Punjab-Haryana High Court
Desh Bhagat Dental College And Ors. vs State Of Punjab Through Its Principal ... on 20 January, 2003
Equivalent citations: (2004)136PLR166
Bench: J.S. Khehar, Ashutosh Mohunta
ORDER V.K. Bali and Kiran Anand Lal, JJ. 1. (20th January, 2003) - The impugned advertisement, Annexure P-8, has been issued pursuant to the orders dated 13.12.2002 passed by this Court in Civil Writ Petition No. 14832 of 2002. The primary grievance of the petitioners herein is that they were not party to the writ petition aforesaid and the matter in fact stand covered by the decision of the Hon'ble Supreme Court in (2000) 8 S.C.C. 481 TMA Pai Foundation and Ors. v. State of Karnataka and Ors.. 2. After having heard the matter, we are of the view that it will be in the fitness of things that if the matter is placed before the Division Bench which passed the orders in Civil Writ Petition No. 14832 of 2002. Let the needful be done after obtaining permission of Hon'ble the Chief Justice. 3. At this stage, Mr. Mattewal, learned Senior Advocate further states that Hon'ble the Chief Justice is not holding the court today and so is the position with regard to Hon'ble Mr. Justice G.S. Singhvi, the first Pusine Judge. He further states that the matter is urgent and any delay in the matter would render the writ petition infructuous. List the matter for hearing on 21.1.2003 before the Hon'ble Division Bench which passed the order in writ petition aforesaid. ORDER Binod Kumar Roy, C.J.
1. Let this writ petition be placed before a three Judges F.B. comprising Myself, J.S. Khehar & A. Mohunta J.J. JUDGMENT OF THE FULL BENCH JUDGEMENT J.S. Khehar, J.
(12th November, 2003)
1. The instant writ petition was ordinally filed by three colleges, namely, the Desh Bhagat Dental College and Hospital, Muktsar, the National Dental College, Dera Bassi and the Guru Nanak Dev Dental college and Research Institute, Sunam. At the time of final hearing, learned counsel for the petitioners made a statement that petitioner Nos.2 and 3, namely, the National Dental College, Dera Bassi and the Guru Nanak Dev Dental college and Research Institute, Sunam were no longer interested to press the claim raised by them in the instant writ petition. In view of the statement made by learned counsel representing the petitioners the instant writ petition so far as it relates to petitioners Nos.2 and 3, is dismissed as not pressed. The only surviving petitioner, therefore, is the Desh Bhagat Dental College and Hospital, Muktsar, (hereinafter referred to as the petitioner-college).
2. The averments made in the writ petition reveal that the petitioner-college made admissions on its own to the first year Bachelor of Dental Surgery (BDS) Course (from 9.12.2002 to 26.12.2002), for the academic session 2002-03, whereby it filled up all the sanctioned seats allotted to it. The Baba Farid University of Health Science (hereinafter referred to as the Medical University) issued a public notice in the Tribune dated 9.1.2003 informing all concerned parties (institutions and candidates) that counselling for admission to the first year BDS course, for the academic session 2002-03, would be conducted from 22.1.2003 to 24.1.2003 in terms of the directions issued by this Court in Civil Writ Petition No. 14832 of 2002, decided on 13.12.2002 (Hemlata and Ors. v. State of Punjab and Ors.. In the aforesaid public notice, the Medical University clarified that the fresh process of counselling for admission to the BDS Course would also be in respect of admissions to the petitioner-college. Since the petitioner-college had finalised the process of admission against all the sanctioned seats in December, 2002 i.e. well before the issuance of the public notice dated 9.1.2003, the action of the Medical University in convening a fresh process of counseling for the seats already filled up by the petitioner-college was not acceptable to it. The petitioner-college has therefore, impugned the public notice issued in the Tribune dated 9.1.2003 by filing the instant writ petition.
3. Before adverting to the controversy in hand, it would be necessary to briefly delineate the reasons which compelled the Medical University to issue the impugned public notice dated 9.1.2003. Admissions to courses conducted by Medical/Dental Colleges, located in the State of Punjab are regulated by, the Medical University. For finalising admissions to the academic session 2002-2003, the Medical University issued a prospectus, expressing the terms and conditions for admission to the Bachelor of Medicine and Bachelor of Surgery (MBBS), Bachelor of Dental Surgery (BDS), Bachelor of Ayurvedic System of Medicine and Surgery (BAMS) and Bachelor of Homeopathic System of Medicine and Surgery (BHMS) courses. A perusal of the prospectus reveals that admissions, under reference were to be made to the Medial University, in terms of the Government of Punjab, Department of Medical, Education and Research (Health-III Branch) notification dated 10.5.2002, on the basis of marks obtained by candidates in the Punjab Medical Entrance Test-2002 (hereinafter referred to as the PMET-2002). The prospectus stipulates that the Medical University would prepare a list of successful candidates in order of merit, for allotment to different courses/institutions. In obedience to the aforesaid prescribed conditions, the Medical University prepare a merit list of candidates based on the PMET-2002 and commenced the process of counselling for allocating students on the basis of their merit for admission to recognised dental institutions in the State. While finalising admissions, the Medical University excluded from the zone of consideration some candidates who ranked higher in the merit but had not indicated BDS as one of their preference while filling up Item No. 15 of the application form while it granted admission to candidates though lower in the merit list who had indicated BDS as one of their preference. Item No. 15 of the application from is being extracted hereunder:-
"15. Preference of Courses/Institutions Course Name (MBBS/BAMS/BHMS/INSTITUTE NAME
1. _______________________________________________
2. _______________________________________________
3. _______________________________________________ Some of the students who were denied admission on account of the fact that they had not mentioned BDS as one of their preference while filling up Item No. 15 of the application form despite their higher merit position, approached this Court by filing Civil Writ Petition No. 14832 of 2002 (Hemlata and Ors. v. State of Ors.). While interpreting Item No. 15 of the application form, this Court arrived at the conclusion that candidates were merely required to disclose their superior choice/their priority/their preference for one or more courses/institutions, out of the choices available and by doing so they did not express an option so as to make a choice in favour of one to the exclusion of the other/others. A Division Bench of this Court in Hemlata's case (supra) arrived at the conclusion that the action of the Medical University in excluding from consideration such of the candidates, who had not expressed a preference in favour of the BDS Course while filling up Item No. 15 of the application from was not justified. Accordingly, the Medical University was directed to reconvene the process of counselling so as to consider the claim of the petitioners therein, and others, to the BDS course afresh on the basis of their ranking/marks in the PMET-2002. The Impugned Public notice was, therefore, issued in the Tribune dated 9.1.2003 by the Medical University so as to comply with the directions issued by this Court in Hemlata's case (supra).
4. In order to appreciate the submissions advanced on behalf of the petitioner, it is necessary to notice a few facts in addition to the facts leading to the issuance of the impugned public notice, referred to above. The petitioner-college got its third year renewal for conducting the BDS Course from the Government of India, Ministry of Health and Family Welfare, after the Dental Counsel of India made recommendation in favour of the petitioner on 1.10.2002. On the grant of the aforesaid renewal, petitioner-college addressed a communication dated 8 10.2002 to the Registrar of the Medical University requesting him to include the petitioner-college in the process of counselling/admission to the first year BDS course. Though another communication dated 18.10.2002, the petitioner-college requested the Registrar of the Medical-University to allocate first years BDS students to it out of the waiting list or in the alternative to grant permission to the petitioner-college to admit students at its own level, on merit basis. Through yet another communication dated 25.10.2002, the petitioner-college sought permission from the State Government to admit students to the first year BDS course.
