(Prayer: This writ petition is filed under Articles 226 and 227 of the Constitution Of India, praying to direct the respondent Nos.3 and 4 to give the admission to the petitioner to the Diploma in Obstetrics and Gynecology Post Graduate course in the respondent No.4 college for the year 2014-15 by cancelling the admission given to respondent No.5 for the D.G.O course for the year 2014-15 and consequently direct the respondent No.1 to approve the admission of the petitioner.)
1. The petitioner herein is seeking a direction in the nature of mandamus to respondent Nos.3 and 4 to cancel the admission given to respondent No.5 for the course of Diploma in Obstetrics and Gynaecology Post Graduation in the fourth respondent college for the year 2014-2015 and in that place to provide admission to petitioner. She is also seeking a direction to respondent No.1 not to approve the admission of respondent No.5 for the said course and for other consequential reliefs.
2. Brief facts leading to this petition are as under: It is the case of petitioner that she is a qualified MBBS doctor, who completed her graduation in the year 2009 from KBN Medical College, Gulbarga. She belongs to minority community and a student eligible to seek admission under OBC- CAT-IIB. She appeared for the competitive entrance exam conducted by COMEDK and PGET and secured 4060th rank in PGET and 7432 ranking in COMEDK. Though the percentage of marks secured by her was less than 50%, since she belongs to OBC-CAT-IIB, she is entitled to seek admission for the said course with existing percentage of marks. That on 15.5.2014 petitioner claims to have submitted an application to third respondent seeking admission to Diploma in Obstetrics and Gynaecology Post Graduation course ("DGO PG course" for short) in the fourth respondent college run by the third respondent society. There was negotiation with the management regarding the admission as well as fees to be paid. It is further contended that though the application was received no acknowledgement was given, instead an account number was given to deposit the fee that was negotiated between the student and management. Based on that petitioner states that a sum of Rs.15,00,000/- was deposited into third respondent's bank account. However, subsequently, she came to know that the third and fourth respondents instead of providing admission to petitioner for DGO PG course in fourth respondent college, admitted the fifth respondent to the said course on a higher fees.
3. According to petitioner, the fifth respondent is not eligible to seek admission on the basis of merit and that she was also not having the basic requirement of having participated either in PGET or COMEDK examination conducted by the Government or the management of professional colleges. Instead, she straight away approached the third respondent- society and by paying higher fees, secured admission. In the process, third and fourth respondents have committed series of errors in not following the Post Graduate Medical Education Regulations, 2000 ('PGME Regulation' for short), which prescribes the norms for selection of post graduate students and also not following the guidelines issued by the Apex Court in the matter of P.A.Inamdar and Ors., vs. State of Maharashtra and Ors., reported in (2005) 6 SCC 537 as well as in the matter of Priya Gupta -vs- State of Chhatishgarh and Ors., reported in 2012 (7) SCC 433, which are the leading judgments governing the procedure to be adopted while admitting students for post graduate course. Adverting to PGME Regulations, Counsel for the petitioner tried to substantiate that as against the case of fifth respondent, petitioner has appeared for entrance examination conducted by Government as well as professional medical colleges i.e., in PGET and COMEDK and has secured the minimum required percentage of marks for admission since she being a student belonging to OBC-CAT-IIB. As against that it is contended that fifth respondent has not appeared for the entrance test conducted either by COMEDK or PGET.
4. It is the specific case of petitioner that as and when the present petition was filed, initially on service of notice, respondent Nos.3, 4 and 5 entered appearance and filed statement of objections. In the statement of objections, which is filed by fifth respondent, she does not state that she had appeared for entrance test said to have conducted by any one, much less the entrance test conducted by Karnataka Religious and Linguistic Minority Professional Colleges Association (KRLMPCA for short). She does not provide the registration number or the date on which she appeared for said examination or the percentage of marks and rank said to have secured by her. Instead by way of memo and additional documents, the third and fourth respondents tried to fill-up the lacuna in the objection of fifth respondent by producing a computer print out said to have issued by KRLMPCA, which is titled as PG CET 2014 Medical Score Card. With this, they tried to substantiate that fifth respondent is eligible student for having attended the examination conducted by KRLMPCA and secured 319th rank in said examination.
