Punjab-Haryana High Court
Navneet Kaur & Ors vs State Of Punjab & Ors on 30 October, 2014
Author: K. Kannan
Bench: K. Kannan
CWP No.24211 of 2013 (O&M) -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.24211 of 2013 (O&M)
Date of Decision.30.10.2014
Navneet Kaur and others ......Petitioners
Versus
State of Punjab and others ......Respondents
2. CWP Nos.24208, 24295 and 24567 of 2013 Present: Mr. Rajiv Atma Ram, Senior Advocate with Mr. Arjun Pratap Atma Ram, Advocate for the petitioners in CWP Nos.24211, 24295 and 24567 of 2013.
Mr. Monish Kumar Singla, Advocate for the petitioner in CWP No.24208 of 2013.
Mr. Ranbir Singh Pathania, DAG, Punjab.
Mr. Gurminder Singh, Senior Advocate with Mr. Yagyadeep, Advocate for MCI in CWP Nos.24208, 24295 and 24567 of 2013. Mr. Ashish Rawal, Advocate for respondent No.2 in CWP No.24295 of 2013.
Mr. S.S. Brar, Advocate and Mr. D.K. Raheja, Advocate for respondent No.3 in CWP No.24211 and 24567 of 2013 and for respondent No.4 in CWP No.24208 of 2013.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
-.-
K. KANNAN J.
1. All these writ petitions are at the instance of students who have been admitted to the 3rd respondent medical college affiliated to the 2nd respondent Baba Farid University. Their admissions have been in PANKAJ KUMAR 2014.10.30 16:18 I attest to the accuracy and authenticity of this document Chandigarh CWP No.24211 of 2013 (O&M) -2- terms of the prospectus in the spilt over seats for NRIs which were not exhausted by enough number of eligible NRI candidates. The Medical Council of India served on them notices for vacating their seats on the ground that admissions had been made by the University with the representative of the Government in violation of the norms laid down by the MCI for admissions. The petitioners have continued to study in the colleges and the petitions require an adjudication of whether there is any conflict between the MCI regulations and the eligibility criteria as laid down in the prospectus. This would require us to turn to the terms of the prospectus and the MCI regulations.
2. The admission was carried through taking into account two stage eligibility: One requiring the University to conduct entrance test which is called as the Pre-Medical Entrance Test (PMET) and the second was securing more than 50% in PMET for consideration for admission and for eligibility to take PMET. This requirement of taking the PMET did not apply to NRI students and the relevant clause that governs this particular case is spelt out in clause 6 and 7 of the prospectus and they are reproduced as under:-
"6. Foreign Indian Student (NRI) seats xxxx xxxx xxxx xxxx
(b) The NRI students will have to give a bank guarantee/surety bond for the balance of fee, if they opt to pay the fee in intallments as provided.
(c) Any seats remaining vacant under NRI quota till last date of admission in State colleges shall go to general pool and in the private colleges shall go to the special management/minority quota. Under Special Management Quota seats first priority shall be given to PMET ranking and residual seats, if any, shall be filled in accordance with inter-se merit of eligible candidates.PANKAJ KUMAR 2014.10.30 16:18 I attest to the accuracy and authenticity of this document Chandigarh CWP No.24211 of 2013 (O&M) -3-
Para amended vide corrigendum No.5/3/08-3HBIII/4206 dated 08.07.2008.
(d) NRI unfilled seats under special management seats will be filled by management itself.
Para amended vide corrigendum No.5/3/08-3HBIII/4206 dated 08.07.2008 and in light of Notification No.5/3/2010- 3HBIII/5238 dated 25.07.2010.
7. Eligibility and procedure for admission.
7.1 Eligibility-
For admission to MBBS/BDS candidate must have secured at least 50% (40% for SC/BC and 45% for Physically handicap persons with locomotors disability of lower limbs as per Medical Council of India Amendment Notification dated 25.03.2009 in MBBS only) in the PMET.
(para amended vide corrigendum No.5/3/08-3HBIII/5212 dated 23.07.2010) xxxx xxxx xxxx xxxxx
3. Although the petitioners would contend that the prospectus had clearly spelt out a relative relaxation of certain conditions for students who were seeking for admission in the seats meant for the NRI Quota which remained unfilled, the relaxation was that if they had the basic eligibility criterion of having passed with 50% in the Board examination at the 10+2 level or its equivalent, the candidates ranking in the order of merit inter se could gain admission to the split over seats in NRI Quota. Their own marks in the PMET for the said seats would not be applicable. They were securing admission under a Special Management Quota and the requirement under the MCI regulations for a pass with 50% in PMET was not applicable to them. It would become essential, therefore, to examine also the MCI stipulation in this regard. The admissions have been for the session 2011 and the regulations that were applicable were issued in the year 2010. They are reproduced as PANKAJ KUMAR 2014.10.30 16:18 I attest to the accuracy and authenticity of this document Chandigarh CWP No.24211 of 2013 (O&M) -4- under:-
"5(5) Procedure for selection to MBBS course shall be as follows:-
(i) In case of admission on the basis of qualifying examination under clause (1) based on merit, candidate for admission to MBBS course must have passed in the subjects of Physics, Chemistry, Biology/Bio-technology & English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry and Biology/Bio-
technology at the qualifying examination as mentioned in the clause (2) of regulation 4.