5. In response to the request made by the petitioner-College to the State government, the Department of Medical Education and Research (Health-III Branch), Punjab addressed a communication to the Registrar of the Medical University dated 14.11.2002, wherein it conveyed to the, Medical University the decision of the Government to grant permission to the petitioner-College to admit students to the first year BDS course, as per norms and regulations laid down by the Dental Council of India (a copy of the aforesaid communication was also endorsed to the petitioner-College). In supersession of the communication dated 14.11.2002, the Department of Medical Education and Research (Health-III Branch), Punjab issued a letter dated 20.11.2002, where in it was clarified that the petitioner-College should undertake the exercise of admitting students to the first year BDS course out of the candidates available in the waiting list of the PMET-2002. Liberty was, however, granted to the petitioner-college to make admissions as per the norms laid down by the Dental Council of India, in case candidates from the waiting list of the PMET-2002 were not available. The approval granted by the government through its aforesaid communication dated 20.11.2002 allowed the petitioner-College to finalise the process of admission and to submit the list of admitted candidates to the Medical University within one month. On another request made by the petitioner-college, the Department of Medical Education and Research (Health-III), Punjab extended the time granted to the petitioner-college (to make admissions) by a further period of one week. It is the case of the petitioner-college that in compliance with the liberty granted by the letters issued by the Department of Medical Education and Research (Health-III), Punjab, dated 20.11.2002 and 17.12.2002, the petitioner-college filled up all the sanctioned seats to the fist year BDS course, for the academic sessions 2002-03, from 9.12.2002 to 26.12.2002, and forwarded the details thereof to the Medical University on 26.12.2002.
6. In response to the request made by the petitioner-college, for including it in the process of counselling/admission to the first year BDS course, for the academic session 2002-03, the Registrar of the Medical University issued a communication dated 28.10.2002 to the Principal of the petitioner-college declining its request to include the petitioner-college for counselling/admission to first year BDS course on account of the fact that the petitioner-college did not fulfil the conditions contained in the Department of Medical Education and Research (Health-III Branch) Punjab notification, dated 10.5.2002. In response to the request made by the petitioner-college to the Medical University to supply the waiting list of candidates from the PMET-2002, the Medical University through its letter dated 30.12.2002 informed the petitioner - college that this Court had passed an order dated 10.10.2002 in Hemlata's case (supra) wherein the operation of the waiting list of the PMET-2002 had been stayed. Through the aforesaid communication, the Medical University also informed the petitioner that this Court had ordered fresh counselling for admission to the first year BDS course in Hemalata's case (supra), and that in furtherance of the directions issued by the government on 20.12.2002, the petitioner - college was assured that it would be included in the fresh process of counselling/admissions to the first year BDS course. In compliance with the aforesaid assurance, the Medical University issued the impugned public notice dated 9.1.2003, for fresh counselling/admissions to the first year BDS course in various dental colleges including the petitioner - college.
7. In order to assail the validity of the impugned public notice dated 9.1.2003, learned counsel for the petitioner, has advanced the following submissions:
Firstly, it is contended that the petitioner college is not bound to regulate admissions to the first year BDS course on the basis of the merit list prepared by the Medical University in view of the decision rendered by the Apex Court in "T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors., J.T. 2002(9) S.C. 1.
Secondly, admissions were made by the petitioner-college on the basis of the liberty granted to the petitioner-college by the State government through its letters dated 14.11.2002, 20.11.2002 and 17.12.2002 (reference to which has been made in the foregoing paragraphs). It is, therefore, asserted that the petitioner-college having not violated the conditions of making admissions expressed in the communications addressed by the government; admissions made by the petitioner-college must be deemed to be valid for all intents and purposes. And further that, it was not open to the medical University to interfere in the admissions finalised by the petitioner-college on the basis of the aforesaid letters.
Thirdly, the petitioner-college cannot be now required to make admissions in terms of the PMET-2002 on account of the fact that admissions had been made by the petitioner-college in the absence of an existing PMET-2002 waiting list, by strictly following the standards prescribed by the Dental Council of India.
Fourthly, it is submitted that the judgment rendered by this Court in Hemlata's case (supra), which is, the basis for issuance of the impugned public notice dated 9.1.2003 has been stayed by the Apex Court by its order dated 27.1.2003, and that it is no longer open to the Medical University to conduct a fresh process of counselling/admission in terms of the decision rendered by this Court in Hemlata's case (supra).
In so fart as the first contention of the learned counsel for the petitioner is concerned, it was contended that no restrictions can be imposed on an unaided, privately managed, professional institution, like the petitioner-college, requiring it to follow a prescribed mode for admitting students in view of the legal position expressed by the Apex Court in T.M.A, Pai's case (supra). However, before this Court could have the occasion to examine the substance of the aforesaid contention, it was pointed put by counsel representing the parties that the judgment rendered by the Constitution Bench of eleven Hon'ble Judges of the Apex Court in T.M.A. Pai's case (supra) on 31.10.2002 was pending consideration for clarification before a Constitution Bench of five Hon'ble Judges of the Supreme Court. It was, therefore suggested, that in order to be able to effectively adjudicate upon the controversy in hand, it would be appropriate to wait for the clarificatory order. The Bench constituted for clarification of doubts/anomalies in "T.M.A. Pai's case (supra), pronounced its order on 14.8.2003. The clarification rendered by the Apex Court is reported as "Islamic Academy of Education and Ors. v. State of Karnataka and Ors." J.T. 2003(7) S.C. 1. The clarificatory judgment was placed on the record of this case through C.M. No. 19274 of 2003. Immediately thereafter, the main case has been taken up for hearing:
8. While addressing submissions on the basis of the decision rendered by the Apex Court in T.M.A. Pai's case (supra), learned counsel for the petitioner invited our attention to the conclusion drawn in paragraph 45 of the judgment wherein the Apex Court recorded, that its earlier decision in Unni Krishnan, J.P. v. State of Andhra Pradesh and Ors., J.T. 1993(1) S.C. 474, in so far as it framed a scheme regulating admissions to professional courses conducted by private educational institutions, and in so far as it provided for a fee structure for the same, was not correct, therefore, to the aforesaid extent the decision rendered in Unni Krishnan's case (supra) was over-ruled. Learned counsel for the petitioner also invited our attention to the judgments rendered by the Apex Court in St. Stephens' College v. University of Delhi, J.T. 1991(4) S.C. 548, R. Chiterlekha v. State of Mysore and Ors., (1964)6 S.C.R. 368, Minor P. Rajendran v. State of Madras and Ors., (1968)2 S.C.R. 786, and Kumari Chitra Ghosh v. Union of India and Ors., (1969)2 S.C.C. 228 (which were also noticed in paragraphs 41, 42, 43 and 44 of the judgment rendered in T.M.A. Pai's case) on the basis of which, the Apex Court in T.M.A. Pai's case (supra) arrived at the conclusion that the scheme regulating admissions and fixing fee thereof, was not correct. On the basis of the aforesaid background it was sought to be concluded that all the fetters placed on private unaided educational institutions by the decision rendered by the Apex Court in Unni Krishnan's case (supra), had been annulled, leaving it open to the private academic institutions like the petitioner-college to freely administer themselves and in doing so, to admit students at their own level. So far as the issue of administration of private institutions is concerned, learned counsel for the petitioner invited our attention to paragraph 50 of the judgment in T.M.A. Pai's case (supra), which reads as under"-
"The right to establish and administer broadly comprises the following rights:-
a) to admit students;
b) to set up a reasonable fee structure;
c) to constitute a governing body;
d) to appoint staff (teaching and non-teaching) and
e) to take action if there is dereliction of duly on the part of any employees."
