be dismissed for non-joinder of necessary parties as the petitioners have not impleaded those candidates and students who have been granted admission in the mop- up round of counselling. From a perusal of the petitions, 38 W.P No.14687/2017 & Bunch filed by the petitioners, it is apparent that they have challenged the procedure and manner in which the left- out round and mop-up round of counselling was conducted by the State on the ground that the aforesaid round of counselling stand vitiated due to the fact that the authorities of the State have acted dehors the provisions of the law and have in fact violated the provisions of law. The issue being considered by this Court in the present bunch of petitions is, therefore, the legality and validity of the procedure and manner in which the left out round and mop-up round of counselling has been conducted by the State. It is also apparent from the stand taken by all the colleges that the entire mop-up round of counselling and the admissions granted thereunder to non-domicile candidates by the private colleges has been conducted in accordance with the directions issued by the authorities of the State in the presence of the nodal officers appointed by the State. The private colleges in their return submitted before this Court have also admitted the fact that they have granted admissions to non-domicile candidates and have denied admissions to domicile candidates only on account of the fact that they were directed by the authorities of the State to grant admission only to those candidates whose names had been published in the list of 3746 candidates strictly in accordance with merit and no stipulation or direction was issued to give priority or preference to domicile candidates or to follow the rules and regulations and that in accordance with the directions of the authorities of the State, the colleges have granted admissions to non-domicile candidates ignoring the claim 39 W.P No.14687/2017 & Bunch of domicile candidates only on account of the fact that out of the candidates who had approached the respective colleges, the non-domicile candidates were more meritorious. Details in this regard have also been placed by the College like Amaltas, Chirayu and other medical colleges before this Court.
84. From the synopsis with the affidavit filed by the State and the averments regarding the report submitted by the nodal officers who were present in the college concerned and in view of the response to the query which has been filed alongwith the synopsis with affidavit, it is apparent that none of the nodal officers present in the college have given any report or filed any complaint to the effect that domicile candidates were either thrown out by employing bouncers or that though they were entitled to admission in accordance with merit, they were denied the same by accepting huge amount of money from non-domicile candidates.
85. In fact in the said synopsis with affidavit, the State has clearly stated that as per the report of the nodal officers, no illegality regarding acceptance of huge amount of money or of denying admissions to domicile candidates was observed or committed by any of the colleges and, therefore, in the absence of any other material before us, no finding against any non-domicile candidates or any institution regarding admission or exchange of huge amount of money or of employing bouncers to throw out domicile candidates can be recorded by this Court in the present petitions specifically in view of the total absence of any detailed 40 W.P No.14687/2017 & Bunch allegations being made by the petitioners by naming students, authorities or colleges, etc.
86. In such circumstances, as we are only examining allegations regarding violation of the rules and regulations and the legality and validity of the left out round and mop-up round of counselling conducted by the State and are neither examining or recording any finding against any individual student and as even if noticed, the candidates granted admission in the mop- up round of counselling would have nothing to say in support or otherwise of the action of the authorities of the State or for the purposes of justifying the allegations of illegality against the authorities of the State which allegations can only be denied and negatived by the authorities of the State, we are of the considered opinion that the admitted candidates are not necessary parties for the purposes of examining the legality and validity of the allegations of violation of the legal provisions made by the State while conducting the left out and mop-up round of counselling.
87. We find support for this conclusion recorded by us from the judgment in the case of Nidhi Kaim (supra) in para 42.2 that has been relied upon by the learned counsel for the respondent People's Medical College and RKDF Medical College.
88. Before we advert to the allegations in the petitions as well as the undisputed and admitted facts that have been brought on record, we think it appropriate to examine the provisions of Rules and Regulations governing admissions.
41 W.P No.14687/2017 &Bunch
89. As stated earlier, the State of M.P. vide Gazette notification dated 7.7.2017 has published the Regulations of 2017 framed under section 13 of the Act of 2007. Regulation 2 ( V) defines counselling to mean the process and procedure for granting admissions on merit to eligible candidates conducted by the State Government; Regulation 2(B) defines a registered candidate to mean duly registered eligible candidate for counselling; and Regulation 2 ( M ) defines left out seats to mean the seats remaining vacant for whatever reason after the last round of State level counselling is over.
90. Regulation 3(3) cautions all candidates and lays down that in case any information submitted by the candidate in his application form is found to be incorrect or it is found that the candidate has suppressed and not disclosed any relevant information, his admission would be liable to be cancelled and he would also be open to penal consequences.
91. Regulation 3(5) lays down that the information/option given by a candidate in the NEET application form regarding permanent residence or domicile shall be treated as final and unchangeable. By Gazette Notification dated 11.7.2017 a proviso has been inserted in Regulation 3(5) to the effect that in case information regarding permanent residence or domicile has not been given in the application form, the candidate concerned would have to give information regarding 42 W.P No.14687/2017 & Bunch permanent residence or domicile during the State level counselling.
92. Regulation 3(6) provides that the process of counselling shall be carried out by the office of the Commissioner, Medical Education.
93. Regulation 6, which deals with the eligibility of candidates, mandates that preference and priority shall be granted on unreserved seats to permanent residents of M.P. in private medical colleges and that allotment of seats to registered candidates who are from outside the State of M.P. shall be granted only in case seats in the unreserved category remain vacant after the list of candidates who are permanent residents of the State of M.P. or domicile of M.P., is exhausted. Regulation 6(6) prescribes the eligibility as well as the disqualification for participating in the left out round.
94. Regulation 9 of the Regulations provides that the counselling committee and the process and procedure of counselling would be such as has been prescribed in Rule 9 of the M.P. Swashashi Chikitsa Tatha Dant Chikitsa Mahavidyalaya Snatak Pravesh Niyam, 2017 hereinafter referred to as 'the Rules of 2017). Regulation 10(2) provides for constituting an admission committee at the college level for the purposes of scrutinizing the documents and eligibility of a candidate who has been allotted that college in the State level counselling; and Regulation 10(4) lays down that a candidate who does not obtain admission by the last date prescribed or has abandoned the seat allotted to him by submitting an 43 W.P No.14687/2017 & Bunch application to that effect, would be disqualified from participating in the next round of counselling or the left out round of counselling and the allotment made in his favour shall be treated as cancelled.
95. Clause/para-4 of the procedure of counselling, as prescribed in exercise of powers under Rule 9 of the Rules of 2017, clearly mandates that a candidate shall be allotted the seat in the left out round only in case the candidate deposits the entire annual fees alongwith all original documents at the place of counselling which clearly indicates that the counselling for the left out round has to be conducted manually.
96. At this stage we may also take note of certain orders and directions issued by the Supreme Court regarding the time schedule and the manner of conducting the mop-up round of counselling.
97. In the case of Dr. Ashish Ranjan and others vs. Union of India and Others, 2016 (11) SCC 225, the Supreme Court approved the time schedule for completion of the admission process for the first MBBS Course in accordance with which only two rounds of counselling were to be conducted and the last date upto which a student could be admitted was prescribed as 31 st August. The order passed by the Supreme Court in the aforesaid case was directed to be sent to the Chief Secretary of all the States so as to ensure that all stakeholders follow the schedule in letter and spirit and do not make any deviation whatsoever.