In respect of candidates belonging to Scheduled Castes, Scheduled Tribes or Other Backward Classes. The marks obtained in Physics, Chemistry and Biology/Bio- technology taken together in qualifying examination be 40% instead of 50% as above;
xxxxx xxxxx xxxx xxxx
4. The learned Senior Counsel appearing on behalf of the MCI would point out that the qualifying examination must be taken as pass is the requirement of 50% in PMET and not merely the 50% in the Board examination or its equivalent. The counsel would refer me to terms of the prospectus itself which sets out as follows:-
"B. For MBBS/BDS Courses.
Candidates must have passed in the subjects of Physics, Chemistry, Biology, and English individually and must have obtained a minimum of 50% marks (40% for SC/BC and 45% for Physically handicap) taken together in PCB and also in Physics, Chemistry and Biology (PCB) in 10+2 examination. (Para modified vide corrigendum No.5/3/08-3HBIII/3189 dated 27.04.2010).
C. After second counselling, the seats left vacant in Private Institutes both in Government as well as Management/Minority quota shall be filled by the Management out of the eligible candidates from the same category who have qualified in PMET in case of BDS, if the PMET qualified candidates are not available both from the University and on open advertisement, then the candidates who have appeared in PMET shall be admitted on the basis of their score in 10+2 or equivalent examination. If even PANKAJ KUMAR 2014.10.30 16:18 I attest to the accuracy and authenticity of this document Chandigarh CWP No.24211 of 2013 (O&M) -5- such candidates are not available, then those who have not appeared in PMT will be admitted on the basis of 10+2 or equivalent examination. Even if such candidates are not available, the candidates other than belonging to Punjab shall also be considered subject to the condition that all such admissions are made on merit in a transparent manner after giving proper public notice. (Para modified vide corrigendum No.5/3/08-3HBIII/3189 dated 27.04.2010)"
5. Learned Senior Counsel for the petitioner would argue that the requirement of a pass with 50% marks in the PMET is not applicable, for, it is only for the seats left vacant in private institutes for Management/Minority Quota to be filled up out of eligible candidates from the same category. Here the persons who are seeking admissions form a distinct class of a special management quota which is an expression not found in clause (c) referred to above. I would fully accord with the contention and hold that what is applicable for the petitioners is a different quota which clause 6.2 provides and it shall be wrong to apply clause B and C referred to above.
6. The further argument of the learned Senior Counsel appearing for the MCI is that this Court has had an occasion to deal with a conflict between MCI regulations and the prospectus issued by the University in Ms. Karuna Vs. Government Medical College and Hospital, Chandigarh and others 2013(3) SCT 543 that if the MCI regulations spelt out a 50% requirement in PMET, the University cannot completely dispense with such a requirement in its prospectus. It was held in Ms. Karuna's case (supra) that in the event of any conflict, it is the MCI regulation which would prevail and a student that is admitted against the MCI regulations could have no vested right to a seat and if at all, could only claim damages for loss of seat against the University and PANKAJ KUMAR 2014.10.30 16:18 I attest to the accuracy and authenticity of this document Chandigarh CWP No.24211 of 2013 (O&M) -6- college. This judgment is reported to be a subject of appeal before the Supreme Court but the learned Senior Counsel appearing on behalf of the MCI would state that the judgment in Ms. Karuna's case (supra) refers to judgments of Supreme Court in its conclusion and therefore, the mere pendency of an appeal against the judgment will not take away the binding nature of the Division Bench ruling. I have seen through the reliance on some other decisions which the Division Bench makes and perhaps the most crucial judgment which the Court was referring to was a Constitution Bench that held in Dr. Preeti Srivastava Vs. State of MP 1999 (7) SCC 120 that held that the complete removal of benchmark for admission for SC/ST candidates which was against the express norms laid down by the MCI was ultra vires. We do not have a situation of direct conflict at all. We have a State which has accepted the admission norms laid down by the MCI of conducting an entrance test for filtering candidates who are initially eligible with a requisite number of 50% marks in the Board examination or its equivalent. Only those candidates who have secured more than 50% in PMET have been admitted in the regular general category. Only such of those NRI seats which remained vacant were transferred to the general category and after filling up the seats from candidates who had more than 50% in PMET, if there were still seats available, those seats alone have been filled up by candidates on inter se merit in the Board examination. The present petitioners are such of those candidates who have secured admission to the remaining number of seats that were not filled up after exhausting the candidates who had more than 50% in PMET. I see no conflict at all, for, a State has a right to regulate its admission on the PANKAJ KUMAR 2014.10.30 16:18 I attest to the accuracy and authenticity of this document Chandigarh CWP No.24211 of 2013 (O&M) -7- basis of norms laid down under the prospectus which was not expressly in conflict with any of the University regulations. Indeed, there are some States like Tamil Nadu where even the requirement of an entrance test for professional colleges has been completely dispensed with. The Division Bench of the Madras High Court in Major S. Aswin Kumar Vs. State of Tamil Nadu represented by its Secretary (2007) 2 CTC 677 actually held the legislative initiative of the State dispensing with the common entrance test and since then MCI regulations requiring a common entrance test cannot be made applicable. It is not, therefore, inviolable that a University and a State cannot prescribe admission on the basis of only the basic eligibility of qualifications of pass with particular percentage of marks in the Board examination. It cannot, therefore, be per se violative of the requirements of law and be taken as compromising on merits.