On the basis of the interpretation of the term administration (as defined in paragraph 50, extracted above) which includes the right/responsibility to admit students, learned counsel for the petitioner-college contended that it was open to an unaided, privately managed, professional college to finalise admissions at its own level. In this behalf, reading extensively from the observations made by the Apex Court in paragraphs 52 to 57 in T.M.A. Pai's case (supra), learned counsel for the petitioner emphasised that in terms of the provisions of Articles 19 and 26(a) of the Constitution of India, it must be held that the right of the State while regulating admissions to academic institutions is limited to prescribing qualifications necessary for admission, and no more. It was emphasised that a privately managed, unaided institution, such as the petitioner-college had the right to admit students of its choice, subject to the requirement of following an objective and rational procedure of selection. It was also emphasised that the Constitution of India recognises the right of an individual, a religious denomination, as well as a religious/linguistic minority, to establish an educational institution. It was, therefore, submitted that there necessarily has to be a difference in the administration of privately managed, unaided institutions like, the petitioner - college and institutions run on government finances. In this behalf, it was contended that government institutions and/or government aided institutions can be administered by rules and regulations formulated by the government including the manner of making admissions and the determination of the fee structure. However, in private unaided institutions like the petitioner-college, the administration where of is vested in the institution itself, no one could impose terms and conditions for making admissions. It was pointed out that there can be no governmental interference in the administration of private unaided institutions. It was repeatedly reiterated that the process of admitting students is a part of the administrative functioning of an institution, and therefore, cannot be subjected to fetters and restraints at the hands of the government or any other body, except to the extent of ensuring maintenance of proper academic standards, atmosphere, infrastructure (including qualified staff), and the prevention of mal-administration by those incharge of management. It was, however, conceded by the learned counsel for the petitioner that admissions to private institutions could not be made on pick and choose basis and must necessarily to be made on the basis of merit determined by the unaided privately managed college itself. In this behalf, learned counsel invited our attention to paragraph 58 of the judgment in T.M.A Pai's case (supra) wherein, the Apex Court made the following observations:-
"58. For admission into any professional institution, merit must play an important role. While it may not be normally possible to judge the merit of the applicant who seeks admission into a school, while seeking admission to a professional institution and to become a competent professional, it is necessary that meritorious candidates are not unfairly treated or put at a disadvantage by preferences shown to less meritorious but more influential applicants. Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission. Appropriate regulations for this purpose may be made keeping in view the other observations made in this judgment in the context of admissions to unaided institutions.""
Learned counsel for the petitioner pointed out that the petitioner-college had invited applications from candidates for admission to the first year BDS course by issuing advertisements in various newspapers and out of those who responded, the most meritorious candidates were accepted. In this behalf, it is also pointed out that admissions made by the petitioner-college had not been challenged by anyone in any Court, thus leading to the inference that no one was/is aggrieved by the admission process adopted by the petitioner-college. It is, therefore, vehemently contended that the petitioner-college having made admissions by keeping in mind the norms formulated by the Dental Council of India, and on the basis of merit of the applicants who responded to the admission notice issued by the petitioner college, no occasion, whatsoever, arises for negating admissions made by the petitioner-college to the first year BDS course for the academic session 2002-03.
9. Interestingly, learned counsel for the petitioner has not referred to the conclusions drawn by the Apex Court on the issue of admissions to privately managed, unaided professional colleges like the petitioner-college, which were dealt with and adjudicated upon separately in paragraphs 67 to 70 of the judgment. Paragraph 68 of the judgment rendered in T.M.A. Pai's case (supra) is extremely relevant for the adjudication of the present controversy and is, therefore, being extracted hereunder:-
"68. It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional Institutions are entitled to autonomy in their administration while, at the same time, they do not forego or discard the principle of merit. It would, therefore, be permissible for the university or the Government, at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while at the same time, giving the management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State/university and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the State agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the Government according to the local needs and different percentages can be fixed for minority unaided and non-minority unaided and professional colleges. The same principles may be applied to other non-professional but unaided educational institutions viz. graduation and post-graduation non-professional colleges or institutes."
It is clear from the aforesaid observations that private, unaided professional colleges have a right to regulate admissions, but in doing so, it is not open to such institutions to discard the principle of merit. In order to ensure that admissions are based on merit, the institutions are bound to accept the merit of candidates, assessed on the basis of a common entrance test conducted collectively by an agency nominated by the government, or by themselves. The observations of the Apex Court extracted above allow a certain percent age of scats, described as the management quota, in every unaided, privately managed, professional institution, for which the institute can charge higher fee these seats are, to be filled up by the management at its own level. The percentage of seats to be filled up by the management has to be determined by the government on the basis of local needs. The aforesaid observations made in T.M.A. Pai's case (supra) have been further clarified in Islamic. Academy of Education's case (supra). The issue whether private unaided professional colleges like the petitioner - college, are entitled to fill up 100% of their seats by themselves as has been suggested by the learned counsel for the petitioner, and/or whether they arc entitled to admit students by evolving their own method of admission, as is also the case set up on behalf of the petitioner-college, is not a virgin issue. Both the aforesaid issues were collectively dealt with in Islamic Academy of education's case (supra) in paragraphs 8 to 17 of the judgment. In fact, while adjudicating upon the controversy relating to the aforesaid issue, the Apex Court in Islamic Academy of education's case (supra), dealt with the legal position emerging out of paragraph 68 of the judgment rendered by the Apex Court in T.M.A. Pai's case (supra) (also extracted hereinabove), and clarified all doubts/anomalies connected thereto, the Apex Court concluded by holding:-
"....A reading of paragraphs 59 arid 68 shows that in non minority professional colleges admission of students, other than the percentage given to the management, can only be on the basis of merit as per the common entrance test conducted by government agencies. The manner in which the percentage given to the management can be filled in is set out hereinafter." (extract from paragraphs 11) "It must be clarified that a minority professional college can admit, in their management quota, a student of their own community/language in preference to a student of another community even though that other student is more meritorious. However, whilst selecting/admitting students of their community/language the inter-se merit of those students cannot be ignored. In other words whilst admitting/selecting students of their own community/language they cannot ignore the inter se merit amongst students of their community/language. Admission, even of members of their community/language, must strictly he on the basis of merit except that in case of their own students it has to be merit inter-se those students only. Further if the seats cannot be filled-up from members of their community/language, then the other students can be admitted only on the basis of merit based on a common entrance test conducted by government agencies." (extract from paragraph 13).
"....Paragraph 68 provides that admission by the management can be by a common entrance test held by "itself or by State/university". The words "common entrance test" clearly indicate that each institute cannot hold a separate test. We thus hold that the management could select students, of their quota, either on the basis of the common entrance tests conducted by the State or on the basis of a common entrance test to be conducted by an association of all colleges of a particular type in that State e.g. medical, engineering or technical etc. The common entrance test, held by the association, must be for admissions to all colleges of that type in the State. The option of choosing, between either of these tests, must be exercised before issuing of prospectus and after intimation to the concerned authority and the Committee set up hereinafter. If any professional college chooses not to admit from the common entrance test conducted by the association then that college must necessarily admit from the common entrance test conducted by the State. After holding the common entrance test and declaration of results the merit list will immediately be placed on the notice board of all colleges which have chosen to admit as per this test. A copy the merit list will also be forthwith sent to the concerned authority and the Committee. Selection of students must then be strictly on basis of merit as per that merit list. Of course, as indicated earlier, minority colleges will be entitled to fill up their quota with their own students on basis of inter-se merit amongst those students...."
".....If it is found that any student has been admitted de-hors merit penalty can be imposed on that institute and in appropriate cases recognition/affiliation may also be withdrawn, (extracts from paragraph 14).
"Lastly, it must be mentioned that it was urged by learned counsel for the appellant that paragraph 68 of the majority judgment only permits university/State to provide for merit based selection at the time of granting recognition/affiliation. It was also submitted that once recognition/affiliation is granted to unaided professional colleges, such a stipulation cannot be provided subsequently. We are unable to accept this submission. Such a provisions can be made at the time of granting recognition/affiliation as well subsequently after the grant of such recognition/affiliation." (extract from para No. 16).