44 W.P No.14687/2017 &Bunch
98. In the order of the Supreme Court reported in the case of Dar-Us-Salam Educational Trust and others vs. Medical Council of India and others (2017) 8 SCC 627, the Supreme Court on the basis of the modified admission schedule prescribed in the regulations for admission published by the M.C.I by Gazette notification dated 4.7.2017 and after accepting and approving the same issued the following directions:-
23.2. Common counselling for State quota seats in government as well as private medical colleges including colleges/institutions run by religious and linguistic minorities affiliated to State Universities shall be conducted by the State Government or the authority designated by the State Government. The notification issued by the State Government intimating the students about the common counselling must specify that at the time of counselling the students belonging to minority community will be required to furnish the necessary proof regarding their minority status and submit in writing about their willingness to take admission in the minority college/institution concerned.
23.3. As per the judgment of this Hon'ble Court in Ashish Ranjan v. Union of India [Ashish Ranjan v. Union of India(2016) 11 SCC 225] , there shall be only two rounds of common counselling each conducted by the DGHS/State Government or authority designated by the State Government for all-India quota (including deemed university) and State quota seats respectively.
23.4 & 23.5 xxx xxx xxx 45 W.P No.14687/2017 & Bunch 23.6. The students who secure admission in MBBS course pursuant to the common counselling conducted by the State Government, at the time of common counselling itself, should be made to deposit with the Admission/Counselling Committee the demand draft towards the fees payable to the institution/colleges/university. The Admission/ Counselling Committee shall forthwith forward the demand draft to the respective institution/colleges/university. The necessity for including the abovementioned requirement has arisen as it has been time and again noticed that when students report to the college after the counselling they are refused admission by the colleges on some pretext or the other and it is shown by the college as if the student never reported to the college for admission. If the demand draft is deposited by the Admission/Counselling Committee then there would be no scope for colleges to refuse admission to any student.
23.7. In order to ascertain the number of seats that still remain vacant after the counselling the State Government or the authority designated by the State Government shall conduct manual counselling for allotment of students. After the completion of counselling, the State Government shall determine the number of seats that are still vacant and thereafter shall forward a list of students in order of merit, equalling to ten times the number of vacant seats to the medical college so that in case of any stray vacancy arising in any 46 W.P No.14687/2017 & Bunch college the said seat may be filled up from the said list.
23.8 to 23.10 xxx xxx xxx
24. Needless to say, this arrangement will not apply to the States of Andhra Pradesh, Telangana and Jammu & Kashmir. As far as the other States are concerned, needless to say, this arrangement shall apply to all the colleges unless this Court has passed any different or separate order. Let the matter be listed on 13-9-2017."
99. In the case of Dr. Ashish Ranjan and others vs. Union of India and others, W.P.(C) 76/2015, the Supreme Court subsequently passed another order on 05.07.2017 again approving the modified schedule for counselling for the year 2017 as notified by the M.C.I prescribing the third round of counseling called the mop- up round of counselling to be conducted by the State, which was to be conducted between 26 to 28 th of August, 2017 and while doing so the Supreme Court extended the time for admission in the following terms:-
"Regard being had to the aforesaid, we allow the payer in terms of the table and the note appended thereto. Be it clarified, we have passed this order keeping in view the interdiction made by the Madurai Bench of Madras High Court, which has been ultimately stayed by this Court vide order dated 12th June 2017. The Medical Council of India is granted liberty to circulate this order to the State Government and the Union Territories. As the present scenario depicts a different 47 W.P No.14687/2017 & Bunch situation, we are compelled to extend the time for medical admission. Time is also extended for admission in B.D.S courses till 10 th September 2017."
100. From a perusal of clause/paragraph-4 of the procedure for counselling notified by the State as well as the scheme notified by the MCI and paragraphs 23.6 and 23.7 of the judgment of the Supreme Court, two round of common counselling and thereafter a third round of manual counselling to be conducted by the State has been prescribed and it has further been directed that in all rounds of counselling the student who is allotted a college should be made to deposit with the admission counselling committee the Demand Draft towards fees payable to the institution/ college/ university, then and there itself, as such a procedure would obliterate and prevent the possibility of genuine students who have been allotted a particular college, from being refused admission by the private college on some pretext or the other including the pretext of not reporting to the college for admission.
101. It is further clear that the seats that remain vacant after the first two rounds of counselling, have to be allotted by conducting manual counselling by the authorities of the State and it is only after such manual counselling is over and any stray vacancy arises in any college that the same may be filled up by the medical college concerned strictly from the select list of students equaling to 10 times the number of vacant seats forwarded, identified and notified by the State.
48 W.P No.14687/2017 &Bunch
102. In these bunch of petitions, the petitioners have placed heavy reliance on the provisions of Regulation 6 of the Regulations of 2017, to emphasis the prior and first statutory right of the candidates who are permanent residents of the State of Madhya Pradesh for obtaining admissions in the MBBS and BDS courses and on that basis have also challenged the act of the respondent authorities in publishing a list of 3746 candidates containing names of non-residents and non-domicile candidates on the basis of which, it is alleged that the rightful statutory claim of permanent residents of Madhya Pradesh have been violated and denied. In the circumstances, we think it necessary to take into consideration the necessary background facts leading to insertion of Regulation 6 in the Regulations of 2017.
103. Prior to the decision of the Supreme Court rendered in the case of Modern Dental (supra) and Jainarayana Chouksey (supra), wherein the constitutional validity of the provisions of the Act of 2007 and the rules framed thereunder was upheld by the Supreme Court and during the period admissions in private medical and dental colleges was being made by the Association of Private Medical and Dental Colleges (APDMC), the State had amended the regulations relating to admission in private medical colleges and permitted admissions in MBBS and BDS courses in the State of Madhya Pradesh to non- domicile candidates by throwing open all the seats in the general category to be filled up by candidates from outside the State of M.P. As all the States in the country, except the State of Madhya Pradesh, have specific 49 W.P No.14687/2017 & Bunch provisions in their Rules and Regulations reserving all the seats in private medical colleges for candidates belonging to the respective States and as the State of Madhya Pradesh was the only one in the entire country, which had thrown open these seats to candidates of other States without there being any reciprocity or level playing field for the students of Madhya Pradesh in this regard, this Court in the case of Ku. Rudrika Pushpraj Bhatele and others vs. The State of M.P. and others and connected matters, 2017 (1) MPLJ 472, held the regulation of the State relating to private Medical Colleges to be unconstitutional and violative of Article 14 of the Constitution of India by following the law laid down by the Supreme Court in the case of Dinesh Kumar and Others vs. Motilal Nehru Medical College, Allahabad and others, (1986) 3 SCC 727 and Dr. Jagadish Saran and others vs. Union of India (1980) 2 SCC 768 and others. As informed to this Court, an SLP against the said order of this Court has been filed before the Supreme Court, which is pending adjudication, wherein the Supreme Court has not granted any stay of the order of this Court.
104. It is in the backdrop of the aforesaid legal provisions that the State introduced Regulation 6 in the Regulations of 2017 statutorily providing for giving priority and first claim for admission to permanent residents and domiciles of Madhya Pradesh and thereafter, permitting non-domicile candidates to take admission only in case the list of permanent residents and domiciles candidates of Madhya Pradesh has been exhausted.
50 W.P No.14687/2017 &Bunch
105. It is mainly in the backdrop of the aforesaid legal history and Regulation 6 of the Regulations of 2017 as it stands today, that the petitioners have assailed the present procedure and manner of granting admissions that have been adopted by the State, specifically contending that the State has done so only to circumvent and nullify the provisions of Regulation 6 and to deny the rightful statutory claim of permanent residents of M.P. to obtain admission.