5. Heard Sri.P.Vilas Kumar, learned Counsel for petitioner, Sri.R.V.Nadagouda, counsel appearing for first respondent-University, Sri.Shivakumar R.Tengli, the learned Additional Government Advocate for second respondent-State, Mr.Shashikiran Shetty, learned Senior Counsel appearing for respondent No.3 and 4, and Sri. A.M.Nagaral, the counsel appearing for fifth respondent.
6. On going through the material available on record this Court find that the following two points arise for consideration :
1) Whether the petitioner herein submitted an application seeking admission for DGO PG course for the academic year 2014-15 in fourth respondent college and whether she was assured a seat and advised to deposit a sum of Rs.15,00,000/- in the account of third and fourth respondent's bank account.?
2) Whether third and fourth respondents have followed the procedure laid down by the Apex Court in the matter of Inamdar and Priya Gupta while publishing the availability of seats under NRI quota to be filled up by the management and whether required fee was notified earlier to admission being granted in favour of fifth respondent and whether fifth respondent was eligible to be admitted for the DGO PG course in terms of the guidelines set forth in the aforesaid two judgments of the Apex Court as well as regulations governing the admission to PG medical course?
7. Reg.Point No.1 Nodoubt the petitioner herein is a qualified medical graduate having appeared for entrance test conducted by the State Government as well as management of professional colleges and secured minimum percentage of marks for admission to DGO PG course for the academic year 2014-15 since the minimum percentage of marks required for OBC-CAT- IIB candidate being 40%, the marks that is obtained by the petitioner is sufficient to secure her admission for the said course. So far as the application which is said to have filed by petitioner, it is seen that a copy of application filed and relied on by the petitioner is produced, however, the same does not indicate that said application was received by third and fourth respondents. Though much has been said by the learned Counsel for petitioner that the management of third respondent- society does not acknowledge the application but would keep the same in abeyance and scout for the student, who would pay the highest fees for the said seat and to them will allot the seat. In the instant case also, though the application was filed on 15.5.2014, considerably for a long time nothing was informed to petitioner regarding admission. However, subsequently in the last week of June 2014 petitioner was informed that she should deposit a sum of Rs.15,00,000/- to the account of fourth respondent, which she has complied. At this juncture it is seen that except the self serving statement of petitioner, there is nothing on record to demonstrate the aforesaid pleading. Therefore, in the absence of material to support the same, it cannot be accepted.
8. Further, even assuming that third and fourth respondents did indulge in such kind of exercise by receiving application of petitioner and without acknowledging the same and keeping it in abeyance, directed the petitioner to deposit the money, accepting the same on the basis of pleadings of petitioner is difficult. If it is seen in the background of the pleadings in the petition, it is stated by petitioner that she was demanded to pay a sum of Rs.40,00,000/-, as against which she could mobilize Rs.15,00,000/- only and the same was deposited by her. That she being a poor girl that is all the amount which she could mobilize through friends and relatives and beyond that she could not pay. Though that was the pleading in the petition, subsequently, learned counsel for the petitioner tried to substantiate that if only the management had indicated that the value of seat is Rs.60,00,000/- instead of Rs.40,00,000/-, petitioner would have paid the said amount and got admitted to the course. This Court cannot accept the said submission, which is contrary to the pleadings itself. Therefore, even assuming that petitioner was having required percentage of marks to seek admission, it is clearly indicated that the seat which was available with third and fourth respondents is one under NRI quota and the said seat if it remains unfilled in NRI quota was available to the management to be filled up at a higher slab of fees to ensure that the money, which is received from such admission could be utilised against the cause of subsidizing the fees in respect of other students.
9. In any event, in the instant case, the petitioner has miserably failed to substantiate that she had enough resources to pay the fees to be fixed by the management of fourth respondent college and she was willing to pay the same and accept the seat. In the absence of same, petitioner's plea that she has filled up all other parameters to seek admission, cannot be accepted. In that view of the matter, the first point will have to be answered against the petitioner.