".....It is clarified that different percentage of quota for students to be admitted by the management in each minority or non-minority unaided professional college/s shall be separately fixed on the basis of their need by the respective State governments and in case of any dispute as regards fixation of percentage of quota, it will be open to the management to approach the Committee....." (extract from para No. 17).
It is apparent from the conclusions drawn by the Apex Court that in an unaided, privately managed, professional colleges, admissions to students (for seats other than the seats reserved for the management quota) can only be on the basis of merit determined in a common entrance test conducted collectively for all such colleges either by themselves or by an agency nominated by the government. Under the notification issued by the Government of Punjab, Department of Medical Education and Research (Health-III Branch) dated 10.5.2002, admissions to the fist year BDS course for the academic session 2002-03 have to be made on the basis of marks obtained in the PMET-2002 conducted by the Medical University. The notification dated 10.5.2002, vests eligibility for taking the common entrance test only in such candidates who fulfil the minimum standards prescribed by the Dental Council of India. No combined test was held by the institutions collectively at their own level, for the academic session 2002-03, there is, as such, no escape from the merit list prepared on the basis of the PMET-2002. In the background of the aforesaid factual position, admissions (to seats other than those allotted to the management quota) could only have been made by the petitioner-college out of students who were allotted to it by the Medical University on the basis of their merit in the PMET-2002.
10. In so far as the management quota is concerned, the question that arises for consideration in this case is whether the admissions made by the petitioner-college at its own level without reference to the combined entrance test, can be acceptable for the management quota? The answer to the aforesaid question has been rendered indirectly by the Apex Court in Islamic Academy of Education's case (supra) in paragraph 13 of its judgment (already extracted above). Observations were made by the Apex Court in respect of admissions in the management quota for institutions enjoying privileges under Article 30 of the Constitution of India i.e. in respect of minority (religious or linguistic) institutions. Even for such institutions, it has been held that admissions to the management quota must be based on merit determined in the combined entrance test. A minority institute can fill up the management quota seats by confining the students admitted against the said quota to students belonging to the particular minority (religious or linguistic) which manages the institute. Even in doing so it is required to make its choice from the merit list prepared on the basis of the combined entrance test, by picking out a candidate higher in the merit list in preference to a candidate lower down in merit. In other words, even a minority institution has not been permitted to admit students by adopting an admission procedure of its own choice. There is, therefore, no question of an institution like the petitioner, which does not enjoy the protection of Article 30 of the Constitution of India, to effect admissions to a professional course without reference to merit determined in the combined entrance test. It is, therefore, inevitable for us to return a finding that an unaided privately managed institution like the petitioner-college does not enjoy the right of filling up seats even in the management quota, by devising its own procedure, or by ignoring the merit of candidates determined through the combined entrance test. We, therefore, find no-merit in the first contention of the learned counsel for the petitioner-college that the petitioner-college is free to make admissions by evolving its own merit criteria and/or without reference to the PMET-2002.
11. The second contention of the learned counsel for the petitioner - college is based on the communications dated 14.11.2002, 20.11.2002 and 17.12.2002 addressed by the State Government to the petitioner-college, allegedly giving it liberty to make admissions at its own level. It is submitted that through the first of the aforesaid communications dated 14.11.2002, the government conveyed its decision to the Medical University to permit the petitioner-college to admit students to the first year BDS course. Relevant extract from the letter dated 14.11.2002 is being reproduced hereunder:-
"The Govt. has decided to give permission to Desh Bhagat dental College and Hospital, Muktsar to admit the candidates to BDS Course in Third Batch under the norms and regulation laid down by the Dental Council of India."
A perusal of the aforesaid communication reveals that the petitioner-college was permitted to make admissions by complying with the norms laid down by the Dental Council of India. So as to obviate any inference that may have been drawn therefrom (to the effect, whether or not, the petitioner-college was bound by the conditions regulating admissions, prescribed by the Government of Punjab, Department of Medical Education and research (Health-III Branch) through its notification dated 9.5.2002) the State Government issued a letter dated 20.11.2002 to the Chairman of the petitioner-college. Reference is essential to the following observations made in the said letter:
"The Govt. of Punjab in supersession to its letter Memo No.5/41/02-5SS3/5202, dated 14.11.2002, has decided to accord sanction to Des Bhagat Dental College and Hospital, Muktsar for admission in First Year B.D.S. Course, Third Batch, out of the candidates, available in the P.M.E.T.-2002. The Govt. has decided that in case, no candidate is available from P.M.E.T., then the admissions can be made by the said college on the basis of eligibility criteria laid down by the Dental Council of India. This approval is subject to the conditions/eligibility as laid down by the Dental Council of India."
A perusal of the aforesaid extract reveals that the petitioner was allowed to make admissions, in the fist instance, out of the waiting list of the PMET-2002. Learned counsel for the petitioner-College acknowledges the fact that reference to the PMET-2002 in the extracted portion of the communication dated 20.11.2002, is based on the notification of the Government of Punjab, Department of Medical Education and Research (Health-III Branch) dated 10.5.2002, and the prospectus issued by the Medical University, for regulating admissions inter-alia to the first year BDS course for the academic sessions 2002-03. The communication dated 20.11.2002 permitted the petitioner-college to admit candidates within one month (i.e., by 19.12.2002). The aforesaid communication, at the request of the petitioner-college, was modified by a memorandum dated 17.12.2002, extending the period for finalisation of admissions by a further period of one week (i.e., by 26.12.2002). It is the case of the petitioner - college, that the petitioner-college repeatedly addressed letters of request to the Medical University requiring it to furnish the waiting list of the PMET-2002, in order to be able to comply with the directions contained in the aforementioned communications dated 20.11.2002 and 17.12.2002: In response to the request made by the petitioner-college to the Medical University to supply the waiting list of candidates from the PMET-2002; the Medical University through its letter dated 30.12.2002 informed the petitioner-college that this Court by its order dated 10.10.2002, passed in Hemlata's case (supra), had stayed the operation of the waiting list. Through the aforesaid communication, the Medical University also informed the petitioner-college that this Court in Hemlata's case (supra) had ordered fresh counselling for admission to the first year BDS course for the academic session 2002-03, and that in furtherance of the directions issued by the government on 20.12.2002, the petitioner-college would also be included in the fresh process of counselling/admission to the first year BDS course.
12. The submissions noticed above were the spearhead of the arguments advanced in Court in so far as the second/contention is concerned. However, after the conclusion of arguments, when the judgment was under circulation, Civil Misc Application No. 21633 of 2003 was filed by the petitioner-college in order to place on the record Of this case additional facts arid documents. It is necessary to record that no arguments whatsoever were advanced on the basis of the factual position depicted in the aforesaid application or the documents appended thereto. Presumably, we were required to go through the same and record our findings. Through the documents placed on record through the aforesaid civil misc application, the petitioner-College wishes to emphasise that the Medical University while finalising admission to the BDS Course in the preceding academic sessions had approved admission of candidates who obtained less than 40% marks in the PMET. In so far as the aforesaid contention is concerned, the same is sought to be substantiated by placing on record Annexure P21. In our view, the aforesaid contention is clearly misconceived and deserves to be rejected. So far as the present controversy is concerned, it relates to admissions to the first year BDS course for the academic session 2002-03; the same has to be in conformity with the notification issued by the Department of Medical Education and Research (Health-III Branch), Punjab dated 10.5.2002, as well as the prospectus- issued by the Medical University. Therefore, the controversy in hand is to be determined on the basis of the terms and conditions specified in the aforesaid notification and prospectus; deliberations conducted in the preceding academic session are clearly irrelevant in so far as the present controversy is concerned since the same were not regulated by the norms laid down for admission to the academic session in the present case. For the same reason, we are satisfied that the averments made in paragraph 7 of the civil misc application (which relate to admissions for a preceding academic session) are irrelevant. Likewise, reference to the letter dated 13.10.1998 in paragraph 9 of the civil misc application, relating to admission to the Guru Nanak Dev Dental College and Research Institute, Sunam, can not be considered relevant. The petitioner-college has placed on record a memorandum dated 20.12.2002 addressed by the Principal Secretary to Government of Punjab, Department of Medical Education and Research (Health-III Branch), Punjab to the Vice Chancellor of the Medical University, with certain directions about filling up vacant seats. A perusal of the aforesaid communication reveals that the aforesaid directions were issued in furtherance of orders passed by this Court while deciding a number of writ petitions. Implementation of directions issued by this Court, or for that matter any other Court, cannot ipso facto create a vested right in the petitioner-college, unless it is shown that a similar direction was issued in respect of the petitioner-college or that the petitioner-college could also avail the benefit of the directions issued by this Court. It is not the case of the petitioner-college that it falls in either of the aforesaid categories. On the evaluation of the submissions noticed above, it is clear that the averments made in the aforesaid civil misc application and the documents appended thereto do not further the claim of the petitioner-college so far as the prayers made by it in this case are concerned.