106. We think it appropriate to address yet another contention of the State and the counsel for the respondents in this regard, at this stage itself. The State in its several affidavits has stated that while they strictly followed and adhered to Regulation 6 upto the left-out round of counselling and granted admissions only to permanent residents and domiciles of Madhya Pradesh, however, with a view to complete admissions in the short time available and in view of the use of the word "Merit" by the Supreme Court in the second part of paragraph 23.7 in the case of Dar Us Salam (supra), the State issued a consolidated merit list published by the NEET on all India basis including non-domicile candidates for the purposes of granting admissions in the mop-up round. It is submitted that in exercise of powers under Regulation 9, the DME has the power to publish the manner and procedure of conducting counselling and in exercise of the same, the authorities of the State published the schedule and procedure of counselling in the mop-up round on 8.9.2017 which has been filed on page-52 of the synopsis with affidavit filed by the State, providing 51 W.P No.14687/2017 & Bunch for filing up seats in the mop-up round by the colleges on the basis of the all India merit list.
107. We are of the considered opinion that this contention of the respondent State as well as the private medical colleges is absolutely misconceived and is in total derogation of the Regulations of 2017.
108. As stated above, the Regulations of 2017 are statutory in nature having been framed by the State in exercise of powers under section 13 of the Adhiniyam of 2007. As detailed earlier, Regulations 3, 3(5), 6 and 9 are therefore strictly required to be followed by the State.
109. Regulation 9 of the Regulations of 2017, provides that the counselling committee and the procedure of counselling would be the same as notified under Rule 9 of the Rules of 2017. A perusal of Rule 9 of the Rules of 2017, which have been filed by the State alongwith their affidavit as Annexure A-4 makes it absolutely clear that the composition of the counseling committee has been statutorily prescribed therein and comprises of as many as 10 members of which the Commissioner Medical Education is the President/Chairman. The Rule further prescribes that as per the recommendation of this 10 member committee, the Commissioner Medical Education shall determine the counselling procedure.
110. In the instant case, the counselling procedure was duly formulated on the recommendation of the aforesaid committee and notified by the Commissioner, Medical Education, a copy of which has been filed by the State 52 W.P No.14687/2017 & Bunch alongwith their synopsis with affidavit as Annexure A-7. At the same time, Rule 9 of the Rules of 2017 provides that the schedule of counselling and other necessary instructions relating to counselling shall be published from time to time by the Director Medical Education.
111. Apparently, the power conferred upon the Director Medical Education to declare the schedule and programme of counselling and to issue necessary directions in that regard is a separate and distinct power which does not encroach upon, override or erode the power of the counselling committee or the Commissioner, Medical Education to determine the procedure of counselling which has to be determined on the basis of the recommendation of the counselling committee and, therefore, the DME has no power to nullify or modify the counselling scheme notified by the Commissioner Medical Education on the recommendations of the counselling committee on his own in exercise of his limited powers to declare the counselling schedule and ancillary matters.
112. It is also clear and apparent from a perusal of the provisions of Rule 9 of the Rules of 2017 and Regulation 9 of the Regulations of 2017 that the limited power to prescribe the procedure of counselling conferred on the Director Medical Education to declare the schedule and place of counselling and to issue ancillary instructions does not empower the DME to issue any direction or order contrary to or in derogation of any other provisions of the statutory regulations of 2017 including regulation- 3, 3(5) or Regulation 6 of the Regulations of 2017 or to 53 W.P No.14687/2017 & Bunch issue any instruction that would result in rendering them otiose or redundant.
113. To state it clearly, we are of the considered opinion that the power of the Director Medical Education to declare the schedule and place of counselling and to issue ancillary directions does not include within its purview any power to issue an order which is in derogation of Regulations 3, 3(5), 6 or any other regulations of the Regulations of 2017.
114. Having perused the record and the documents filed by the parties, we are also of the considered opinion that the reasons given by the State for deviating from the procedure prescribed in paragraph-4 of the scheme of counselling, which provides for and mandates that the left-out round of counselling should be conducted manually and the directions issued by the Supreme Court in paragraph 23.6 and 23.7 in the case of Dar Us Salam (supra) wherein directions for conducting manual left-out round of counselling have been issued, are not genuine and false, and therefore, cannot be accepted.
115. We are constrained to arrive at the aforesaid conclusion in view of the fact that the tentative time schedule for State level combined online counselling for NEET Under Graduate-2017, which was published by the Director Medical Education on 12.7.2017 vide Annexure A-8 that has been filed by the respondents alongwith their first affidavit, clearly provided that the first, second and the left-out round of counselling would all be conducted online. The schedule for the left-out round which was to be conducted from 26.8.2017 to 29.8.2017, 54 W.P No.14687/2017 & Bunch clearly shows that the candidate has to first go in for choice filling and choice locking, whereafter allotment processing and publishing of result would be undertaken.
116. As is evident from the facts on record, this schedule for conducting first, second and left-out round of counselling online was published well before the order passed by this Court on 24.8.2017 and the order passed by the Supreme Court dated 29.8.2017 in SLP (C) No.22438-22439/2017 Annexure A-13, whereafter the State was required to take up denovo counselling and complete the same within 10 days.
117. This undisputed and admitted fact makes is abundantly clear that the authorities of the State intended to conduct the left-out round of counselling online and not manually from the very beginning and even when they had sufficient time to complete the counselling and, therefore, the contention of the authorities of the State that they were compelled to change the mode of left-out round of counselling from manual to online because of the paucity of time is apparently false and incorrect as they intended to and had always intended to conduct the left-out round of counselling online contrary to the mandate of the MCI Regulations, the Regulations of 2017 and the directions of the Supreme Court.
118. The fact that the authorities of the State had already decided to conduct the mop-up round/left-out round of counselling online and not manually after the 55 W.P No.14687/2017 & Bunch second round of full fledged common counselling was over, is also evident from the letter dated 12.7.2017 filed by the respondent alongwith the return filed in W.P. No.15735/2017 at Page-77 as Annexure R/21 written by the Principal Secretary of the Public Health Welfare, Medical Education and Bhopal Gas Tragedy Relief and Rehabilitation Department. A perusal of this letter clearly indicates that as far back as on 12.7.2017 itself i.e. well before the order passed by this Court 24.8.2017, which was affirmed by the Supreme Court on 28.8.2017 and pursuant to which the authorities of the State were required to undertake the process of counselling afresh, the authorities of the State had already decided to conduct the left out round and mop-up round of counselling online and not manually contrary to the provisions of the Regulations and scheme and that they were fully aware of the fact that several seats would remain vacant in the left-out round and that the process of permitting the private colleges to conduct counselling at the college level and grant admission to the students thereafter would lead to all the malpractices and illegalities which subsequently occurred and which have been raised by the petitioners in the present petitions. This letter dated 12.7.2017 which clearly discloses the mind of the authorities of the State and also establishes their firm intention not to conduct a manual left-out round of counselling and to conduct the same online being relevant for the purposes of the issues raised in the present petitions, is reproduced below:-
"Subject: Counselling for admission in UG Courses in Medical Colleges as per Supreme Court 56 W.P No.14687/2017 & Bunch Writ Petition (s) (Civil) No(s) 267/2017 decision dated 9-5-2017 para - 7.
Dear Arun, May like to refer to F.No.V.1101/1/2015-MEP dated 26-5-2017 which directed the state governments to conduct up mop-up round of counselling and provide list of students in order of merit to medical colleges for further filing of any vacant seats till the last date of admission. These instructions were taken out as per directions issued as an interim measure in W.P.(c) No.267 /2017/ DAR-
US-SLAM EDUCATIONAL TRUST vs Medical Council of India and other by the Hon'ble Supreme Court.
It is to bring your notice that the process of providing list of students in order of merit to private medical colleges for filling of any vacancy will lead to a situation where the eligible candidates would be harassed in the admission process and non meritorious candidates will get an opportunity of admission.
