ORDER
A. Gopal Reddy, J.
1. All these writ petitions can be dealt with under a common order, since the controversy in all the writ petitions is inter-linked with one another.
2. The Supreme Court in Convener, MBBS/BDS Selection Board v. Chandan Mishra, , fully endorsed the view taken by the Orissa High Court, which reads as under:
'The learned Judges of the High Court, if we may say so with respect in a well-considered opinion expressed their anguish at the insensitivity of the authorities administering medical admission in the State to the need to prevent occasions for repetitive grievances from the student community and had occasion to observe:'Shakespeare in Othello has written 'Chaos is come again'. This Court has witnessed chaos almost annually when time for admission to MBBS/BDS Courses came....'
3. The State of Andhra Pradesh is not an exception to the same.
4. The Apex Court in Medical Council of India v. Madhu Singh, : [2002]SUPP2SCR228 , after taking note of the above observation in order to maintain excellence particularly, in the medical field, to prevent admission in the midst which will disturb the course and also work as handicap to the candidates themselves fixed time schedule. In para-23 of the judgment the Supreme Court observed as under:
'...necessity for specifically providing the time schedule for the course and fixing the period during which admissions can take place, making it clear that no admission can be granted after the scheduled date, which essentially should be the date for commencement of the course.'
In conclusion:
(vi) No variation of the schedule so far as admissions are concerned shall be allowed.
5. In view of the same, the General Body of the Medical Council of India (MCI) decided to lay down time schedule for admission into 1st year MBBS Course 2003-04 and communicated the same through its letter No. MCI-26 (3)/2002-Med./36343 dated 11-2-2003 to all the State Governments. It is also made known to the respective State Governments that a detailed schedule of counselling will be issued shortly. The MCI in its letter dated 27-8-2003 intimated all the State Governments and Medical Colleges that the steps to be taken by the Medical Colleges in completion of admissions in the medicine courses have to be completed on or before 30-9-2003. In the light of directions issued by the Apex Court in Madhu Singh's case (supra) the MCI had forwarded time stipulations for approval of the Central Government. The Government of India while issuing a policy letter dated 14-5-2003 pursuant to judgment of Supreme Court in TMA Pai Foundation v. State of Karnataka, : AIR2003SC355 , has approved the time stipulation fixed by MCI. The time schedule approved by the Government of India was also placed before the Constitution Bench of the Supreme Court in Islamic Academy of Education v. State of Karnataka, : AIR2003SC3724 , in which the Supreme Court also expressed its concern on strict adherence to the time stipulation for completion of admissions in the MBBS Course in each college. The MCI communicated the same through its letter dated 27-8-2003 and brought to the notice of all concerned the steps to be taken as expeditiously as possible so that all the admissions in the medicine courses are completed not later than 30th September, 2003 and MCI shall be constrained to take necessary action in accordance with law against all those colleges who fail to commence the teaching in the medical courses for the academic session 2003-04 and who also fail to complete the academic process in totality for the academic session 2003-04 before 30th September, 2003. In view of regulations framed for completion of admission process before 30-9-2003, the Government of Andhra Pradesh in G.O. Ms. No. 488 dated 5-9-2003, in supercession of the Andhra Pradesh Professional Educational Institutions (Regulation of Admission into Under Graduate Professional Courses through Common Entrance Test) Rules, 1983 issued in G.O. Ms. No. 184, Education dated 20-8-1993 and G.O. Ms. No. 225 HM&FW; (E12) Department, dated 16-6-2001, framed rules for admission into under graduate professional courses in Medical and Dental in Un-aided Non-Minority Professional Institutions in the State known as Andhra Pradesh Un-aided Non-Minority Professional Institutions (Regulation of Admissions into Undergraduate Medical and Dental Professional Courses) Rules, 2003 ('the rules' for short). Some of the rules, which are relevant to decide the issue involved in the writ petitions, may briefly be stated as under:
4. Allotment of seats:
The seats to be allotted in each Un-aided Non-Minority Professional Institution under these Rules for Admission of Candidates shall be classified as:
(i) x x x xx x x
(ii) Category-B (25% of the sanctioned intake of the seats) 'EAMCET ranking based Management Seats':- Seats to be filled up through a common counselling by a committee of managements of the colleges/institutions to be constituted as per the schedule prescribed by the competent authority or if the institution(s) concerned or management committee so desire, by the committee of admissions constituted by competent authority. The seats shall be filled based on merit in the common entrance test (EAMCET) held by the State for that year and with candidates who have applied to the committee constituted by colleges/institutions concerned for admission by following the rules of reservation.
(iii) x x x x xx
5. Authority for Admissions to Category-A seats, Category-B seats and Category-C seats:
(i) x x x x x
(ii) the Category-B seats (EAMCET Ranking based Management Seats) (25% of the Total intake of the Seats) shall be filled by the committee constituted by the Managements of all the private unaided non-minority professional colleges/ institution(s) as per the rules laid down or if the institutions or management committee so desire, by the committee of admissions constituted by the competent authority.
(iii) x x x x x
6. Procedure of Admissions:
(A) To fill up Competent Authority seats (Category-A- 50% of the sanctioned intake of the seats)
(B) To fill up EAMCET ranking based Management seats.
(Category-B 25% of the sanctioned intake of the seats)
(i) Category-B seats shall be filled by the Committee of the Managements in a transparent manner from among the students who have passed EAMCET based on merit therein and have applied to the committee constituted by the institutions/colleges concerned for admission and by duly following Rules of Reservation applicable in the State.