13. According to the learned counsel for the petitioner-college, the functioning of the Medical University in so far as it relates to admissions, is regulated by the government. The government had granted liberty to the petitioner-college to make admissions out of the waiting list of the PMET-2002, and in the absence thereof at its own level, on or before 26.12.2002, by complying with the norms laid down by the Dental Council of India. It is, therefore, contended that the petitioner-college was well within its rights to make admissions, to the first year BDS course, for the academic sessions 2002-03, at its own level. However, despite the best efforts of the petitioner - college the medical University failed to furnish it with the waiting list of the PMET-2002. In the predicament in which the petitioner-college found itself, on account of not having been supplied the waiting list of the PMET-2002, it issued advertisements in various newspapers and admitted the most meritorious candidates who responded to the same. Learned counsel representing respondents No. 1 and 2 produced before us files of the State Government containing cuttings of the advertisements issued by the petitioner-college inviting applications for admissions to the first year BDS course for the academic sessions 2002-03. Since all the advertisements issued by the petitioner-college are identical, an extract from one of the advertisements is being reproduced hereunder:-
"DESH BHAGAT DENTAL COLLEGE & HOSPITAL KOTKAPURA ROAD MUKTSAR (PB.) Approved by Dental Council of India, Ministry of Health & FW. Government of India vide letter No.VI2017/17/99 PMS dated 08.10.2002 Affiliated to Baba Farid University of Health Sciences Faridkot (Pb.).
ELIGIBILITY:
10+2 (PCBE) with 50% marks Min. age 17 years before 31.12.02 preference will be given to those who have secured not less than 50% marks in PMET-2002 Admission on purely merit basis.
Applications for provisional admissions in BDS-1 are invited by 30.11.02 along with Demand Draft of Rs. 500/- payable in favour of Desh Bhagat Dental College & Hospital, Muktsar through registered Post. Application form can be had from college campus or H.O. of Desh Bhagat Group of Institution on payment of Rs. 500/-."
On the basis of the factual position noticed above, learned counsel for the petitioner - college contends that the admissions were made by the petitioner - college to the first year BDS course in consonance with the directions issued by respondents No. 1 and 2 themselves, cannot be subject of interference at the hands of the Medical University. It is on the aforesaid premises that the petitioner-college impugns the action of the medical University in issuing the impugned public notice dated 9.1.2003, and thereby inviting applications for admissions inter-alia to the first year BDS course in the petitioner-college, for the academic sessions 2002-03.
14. In order to controvert the claim of the petitioner - college based on the aforesaid communications, learned counsel for respondents No. 1 and 2 has pointedly invited our attention to a letter dated 26.11.2002 issued by the Director, Research and Medical Education, Punjab to the Principal of the petitioner-college. It is vehemently contended, at the hands of the official respondents, that the instant writ petition is liable to be dismissed on account of the fact that the petitioner-college to whom the aforesaid communication was addressed is guilty of withholding the same. Learned counsel vehemently contended that the petitioner-college is clearly blame-worthy for withholding material relevant for the adjudication of the present controversy, despite having verified the contents of the writ petition by a positive assertion that nothing relevant has been concealed. On account of having approached this Court unfairly, the instant petition, according to learned counsel for the respondent deserves to be dismissed summarily and with exemplary costs. Since the official respondents have heavily relied on the letter dated 26.11.2002, it is in the fitness of the matter to reproduce a relevant extract thereof, which is as under:-
"In this regard you are informed that the Government has granted permission for admission to the Colleges for the year 2002 in the 1st year BDS Course but it has not empowered you to violate the terms and conditions of eligibility and admission as laid down in the Punjab Government Notification No. 5/1/2002/5HBIII/2246 dated 10.5.2002. The admission has to be in conformity with the various provisions of the notification regarding eligibility and admission procedure.
Your notice in the press is violative of the eligibility conditions as well as the admission procedure laid down in the notification.
In addition the Hon'ble High Court of Punjab and Haryana has stayed admission for MBBS/BDS. In the light of the above you are instructed to abide by all of the above issues."
On the basis of the communication dated 26.11.2002, addressed by the Director, Research and Medical Education, Punjab to the Principal of the petitioner-college, well before the petitioner-college admitted the first student to the first year BDS course for the academic sessions 2002-03, it is contended that the action of the petitioner-college in admitting students in clear violation of the government notification dated 10.5.2002, as well as the regulations of the Dental College of India, is unsustainable in law and is liable to be set aside. It would be unfair on our part, not to notice the contention advanced by the learned counsel for the petitioner-college so as to refute the contention of the learned counsel for the respondents based on the letter written by the Director, Research and Medical Education, Punjab to the Principal of the petitioner-college dated 26.11.2002. Learned counsel for the petitioner-college submitted that the Director Research and Medical Education, Punjab had no authority whatsoever to override the rights vested in the petitioner-college through the aforesaid letters dated 14.11.2002, 20.11.2002 and 17.12.2002, which had been issued by the Department of Medical Education and Research Punjab. We have perused the three letters relied upon by the petitioner-college. They have been signed by the Superintendent of the Department of Medical Education and Research (Health-III, Branch), Punjab. In view of the aforesaid contention, it is important to determine the significance required to be attached to letter issued by the Director, Research and Medical Education Punjab dated 26.11.2002. The government notification dated 10.5.2002 while laying down the general conditions for admissions, envisages governmental representation in the process of admissions through the Director, Research and Medical Education, Punjab. Reference in this behalf may be made to paragraph 9 (s) of the aforesaid notification the same is being extracted hereunder;-
"9(s) University shall remain in constant touch with Director, Research and Medical Education and shall work out a schedule of examination and interview with him it will also send copies of all notices, prospectus to the DRME immediately after issue."
From paragraph 9(s) of the government notification dated 10.5.2002, it is clear that the State Government was represented in the matter of admissions to medical/dental institutions by the Director, Research and Medical Education, Punjab who had issued the letter dated 26.11.2002, relied upon by the learned counsel for the respondents in order to plead their case. Based on the aforesaid factual position, we have no hesitation in concluding that the letter issued by the Director, Research and Medical Education, Punjab dated 26.11.2002 had a binding effect on the petitioner-college. The lapse at the hands of the petitioner-college in violating the clear directions issued to it in the letter dated 26.11.2002 is grave inasmuch as the same was issued to the petitioner-college well before the college admitted the first student to the first year BDS course for the academic session 2002-03.
