Abhishek SaIn and ors. Vs. Raj. University of Health Sc. and ors. - Court Judgment

Prem Shanker Asopa, J.

BY THE COURT

1. Since common questions of fact and law relating to not operating the waiting list of RPMT-2008 and giving admissions in M.B.B.S. only on the basis of PC-PMT of BDS as well as 10+2 are involved in all these writ petitions, therefore, all the aforesaid writ petitions have been clubbed together, heard together and are being decided together.

2. By these writ petitions, the petitioners have prayed for an appropriate writ, order or direction to the respondents to consider and give admission to the petitioners in MBBS Course in Geetanjali Medical College and Hospital by considering their candidature against the available 85% seats of 150 seats for their admission in MBBS on the basis of their respective merit in RPMT-2008 by holding counselling and further no person be admitted against the aforesaid seats from any other source except the RPMT-2008. In order to better appreciate the aforesaid issue involved in the matter, the leading facts have been taken from SBCWP No. 10858/2008 Abhishek and Ors. v. Rajasthan University of Health Sciences and others.

3. Some of the undisputed details regarding the month/date(s) of RPMT-2008 and counselling for admission in M.B.B.S. which are relevant for the purpose of deciding the controversy are as under:

26.2.2008 - RPMT-2008 was notified. Name ofrespondent No.5 Institution at Sl.No.10in anticipation of sanction of seats.June, 2008 - Result of RPMT-2008 declared.14th to 16th - Date of first counsellingJuly, 2008.3.9.2008 - Date of Supreme Court order regardingallotment of seats to Geetanjali MedicalCollege and Hospital within a week asper statement of the Addl. Solicitor General.16.9.2008 - Sanction of 150 seats by the MedicalCouncil of India.23/24.9.2008 - Date of last counselling. Respondent No.5Institution did not participate in counselling.25-28.9.08 - Date of admissions given by GeetanjaliMedical College and Hospital on the basisof PC-PMT BDS as well as 10+2.29.9.2008 - Date of show cause notice issued by theState for taking students as per Ordinance272 and against direction of the SupremeCourt not to change or tinker with and noncompliance with State action against theInstitution will be taken.30.9.2008 - Last date fixed by the Govt.of India foradmission in MBBS in consultation withMCI, State and University.Last week of - Between last week of September, 2008Sept.08/ and 2nd week of October, 2008 all thesecond week of aforesaid writ petitions were filed afterOct.2008 notice for demand of justice.Schedule-A. Date of filing the writ petition,interim order(s) passed in SBCWPNo. 10858/2008 and other writ petitions.

4. The main grievance raised in these writ petitions by the petitioners is that they all stand in the merit list prepared by the University in the RPMT-2008 but could not be admitted for want of seats but when the seats were made available on 16.9.2008, the list was not operated by the respondents which has resulted in sacrificing the merit or circumventing the same by admitting students from PC-PMT of BDS as well as 10+2 examination in MBBS Course by Geetanjali Medical College and Hospital against all 150 seats contrary to Regulation No. 5 of the M.C.I. Regulations on Graduate Medical Education, 1997 (in short the MCI Regulations, 1997'), Ordinance 272 of the University and Supreme Court judgments therefore, the said action of the Geetanjali Medical College and Hospital is not only contrary to Regulation No. 5 of the MCI Regulations, 1997 and Ordinance 272 of the University but violative of Article 14 of the Constitution of India as well as various judgments of the Supreme Court.

5. The respondent Rajasthan University of Health Sciences (in short `the University'), the State and the Medical Council of India (in short `the Medical Council'), Principal, Geetanjali Medical College and Hospital (in short `the respondent Institution') have filed their respective reply.

6. The University in its reply has stated that in the controversy in question, the State has dominant role in the matter of framing policy/Scheme for the students to be admitted in medical courses and the respondent University is bound to follow and comply with the directions/orders issued by the State Government. It is further stated by the Univesity that in the notification dated 26.2.2008 it was made clear that the RPMT-2008 is going to start with the entrance test for admission in MBBS/BDS Course and the respondent Institution will be one of the members of the pool of RPMT- 2008 as they were expecting 150 seats of MBS/BDS. Large number of students applied for appearing in the RPMT-2008 generating legitimate expectation of admission in case the seats are sanctioned and they stand in merit in accordance with the provisions of Ordinance 272 of the University, with the further mention that Ordinance 272(IV)(a)(i) categorically speak with regard to conducting pre-medical examination by the University. Accordingly, the University prepared the merit list of the successful candidates. The relevant ordinance 272(IV) of the University is as follows:

IV Pre Medical Test.