Normally the private colleges will not have more than one or two days for filing stray vacancies after the two rounds of common and the mop-up round of common counselling by the State, in the case some list of students as per merit is provided to them. Since, there would be no common counselling, the admission can not be on the basis of merit as students would not know which college to report for admission. Hence, the discretion available to the medical college in this process may lead to harassment of candidates. Demand of higher fees 57 W.P No.14687/2017 & Bunch and such other malpractices may become common in the admission given by the colleges in the mode.
Also, the Hon'ble Courts' direction to mandatorily conduct an 'MANUAL/ OFF LINE' mop- up round needs to be reviewed online choice filling leads to a transparent and quick allocation of seats. 'MANUAL/ OFFLINE' mode should only be used where it is not possible to use online mode. Hence the direction of mandatorily use 'off line' mode should be made 'enabling'.
In view of the above, it is kindly requested that the appropriate should be directed to approach the Supreme Court immediately to review its directions issued as interim measure for the upcoming counselling based on NEET UG 2017 on the following to the account:-
1. Mop-up rounds after the second round of full fledged common counselling should be held by the State/designated authority by the State, to ensure admission on all vacant seats. The direction to provide list of students as per merit to the colleges for filling of vacancies be revised accordingly.
2. The mandatory conditions of Manual/Offline mop up round be withdrawn and 'offline' condition be made 'enabling'.
Thank you.
Sd/-
(Gauri Singh) 58 W.P No.14687/2017 & Bunch
119. It is also apparent from the return of the State that in response to the aforesaid letter issued by the Principal Secretary to the Joint Secretary, Government of India, Ministry of Health and Family Welfare, the Joint Secretary responded by issuing letter dated 21.7.2017 directing the authorities of the State not to deviate from the process prescribed and to conduct manual round of counselling inspite of which the authorities persisted in conducting the left out round of counselling online. A copy of this letter dated 21.7.2017 has been filed by the respondents alongwith their return.
120. In view of the aforesaid facts and documents which have been placed on record by the State itself, we are of the considered opinion that the excuse and the reasons given by the State for conducting online left-out round of counselling, namely that they had deviated from the procedure prescribed under law and the regulations on account of paucity of time, is apparently false and cannot be accepted as the State as far back as on 12.7.2017 itself had already decided to conduct the left- out and mop-up round of counselling online and not manually.
121. We may at this stage observe that this the most important and significant aspect of the present case as it is this default and illegality on the part of the State which has led to filing of this entire bunch of petitions.
122. We are compelled to make this observation on account of the fact that had the State conducted the left round of counselling in accordance with the Regulations 59 W.P No.14687/2017 & Bunch of 2017, para-4 of the counselling scheme, the MCI Regulations and the directions issued by the Supreme Court contained in paras 23.6 & 23.7 in the case of Dar Us Salam (supra) and had ensured that only those candidates were allotted the 163 seats available in the left out round of counselling who had deposited their annual fees and original documents at the time of counselling itself, meaning thereby that they were genuine candidates truly interested in obtaining admissions on the available seats, all the 163 seats would have been successfully filled up in the left out round of counselling itself and no further counselling or other steps would have been required to be taken.
123. However, as the authorities of the State failed to comply with their own Rules and Regulations, the MCI Regulations and the directions of the Supreme Court and allotted 163 seats online in the left out round, bogus candidates got an opportunity to block the seats as a result of which 94 seats were declared vacant 15 to 20 minutes after the close of counselling and publication of the final list on account of which the subsequent exercise was required to be undertaken thereby delaying and prolonging the process of admission.
124. The respondent State, in their various affidavits, has stated that they thereafter conducted the mop up round of counselling to fill up the 94 vacant seats by treating them as stray vacancies in terms of the directions contained in para-23.7 in the case of Dar Us Salam (supra).
60 W.P No.14687/2017 &Bunch
125. We are of the considered opinion that this contention of the respondents is apparently misconceived, firstly, on account of the fact that 94 vacant seats could not by any stretch of imagination, be treated as stray vacancies nor could the authorities of the State have abandoned and alienated their inalienable responsibility and powers to the private colleges for conductiong the mop up round of counselling for filling up these 94 seats.
126. If such an explanation or contention of the respondents is accepted, it may lead to serious consequences in future inasmuch as bogus candidates could block seats in the regular round of counselling and thereafter abandon them in huge numbers and the State would thereafter offer all these vacant seats to the private medical college concerned for being filled up by the colleges on their own dehors the provisions of the Rules and the Regulations. If such a course of action is permitted to be followed, it would vitiate the sanctity of the entire process of admissions and would make the Rules and Regulations redundant and meaningless.
127. Such a contention on the part of the State can neither be accepted nor is a situation of this kind contemplated, permitted or envisaged by the statutory provisions of the Act of 2007, the Regulations of 2017, The MCI Regulations or the series of judgment of the Supreme Court including the decisions in the cases of Modern Dental College (supra) Jainarayan Chouksey (supra), Ashish Ranjan (supra) and Dar Us Salam (supra).
61 W.P No.14687/2017 &Bunch
128. We are also of the considered opinion that all admissions, whether on stray vacancies or otherwise, made in the private medical colleges are governed by the Act of 2007 and the Regulations of 2017 and, therefore, the contention of the respondents that Regulation 3(5), 6 & 7 of the Regulations of 2017, providing for granting priority to domicile candidates and conducting manual counselling and preparing a list of 1:10 candidates in accordance with Regulations for the stray vacancies, would not apply to the mop up round of counselling and the exercise of filling up stray vacancies is out of the perview of the Act and the Regulations and is solely governed by the orders of the Supreme Court contained in para-23.7 in the case of Dar Us Salam (supra) and not by the Regulation of 2017, as there is no observations in the said paragraph to follow the Rules and Regulations, and, therefore, the authorities rightly adopted a separate and distinct procedure for filling up stray vacancies not prescribed by the Regulations of 2017, cannot be accepted and deserves to be outrightly rejected.
129. It is pertinent to note that while making all these submissions the respondents have totally overlooked the fact that this Court, by order dated 24.8.2017 passed in W.P No.12601/2017 has already directed the State to make all admissions in private colleges strictly in accordance with Regulation 3(5) the Regulations of 2017, by preparing a list of domiciles of M.P. and granting them preference, which direction having been approved by the Supreme Court has attained finality. Once such directions relating to the 2017 admissions itself have 62 W.P No.14687/2017 & Bunch already been issued by the Supreme and this Court, the State as well as the Colleges are bound by them and cannot be permitted to deviate from the same on any pretext. The contention to the contrary of the respondents being contrary to the order passed by this Court on 24.8.2017 in W.P No.12601/2017 are hereby rejected and merit no consideration.
130. In view of the aforesaid statutory provisions and the orders of this Court, the contention to the contrary made by the learned Dy. Advocate General and the private medical colleges to the effect that admissions in the mop-up round of counselling on the 94 vacancies that arose after the left-out round could be made dehors the statutory Regulations of 2017 relating to eligibility and priority prescribed therein by adopting any procedure prescribed or adopted by the DME and the colleges, is absolutely incorrect, contrary to law and is hereby rejected.
131. On examining the facts of the present case in the light of the aforesaid provisions of law, it is apparent that:-
(a) In accordance with the provision of Regulation 3(1) and 3(5), the option and information regarding permanent residence given by a candidate in the application form filled up at the time of appearing in the NEET examination shall be treated as final and binding on the candidate concerned and that in case at any time thereafter any information given in the form is found to be incorrect or some necessary information has been 63 W.P No.14687/2017 & Bunch suppressed, the admission granted to the candidate is liable to be cancelled apart from the penal consequences that may ensue on account of giving incorrect information or suppressing information.