(ii) The managements of private Un-aided Non-minority Professional Institutions shall complete the process of admissions within the time frame following such procedure as prescribed by the competent authority for making admissions into the Category-B seats of all the Private Medical and Dental Colleges.
(iii) The Committee of Management will function at a convenient place and shall complete the admissions process within stipulated date as notified by the NTRHUS.
(iv) The Committee of the Managements so constituted shall issue a notification in two leading newspapers calling for a single common application form for admission into the above seats in all the colleges, informing of the dates and venue of the counselling.
(v) x x x x xx x x
(vi) x xx x x x x x
(vii) The Committee of Managements will also issue the guidelines for selection and allotment of candidates against the above seats basing upon the rules as applicable herein and indicating the prescribed fee and other rules.
(viii) The observer appointed by the Competent Authority shall monitor and guide the Committee in the admission process to Category-'B' seats.
(ix) The Competent Authority shall pool up the above seats in all the colleges and shall prepare the seat matrix separately for each region by following the Rules of Reservation.
(x) The Admissions shall be made in the following manner:
(a) The Committee of the Managements shall scrutinize the application forms received and shall prepare a common merit list based on seat matrix prepared by the competent authority.
(b) The committee of the managements of private un-aided non-minority colleges shall scrutinize all the applications received from the candidates. After scrutiny the committee of management shall prepare the following merit lists namely:
i. Common merit list: containing the names of the candidates belonging to the concerned categories arranged in the order of merit ranking assigned to them in the common entrance test.
ii. Category-wise merit list: containing the names of the candidates belonging to the concerned categories arranged in the order of merit ranking assigned to them in the Common Entrance Test.
iii. x x x xx
iv. x x xx
(c) The candidates shall attend the counselling with all their original certificates.
(d) The Committee of Managements shall select the candidates in the counselling by calling for candidates based on EAMCET ranking and as per the seat matrix approved by the Competent Authority.
(e) The Committee of management shall sent a copy of the merit list and list of candidates selected into respective colleges to the competent authority for approval.
(f) x x x x x x x
(g) x x x x x x x
(h) If a candidate after the final selection fails to report to the Principal of the respective college on or before the stipulated time, the seat will be treated as vacant and the Principal of the respective college shall fill up the vacant seat by the Management under Category-C, provided the procedure of the admission and counselling including subsequent counselling to fill up the seats as prescribed, should have been followed.
Further, the Government in G.O. Ms. No. 572 dated 19-9-2003 issued amendment to the rules issued in G.O. Ms. No. 488 dated 5-9-2003 by adding proviso to 6(A) and 6(B)(x)(f)
6. As per the rules issued in G.O. Ms. No. 488 dated 5-9-2003 in the light of Constitutional Bench judgment in the case of TMA Pat Foundation (supra), the 2nd respondent-University constituted Committee of Admissions on 13-9-2003 for selection of candidates for admission into MBBS/BDS in Government, Private Unaided and Private Un-aided Minority Medical and Dental Colleges for the academic year 2003-04. The Competent Authority appointed Dr. P. Chandra Sekhar, Principal, Government Medical College, Ananthapur and Dr. R. Sasank, Deputy Registrar (Academic) NTR University of Health Sciences, Vijayawada as Observers and informed the same to the Convener, Admission Committee, Private Medical and Dental Colleges Management Association. The seat matrix was communicated to the Private Medical and Dental Colleges Association on 27th morning prior to commencement of counselling. The 1st phase of counselling for Category-A seats was conducted by the NTR University of Health Sciences on 20-9-2003 and 26-9-2003; whereas the Private Medical Colleges Management Association conducted counselling for Category-B seats on 27th and 28th September, 2003 in the University premises at Vijayawada based on the ranking, and finalized admissions into MBBS/BDS Courses and forwarded the same to the Competent Authority for its approval. The Private Medical and Dental Colleges Management Association issued provisional admission order to each of the selected candidates directing them to report to the concerned Principal in person on or before 4 p.m., on 30-9-2003 along with admission card and the said fact was also forwarded to the Competent Authority. Again on 29-9-2003, the University commenced its 2nd phase of counselling for the vacant seats. Meanwhile, the Government of India has accorded permission to:
1. PES Institution of Medical Sciences/ Kuppam,
2. Katuri Medical College, Guntur and
3. Pananeeya Vidyala Institution of Dental Sciences, Hyderabad on 29-9-2003 evening.
In view of the same, the 2nd phase of counselling which is commenced on 29-9-2003 was stopped by the Committee and postponed the same to the next day i.e., 30-9-2003 from rank No. 1 onwards into the vacancies available upto 9 p.m., on 29-9-2003 and seats in newly permitted Medical and Dental Colleges, and in case any further new Medical and Dental Colleges were permitted by the Government of India before commencement of counselling on 30-9-2003. Press notification to the said effect was also issued on 29-9-2003, which was published in all the newspapers on 30-9-2003. Private Medical Colleges Management Association, who conducted counselling, was also informed about simultaneous counselling to be conducted on 30-9-2003 for Category-B seats, in view of permission granted to three colleges mentioned above and another two medical colleges, namely, NRI Academy of Medical Sciences, Chinnakakani and CAR Institute of Medical Sciences, Karimnagar by the Central Government on 30-9-2003. Since there was increase of seats into Categories A & B, many of the students who opted admission before the petitioners colleges in the counselling undertaken by the Committee of Managements on 27th and 28th September, 2003 in Category-B seats are likely to get free seats in the newly permitted colleges and many of the students who have been admitted in BDS courses as per their ranking may also get a seat in MBBS in Category-B in the newly permitted colleges on account of sliding down, which necessitated fresh counselling for Category-A and B seats from rank No. 1 onwards. Accordingly, the Committee of Admissions nominated by the Competent Authority commenced the counselling for the vacant seats; in the Category-A and B seats at 9 p.m., on 30-9-2003 till all the available seats were filled up. Many of the students who have provisionally admitted in the Private Medical and Dental Colleges in Category-B seats in the counselling held on 27th and 28th September, 2003 have opted for admission into newly permitted colleges and accordingly, resultant vacant seats were filled up by the respective colleges without undertaking selection process by the selection committee constituted for the said purpose. After completion of the said admissions when the writ petitioners' colleges forwarded their list of candidates, whose admissions are provisionally made, to the University under Category-B, they were informed that the admissions made in MBBS/BDS Courses into B-Category is irregular and the University did not approve their admission. Accordingly, the colleges are requested to strike-off the names of candidates in the roles of the colleges informing the students and parents and display the names on the notice board. Failure to do so will entail liability for further action including disaffiliation of the colleges. Assailing the said communication sent by the University the present writ petitions have been filed.