10. Reg.Point No.2:
Now coming to second point, it is seen that under PGME Regulations the management is required to adhere to Regulation No.9, which stipulates that students for PG course shall be selected directly on the basis of their academic merit and the manner in which the academic merit will have to be determined is also mentioned in Regulation No.9, which reads as under:-
9. SELECTION OF POST GRADUATE STUDENTS:
1. Students for post graduate medical courses shall be selected strictly on the basis of their academic merit.
2. For determining the academic merit, the university/institution may adopt any one of the following procedures both for degree and diploma courses:-
i) On the basis of merit as determined by a competitive test conducted by the state government or by the competent authority appointed by the state government or by the university /group of universities in the same state; or
ii) On the basis of merit as determined by a centralized competitive test held at the national lavel; or
iii) On the basis of the individual cumulative performance at the first, second and third MBBS examinations, if such examinations have been passed from the same university; or
iv) Combination of (i) and (iii) :
Provided that wherever entrance test for postgraduate admission is held by a state government or a university or any other authorized examining body, the minimum percentage of marks for eligibility for admission to postgraduate medical course shall be 50 percent for general category candidates and 40 percent for the candidates belonging to Scheduled Casts, Schedule Tribes and Other Backward Classes:
Provided further that in non-governmental institutional fifty percent of the total seats shall be filled by the competent authority and the remaining fifty percent by the management of the institution on the basis of merit.
On going through Regulation 9 of PGME Regulations, it is seen that the candidate should have appeared for the test conducted either by the State Government or University or any other authorized examining body and should have secured minimum percentage of marks, which would be the guideline/eligibility for admission to PG medical course.
11. In the instant case, the fifth respondent has not appeared for entrance test conducted either by the Government or the professional colleges medical association in the form of COMEDK or PGET. It is also seen that she is not from the same university, in which she is seeking admission. Admittedly, fifth respondent herein is from Bhopal University, she has not appeared for any competitive test to seek admission, as could be seen from the statement of objections filed by her. On the contrary, it is seen that respondent Nos.3 and 4, subsequently by way of additional documents produced a computer print out and relied on the same to demonstrate as if fifth respondent had appeared for entrance test said to have conducted by KRLMPCA in the form of PG CET 2014. In that behalf, the score card produced by the fourth respondent cannot be believed for the reason that the fifth respondent, who is said to have appeared for the said examination never mentioned the same in the statement of objections filed by her. Even the score card which is produced by respondent Nos.3 and 4 on behalf of fifth respondent does not disclose the date on which such examination was conducted and other particulars regarding said examination is not seen in said document to demonstrate. In fact when this Court tried to ascertain the correctness or otherwise of the same through internet, which was available in the court hall computer, it was found that no such information was available in the said website. The said website indicated that it is closed by the time this matter was taken up for arguments. The entire documents which are produced and relied on by respondent Nos.3 and 4 on behalf of respondent No.5 to demonstrate that she appeared for entrance test conducted by KRLMPCA is doubtful and cannot be believed and it is baseless to believe that she has secured 319th rank in the said examination.
12. It is further seen that the Apex Court in the matter of Priya Gupta vs. State of Chhatishgarh and Ors., reported in 2012(7) SCC 433 vide paragraph 30 clauses (v) to (viii) set forth the guidelines to be followed while filling up the seats under NRI quota, relevant portion of which read as under:
(v) The admission to the medical or dental colleges shall be granted only through the respective entrance tests conducted by the competitive authority in the state or the body of the private colleges. These two are the methods of selection and grant of admission to these courses. xxx xxxx xxxx
(vi) All admissions through any of the stated selection processes have to be effected only after due publicity and in consonance with the directions issued by this Court. We vehemently deprecate the practice of giving admissions on 30th September of the academic year. In fact, that is the date by which, in exceptional circumstances, a candidate duly selected as per the prescribed selection process is to join the academic course of MBBS/BDS. Under the directions of this Court, second counseling should be the final counseling, as this Court has already held in the case of Ms.Neelu Arora and Anr. V. UOI and Ors. [(2003) 3 SCC 366] and third counseling is not contemplated or permitted under the entire process of selection /grant of admission to these professional courses.
(vii) If any seats remain vacant or are surrendered from All India Quota, they should positively be allotted and admission granted strictly as per the merit by 15TH September of the relevant year and not by holding an extended counseling. The remaining time will be limited to the filling up of the vacant seats resulting from exceptional circumstances or surrender of seats. All candidates should join the academic courses by 30th September of the academic year.