(b) In accordance with the provisions of regulation 3 (5) the information regarding permanent resident, address and state of residence given by a candidate in the NEET form has to be treated as final and binding on the candidate.
(c) That only in case information regarding permanent residence or domicile is not furnished in the application form on account of the fact that it has not been sought for, the candidate can give information regarding permanent residence or domicile before the counselling committee at the time of the State level counselling.
(d). In accordance with the provisions of regulation 6, priority and first chance for obtaining admission on unreserved seats in private colleges has to be given by the State to candidates who are permanent residents or domicile of the State of M.P. and it is only in the eventuality that no permanent resident or domicile candidate is available that the seats can be filled up from eligible candidates who are not permanent residents or domicile of the State of M.P.
(e) That the MCI Regulations, the Regulations of the State and the judgment of the Supreme Court provide for conducting only two round of regular State level counselling.64 W.P No.14687/2017 &
Bunch
(f) That in case seats remain vacant after the second round of common counselling, a manual left out round of counselling has to be conducted by the State authorities and that seats in such a manual counselling can be allotted to candidates only after he deposits the entire annual fees alongwith his original documents at the time of counselling itself as prescribed under Clause/paragraph-4 of the procedure for counselling notified by the State and as laid down by the Supreme Court in the case of Daru-Us-Salam (supra) in para 23.6 and 23.7.
(g) That in case after the aforesaid manual round of counselling has been completed, stray vacancies arise in a college, the same shall be determined by the State and thereafter the State shall forward a select-list of students in order of merit prepared in accordance with the Act of 2017, the MCI Regulations and the Regulations of 2017, equaling ten times the number of vacant seats, to the medical college concerned so that the stray vacancies in that college may be filled up from the said list.
(h) That in view of the order passed by this Court on 24.8.2017 in W.P No.12601/2017 and the order of the Supreme Court confirming the same, the State was required to grant admissions strictly in accordance with Regulation 3(5) & 6 of the Regulations of 2017 granting priority and first chance of admission to candidates who are permanent residents of M.P., which order and 65 W.P No.14687/2017 & Bunch directions has apparently been ignored and not followed by the respondents in the mop-up round and the process of filling up stray vacancies.
(i) That when the facts of the present case that have been brought on record by the three affidavits filed by the State, are examined in the light of and in juxta-position with the provisions of law, it is apparent that the authorities of the State at the time of conducting the common round of counselling, ignored the information and option given by the candidate regarding permanent residence and domicile in the NEET form as prescribed by the Regulation 3(5) and started considering cases of candidates for allotment of M.B.B.S and B.D.S. seats on the basis of the information given by the candidate at the time of counselling by invoking the proviso inserted under Regulation 3(5) on account of which, this Court was required to pass a detailed order on 24.08.2017 directing the State to conduct a counselling strictly in accordance with the Rules and Regulations framed by the State which direction was affirmed and confirmed by the Supreme Court.
(j) That pursuant to the aforesaid directions of this Court which was affirmed by the Supreme Court, the State started conducting denovo counselling and successfully conducted the first and second round of counselling in accordance with the provisions of the Rules and in respect of which there is no complaint or grievance raised by anybody before this Court.
66 W.P No.14687/2017 &Bunch
(k) That thereafter the State conducted a left-out round of counselling for 163 seats on 09.09.2017, however, while doing so, contrary to the mandate of the Regulations and the directions issued by the Supreme Court, the State conducted this counselling online instead of conducting manual counselling.
(l) That, in this left-out round of counselling for 163 seats, the authorities of the State and the Counselling Committee totally ignored the mandate of Clause/Paragraph-4 of the procedure for counselling notified by them or the directions issued by the Supreme Court in paragraph-6 in the case of Dar-Us-Salam (supra) by not requiring the candidates to either deposit both the annual fee and their original documents before granting allotments of the seats, as a result of which, bogus candidates blocked 94 seats during the left-out round of counselling that were declared vacant 15 to 20 minutes after the final publication of the list thereby resulting in a situation where instead of stray vacancies 94 seats remained vacant for allotment.
(m) That thereafter, contrary to law and instead of determining the number of vacant seats in each college, the State proceeded to conduct a mop-up round of college level counselling by issuing a schedule on 5.9.2017 and 8.9.2017 and for that purpose published a consolidated list on the basis of All India merit of 940 candidates having obtained marks between 685 and 509 in the NEET 67 W.P No.14687/2017 & Bunch Examination and circulated the same to all the Colleges for conducting the mop-up round of counselling and granting admissions on their own.
(n) That while doing so, the State again violated the orders of this Court dated 24.8.2017 and its own notification dated 08.09.2017 issued by the DME directing the authorities to follow the same procedure as followed in the previous rounds as well as Regulation 6 of the Regulations of 2017 which provides for granting first right and priority to candidates who are permanent resident and domicile of the State of Madhya Pradesh by not preparing a separate list of permanent residents of M.P. and others and directing the colleges to first exhaust that list before considering the cases of non-domicile candidates specially as a readymade list of 5297 eligible domicile candidates had already been prepared and was available with the authorities as stated by them in the synopsis with affidavit filed before this Court. No logical or acceptable reason for not acting upon the same has been placed before this Court.
(o) For reasons best known to the State, while ignoring the provisions of Regulations 3(5) & 6 of the Regulations of 2017, the State blatantly ignored and violated the orders and directions issued by this Court on 24.8.2017 in this very bunch of petitions, namely; W.P No.12601/2017, which have been affirmed and confirmed by the Supreme Court, wherein the State has been directed to grant admissions strictly in accordance with Regulation 68 W.P No.14687/2017 & Bunch 3(5) by granting priority and first right of admission to permanent residents and domiciles of M.P. As such directions had already been issued and were within full knowledge to the authorities and as the authorities were strictly bound to comply with the same, the action of the authorities in not following the Regulations and ignoring the rights of the permanent residents of M.P. is patently illegal and is in blatant violation of the directions of the Supreme Court and this Court and need to be viewed seriously.
(p) That in conducting this fourth round of college level mop-up round of counselling the State violated the MCI regulations, the Regulations of 2017 as well as the orders of the Supreme Court where under only two regular and one mop-up round of counselling is permissible. It is pertinent to note that while the MCI regulations provide for a manual mop-up round of counselling and does not contain any provision for a left out round of counselling the regulations of 2017 provides for a manual left out round of counselling and does not provide for a mop-up round of counselling and the State in the present case has gone ahead and conducted both an online left out and a college level mop-up round of counselling.
(q) That the State totally misinterpreted and wrongly applied the mandate of the regulations and the directions of the Supreme Court by combining the mop-up round of counselling with the exercise required to be taken for filling up stray vacancies 69 W.P No.14687/2017 & Bunch and thereby permitted and allowed the private colleges to conduct counselling and grant admissions on their own.
(r) That the State has totally overlooked the fact that the large number of 94 seats that remained vacant in the colleges could not and cannot be treated as "stray vacancies" that may arise after the counselling is complete as contemplated by the Supreme Court in para 23.7 in the case of Dar Us Salam (supra) specially in view of the fact that the counselling was not complete and the mop-up round was going to be held and, therefore, the entire exercise undertaken by the State under this misconception is unsustainable.
(s) Because of this mis-interpretation of the directions of the Supreme Court contained in para 23.7 in the case of Dar Us Salam (supra), the State has admittedly conducted a mop-up round of counselling for filling up stray vacancies, as stated in the affidavit filed before this Court, whereas in fact the State was itself required to conduct the mop-up round of counselling by notifying the schedule and place thereof and by doing so has abnegated and abjured its powers of conducting counselling in favour of the private medical colleges thereby permitting them to conduct the same although the private medical colleges have no power to conduct any kind of counselling or grant admissions on their own.