7. Petitioner in W.P. No. 22151 of 2003 admitted 16 students in MBBS Course in Category-B from the merit list prepared by the Selection Committee for admission under management quota in the place of students who have opted for admission in new colleges. Petitioner in W.P. No. 21819 of 2003 admitted 13 students in MBBS Course in Category-B from the merit list prepared by the Selection Committee. Likewise, petitioner in W.P. No. 22297 of 2003 admitted 7 students in MBBS Course under Category-B seats; petitioner in W.P. No. 21922 of 2003 admitted 13 students in BDS Course under B-Category; petitioner in W.P. No. 22330 of 2003 admitted 8 students in BDS Course under B-Category; petitioner in W.P. No. 22331 of 2003 admitted 15 students in BDS Course under B-Category and petitioner in W.P. No. 22365 of 2003 admitted 7 students in BDS Course under B-Category.
8. Sri K.N. Bhat, learned Senior Counsel representing Mr. C. Kodandaram on behalf of petitioner in W.P. No. 22151 of 2003 urged that the Committee constituted to fill up private management seats finalized the admissions on 27th and 28th September, 2003 and submitted the list to Competent Authority. But in view of permission granted to new colleges the students who were admitted in Medical and Dental Courses of petitioners' colleges were shifted to newly established colleges for which the counselling was taken at 9 p.m., on 30-9-2003, there is no choice left to the petitioners' colleges except to fill up the vacancies from among the list of candidates available with the Committee of Private Managements, otherwise the seats will go waste. Since all the seats were filled up on 27th and 28th September, 2003 itself and the list was also submitted to the Competent Authority on 29-9-2003, the admission of the candidates in resultant vacant seats in view of permission to slide into MBBS and BDS Courses will have to be approved. The said situation could not be visualized, as there is uncertainty among the private colleges about the availability of vacancies in the newly permitted colleges and all the candidates were selected basing on EAMCET ranking from out of the list prepared by the Committee of Private Managements, not approving them only on the ground that it lacks transparency is vague. Since the Registrar communicated order in its letter dated 27-8-2003 fixing the deadline to complete the admissions not later than 30-9-2003. As counselling for filling up Category-A seats was undertaken by the Competent Authority apart from filling up Category-B seats in the newly permitted colleges, there was no option to the petitioners' colleges except to admit students in the resultant vacant seats from among the list prepared by the Committee of Private Managements. Though such selection was not based on merit, pedantic interpretation has to be given to the rules to sustain the admissions made, in view, of fact situation prevails as on 30-9-2003. He further submits that no interested student has challenged about the transparency of selection complaining that they have changed the seats. The effect of not approving the admissions result in State losing 62 seats, they will go waste and the same cannot be filled up in view of expiry of deadline, as the Supreme Court has not permitted to fill up seats after the deadline.
9. While supplementing the arguments of Sri K.N. Bhat, learned Counsel appearing for the petitioners in W.P. Nos. 21181 and 21922 of 2003, Sri Nuty Ram Mohan Rao contends that the Committee constituted by private colleges completed the selection on 27th and 28th September, 2003 and all the seats were filled up except twelve in BDS Colleges and one in SCA of Kamineni Institute of Medical Sciences. The management of private colleges in letter and spirit of admission rules issued notification calling for applications for admission into private colleges. Accordingly, 2,660 applications were received and admissions were finalised on 27th and 28th September, 2003 by following seniority out of the applications received. He also contends that the students selected on 27th and 28th September, 2003 in Category-B seats withdrew their candidature on 30-9-2003. The seats will be shown as vacant seats by the management as laid down in Clause (h) of Rule 6 (B) (x) and the same can be filled in by the respective Principals treating them as Category-C seats. In view of the same, management cannot be faulted since possible vacant seats are not known even by 6.p.m., on 30-9-2003. When admittedly counselling has not taken place by the Competent Authority to fill up the vacant seats and in the application form issued by the Committee of Management, it is categorically mentioned that the candidate can opt to pay the fee upto 12 p.m., on 30-9-2003 and failing to do so the vacant seats will be filled up from out of the left over candidates applied, the management rightly exercised the option to fill up such vacant seats under Clause (h). When the University itself undertaken counselling for new colleges at 9 p.m., on 30-9-2003, it cannot refuse to approve the admissions of petitioners' colleges, having violated the decision of the Supreme Court by proceeding with the counselling on 1st and 2nd October, 2003. When the University itself violated the time schedule supplied by it earlier, and in the absence of counselling taken place on 30-9-2003, the petitioners' colleges have no option except to fill up the resultant vacant seats to sustain themselves, as seats will become vacant not only for this year but subsequent years also. The University has shown undue favoritism to newly permitted colleges by allotting students from among the students who were selected on 27th and 28th September, 2003. Therefore, it is not open for the University to find fault in filling up of the seats by the petitioners' colleges. He further pleads that if the admissions are not approved, not only the students will lose the academic year but also the State will be deprived of 62 medical graduates to serve the people.