15. It is the emphatic stand of the respondents in the written statements (separately filed by respondents No. 1 and 2 on the one hand, and respondent No. 3 on the other), that the procedure adopted by the petitioner-college to make admissions was a total sham, and as such does not deserve to be approved. For a clear understanding of the exact purport of the objections raised at the hands of the respondents, it is necessary to refer to the averments made in paragraph 10 of the written statement filed by respondent No. 3. Relevant extract of the same is being reproduced hereunder:-
"Para 10 and sub-paras (a) to (f) thereof are incorrect and denied in view of the foregoing reply. The impugned advertisement dated 9.1.2002 (Annexure P-8) issued by the respondent University in compliance with this Hon'ble Courts' judgment dated 13.12.2002 in CWP No. 14832 of 2002 is fully constitutional, legal, fair, reasonable and valid. It would bear reiteration that petitioners No. 2 and 3 have participated in the fresh counselling held from January 22 to 24, 2003 pursuant to the advertisement, Annexure P-8 without any protest or demur and they are, therefore clearly estopped from challenging the same. It would also bear reiteration that insofar as petitioner No. 1 is concerned, the said counseling held from January 22 to 24, 2003 is the first counselling which petitioner No. 1 was eligible to participate in for the sessions 2002-2003. It is submitted further that petitioners No. 1 to 17, 19 to 24, 28, 32, 48, 53, 55, 57, 61 and 62 in the connected writ petition viz. CWP No.878 of 2003-Anu Monga and Ors. v. State of Punjab and Ors., participated in the fresh counselling held from January 22 to 24, 2003 and were selected for admission to the BDS Course as per their merit/rank in PMET-2002. It would also bear reiteration that petitioner Nos. 1 to 17 and 19 to 24 in CWP No.878 of 203 had also been admitted earlier in the counselling held by the respondent University from September 10 to 12, 2002. However, the admissions of Petitioners No. 25 to 68 in CWP No.878 of 2003 made earlier by the petitioner Desh Bhagat College Muktsar, as per its Registration Return dated 26.12.2002 (Annexure P-6), were are all illegal and void as these admissions were made by petitioner No. 1 in contravention of the eligibility conditions and admission procedures prescribed in the Punjab Government notification 10.5.2002. Out of the 51 candidates thus admitted by petitioner No. 1 against free and paid seats as many as 26 are outright ineligible for admission to the BDS Course as per the Punjab Government notification dated 10.5.2002. Of there, seven candidates did not appear at all in PMET-2002 while 19 secured less than the requisite 50% marks therein. Of these 26 candidates who are outright ineligible, as many as 20 are petitioners in CWP No.878 of 2003. These petitioners are as under:-
(i) Did not appear at all in PMET 2002 Petitioners No. 37, 6C, 63 and 65. (ii) Secured less than 50% marks in PMET-2002 Petitioners No. 27, 29, 30, 31, 35, 36, 38, 42, 43, 44, 46, 47, 54, 58, 59 and 64.
It would bear reiteration that even the admission of the other petitioners/candidates, admitted by the Petitioner No. 1 as per its Registration Return (Annexure P6), is illegal and void since these petitioners/candidates were admitted in contravention of the admission procedure prescribed in the Punjab Government Notification dated 10.5.2002.
It is also important to mention here that a large number of candidates who had qualified PMET-2002 with 50% or more marks were available out of the BDS waiting list prepared by the respondent University after the counselling held from September 10 to 12, 2002. A copy of the said waiting list would be shown to this Hon'ble Court at the time of arguments if so required.
Many such candidates with 50% or more marks in PMET-2002 would still be available.
In sofar as NRI seats in MBBS course advertised vide Annexure P-9 are concerned, it is submitted that while one seat was allotted to a NRJ candidate who appeared in the counselling held on 15.1.2003, the remaining 10 vacant seats in the NRI category were transferred to the general category. Of these, 5 seats were allotted to candidates in general category as per their merit in PMET 2002 WHILE 5 seats were reserved under orders of this Hon'ble Court in different writ petitions.
The petitioners claim in this para that the advertisement Annexure P-8 is against the letter and spirit of the judgment of Hon'ble Supreme Court in the case of TMA Pai Foundation v. State of Karnataka, (2002)8 S.C.C. 481, is also incorrect and denied."
16. In order to demonstrate that the process adopted by the petitioner-college while admitting students to the first year BDS course for the academic sessions 2002-03, was contrary to the procedure envisaged by the government notification dated 10.5.2002, and the preconditions laid down in the prospectus issued by the Medical University learned counsel for the respondents have invited our attention to the repeated reiteration in the prospectus depicting two pre-conditions of eligibility for admission to the first year BDS course. Firstly, a candidate to be eligible must have passed in the subjects of Physics, Chemistry, Biology and English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry and Biology, in the qualifying examination. However, for candidates belonging to schedule castes, scheduled tribes, or other backward classes, the minimum marks were to be 40% instated of 50%. In our considered view the petitioner-college was clearly conscious of the aforesaid two conditions. This opinion of ours is based on the advertisements issued by the petitioner-college inviting applications for admissions to the first year BDS course wherein it referred to both requirements i.e., 50% marks in the qualifying examinations as well as 50% marks in the PMET 2002. Secondly, to be eligible for admission to the first year BDS course, a candidate must also have secured not less than 50% marks in Physics, Chemistry and Biology taken together in the competitive examination. However, in respect of the candidates belonging to schedule castes, scheduled tribes or other backward classes the minimum marks in the competitive examination were to be 40% instead of 50%.
17. Our attention has been invited to the notification dated 5:1.1995 whereby the Dental Council of India issued the Dental Council of India (norms and guidelines for fee and guidelines for admissions in dental colleges) Regulations 1994. The admission procedure to dental courses has been laid down in Regulation 5 and the manner of allotment of seats have been prescribed in Regulation 7 under the aforesaid Regulations. Regulation 5 vests with the "competent authority" the right to prepare the merit list of students to be admitted to the first year BDS course on the basis of common entrance test. It also mandates that admissions would be made on the basis of the criteria determined by the "competent authority". Regulation 7 commands the "competent authority" to prepare and publish a waiting list of candidates on the basis of the common entrance test and it requires the filling up of casual vacancies or drop out vacancies out of the aforesaid waiting list. It is also relevant to mention here that the term "competent authority" has been defined in Regulation 3(b) of the aforesaid Regulations as" ... a Government or University or any other authority as may be designated by the Government or the University, or by law to allot students for admission to various dental colleges in a State..." Our attention has also been invited to earlier Regulations framed by the Dental Council of India and approved by the Central Government under Dentist Act, 1948 on 25.1.1978 and 27.6.1983. It has been stipulated in the aforesaid regulations that candidates desirous of admission to the first year BDS course should have secured not less than 50% marks in the aggregate of the qualifying examination conducted by the competitive body. For scheduled castes and scheduled tribes, the minimum marks were to be 40% instead of 50%. An extract from the compilation of the Regulations of the Dental Council of India, produced in the Court, by learned counsel representing the Dental Council of India, which affirms the aforesaid position, is being reproduced hereunder:-
"The candidate should have secured not less than 50% of marks on the aggregate of the above subjects in the qualifying or competitive examination conducted on similar lines as the qualifying examination conducted by a competitive body. For scheduled castes scheduled tribes the minimum marks required for admission shall be 40% in lien of 50% for general candidates."
It is therefore, abundantly clear that the minimum eligibility conditions prescribed by the Dental College of India are the same as have been laid down in the Department of Medical Education and Research (Health-III Branch), Punjab notification dated 10.5.2002 read with the prospectus issued by the Medical University.