(t) It is also luminously clear from a perusal of the regulations of the MCI and the regulations of 70 W.P No.14687/2017 & Bunch 2017, which are statutory that the DME has no power or authority to issue any notification or prescribe any procedure for counselling which violates or is in contravention of the regulations and therefore, the provisions of regulations of the State and MCI and the Supreme Court directions to conduct a manual mop-up round by the State and regulations 6 of the Regulations of 2017 could not have been nullified or ignored and were mandatorily required to be complied with by the State and in not doing so it has committed gross illegality which has sullied and vitiated the process of counselling.
(u) That as only 12 seats were filled up by the Colleges from the this list of 940 students, the State, totally ignoring the law and without any authority or any legal sanction again issued a list of 940 students having obtained marks between 448 and 422 and when objections were raised by those candidates who had obtained marks between 509 and 448, the authorities of the State compounded the illegality by publishing and circulating a list of 3746 candidates to all private colleges for conducting counselling and granting admissions on the vacant seats.
(v) That the State in its affidavit has clearly stated and asserted that those candidates who are permanent residents of Madhya Pradesh and who had either been allotted a college and had not joined the same or had been granted admission in any course, and had not opted for upgradation and those students who had not given their willingness 71 W.P No.14687/2017 & Bunch in writing to participate in the left-out round and mop-up round of counselling, were excluded from the list of 3746 candidates, as they were disqualified for being included in the same in terms of Regulations of 2017 and the scheme of counselling. At the same time, the State has also admitted before this Court that this exercise of exclusion of candidates who were permanent residents of Madhya Pradesh, was not conducted by them in respect of non-domicile candidates whose names were blindly included in the list of 3746 candidates on the basis of all India merit and that it is for this reason that most of the non-domicile students did not appear before any of the colleges for obtaining admission as they had already obtained admissions in their respective States and were therefore, not desirous of obtaining admission in private colleges in Madhya Pradesh.
(w) These admitted facts clearly establish that those non-domiciles candidates who had already obtained admission in other colleges in the country outside the State of Madhya Pradesh and were disqualified for being considered for admission in any other college in the country, in view of the law laid down by the Supreme Court in the case of Mridul Dhar (2) (supra) were given a second opportunity by the authorities of the State to obtain admission in the private medical colleges in Madhya Pradesh while the same was denied to the candidates who are permanent residents of Madhya Pradesh thereby subjecting them to discrimination 72 W.P No.14687/2017 & Bunch and violating their fundamental rights under Article 14 of the Constitution of India.
(x) That this list of 3746 candidates also included the 940 candidates whose list had been published at the first instance and had become exhausted on account of the fact that only 12 students from the said list of 940 candidates took admission.
(y) That, admittedly contrary to the directions issued by the Supreme Court in
paragraph 23.7 in the case of Dar-Us-Salam (supra), the State circulated a list of 3746 candidates which was far in excess of the 1:10 ration mandated by the Supreme Court.
(z) The act of the state in conducting repeated mop-up rounds of counselling and
permitting the colleges to take up an unending exercise to grant admissions on their own, is in absolute contravention of the rules, regulation and the orders of the Supreme Court.
(aa) It is also clear that circulating and permitting the colleges to grant admissions to candidates apart from those mentioned in the first list of 940 candidates is contrary to the directions and orders of the Supreme Court issued in para 23.7 in the case of Dar-Us-Salam (Supra) (ab) Apparently, the State totally abdicated its powers to conduct the mop-up round of counselling, allot colleges and grant admissions to the private colleges which is contrary to the law laid down by the Supreme Court in the case of Modern Dental 73 W.P No.14687/2017 & Bunch College (supra) and Jainarayan Chouksey (supra) as well as the MCI and State Regulations.
(ac) That the State permitted the Colleges concerned to conduct three or more mop-up rounds of counselling on the basis of three lists notified by the State, whereas admittedly there is no provision to conduct more than two regular and one manual round of counselling, that to by the State, nor is there any provision in the Regulations permitting the State to conduct unlimited rounds of counseling or permitting such a counselling to be conducted at College level. In fact, college level counselling has specifically and clearly been prohibited by the judgments of the Supreme Court rendered in the case of Modern Dental Colleges & Research Centre (supra) and Jaiarayan Chouksey (supra).
(ad) That on account of the aforesaid haphazard, unregulated, uncontrolled and illegal procedure adopted by the State and the private medical colleges, the candidates who are permanent residents of the State of Madhya Pradesh or domicile of the State of M.P. and who had a prior statutory right to admission under the Regulations of 2017 as well as under the orders of this Court dated 24.8.2017 passed in W.P No.12601/2017 were denied admission while those students from the State of Bihar, Rajashtan, U.P., etc., who were not entitled to be considered, have been granted admissions.
74 W.P No.14687/2017 &Bunch (ae) The facts that have been placed on record by the Amaltas Medical College, Index Medical College and L.N. Medical Colleges, indicate that these colleges while conducting counselling and granting admission, also violated the principle of merit while granting admission to those students who had appeared before them in as much as the list of documents indicate that some candidates who had obtained more marks than the last candidate granted admission by them, were ignored and not granted admission.
(af) It is also clearly established, on the basis of the submissions and documents produced by the Private Medical Colleges, that more than sufficient number of candidates who are permanent resident of M.P. were available for filling up 94 vacancies but were denied admission in view of the illegal procedure and violation of Regulation 6 of the Regulations of 2017, made by the State in publishing the combined list of domicile and non- domicile candidates as a result of which they where denied admission being lower in merit than non- domicile candidates. It is, therefore, apparent that had the State followed Regulation 6 of the Regulations of 2017, these candidates who are permanent residents of M.P. and who had a statutory prior and first right to claim admission, would have got admission and, therefore, the illegality committed by the respondent authorities has resulted in denial of admissions to such candidates which is contrary to law.
75 W.P No.14687/2017 &Bunch (ag) That the aforesaid procedure adopted by the State and the Colleges, is apparently illegal and contrary to the procedure prescribed by the MCI Regulations, the State Regulations and the orders of the Supreme Court and has directly resulted in depriving eligible candidates who are permanent residents of M.P. from obtaining admission in the MBBS and BDS courses and in granting admissions to non-domiciles who were not entitled to be considered for admission in view of the clear stipulation contained in Regulation 6 of 2017.
(ah) That the fact that there was a gap of only about 3 to 4 hours between the left-out round of counselling and the mop-up round of counselling conducted by the colleges, inspite of which candidates from Rajasthan, Bihar, U.P., Gujarat and other States of the country appeared before the colleges within this short period of time and were granted admissions strongly indicates that they had prior intimation and information in this regard and lends credence to the allegations of the petitioners and does not rule out the possibility of pre-planning, for whatever object, on the part of the authorities and the private medical colleges for granting admissions to non-domicile students who were able to satisfy their financial demands.
(ai) At the ground level the following
illegalities occurred:-
(i) States abnegated, abjured and
repudiated its responsibility of verifying stray
vacancies in each college, conducting counselling 76 W.P No.14687/2017 & Bunch and sending a separate merit list of 1:10 candidates to each college of permanent residents of M.P., on the basis of their choice, for being given precedence and priority for admissions and preparing and sending a separate list of non- domiciles to be considered thereafter, if so required, as prescribed by the Regulations to be acted upon only if 1:10 domicile candidates were not available.
(ii) Violation and breach of the statutory regulations as well as the clear directions of this Court dated 24.8.2017 and the Supreme Court affirming the same.