a.(i) All candidates except those belonging to categories (b) of Rule 2 will have to appear at the pre medical test to be conducted by the University of Rajasthan, Jaipur in the subjects of Physics, Chemistry, Zoology and Botany in the manner to be decided by it. The candidates may obtain journal guidelines for the Pre Medical Test Examination and application form for appearing at the examination and the also application form for admission to the medical college from the Controller of Examinations, University of Rajasthan, Jaipur on payment of the amount prescribed by the University. Forms can also be had by registered post on paymentof Rs. 10 extra. Application forms for PMT Examination for admission to the medical colleges of Rajasthan after being duly filled in by the candidates along with a fee of Rs. 100/- will be sent directly to the Controller of Examinations (PMT), University of Rajasthan, Jaipur. The fee will also cover the fee for the mark sheet. The eligible candidates will be admitted in the order of merit.

(ii)(a) Interview and allotment of College within 3 weeks of declaration of result of PMT.

(b) The academic session should start within 2 weeks of allotment of college.

(c) Last date of submitting vacancies position to Convener, Jaipur is within one month of allotment of colleges.

(d) Re-allotment of vacancies within 14 days of (c).

7. It is also stated in the reply that the respondent Institution is estopped from admitting students on the 85% of 150 seats from outside the merit list of RPMT-2008.

8. The University further stated that on 16.9.2008, the respondent Institution addressed a letter to the Vice Chancellor stating therein that they have got approval from the Medical Council and are seeking guidance how the admissions are to be given in the Institution, which was made clear by the University on writing letter dated 23.9.2008 that the admissions could be made through the counselling scheduled to be held on 23.9.2008 of RPMT-2008. The letters dated 16.9.2008 and 22.9.2008 are as follows:

To Date:16.09.2008The Vice Chancellor

Rajasthan University of Health Sciences,

Jaipur.

Sub: Admissions in M.B.B.S. Course for Session 2008-09.

Hon'ble Sir,

In the above reference kindly note that till we have not received the approval for Govt.of India. However, if the approval comes after the second counselling then kindly suggest us the way or/Provide us the Merit List of RPMT Students for the admission in our college.

Letter dated 22.9.2008 Annexure R-1/5A

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9. Lastly, it was submitted by the University that in order to fulfil the oblique motive, the respondent Institution has requested the Federation for giving membership and allotting students through PC-PMT-2008 which was all foul play and after thought. The University, in the aforesaid changed circumstances of irresponsible behaviour of the Institution have to stay the proceedings in the manner that the students of RPMT-2008 be admitted in the respondent Institution as the action of the respondent Institution of admitting students through PC-PMT-2008 which was meant for BDS only, was not only contrary to Ordinance 272 but various judgments of the Supreme Court.

10. Ultimately, the University has stated that it is not liable for giving enrollment to such illegally admitted students and to take their examination.

11. The gist of the aforesaid submissions has been referred at pages 77, 78 and 79 of the reply filed by the University in Paras 18 and 19, which are as follows:

18. ...Meaning thereby the respondent No. 5 with the collusion of PCPMT Federation has admitted the students ignoring all canon of law, whereby not only the mandatory calendar decided by the Hon'ble Supreme Court in the case of Mridul Dhar, has been flouted going beyond 30.09.2008 giving admission and moreover the merit has been ignored and all admissions have been done ignoring the provisions of Ordinance 272, of University of Rajasthan, whereas the Written Entrance Test is to be conducted by the State agency in order to ensure the admission in the medical colleges situated in the State of Rajasthan. Moreover PCPMT Federation seems to be a device to make the admission in collusion for member colleges ignoring not only the mandatory calendar fixed by the Hon'ble Supreme Court but also without being recognised from competent authority conducting the Counselling without conduct the entrance test. Therefore, the admission made in illegal manner for session 2008-09 by respondent No. 5 deserves to be cancelled because in the similar circumstances the Hon'ble Supreme Court in the case of Harish Verma V/s.Ajay Srivastava, when reached to a conclusion, that the admission in PG Courses through Pre PG has been ensured lowering down by the minimum qualifying marks by Medical Council of India from 40% to 50%. Even on this illegality, Hon'ble Supreme Court has set aside and cancelled all illegal admissions after one and half year of studies of all the students. Therefore, now when no equity has been created in such illegal admitted students, the Hon'ble Court calling the judicial review may cancel all such 150 admissions are made by the respondent No. 5.

19. That beside to the above, the answering University is accountable only up till when the respondent No. 5 was requesting to allot 150 students through merit list of RPMT-08, but when the students are illegally admitted. Thus the answering University has got no liability towards giving admissions and for giving enrollment to such illegally admitted students and to take Examinations thereof.