18. Drawing our attention to the pleadings in paragraph 10 of the written statement filed by the respondent No. 3, which have been reiterated in the written statement filed on behalf of the respondents No. 1 and 2 (in paragraph 6 and 11 of the Preliminary submissions, and in paragraph 6 of the reply on merits), learned counsel for the respondents, vehemently contended that a seal of judicial approval can not be accorded to, the action of the petitioner-college in making admissions by breaching all norms of procedure and cannons of conscious. It is the vehement contention of the learned counsel representing respondents No. 1 to 3 that all students desirous of admission to the first year BDS course, were well aware that admissions thereto could only be made in terms of the rules and regulations formulated by the Dental Council of India and the concerned State Government. It is further emphasised that all institutions and students are by now well aware that admissions to professional courses like the one in hand are to be regulated by the norms laid down by the Supreme Court in various judgments including the judgment in TMA Pai's case (supra) and in such circumstances, it is neither open to the petitioner-college nor any student who has gained admission in violation of the prescribed norms to take up a position that they were not aware of the procedural norms or regulations of admissions to dental colleges through the Medical University. It is emphatically pointed out that a number of candidates admitted did not appear in the PMET-2002, whereas a number of those who had appeared in the PMET-2002 did not fulfil the second essential requirement, inasmuch as they did not obtain a minimum 50% marks in Physics, Chemistry and Biology taken together in the PMET-2002 (40% in case of scheduled caste, scheduled tribe and other backward classes).
19. The factual position noticed in paragraph 10 of the written statement is indeed an eye opener, demonstrating the abuse of power exercise by the petitioner-college in effecting admissions to the first year BDS course for the academic sessions 2002-2003. There can be no doubt that there has been a blatant breach of the government notification dated 10.5.2002, as well as the terms and conditions of admission depicted in the prospectus issued by the Medical University. There is also no doubt that the procedure for effecting admissions delineated in the two judgments of the Apex Court i.e., in TMA Pai's case (supra) (decided on 31.10.2002) and in Islamic Academy of Education's case (supra) (decided on 14.8.2003), have been clearly violated. Although the impugned action of the Medial University in issuing the impugned public notice dated 9.1.2003 precedes the date on which the Apex Court rendered its judgment in Islamic Academy of Education's case (supra), yet the same would also be relevant for adjudicating the present controversy in view of the fact that the judgment of Islamic Academy of Education's case (supra) is in the nature of clarification of the decision rendered by the Supreme Court in TMA Pai's case (supra). It is well settled that an order passed in clarification of an earlier order must be deemed to relate back to the earlier order. In this behalf, reference may be made to the decision rendered by the Apex Court in S.S. Grewal v. State of Punjab and Ors., 1993 Supp(3) Supreme Court Cases 234, wherein it was observed as under: -
"9. From a perusal of the letter dated April 8, 1980, we find that it gives clarification on certain doubts that has been created by some Departments in the matter of implementation of the instructions contained in the earlier letter dated May 5, 1975. Since the said letter dated April 8, 1980 is only clarification in nature, there is no question of its having an operation independent of the instructions contained in the letter dated May 5, 1975 and the clarifications contained in the letter dated April 8, 1980 have to be read as a part of the instructions contained in the earlier letter dated May 5,1975. In this context it may be stated that according to the principles of explanatory or clarificatory of the earlier enactment is usually held to be retrospective. (See: Craies on Statute Law, 7th Ed. P. 58)..."
As already noticed above it was the joint plea of the counsel representing in the different parties in the case, that hearing of this case should be deferred to await the clarificatory order of the Supreme Court, so that this case should be decided in the light of the clarificatory order.
20. It deserves to be noticed that the learned counsel for the petitioner-college attempted to demonstrate that the factual position recorded in paragraph 10, of the written statement filed by respondent No. 3, and paragraph 6 and 11 in the preliminary submissions and paragraph 6 of the reply on merits in the written statement filed by respondents No. 1 and 2 was not correct in respect of a few of the admitted candidates. We do not consider it either necessary or appropriate to dwell into the factual aspect of the matter. Even if the petitioner-college succeeds in establishing that the factual position depicted in the written statement in respect of a few of the admitted candidates is incorrect, yet there can be no escape from conclusion that the petitioner-college adopted a wholly unauthorised procedure while admitting students to the first year BDS source despite the fact that they did not fulfill the minimum prescribed eligibility conditions even the mandate of the government notification dated 10.5.2002 and the procedure for admission notified in the prospectus issued by the Medical University was not followed, the petitioner-college also did not follow the procedure for admission prescribed in the regulations issued by the Dental Council of India, the petitioner-college also completely ignored the ratio of the judgment rendered in TMA Pal's case (supra). Since the petitioner-college did not abide by the aforesaid requirements while admitting students to the first year BDS course for the academic session 2002-03, it is not possible for us to approve the admissions made by it. It also deserves to be noticed that the Director, Research and Medical Education, Punjab through a communication dated 26.11.2002 pointedly brought the aforesaid legal position to the notice of the petitioner-college. The petitioner-college, thereafter finalised the process of admission at its own level, in clear violation of the terms and conditions of admission brought to its notice in blatant disregard of the same.
21. The third contention of the learned counsel for the petitioner-college is that it had already finalised admissions and furnished a list of the admitted candidates to the Medical University on 26.12.2002. It is therefore contended that admissions made by the petitioner-college should not be annulled even if this court arrives at a conclusion adverse to the interest of the petitioner-college and/or the students admitted by it, on the first two issues canvassed in view of the fact that admissions were made innocently by the petitioner-college and no faults lies with the students admitted to the first year BDS course for the academic sessions 2002-2003. It is not possible for us to accept the aforesaid contention of the learned counsel for the petitioner-college on account of the reasons detailed while dealing with the second contention. Moreover, a beach in the process of regulating admissions whereby less meritorious candidates have been allowed admissions superseding the claims of numerous candidates possessing higher marks cannot be allowed. The blatant lapses committed by the petitioner-college while admitting students to the first year BDS course for the academic session 2002-03 have been summarised in the foregoing paragraph. The process of law can only come to the aid and assistance of those whose claim is founded on the basis of a legal right and not to those who are blameworthy of flagrant breach of law. Sanction or approval cannot be accorded to admissions made on account of an adversity that may be suffered by an individual, specifically when a conclusion is drawn as in the present case that the process of admission adopted by the petitioner-college was a total sham.
22. The fourth contention of the learned counsel for the petitioner-college is based on the judgment rendered by this court in Hemlata's case (supra). The solitary contention of the learned counsel for the petitioner-college was that the Apex Court on 27.1.2003 passed an order to the effect that "there shall be no interim stay of the order under challenge" of the judgment rendered by this court in Hemlata's case (supra). It is therefore, contended that it was not open to the medical university to re-initiate a process of counselling leading to admissions to the first year BDS course for the academic sessions 2002-2003 on the basis of the judgment rendered by this court in Hemlata's case (supra). It is strange that the petitioner-college fifed the writ petition to raise this plea. The petitioner-college is duly represented before the Apex Court in the controversy arising out of the decision rendered by this Court in Hemlata' case (supra). On the basis of the interim order passed by the Apex Court on 27.1.2003, it could have easily obtained necessary orders by moving an IA in the matter pending in the Supreme Court. This argument was not open to the petitioner-college at the time of filing of the instant writ petition since the Apex Court had not yet passed, the aforesaid interim order dated 27.1.2003 when the instant case came up for motion hearing before this Court on 21.1.2003. The aforesaid argument, of course is now available to the petitioner-college and has merit. There can be no doubt whatsoever in the proposition canvassed by the learned counsel for the petitioner-college in view of the order passed on 27.1.2003 staying the order passed by this court in Hemlata's case (supra), it is no longer open to the Medical University to conduct the process of fresh counselling for admission on the basis of the impugned public notice dated 9.1.2003. In view of the interim order passed by the Apex Court on 27.1.2003, it is natural to conclude that the process initiated through the public notice dated 9.1.2003 shall have to be discontinued, as of now, so as to abide by the final decision of the Apex Court (wherein the order passed by this Court in Hemlata's case (supra) is subject matter of challenge). It, however, deserves to be noticed that during the course of arguments, learned counsel for the petitioner, did not point out any infirmity in the decision rendered by this Court in Hemlata's case (supra), in fact no reference to the aforesaid judgment was made except to the extent of pointing out the implication of the interim order passed by the Supreme Court on 27.1.2003.