10. Sri B. Adinarayana Rao, learned Counsel appearing for the petitioners in W.P. No. 22330, 22331 and 22365 of 2003 submits that students admitted in BDS course on 27th and 28th September, 2003 has not been questioned. Since sliding started at 9 p.m., on 30-9-2003 and in the absence of vacancy position made known to the private colleges, the colleges are justified in filling up of the vacancies. When sliding down is not transparent and not permissible under the rules, when the University itself violated the rules, which is evident from the White Paper on Admissions in Medical and Dental Colleges, by not approving the admissions, the Vice-Chancellor abdicated its function to the High Level Committee has not taken independent decision. Once the seat chosen by the candidate, namely category-B is closed, in the absence of any 2nd and 3rd lists, remaining seats can be filled up on from among the left over students and placed reliance on : [1993]3SCR337 . Since the University itself upsetting the admissions already made would not advance the cause proposed by the State Government increasing the seats, the action of the authorities in not approving the admissions is arbitrary and illegal.
11. Sri K.G.K. Prasad, learned Counsel for the petitioners in W.P. Nos. 22529 and 22297 of 2003 submits that G.O. Ms. No. 574 dated 22-9-2003, which was sent for publication on 13-10-2003 after due date of admission, cannot come in aid to the University for not approving the admissions. Fax message was sent on 8-10-2003 calling upon the petitioners to complete the admissions by 30-10-2003. Similarly G.O. Ms. No. 574 was received on 4-10-2003. By that time all the admissions were completed. Therefore, the University cannot refuse to ratify the admissions of students who are provisionally admitted.
12. Sri C.V. Mohan Reddy, learned Counsel for the petitioner in W.P. No. 23584 of 2003 contends that by permitting new colleges 125 seats were surrendered by the petitioners' colleges to be filled up by the University in Category-B and the manner in which the seats were filled up by the University clearly shows that the same was not transparent. Six students Sl.Nos. 1412, 1452, 1521, 1585 and 1089 were not admitted though they are eligible and no information is available about the said seats. Once the schedule fixed is sancrosanct, the same could not be proceeded, by virtue of stay granted by the Supreme Court and the admission have to be made as per the rules issued in G.O. Ms. No. 488. Since the merit is being sacrificed, the entire selection has to be set aside and admissions should be made on merit by following rule of reservation. Schedule fixed for admission does not acquire the status of regulation as held by the Supreme Court in State of Kerala v. T.P. Roshana, : [1979]2SCR974 . Conclusion (vi) of time schedule fixed in Para-23 of the judgment Madhu Singh's case (supra) will not debar this Court from granting relief. He invited the attention of the Court to the order passed by the Orissa High Court in Miscellaneous Case No. 10214 of 2003 in W.P. (C) No. 6277 of 2003 dated 14-10-2003, wherein the Orissa High Court extended the time for completion of process of admission to 31-10-2003 in view of permission granted to the new colleges in the said State. In the same analogy the learned Counsel insists this Court for issuance of similar direction for filling up of vacant seats after setting aside the admissions, which are made contrary to the rules. .
13. Similarly, Sri V. Jogaiah Sarma and Sri P. Krishna Reddy, learned Counsel appearing for the petitioners in W.P. No. 22181 and 22357 of 2003 also contend for setting aside the admissions and to make fresh admission by following merit and rule of reservation etc,
14. Sri N. Ramesh Ranganathan, learned Additional Advocate-General strenuously opposing the stand of the petitioners conrends that when all the petitioners have admitted that seats which fell vacant in Category-B are filled up, it is not open for them to contend they are converted into Category-C and filled up by the respective colleges, since the seats can be filled up only by the Committee constituted under Rule 6(B) by way of counselling but not by each college individually. Rule 4(ii) clearly envisages filling up of the seats through a common counselling by a Committee of Managements of the colleges/institutions to be constituted as per the schedule prescribed by the Competent Authority and with candidates who have applied to the committee constituted by colleges/institutions concerned. The Committee constituted is required to make admissions, as per rules. The petitioners' colleges cannot themselves fill up the vacant seats. When the colleges were specifically informed that fresh counselling will take place on 30-9-2003 pooling all the seats together, it is not open for the petitioners' colleges to fill up B category seats on its own. When NTR University of Health Sciences conducted counselling on 20th to 26th September, 2003 for Category-A seats in private and Government Colleges. Whereas for the vacant seats, the Committee constituted by the University undertaken counselling on 29-9-2003, but in view of permission granted to new colleges counselling was deferred to 30-9-2003 and necessary notification was issued and published in all the newspapers on 30-9-2003 intimating that counselling will be taken place into all colleges. He also contends that the procedure adopted by the petitioners' colleges is contrary to the rules, since Rule (h) cannot be read in isolation. More so, rule itself contemplates filling up of the vacant seats by the management in Category- C provided the procedure of admission and counselling including subsequent counselling to fill up the seats should have been followed. In support of above contention he placed reliance on the judgments of the Apex Court in J.K.C.S.& W. Mills v. State of U.P., : (1961)ILLJ540SC , Umed v. Raj Singh, : [1975]1SCR918 , Dinesh Lchandra v. State of Assam, : (1978)ILLJ17SC , Sundararamareddi v. State of Andhra, 1958 An. W.R 536, and drawn my attention to Rule 6 (B) (vii) and (viii). He also contends that management is under obligation to issue guidelines for allotment of candidates basing upon the rules applicable by indicating prescribed fees other rules. The observer appointed by the Competent Authority shall monitor and guide the Committee in the admission process to Category-B seats. The Committee of Managements can select the candidates in the counselling by calling the candidates based on EAMCET ranking and as per the seat matrix approved by the Competent Authority. The colleges cannot take advantage of Rule 6(B) (x) (h) for filling up of vacancies when admittedly they have filled up seats under Category-B and the same can be filled up provided the procedure for admission and counselling including subsequent counselling to fill up the seats as prescribed have been followed. The colleges are under obligation to follow the rules and any violation of the rules shall entail cancellation of admissions of the candidates concerned and conduct of admissions afresh following the procedure etc. It is not the case of the petitioners' colleges have followed the procedure in selection in transplant manner by following merit and rule of reservation. The admissions made by the colleges are in contravention of Section 5 of Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983. When rules contemplated for filling up of the vacant seats by way of subsequent counselling, which was intimated to all the colleges, writ petitioners ought to have conducted counselling for filling up of the said seats. The fees structures for Category-B and Category-C seats are different. Petitioners have violated all norms, rules and regulations in filling up of the resultant vacant seats. The University authorities are justified in not approving the admissions made by the private colleges, which do not require any interference by this Court and the same will amount to perpetuate the illegality committed by the colleges in making admissions.