(iii) because a consolidated list of 3746 candidates was published, the candidates did not know as to which college were they required to approach where they would get admission on merits.
(iv) Publication of such a huge list from which admissions had to be made within three hours led to chaos and eligible candidates, except those who were pre-informed, could not reach the colleges or obtain admissions.
(v) The act of the authorities resulted in a free hand and free for all situation permitting colleges to prepare their own merit list, conduct counselling and grant admissions on their whims and fancies which is totally impermissible in law as well as in violation of the directions issued in the case of Dar Us Salam (supra).
77 W.P No.14687/2017 &Bunch
(vi) The sanctity of the selection process stood totally destroyed.
132. From the analysis of the aforementioned provisions of law and the facts as available in the present case, it is apparent that the State while conducting the left out round and the mop-up round has violated the following provisions of law:-
(a) Regulation 9 of the Regulations of 2017, paragraph 4 of the scheme for counselling and the directions issued in paragraph 23.6 in the case of Dar Us Salam (supra) by not conducting a manual left out round of counselling.
(b) Regulation 6 of the Regulations of 2017, in not providing priority and first right of admission to the residents of the State of M.P and the domicile candidates.
(c) Regulation 6 of the Regulations of 2017 by not preparing a separate select list on the basis of merit for permanent residence and domicile of Madhya Pradesh and non-domiciles of M.P.
(d) The Regulations framed by the MCI as well as the Regulation of 2017 in conducting both, a left out round as well as a mop up round of counselling apart from the two regular rounds of counselling.
(e) The clear and binding directions and orders issued by this Court on 24.8.2017 that have been duly reaffirmed by the Supreme Court in SLP No.22438-22439/2017 on 29.8.2017.
(f) The directions issued by the Supreme Court in paragraph 23.7 in the case of Dar Us 78 W.P No.14687/2017 & Bunch Salam (supra) by treating 94 vacancies as stray vacancies and thereafter conducting a mop-up round of counselling for filling up these vacancies.
(g) The Regulations of the MCI and the State by clubbing the process of admissions under the mop-up round and stray vacancies.
(h) The directions issued by the Supreme Court in paragraph 23.7 in the case of Dar Us Salam (supra) by publishing a list of 3746 candidates against a vacancy of 94 seats thereby violating the rule of 1:10 enunciated therein.
(i) The MCI and State Regulations by conducting multiple mop-up rounds of counselling.
(j) Continuing to permit private medical colleges to conduct multiple rounds of counselling on their own till the last vacancy was filled up in absolute violation of the MCI regulations and the Regulations of 2017.
133. We are also of the considered opinion that the repeated illegal, uncalled for, unnecessary and unprovoked attempts on the part of the authorities of the State to throw open MBBS/BDS seats reserved for the permanent residents of M.P. for being filled up by the candidates out of the State which is in direct contravention and violation of the orders passed by this Court on 24.8.2017 as well as the direction of the Supreme Court in the present case itself, cannot be appreciated and are necessary to be deprecated. Such repeated violation of law and the orders passed by this Court have justifiably provoked and prompted the petitioners to make serious allegation of malafide and 79 W.P No.14687/2017 & Bunch malpractice against the respondent and have lent credence to the same although we have not recorded any finding in respect of these allegations of malafide and malpractice in the present case on account of the fact that there is absence of proper pleadings or specific allegations made by the petitioners in this regard. We are, however, constrained to record the fact that the action of the authorities of the State cannot be appreciated in view of the abovementioned facts.
134. At this stage, the learned counsel for the petitioners by placing reliance on the decision of the Supreme Court rendered in the case of Priya Gupta vs. State of Chattisgarh and others, (2012) 7 SCC 433, Harshali vs. State Of Maharashtra and others, (2005) 13 SCC 464, Dolly Chhanda vs. Chairman, JEE and others, (2005) 9 SCC 779, and Aman Deep Jaswal vs. State of Punjab and others, (2006) 9 SCC 597, has submitted that as the present petitioners are more meritorious than those who have been granted admissions and have a prior statutory right to admission being permanent residents of M.P., have been wrongly denied their rightful claim for admission in the MBBS course on account of blatant violation of the rule and regulations and, therefore, they should be granted admission in the colleges concerned by cancelling the illegal admissions made by the respondent authorities or to adjust the petitioners in the next academic session, whereas the respondents including the MCI, by placing reliance on the decision of the Supreme Court rendered in the case of Faiza Choudhary vs. State of Jammu and Kashmir and another, (2012) 10 SCC 149, 80 W.P No.14687/2017 & Bunch Chandigarh Administration and another vs. Jasmine Kaur and others, (2014) 10 SCC 521, Krina Ajay Shah and others vs. Secretary, Association of Management of Unaided Private Medical and Dental Colleges, Maharashtra and others, (2016) 1 SCC 666 and S. Krishna Sradha vs. State of Andhra Pradesh and others, (2017) 4 SCC 516, wherein a similar issue has been referred to the Larger Bench, have submitted that now as the cut-off date is over, no relief apart from monetary compensation, if any, can be granted to the petitioners.
135. From a perusal of the judgments cited by both the parties the following principles of law emerge; that it is imperative that the authorities while undertaking the process of admission have to strictly adhere to the principle of merit, comply with the prescribed schedule, refrain from midstream admissions and adopt an admission process that is transparent, non-exploitative and is fair. These are the mandatory requirements that have been laid down by the Supreme Court in the aforesaid judgments.
136. The Supreme Court, in the case of Arvind Kumar Kankane vs. State of U.P. & Others, (2001) 8 SCC 355, and paragraph 43 in the case of Priya Gupta (supra) has also observed that the process of counselling cannot go on continuously for a long period and the resultant chain reaction should be checked. Some seats may have to be left vacant per compulsion but the process of admission should stand the test of rationality.
81 W.P No.14687/2017 &Bunch
137. The Supreme Court in para-33 to 36 in the case of Priya Gupta (supra) has also clearly laid down the law that the Regulations of the MCI are binding and admissions should be made strictly in accordance with the MCI Regulations and the State rules and Regulations governing admissions and admissions made contrary to the same are vitiated.
138. As far as the relief of admission sought by the petitioners is concerned, it is also apparent from the decision of the Supreme Court that the directions given by the Supreme Court while granting admission to students after the cut-off date have been issued in exercise of powers under Article 142 of the Constitution of India, as is evident from para 74 of the judgment in the case of Priya Gupta (supra) as well as the clear observations made by the Supreme Court in paragraph 16 in the case of Faiza Choudhary (supra) wherein the Supreme Court, after considering the various decisions, has clearly held that the directions issued by the Supreme Court granting relief of adjustment in the subsequent years, etc., were issued in view of the mandate contained in Article 142 of the Constitution of India, which cannot be treated as a precedent for the Supreme Court or the High Courts to follow.
139. It is also apparent from a perusal of the decision of the Supreme Court, specially the decisions rendered in the case of Harshali (supra) and Faiza Choudhary (supra) as well as the decision of the Supreme Court in the case of S. Krishna Sradha vs. State of A.P & 82 W.P No.14687/2017 & Bunch Ors, (2017) 4 SCC 516, wherein the issue of grant of relief after the cut-off date has been referred to a Larger Bench, that the Courts may grant relief in rare cases or exceptional circumstances but while doing so the Court must first record a finding that no fault is attributable to the petitioner candidate; that the candidate has pursued his or her rights and legal remedies expeditiously without any delay and that there is a fault on the part of the authorities and apparent breach of some rules, regulations and principles in the process of selection or grant of admission.