12. The State Government in its reply has stated that in the notification booklet of RPMT-2008, the name of Geetanjali Medical College and Hospital was included on the assumption that the Institution will get letter of permission and that the Institution will agree to take 85% out of the 150 seats from RPMT-2008 in case they got the letter of permission. It is further stated that the respondent Institution in collusion with the PC-PMT Federation had admitted the students ignoring the provisions of law, therefore, the show cause notice was issued on 29.9.2008 and a supervising team was constituted which found glaring illegalities in the admissions given by the respondent Institution. The State has also relied on the reply filed by the University that the admissions made in an illegal manner deserve to be cancelled as in the similar circumstances, the Supreme Court in the case of Harish Verma v. Ajay Srivastava (supra) set aside the illegal admissions even though the students in that case had undertaken 1 year and a half of their course of study. Lastly, it was submitted by the State Government that the respondent Institution has committed grave illegality and violated not only Ordinance 272 and R.P.M.T.-2008 but has also acted contrary to law laid down by the Supreme Court. Paras 5,8 and 9 of the reply of State are as follows:

5.That pursuant to the notice dt.20.09.2008 a supervision team was found by the State Government to observe the counselling process of PCPMT for admission of students at the respondent college. The Supervision team found glaring irregularities in the admissions given by the respondent College. A copy of the report of the supervision team is annexed herewith and marked as Annexure R-2.

8. That the Rajasthan University of health Sciences in its reply has stated that in the counselling held by the PCPMT Federation the representative/nominee of the Health University was not called. Meaning thereby that the respondent College with the collusion of PCPMT Federation has admitted the students ignoring the statutory provisions, whereby not only the mandatory calendar as laid down by the Hon'ble Supreme Court in the case of Mridul Dhar has been flouted and moreover, the merit has been ignored. All admissions have been done ignoring the provisions of Ordinance 272 of the University of Rajasthan, where a written entrance test is to be conducted in order to ensure admissions in the Medical Colleges situated in the State of Rajasthan. It has been further stated that the admissions, since made in an illegal manner by the respondent University, deserve to be cancelled as in the similar circumstances the Hon'ble Supreme Court in the case of Harish Verma v. Ajay Srivastava set aside and cancelled all illegal admissions even when the students therein had undertaken one and half years of their studies.

9. That a perusal of the facts narrated above, as well as the response of the MCI and the Rajasthan Health University, denotes in clear terms that therespondent College has committed grave illegalities and violated, not only the relevant statutory provisions but has also acted contrary to the law laid down by the Hon'ble Supreme Court.

13. Medical Council has filed reply in SBCWP No. 11589/2008 Rakhee Soni v. R.U.H.S. and stated that the primary responsibility for making admission in the medical course in accordance with the directions of the Supreme Court issued from time to time squarely lies with the competent admitting authorities of the State/University. The Medical Council is required to ensure admission in all the medical courses by competent State/University authorities within the annual intake. However, the Medical Council has not denied the fact that it is liable to check the sub-standard admissions in the medical courses. Relevant paras 31, 32, 33, 34, 35 and 36 of the reply filed by the Medical Council are as follows:

31. It is further the case of the petitioner that respondent No. 5 has got permission of admitting 150 students in MBBS course for the session 2008-09 from MCI on 16.9.2008 and admission to the aforesaid seats is required to have given on the basis of the merit of RPMT-2008 by considering the candidature of the petitioners as prescribed in the information booklet of RPMT 2008. The respondent No. 5 has even issued advertisement dated 25.9.2008 for filling 15% management quota but nothing has been done with regard to 85% seats which are required to be filled in through RPMT, 2008.

32. It is further the case of the petitioner that the Geetanjali College has advertised on 26.9.2008 in the newspaper of M.P. and not in Rajasthan that even hold selection on the basis of marks of Senior Secondary Examination which is totally contrary to the judgment of Hon'ble Supreme Court in Islamic Academy and TMA Pai's case.

33. It is respectfully submitted that the inspection for grant of Letter of Permission for Establishment of New Medical College at Udaipur, Rajasthan by Geetanjali Foundation was carried out by the Council Inspectors on 16th and 17th April 2008 and the inspection report was placed before the Executive Committee of the Council for its reconsideration. It is further submitted that the Executive Committee at its meeting held on 12.05.2008 where the members of the Adhoc Committee appointed by the Hon'ble Supreme Court were also prsent took the following decision:

The members of the Adhoc Committee appointed by the Hon'ble Supreme Court and of the Executive Committee of the Council considered the Council Inspectors report (16th & 17th April, 2008) and decided to recommend to the Central Government to issue Letter of Permission for establishment of New Medical College at Udaipur, Rajasthan by Geetanjali Foundation, Udaipur, Rajathan under Section 10A of the IMC Act, 1956 with an annualintake of 150 (one hundred & fifty) students for the academic session 2008-09.