23. Having dealt with the submissions advanced by the rival parties, we have arrived at the following conclusions:-
Firstly, it is not open to petitioner-college conducting a professional course to make admissions thereto in a manner other than on merit determined through 'a common entrance test held by an agency nominated by the State Government.
Secondly, admissions claimed to have been made by the petitioner-college in furtherance of communication issued by the State Government dated 14.11.2002, 20.11.2002 and 17.12.2002 cannot be approved.
Thirdly, breach in the process of regulating admissions whereby less meritorious candidates have been allowed admissions superseding the claims of numerous candidates possessing higher marks cannot be approved.
Fourthly, the interim order passed by the Apex Court on 27.1.2003 will have the effect of restraining the medical university from conducting fresh counselling in furtherance of the public notice dated 9.1.2003 till the decision by the Apex Court in furtherance of the judgment rendered by this Court in Hemlata's case (supra).
24. In view of the peculiar facts and circumstances of the case, it is not possible for us to conclude which of the candidates who have already been admitted, will have an eventual claim for admission. As of now, by an interim order passed by the Apex Court on 27.1.2003, the judgment rendered in Hemlata's case (supra) has been stayed. We have been informed the admissions made on the basis of counselling conducted by the Medical University prior to the judgment rendered by this Court in Hemlata's case (supra), have been given effect to. However, the process of counselling was not conducted by the Medical University, for admissions made by the petitioner-college and as such in view of the conclusion drawn above, admissions shall have to be made to the sanctioned seats available in the petitioner-college on the basis of the legal position expressed by the Apex Court on finalisation of the controversy emerging out of the judgment rendered by this Court in Hemlata's case (supra).Since however, there are a number of students who fulfil the minimum standards prescribed in the prospectus issued by the Medical University (delineated above) in the qualifying examination as well in the competitive examination (PMET-2002). It would be just and appropriate to allow, such candidates to continue in the academic course, till the final decision of the Apex Court. However, all such candidates who do not fulfill the aforesaid two minimum conditions of eligibility cannot be permitted to continue in the first year BDS course. Accordingly, the petitioner-college shall forthwith remove all such students from its roll.
25. While deliberating upon the controversy raised in the present case, we have already recorded our conclusion that the petitioner-college had intentionally and deliberately not placed on the record of this case the letter dated 26.11.2002 issued by the Director, Research and Medical Education, Punjab to the Principal of the petitioner-college inspite of the fact that the same has a direct bearing on the second contention advanced on behalf of the petitioner-college. Learned counsel for the respondents on account of the aforesaid fact, itself, had insisted that this petition should be dismissed summarily. However, since the academic career of a number of students was dependent upon the controversy raised in the instant case, we chose not to accept the aforesaid prayer. Be that at it may the aforesaid act of withholding relevant material from this court cannot be over looked irrespective of the conclusion recorded by us. Besides the aforesaid unacceptable action of the petitioner-college, it is obviously from the conclusions drawn by us in the last paragraph while dealing with the second contention advanced on behalf of the petitioner-college, hereinabove that the petitioner-college had admitted students to the first year BDS course for the academic session 2002-03 in violation if all norms and conditions, and that the process of admission adopted by the petitioner-college was a total sham. The petitioner-college did not abide by the directions of the State government, it did not fill up seats to the first year BDS course according to the government notification dated 10.5.2002, it failed to abide by the directions of the Medical University and standard delineated in the prospectus issued by it, it ignored the regulations for admission laid down by the Dental Council of India and it also failed to adhere to the norms laid down by the Apex Court in its various judgments referred to above. In addition to the above, our attention was invited to the order passed by the Apex Court on 9.5.2003 in petition(s) for Special Leave to Appeal (Civil) No. 1863-1870 of 2003 i.e., in the matter arising out of a decision rendered by this Court in Hemlata's case (supra). An extract of the aforesaid order is being reproduced hereunder:-
"We are informed at the Bar that a writ petition filed by Desh Bhagat Dental College Muktsar, and a connected matter both are awaiting hearing before a Full Bench of the High Court of Punjab and Haryana. It is also submitted that the decision by the Full Bench would have a hearing on the relief, if any, to be given by this Court. The parties are allowed liberty to mention before the Punjab and Haryana High Court for expediting the bearing before the Full Bench since the academic career of the students in involved."
We are informed by the learned counsel representating the respondents that the aforesaid order came to be passed at the behest of the counsel representing the Desh Bhagat Dental College and Hospital Muktsar i.e, the petitioner-college herein. The contentions advanced on behalf of the petitioner-college before us in this case are clearly contrary to the impression given by the petitioner-college to the Apex Court. We wish to reiterate that no reference was made to the judgment rendered by this Court in Hemlata' case (supra) during the course of arguments except the effect of the interim order passed by the Supreme Court on 27.1.2003 staying the order passed by this Court in Hemlata's case (supra). It seems to us that the only reason that may have prompted the petitioner-college to give such an impression to the Apex Court is to delay the finalisation of the out come of the matter arising out of the decision rendered by this Court in Hemlata's case (supra). A final decision by the Apex Court in petition(s) for Special Leave to Appeal Civil No. 1863-1870 of 2003 would have rendered the fourth contention raised on behalf of the petitioner-college infructuous. In a way the process of finalising admission to the first year BDS Course for the academic session 2002-03 has been put in abeyance on account of the aforesaid impression given by the petitioner-college to the Apex Court. We are, therefore, of the view that the petitioner-college has misused the process of law to defeat the ends of justice. Such an attitude which is aimed at frustrating the cause of justice cannot be permitted to go by without being appropriately dealt with. The judgment rendered by the Apex Court in TMA Pal's case (supra) records an observation of the Apex Court to the effect that ".... if it is found that any student has been admitted de-hors merit, penalty can be imposed on the institute and in appropriate cases recognition/affiliation may also be withdrawn" (extract from paragraph 14 of the aforesaid judgment). We are of the opinion that this is a fit case in which appropriate costs should be imposed on the petitioner-college in view of the factual position noticed above. We have, therefore, chosen to impose exemplary costs on the petitioner-college. Ordinarily such costs should be payable to the students who may have to be dislodged as a consequence of the order passed by us. We however feel that the students admitted by the petitioner-college have acted with the same malice as the petitioner-college so as to gain entry into the first year BDS course for the academic session 202-2003 by hook or by crook by superseding the claims of candidates with higher merit. It is not believable that students in the present generation can be oblivious of the procedure for admission to professional courses. We are of the view that respondents No. 1 and 2 i.e,, the State Government and respondent No. 3 i.e., the Medical University have had to suffer unnecessary litigation wherein the sole effort of the petitioner-college has been to brow beat all and sundry so as to create equitable rights in favour of students to whom it had wrongfully granted admission, after the exhaustion of the duration of the relevant academic session. Undoubtedly a well planned affair. The written statement filed on behalf of respondents No. 1 and 2 discloses that the petitioner-college is running a group of institutions wherein the total expenditure incurred is of Rs. 89 lacs against an income of Rs. 222 lacs in the three preceding years i.e., 1998-99, 1999-2000 and 2000-2001, thus earning a profit of Rs. 133 lacs which is more than 150% of the average annual expenditure. For the various acts of omission and commission at the hands of the petitioner-college, while dismissing this petition, we direct it to pay costs to respondents No. 1 and 2 which we hereby quantify as Rs. 10 lacs and also to pay a further sum of Rs. 10 lacs as costs to respondent No.3. Disposed of in the aforesaid terms.
Sd/-
Binod Kumar Roy, C.J.
26. I agree.
Sd/-
Ashutosh Mohunta, J.
27. I agree.