15. Sri D. Prakash Reddy, learned Additional Advocate General appearing for NTR University of Health Sciences contends that Rule 6(B)(x)(f) contemplates subsequent selection in the event of any candidate failed to join the colleges for which he was offered admission.. Even assuming that G.O. Ms. No. 574 will not govern the admissions but the rules which are in operation on the date when the seats are filled up provides 2nd counselling which is scheduled on 29-9-2003 and it was postponed to 30-9-2003, in view of sanction of four more Medical Colleges and one Dental College to which provisional affiliation was granted subject to compliance of deficiencies. There was no requisition to send observers for 2nd counselling to fill up B-category vacant seats nor any endeavour was made to fill up those seats by Committee of Private Managements constituted. As the colleges have not followed the merit list in filling up resultant vacant seats, list of candidates whose names are not found in list of 2661 were got admitted. By drawing attention of the Court to the averments made in affidavits filed in support of W.P. Nos. 22151 and 21819 of 2003 the learned Additional Advocate General contends that the colleges themselves admitted that they have given admission to the students under Category-B from the merit list. He rightly demolished the argument built up by Mr. B. Adinarayana Rao on White Paper and stated that colleges sent the list to the Competent Authority on 9-10-2003; communication was sent by the Competent Authority on 11-10-2003; whereas the report was received on 13-10-2003 and White Paper was published on 16-10-2003. Even much prior to the said White Paper Report published, the Competent Authority initiated action for not approving the admissions made by the petitioners. In view of the same, learned Additional Advocate General submits that competent authority has not abdicated its function nor influenced by the White Paper Report published. In the absence of any material to show that the Competent Authority influenced by the report or White Paper, the colleges cannot justify their actions by contending that they converted B-Category seats into C-Category, but the list submitted by the colleges do indicate that the admissions were made in Category-B seats only. In the absence of any request either to send the observers or request to the Competent Authority to fill up the vacant seats as was done by the newly established colleges, the admissions made by the petitioners' colleges in flagrant violation of rules giving a go bye to merit reservation cannot be regularized. He further submits that the contention of the colleges that admissions were made out of 2,660 students who have applied for admission is also not correct since atleast 8 to 9 students admitted whose names are not in the list of candidates. In view of the same, petitioners' Colleges cannot justify their making admissions on the sole ground that the State will be deprived of 62 medical seats and the same cannot be filled up by the University after the cut off date.
16. In view of pleadings and rival submissions made by the Counsel on either side, the points that emerge for consideration of the Court are as under:
1. Whether the admissions made by the petitioners' colleges in filling up of B-Category vacant seats are in consonance with the rules made in G.O. No. 488 dated 5-9-2003 if not, Whether the University is justified in not approving such admissions made, if any, in contravention of the rules.
2. If so, whether such admissions can be ratified in exercise of judicial process or not.
17. In the light of directions issued by the Supreme Court dated 31-10-2002 in WP(C) No. 317 of 1993 (TMA Pai Foundation case) the State Government framed the rules in G.O. Ms. No. 488 dated 5-9-2003. As per Rule 4(ii) 25% of the sanctioned intake of the seats are to be filled up through a common counselling by a committee of managements of the colleges/ institutions to be constituted as per the schedule prescribed by the Competent Authority or if the institution concerned or management committee so desire, by the committee of admissions constituted by Competent Authority. The seats shall be filled up basing on merit in the common entrance test (EAMCET) held by the State for that year and with candidates who have applied to the committee constituted by colleges/institutions concerned for admission by following the rules of reservation. Competent Authority as defined under Rule 2(ii) means the Vice-Chancellor, NTR University of Health Sciences, Andhra Pradesh, Vijayawada, whereas Committee for Admissions was defined in Section 2(iii) which means the Committee nominated by the Competent Authority to select and make allotment of candidates to Professional Institutions offering Medical and Dental Courses in the State for Admissions in accordance with the provisions laid down in the rules. The procedure for filling up of 25% of the Management Seats in Category-B has been envisaged under Rule 5(ii). As per the procedure, the seats shall be filled up by the committee constituted by the Managements of all the private un-aided non-minority professional colleges/ institutions as per the rules laid down or if the institutions or management committee so desire, by the committee of admissions constituted by the Competent Authority. The procedure of admissions was contemplated under Rule 6(B). All the admissions to Category-B seats shall be filled up by the committee of the managements in a transparent manner from among the students who have passed EAMCET based on merit therein and have applied to the committee constituted by the institutions/colleges concerned for admissions and by duly following Rules of Reservation applicable in the State. The managements of private Un-aided Non-minority Professional Institutions shall have to complete the process of admissions within the time frame following such procedure as prescribed by the Competent Authority for making admissions into the Category-B seats of all the Private Medical and Dental Colleges. The Committee of Management will function at a convenient place and shall complete the admission process within stipulated date as notified by the NTR University of Health Sciences.