The Council vide its letter dated 02.06.2008 communicated the decision of Executive Committee to the Secretary, Government of India, Ministry of Health & Family Welfare, New Delhi. Copy of the letter dated 02.06.2008 of MCI is annexed as Annexure R-4/5.

34. It is respectfully submitted that the Government of India, Ministry of Health & Family Welfare vide its letter dated 04.08.2008 informed the Council as well as the said college that after the recommendations of the Council vide its letter dated 02.06.2008, the Central Team of the Ministry conducted the inspection of the proposed medical college on 01.07.2008 and due to the gross deficiencies found by the said team, it has been decided with the approval of the competent authority not to grant permission to the Geetanjali Foundation, Udaipur for Establishment of New Medical College at Udaipur for the academic year 2008-09. A copy of the letter dated 04.08.2008 issued by Govt. of India, Ministry of H & F.W.New Delhi is annexed herewith as Annexure R-4/6.

35. It is further respectfully submitted that the respondent-college filed the writ petition bearing WP (C) No. 357 of 2008 before the Hon'ble Supreme Court against the decision of the Central Government dated 04.08.2008 and after recording the statement given by Ld. Additional Solicitor General that revised orders would be passed within a week in respect of the present petitioner/Geetanjali Foundation, the Hon'ble Supreme Court vide its order dated 03.09.2008 disposed of the said writ petition filed by the respondent college. Copy of the order dated 03.09.2008 in WP(C) No. 357 of 2008 along with other petitions is annexed and marked as Annexure R-4/7. It is further submitted that thereafter the answering respondent received the copy of `Letter of Permission' dated 16.09.2008 from Government of India, Ministry of Health & Family Welfare, New Delhi, thereby, granting approval for Establishment of New Medical College at Udaipur by Geetanjali Foundation, with an annual intake of 150 students with prospective effect i.e. from the academic year 2008-09 under Section 10(A) of the IMC Act, 1956. Copy of the letter dated 16.09.2008 issued by Govt. of India, Ministry of H & FW is annexed herewith as Annexure R-4/8.

36. It is respectfully submitted that the answering respondent-MCI with reference to admissions of 1st year MBBS students made by various medical colleges/institutions for the academic year 2008-09 send a letter dated 29.8.2008 requesting the Health Secretary and Director of Medical Education, Govt. of Rajasthan,Jaipur to provide the following information:

(i) Ratio fixed by the State Govt. if any, for Govt. and Management quota for unaided self financing medical colleges for the academic year 2008-09.

(ii) List of minority as well as non-minority private medical college/institutions in the State.

Copy of the letter dated 29.8.2008 of MCI is annexed as Annexure R-4/9.

14. Lastly,it was stated in para 48 of the reply that the facts and the submissions made by the Medical Council are required to be examined in accordance with the principles laid down in : AIR2003SC355 TMA Pai Foundation, 2005(6) SCC 537 Inamdar and : AIR2005SC666 Mridul Dhar v. UOI. In the event it is found that the admissions made by the respondent Institution are in violation of the principles of law laid down by the Supreme Court, appropriate orders deserve to be passed. The Medical Council prayed accordingly.

15. The respondent Institution in its reply has claimed that it has right to administer education and further rightly admitted the students from the PC-PMT and thereafter, the vacant seats were filled from 10+2 examination. It is also stated that the respondent Institution is not bound to take the students from the RPMT-2008 in view of the aforesaid larger bench judgment.

16. Federation of Private Medical Colleges for Medical and Dental Colleges was allowed to intervene in this matter. Mr. Ashok Gaur, counsel for the Intervener supported the respondent No. 5 with additional submission that the Federation was formed as per the Supreme Court judgment in Islamic Academy (supra) and admissions from the RPMT and PC-PMT are optional as per State Government letter dated 19.11.2007 and 4.12.2007 but has not disputed the fact that the PC-PMT was for BDS and Ordinance 272 is applicable.