7. Learned Senior Counsel would argue that if the petitioners had opted for PMET and if they do not make the grade of 50% then they cannot turn around to say that requirement of 50% in PMET is not necessary. The argument is fallacious, for, it is nobody's contention that the stipulation of 50% in PMET itself was not tenable. The petitioners have ranked lowest in the order of the merit considering the fact that there were very few seats left after filling up the NRI quota and for the NRIs there was no requirement of PMET. The persons who were filling up such quota were themselves not NRIs but were entitled to such benefit as the prospectus prescribed. After all the petitioners cannot faulted for having gained admission as per the prospectus.
8. It is relevant to bring to note that it is not as if that the MCI PANKAJ KUMAR 2014.10.30 16:18 I attest to the accuracy and authenticity of this document Chandigarh CWP No.24211 of 2013 (O&M) -8- did not know the stipulation in the prospectus allowing for the vacant spilt over seats of NRI to be filled up by candidates from the general category with reference to the marks on the basis of merit in Board examination only. The learned Senior Counsel appearing for the petitioners would refer to previous experience for admission for the year 2007 when three seats had been filled up in the management category in the same manner as it has been already done, that is, without reference to the minimum stipulation of pass in PMET. The MCI which had withdrawn admission for them had subsequently cancelled the decision. The names of the candidates are also specifically spelt out in the petition and given as under:-
Sr. No. Name of the student Category Sub category
1. Ruchi Goyal Management General
2. Parneet Kaul Gill Management General
3. Satyarth Jangli Management General The MCI has no answer for such a decision to allow the candidates the benefit of consideration only on the marks obtained in the Board examination and it would mean gross discrimination practiced against the petitioners if the MCI would not apply same logic of what it was prepared to do in the year 2007. The learned Senior Counsel appearing for MCI, when confronted with the past experience of an admission made without reference to the PMET marks would underplay the importance by stating that one wrong cannot right another. It cannot be stated to be a wrong which was not noticed. It was, on the other hand, expressly brought up for consideration and the denial of admission originally made to those candidates were later withdrawn and they were allowed to continue the course.PANKAJ KUMAR 2014.10.30 16:18 I attest to the accuracy and authenticity of this document Chandigarh CWP No.24211 of 2013 (O&M) -9-
9. There is another dimension to the whole issue as well. The 50% pass in PMET has subsequently been changed for 50th percentile in the subsequent notification. If we go by the 50th percentile, the marks obtained by the petitioners would qualify as above the 50th percentile. The learned Senior Counsel for the MCI has again an argument for this, as well, that the 2012 notification prescribing percentile along with the NEET was quashed by the Supreme Court in Christian Medical College, Vallore Vs. UOI and others (2014) 2 SCC 305 and therefore, the reference to percentile is not material. I have not referred to this as a case where the petitioners would obtain the benefit of the percentile but I am only stating this to point out that there is no serious prejudice that is caused for admission of students, for, they are not wholly without any merit. The admissions have taken place in accordance with prospectus which was tenable. The prospectus was not contrary to the regulations. It was with reference to a special management quota for which different norms had been specifically spelt out for limited number of seats.
10. The impugned orders withdrawing admissions to the petitioners in all these writ petitions are quashed and the writ petitions are allowed.
11. It is stated by the senior counsel for the petitioners at the time of pronouncement of judgment that the examination to be held on 01.11.2014. The University will register the petitioners for examination and issue the roll numbers and hall tickets.
(K. KANNAN) JUDGE October 30, 2014 PANKAJ KUMAR Pankaj* 2014.10.30 16:18 I attest to the accuracy and authenticity of this document Chandigarh