18. It is not in dispute that the Committee of Management so constituted invited the applications from the candidates who have qualified in the EAMCET examination. In response to its notification, 2,661 candidates have applied for. As per Rule 6(B)(viii) an observer appointed by the Competent Authority shall monitor and guide the Committee in the admission process to Category-B seats. The Competent Authority pool up the seats in all the colleges and prepare the seat matrix separately for each region by following the Rules of Reservation. The Committee of the Managements shall scrutinize the application forms received and shall prepare a common merit list based on seat matrix prepared by the Competent Authority as envisaged under Rule 6(B)(x)(a). The candidates shall attend the counselling with all their original certificates. The Committee of Managements shall select the candidates in the counselling as per the seat matrix approved by the Competent Authority. Under Rule 6(B)(x)(f) the candidates so selected shall pay the prescribed fee in the form of demand draft drawn on any Nationalized Bank in favour of Registrar, NTR University of Health Sciences payable at Vijayawada. If the candidate fails to pay the fee on the date of selection, his selection will be cancelled forthwith and it will be filled up in the subsequent selections by counselling as per prescribed procedure. The prescribed procedure which requires to be followed in filling up of Category-B seats is mentioned in Clauses (i) to (x) in Rule 6-B. Clause (f) of Rule 6(B)(x) clearly postulates on failure of candidate paying fees the selection will be cancelled forthwith and it will be filled up in subsequent selections by counselling. Second counselling is an inbuilt procedure contemplated to fill up such of the vacant seats by the Committee of Managements but not by the Principals treating them as Category-C seats. Clause (ii) of Rule 5 also envisages filling up of seats by the Management of Private Un-aided and Professional Colleges/Institutions as per the rules laid down or if the institutions of management committee so desire by the committee of admissions constituted by the Competent Authority. Sub-rule (xiii) of Rule 6A also postulates the procedure for filling up Category-A 50% seats by subsequent counselling as per the ranking.
19. In the light of the facts discussed above discloses that the Competent Authority conducted counselling in Category A and B seats from 20th to 26th September, 2003, whereas the Committee of Private Medical Colleges conducted counselling on 27th and 28th September, 2003 and given admission provisionally to the students. When the second counselling for the left over seats in Category A and B was undertaken by the Competent Authority, due to influence of some hidden forces, the Central Government accorded permission to two more Medical Colleges and one Dental College on 29-9-2003 which necessitated to postpone the counselling to 30-9-2003. Apart from the same, two more Medical Colleges were granted permission on 30-9-2003 for admission into 1st year MBBS Course for the academic year 2003-2004 with an intake of 100 students each subject to inspection by the University, which admittedly received applications upto 6 p.m., on 30-9-2003 and the said managements registered with NTR University for starting MBBS Course was notified to be eligible for admission of students and accordingly to see that the State will get 456 MBBS and 500 Dental seats more. The Competent Authority granted provisional affiliation for starting first year course from the academic year 2003-2004 and proceeded to admit the students and allow them to the above colleges. The very fact that permission accorded was received on 29th September 2003 at 9 p.m., and 30-9-2003 after 6 p.m., will result in unsettling the counselling process which was undertaken earlier. The above 5 colleges were permitted by the Competent Authority for filling up of 25% seats in category-B and allotment of candidates according to merit. The University in order to see that the State will be benefited with extra seats, made all earnest efforts to see that the said seats will not go vacant notified about second counselling and the same was widely published in electronic and news media. In view of extra seats available many of the students, who were admitted under Category B seats and BDS course likely to get free seats in the new colleges or medicine course, were permitted to slide down for the said seats for which the Competent Authority undertaken counselling at 9 p.m.
20. In view of above development many of the students who have secured admission into Category-B seats in MBBS and BDS courses in the counselling held on 27th and 28th September, 2003 are likely to get either free seats or MBBS seat in Category-B seats submitted letter to the respective colleges to walk away from Category-B and accordingly, the Competent Authority issued press notification on 29-9-2003 which was published in all the newspapers on 30-9-2003 informing that Committee of management to conduct simultaneous counselling for filling up Category-B seats along with the counselling undertaken by the Competent Authority. It is not in dispute that the Committee constituted by the Management of Private Un-aided and Professional Colleges has not made any endeavour to select the candidates for the resultant vacant seats conducting counselling by calling the candidates based on EAMCET ranking as per the seat matrix prepared by the Competent Authority. But what the Colleges did was vacant seats were filled up by the concerned Principals or Management on their own without following merit list and Rules of Reservation, as the case may be.