140. In the instant case, it is necessary to take into consideration and keep in mind the fact that in the present petitions two reliefs have been sought by the petitioners, firstly cancellation of the admissions made by the authorities on the 94 seats in the left-out and mop up round of counselling on account of the established violation and breach of the provisions of law and, secondly; consequential directions for conducting recounselling, granting admission or compensation to the petitioners and imposing costs and penalty on the respondents for the illegalities committed by them.
141. As far as the first aspect is concerned, in view of the clear finding recorded by us, it is apparent that the process of admission adopted by the respondents in conducting the mop up round and the process adopted by them for conducting the left out round resulting in leaving 94 vacancies and denying the right to permanent residents of M.P. and domicile candidates, is in violation and in apparent breach of the provisions of 83 W.P No.14687/2017 & Bunch the rules and regulations as well as the orders of this Court and the Supreme Court and is, therefore, vitiated and deserves to be cancelled as the present case falls within the category of exceptional cases delineated by the Supreme Court in the above referred cases.
142. In view of the apparent violation of law and the illegality of the procedure adopted by the authorities while making admissions, the contention of the respondents that they should not be cancelled as the students granted admissions were not at fault and on account of the lapse of time as also on the ground that the seats would go waste if not directed to be filled up by this Court, cannot be accepted as that would result in overlooking clearly established breach and violation of statutory provisions thereby compounding an illegality on account of a technicality and would result in failure of justice and eroding the faith of the petitioners in the justice delivery system who have wrongly and illegally been denied their statutory right by illegal means.
143. We are also of the considered opinion that in case such illegal admissions are allowed to stand inspite of recording a clear finding of breach and violation of the provisions of law, it would be misinterpreted as a condonation of such glaring illegalities and encourage the wrong doers to perpetuate them in future as well as in the belief that the Courts tend to accept and ignore them on account of lapse of time.
84 W.P No.14687/2017 &Bunch
144. As far as the relief regarding grant of admission and other consequential reliefs are concerned, it is observed that Aadish Jain, petitioner in W.P No.15635/2017, Ku. Akansha Agnihotri and Yash Pratap Ahuja the petitioners in W.P No.14836/2017, had obtained more than 422 marks and though their names were included in the list of 3746 candidates, they have been denied admission by the authorities on the ground that more meritorious non- domicile candidates were available. As far as Sheikh Israr, Vikas Rathor and Ritwik Nayak, the petitioners in W.P No.14836/2017, is concerned, their claim for admission was denied on account of the fact that the authorities did not follow and comply with Regulation 6 of the Regulations of 2017, and the counselling scheme by giving them prior and first right of admission being permanent residents of M.P. and for that purpose preparing a separate list. As far as the remaining petitioners are concerned, the respondent authorities have filed documents Annexure AR-26 to contend that they were disqualified for being considered under the Regulations of 2017 and the counselling scheme on account of the fact that they had either obtained admission in BDS and other courses or after allotment, had not obtained admission or had not opted for admission in the private medical colleges. Pranshu Agrawal, the petitioner in W.P No.15735/2017 and all the others who were disqualified from appearing in the subsequent counselling in view of the Regulations of 2017 and the counselling scheme, have claimed right to admission on the basis of parity with similarly disqualified non-domicile candidates who were included 85 W.P No.14687/2017 & Bunch in the list of 3746 candidates inspite of such disqualification. The petitioners have submitted before this Court that in such circumstances the authorities be directed to grant admission to the petitioners or to adjust them in the subsequent session or to conduct recounselling by strictly following the provisions of Regulation 3(5), 6 & 9 of the Regulations of 2017, and the counselling scheme inspite of the lapse of the cut off dates, this being an exceptional case and to award heavy compensation to the petitioners as well as impose penalty upon the authorities for the illegalities committed by them.
145.Having considered all the aspects pragmatically and the powers of this Court in terms of the Supreme Court judgments normally, this Court would have been severely restricted in its powers to consider or grant the same in view of the series of decisions of the Supreme Court cited before this Court, however it is observed and pointed out by both the parties appearing before this Court and is also evident from I.A. No. 18611/2017 that have been filed by the State seeking a direction to permit them to accommodate 150 students of R.K.D.F. Medical College who have been directed to be adjusted in various Medical Colleges in the State of the M.P. by the Supreme Court and I.A. No. 1236/2017 which is an application for intervention filed by the students of R.K.D.F. Medical College in W.P. No.14687/2017, that similar and overlapping issues already are pending adjudication before the Supreme Court in WP (S) Civil No.1001/2017 & 1047/2017.
86 W.P No.14687/2017 &Bunch
146. It is also worth noting that an SLP filed by the 31 students of Index and Amaltas College against the judgment of the Indore Bench of this Court dismissing the petition is also pending adjudication before the Supreme Court and the order cancelling the admission has been stayed therein. The learned counsel appearing for the Amaltas and Index Medical Colleges submits that more than 50% of the aforesaid 33 students are domicile candidates who have obtained less than 422 marks but were granted admission on account of the fact that they were domiciles. It is submitted that had the authorities of the State published the already available list of 5297 domicile candidates available with them for the purposes of granting admission in the mop up round and in the stray vacancies, those domicile students who have been granted admission by the Amaltas and Index Medical College would have automatically been able to obtain admissions as the last domicile candidate available for seeking admission had obtained much less marks than
422.
147. It is submitted that the aforesaid issues are still open and are under consideration before the Supreme Court in SLP No.1049/2017, W.P (C) No.1001/2017, 1047/2017, SLP (C) No.26486/2017, 1051/2017, W.P (C) No.1047/2017, 1108/2017 and SLP (C) No.26656/2017, and therefore the issue of grant of relief either by way of recounselling, admission, compensation or penalty to the present petitioners as well as to the other students who are before the Supreme Court may be left open for being 87 W.P No.14687/2017 & Bunch considered by the Supreme Court in the aforesaid petitions.
148. We find considerable force in the aforesaid submissions and, therefore, while the process of admission carried out by the respondent authorities in the left out round that resulted in leaving 94 seats vacant and the mop up round, to the extent it has resulted in granting admissions to non-domicile and out- of-state candidates by denying the prior statutory right of residence of M.P. to seek and obtain admission as provided under the rules and regulations, being in apparent breach and violation of law, is hereby directed to be cancelled to that extent, while saving and not disturbing the admissions granted to candidates who are permanent residents of M.P. and as far as the other reliefs are concerned, the State as well as the students in the present case, if so advised, are permitted to place the decision of this Court in the present bunch of petitions before the Supreme Court in WP (S) Civil No.1049/2017 W.P (C) No.1001/2017, 1047/2017, 1108/2017, SLP (C) No.26486/2017, 1051/2017 and 26656/2017 pending before it or to take up appropriate proceeding, before the Supreme Court, so that the issue of the further relief, either of admission, adjustment, recounselling, compensation and penalty that may or can be granted to the petitioners after the cut-off date, may be considered and decided alongwith those matters wherein the grant of relief to the students in the admission process of 2017 is already pending consideration. It is also clarified that the order cancelling admissions shall not apply to those candidates and 88 W.P No.14687/2017 & Bunch students whose matters are already pending before the Supreme Court in the aforesaid or any other Special Leave Petitions wherein any interim order has been passed and would be subject to the decision and orders in that regard, issued by the Supreme Court.
149. The petitions, filed by the petitioners, are accordingly partly allowed to the extent indicated hereinabove and stand disposed of with the aforesaid directions.
(R. S. JHA) (RAJEEV KUMAR DUBEY) JUDGE JUDGE mms/- Digitally signed by MONSI M SIMON Date: 2018.03.26 10:52:51 +05'30'