(viii) No college may grant admissions without duly advertising the vacancies available and by publicizing the same through the internet, newspaper, on the notice board of the respective feeder schools and colleges, etc. Every effort has to be made by all concerned to ensure that the admissions are given on merit and after due publicity and not in a manner which is ex-facie arbitrary and casts the shadow of favouritism.
13. In terms of the aforesaid guidelines set forth by Apex Court, it is clearly seen that wide publication is required to be given in two newspapers in the manner observed in the aforesaid judgments. In the instant case, there is nothing on record to demonstrate that seat available to be filled up by the management under NRI quota for DGO PG course 2014 was either published in the newspaper or in the website as is required. The respondent Nos.3 and 4 were also required to publish the fee that is fixed for allotment of the said seat. In fact, this Court called upon respondent Nos.3 and 4 to produce the relevant documents to demonstrate on which date the aforesaid notifications were uploaded to the website by respondent Nos.3 and 4 and for how many days it remained on the website. Inspite of sufficient time being granted, it was not furnished either by respondent Nos.3 and 4 or by respondent No.5. If availability of seat was required to be published before filling up the same, the third and fourth respondents ought to have published the same in the website or in the newspaper as is required in terms of the judgments of the Apex Court in Inamdar and Priya Gupta, referred supra, which govern the procedure to be followed while filling up the seats under NRI quota.
14. At this juncture it is necessary to state that learned Counsel for the petitioner has furnished a letter dated 21.8.2014 issued by the first respondent vide NO.RGUHS/RIA/Adm/45/2013-14. A perusal of the same would confirm that fifth respondent's admission to fourth respondent college is not approved under management quota only for the reason that she has not submitted any Rank Card. This would further strengthen the argument of the counsel for petitioner that the score card of KRLMPCA furnished by respondent Nos.3 and 4 on behalf of respondent No.5 could be a got-up document to get over this petition.
15. With this, it is clearly seen that respondent Nos.3 and 4 were not diligent in following the guidelines issued by the Apex Court in the judgments, referred supra, which are subsequently followed in catena of decisions as guidelines to be followed while filling up the seats available under NRI quota, which is allotted in favour of fifth respondent in the instant case. In that view of the matter, the said admission of fifth respondent is required to be held as contrary to the procedure laid down by the Apex Court.
16. Hence, the admission of fifth respondent to fourth respondent college in DGO PG course for 2014-15 is set aside. While doing so, it is observed that the third and fourth respondents have flouted all the norms, which are required to be followed while filling up the seats under NRI quota or under any other quota and the same will have to be viewed seriously.
17. In the light of aforesaid discussion, this Court feel that the genuineness or otherwise of the documents produced by respondent Nos.3 and 4 to substantiate the admission of respondent No.5 to DGO PG course for the academic year 2014- 15 with fourth respondent college, more particularly, the documents with reference to publishing the date, with reference to the date of admission, with reference to the fees fixed for filling up of seat under NRI quota and the eligibility certificate and the score card of respondent No.5 relied on by respondent No.3 and 4 is required to be ascertained. In addition to that whether respondent Nos.3 and 4 are following the procedure laid down by the Apex Court in Inamdar and Priya Gupta's case with reference to filling up of excess seats available with the management under NRI and other quotas is also required to be ascertained. Hence, to ascertain the aforesaid aspects, this Court direct the second respondent herein, namely Principal Secretary, Health and Family Planning Department to get the same enquired through COD and file its report to this Court within three months from today.
18. With the aforesaid observations, this writ petition is allowed in part. The admission of fifth respondent to fourth respondent college run by third respondent to DGO PG course for the academic year 2014-15 is hereby set aside. The second respondent Principal Secretary is hereby directed to order for an enquiry by COD into the procedure adopted and followed by third respondent society to fill up the management quota seats in fourth respondent college pursuant to observation made in paragraph 17 supra. The second respondent shall ensure that the said enquiry shall be completed within three months from the date of receipt of a copy of this order and shall furnish the same to this Court within one month there from.
Registry is directed to send a copy of this order to second respondent to comply with the directions issued by this Court in this writ petition.