21. It was urged by Sri Nooty Ram Mohan Rao that when the candidates failed to report within the deadline the respective colleges have no option except to fill up the vacant seats by converting them into Category-C in the light of Clause (h) of Rule 6(B)(x) did not merit consideration for the simple reason the Principal or the management can fill up the vacant seats provided the procedure of the admission and counselling including subsequent counselling to fill up the seats as prescribed to have been followed, as observed above.
22. As rightly pointed out by Sri N.Ramesh Ranganathan, learned Additional Advocate General that proviso to Clause (h) is extensive but restricted the right of management to fill up vacant seats. Clause (h) cannot be read in isolation but it has to be read as a whole including the proviso. As per the ratio laid down in J.K.C.S.& W. Mills's case (supra) Raj Singh's case (supra) Dinesh Lchandra's case (supra) and Sundarammareddi's case (supra).
23. The contentions made by all the Counsel are uniform, they have not followed the procedure because of time constraint, as the entire admissions have to be completed by 30-9-2003 and subsequent counselling was not possible cannot be accepted. Equally, no possible vacant seats are made known by 29-9-2003 and 30-9-2003 for the Committee of Management is also devoid of merit for the reason number of candidates who have given letters seeking permission to withdraw from the provisional admission was available with the colleges. Accordingly, all the petitioners' colleges know that vacant seats available should be filled up by way of counselling but they have not made any endeavour to fill up the same from among 2,660 students, who applied for.
24. The contention of Mr. B. Adinarayana Rao when sliding down is not transparent, the respondents have shown undue favouritism to the newly colleges, there is no option to the petitioners' colleges except to fill up the seats with available students did not merit consideration, because the petitioners' colleges have to adhere to rules for making admissions to such resultant vacant seats, but cannot take undue advantage to have a wrongful gain.
25. Having realized that the admissions made by the petitioner's colleges are in violation of rules, Mr. C.Kodandaram, Counsel for the petitioner in W.P.No. 22151 of 2003 in his reply contends that learned Senior Counsel Sri K.N. Bhat who appeared on his behalf is not justified in giving up the relief claimed i.e., 'declaring the action of the 4th and 5th respondents in shifting the students of the petitioner college admitted under Category-B for the AY 2003-04 to newly permitted colleges by re-doing the counselling on 30-9-2003 as illegal, arbitrary' is devoid of merit for consideration. It is unethical and unfair to a Counsel to find fault with the Senior Counsel in his absence and contend that he is not justified in giving up such grounds raised in the writ petition. The Senior Counsel was justified in giving up such contention for the reason that none of the new colleges who admitted the students or the students who were earlier given provisional admission by the petitioners' colleges are impleaded as parties. Equally, the contention that since the relief is claimed against NTR University, they are not necessary parties and reliance placed on the ratio laid down in Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar, : AIR1963SC786 , G.M., South Central Railway v. A.V.R. Siddantti, : (1974)ILLJ312SC , cannot be countenanced. The ratio laid down in the above cases is misplaced to the facts of the present case for the simple reason if the said relief is granted the students who are admitted into Category-B seats necessarily have to pay fee more than Rs. 11 lakhs but if the same candidate who can secure a free seat as per the order of merit in the newly established colleges is not permitted to take admission in free seat, a candidate who secured below rank to him was allowed free seat, the same is violative of Article 14 of the Constitution. In view of the same, the University is justified in permitting such students to seek admission into free seats. In the absence of those students and the colleges impleaded as parties, the petitioners are not entitled for the first relief claimed in W.P. No. 22151 of 2003, which was rightly given up by the Senior Counsel, and it is not open to the Counsel to make any submission on the same. In view of the same, irresistible conclusion that can be drawn is all the admissions which were made by the petitioners' colleges in the vacant seats are not in consonance with the rules made in G.O. Ms. No. 488 dated 5-9-2003 and the University is justified in not approving such admissions. The point No. 1 is accordingly answered.
26. In the facts and circumstances of the case, petitioners' colleges admittedly have not followed rules and made admissions by wrongly interpreting Rule 6(B) (x) (h) that they are entitled to admissions in the resultant vacancies, if a candidate failed to join without counselling being conducted by the Committee of Managements. Some of the candidates with hall ticket Nos. 3508120, 3503238, 4602185, 3406230, 4203346 and 3903010, which are rightly pointed out by the learned Additional Advocate General-Sri D.Prakash Reddy that they are not from among the list of candidates who applied for private management itself shows the bona fides of the private managements that the petitioners' colleges thrown all norms and made admissions in violation of rules by making it a mockery to have unjustly enriched. In view of the same, University is justified in not approving such admissions, which were made contrary to the rules.
27. Be that as it may, since the deadline was fixed as 30-9-2003 and all the students, who have admitted, if their admissions are set aside for not following merit and Rules of Reservation can be saved or not is the crucial question.
28. It is next contended by all the Counsel that if the admissions made are not ratified on the ground of not following rules, merit/reservation, University or the colleges are deprived of filling up of vacant seats and in the process, State will deprive of the seats. Such a situation has been created by sanctioning new colleges at the last minute and there was no time, since the deadline was fixed as 30-9-2003 and all the students whose admissions not ratified will loose one precious academic year.
29. I have given my anxious thoughts so that students who have already admitted into colleges will be deprived of and will not get admission into medical course or any other course, if their admission are set at naught. But this is the practice followed by the colleges every year by making admissions more than the sanctioned strength and in utter violation of admission rules giving a go bye to merit and Rule of Reservation legalizing the said admissions by judicial process on the ground of equity. Time has come that such illegal activities cannot be allowed to be perpetuated every year and Court cannot be a party to encourage such violation of law by regularizing such admissions, which are admittedly made contrary to the rules.
30. In A.P. Christians Medical Educational Society v. State of A.P., : [1986]2SCR749 , the Supreme Court held as under:
'We do not think that we can possibly accede to the request made... on behalf of the students. Any direction of the nature sought for... would be in clear transgression of the provisions of the University Act and the regulations of the University. We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the Court to disobey the laws.'
31. In view of above observation and the serious note taken by it in Students of Dattatraya Adhyapak Vidyala v. State of Maharashtra, SLP (C) No. 2067 of 1991 decided on 19-2-1991, the Supreme Court in State of Maharashtra v. Vikas Sahebrao Roundale, : [1992]3SCR792 , observed that direction issued by the Bombay High Court to -the State of Maharashtra to disobey the law is subversive of the rule of law, a breeding ground for corruption and feeding source for indiscipline. The High Court has made manifest error in law, in exercising its prerogative power conferred under Article 226 of the Constitution directing the appellants to permit the students to appear for the examination etc. (see para-12).
32. In State of Punjab v. Renuka Singla, : AIR1994SC595 , the candidate who secured higher rank had not made any claim for admission against the reserved seat for backward area but a candidate who secured lower rank was provided a seat in BDS course on withdrawing his admission, she claim the seat reserved for backward area. The Punjab and Haryana High Court directed to admit her against the said seat which has become vacant on compassionate ground treating her as belonging to the backward area. On appeal the Supreme Court held as under:
'The admission in medical course throughout India is governed by different statutory provisions, including regulations framed under different Acts. During last several years efforts have been made to regulate the admissions to the different medical institutions, in order to achieve academic excellence. But, at the same time, a counter attempt is also apparent and discernible, by which the candidates, who are not able to get admissions against the seats fixed by different statutory authorities, file writ applications and interim or final directions are given to admit such petitioners. We fail to appreciate as to how the High Court or this Court can be generous or liberal in issuing such directions which in substance amount to directing the authorities concerned to violate their own statutory rules and regulations, in respect of admissions of students.....'
33. More often as pointed in the above judgments, colleges or schools which violate rules, either plead for the students or set up the students to file cases in the Courts with the belief that the Courts can persuade to grant orders pleading that the students will loose one precious year and obtain orders in transgression of rules. This tendency has been on increase in all sorts of education, particularly in the professional courses, which have been commercialized. The Supreme Court time and again has been insisting discipline and obedience to the rules whenever the High Court ignoring the said mandate granted relief in favour of the colleges or the students, as the case may be, inspite of said orders are set aside by the Supreme Court observing that the same cannot be precedent for future admission, since considerable time has elapsed from the date of such admission and when it is decided ultimately in many of the cases completed the course, though deprecated such practice, but maintained admissions on the ground that the same cannot be a precedent. But this Court cannot shut its eyes and can allow to perpetuate such irregularities every year and allow the institutions or the students to violate the rules in securing admissions depriving admission to meritorious students and contrary to rule of reservation. Such tendencies have to be curbed as observed by the Orissa High Court, referred to above.
34. It is apt to quote the quotation of Justice B.P. Jeevan Reddy in Haryana Urban Development Authority v. Roochira Ceramics, : (1996)6SCC584 , wherein it was held that:
'It is well settled that sympathetic considerations confined to examining procedural correctness only and does not extend to consideration of benevolence. There is no room for any benevolence under Article 226 of the Constitution. If the Court departs from law and enters the arena of benevolence the perils and pitfalls are too many to recount.
35. For the foregoing discussion and reasons, the admissions made by the petitioners' colleges are in flagrant violation of rules issued in G.O. Ms. No. 488 dated 5-9-2003, this Court cannot ratify such irregularities nor can permit the institutions to perpetuate such illegalities under the garb of judicial process, which Courts cannot do.
36. In view of the conclusion arrived, the W.P. Nos. 22151, 21819, 21922, 22330, 22331, 22365, 22529, 22297, 21490 and 22422 are dismissed with costs quantifying at Rs. 10,000/- (Rupees ten thousand only) each by the petitioners' Colleges only, payable to the A.P. High Court Legal Services Authority within four weeks from today.
37. In view of dismissal of writ petitions the Competent Authority constituted by the University shall now take up all such admissions, which were fell vacant and not approved by the University, and verify if any of the students who have been admitted in the above Colleges have secured a seat as per the ranking/ reservation, the same can be approved. For the balance seats, the Competent Authority can take such other steps including counselling, forwarding the list to the MCI and moving the Supreme Court for extension of deadline, if required, in view of peculiar facts and circumstances of the case. If any such permission is granted, the Competent Authority shall fill up the vacancies as per the rules and allot the same to the petitioners' colleges.
38. Though the Supreme Court observed that it is time that the Courts should evolve a mechanism for awarding damages to the students whose carrier is seriously jeopardize by unscrupulous management/ schools which indulge in violation of all rules in making admission. Since none of the students have complained about the excess fees collected by the University in filling up of vacant seats, this Court is handicapped to make an order in this regard. It is always open to the students whose admissions have not been ratified by the University to proceed against the colleges for the loss sustained by them in not only loosing admissions and fabulous fees paid, but also one precious academic year either for damages or for criminal action, since the colleges deliberately knowing fully induced the students to get admitted into their colleges contrary to the rules. Apart from the same, University/State Government can proceed against the colleges who admitted the students in violation of rules, and for any excess fees than prescribed under the rules, if collected, under Section 9 of the Capitation Fees Act.
39. The other writ petitions, namely W.P. Nos. 22181, 22357, 23031, 23584, 22756 and 23774 are accordingly disposed of.