17. It would be pertinent to mention here that in these particular cases, the petitioner students have not taken time and right from the beginning, they are pressing for the final disposal of the writ petition but the respondents first took time for filing reply and in the reply filed by the University, State and MCI, although submitted that the admissions are illegal, but no action was taken therefore, the record was called and orders were passed on 12.12.2008, 16.12.2008, 18.8.2008, 13.1.2009, 19.1.2009 and 29.1.2009 but none of the authorities which are responsible to check the illegal admissions and to see that the merit is not sacrificed, passed final order despite issuance of direction by this Court. However, the Medical Council came to the conclusion and issued letter on 2.1.2009 directing the respondent Institution to discharge the illegally admitted students in 1st Year MBBS 2008 but surprisingly, the University has changed its stand from `illegal admissions' to `irregular admissions' in their letter dated 31.12.2008 and the State, despite two orders of this Court dated 18.8.2008 and 29.1.2009, has not passed any final order. The aforesaid orders dated 12.12.2008, 16.12.2008, 18.12.2008, 13.1.2009, 19.1.2009 and 29.1.2009 along with letter of the University dated 31.12.2008, MCI order dated 2.1.2009 and Minutes of State filed on 17.1.2009 pursuant to the orders dated 18.12.2008 and 13.1.2009 are as follows:

Order dated 12.12.2008

Heard learned Counsel for the parties for final disposal.

During the course of arguments, it transpires from the reply of the respondent State that it has sissued show cause notice to the respondent-institution, but the institution has not responded to the said show cause notice issued on 29.09.2008 (annexure-R/1) and 11.11.2008 (annexure R/3) followed by the reminder dated 27.11.2008.

From the reply, it is also not clear that why the Government has not proceeded further ex parte in a matter where there is a prima facie violation of their guidelines of RPMT resulting in admission of less meritorious candidates in violation of the Ordinance 272 of the University of Rajasthan, despite grant of sufficient opportunity

The learned Counsel for the petitioners are pressing urgency right from the beginning that the admissions of the students of 150 sanctioned seats are contrary to the said provisions of the Ordinance as well as Instruction Booklet, 2008 and according to which a written examination is to be held by the State and the seats are to be filled up from the students of the R.P.M.T. And who have been totally ignored.

The Government has also stated in its reply that the PC-PMT examination was held for BDS Course and not for MBBS.

In such circumstances, the respondents are directed to produce the original record containing the proceedings arising out of the show cause notice dated 29.09.2008, along with the affidavit of explanation as to why final action has not been taken against the Institution.

The learned Counsel for the University will also make the position clear whether the list of the sanctioned of150 seats to the Geetanjali Medical College, Udaipur was received by it or not and if received, then what action has been taken by the University.

In the aforesaid facts and circumstances of the case, counsel for the M.C.I. is also directed to file an additional affidavit stating therein that what action it proposed against the Institution in view of the reply of the State.

Put up these matters on 16.12.2008 for further arguments.

On that date, the record will be produced, along with the affidavit.

Photo stat coy of this order be placed in the connected writ petitions, mentioned above.

Order dated 16.12.2008

Heard learned Counsel for the parties.

Hearing resume today and the record of the proceedings was produced by the respondent-State before this Court, wherein there is a order-sheet dated 15.12.2008 referring the explanation given by the Institution to the show cause notice and further the matter has been kept pending for decision for want of formation of the Ministry.

Counsel for the respondent-State as well as M.C.I. both have filed an affidavit today. Counsel for the University has not filed affidavit till today, but is likely to file the same within a day or two.

Put up this matter on 18.12.2008, along with connected cases.

Additional Government Counsel is directed to keep ready the record of the proceedings on the other dates of hearing

Order dated 18.12.2008

Mr. S.S.Sharma, Addl. GA submits that the Ministry has not been formed till today and is likely to be formed soon. The matter is pending for final decision of the Government.

In the aforesaid facts and circumstances of the case, I direct the State Government to decide the matter finally by 04.1.2009 after consulting the University and the MCI.

Any decision made by the State Govt. shall be subject to the decision of the writ petition.

List on 6.1.2009.

Order dated 13.1.2009

In the aforesaid cases Mr. M.S.Bhatt, Director of Gitanjali Medical College & Hospital, Udaipur (Rajasthan) has filed an application for the change of the advocate.

For the reasons mentioned in the application the same is allowed.

The applications are disposed of accordingly. Mr. M.S.Bhatt is granted three days time to change the advocate.

Put up on 19.01.2009 alongwith connected cases.

Order dated 19.1.2009

Mr. Kumawat submits that he has filed the decision of the Government on 17.1.2009.

Counsel for the petitioner submits that the MCI and the University have also filed reply.

Office is directed to place the same on record.

Counsel for the University and the MCI are also directed to place the recommendations given to the State Government, on record.

List on 22.1.2009 along with connected cases.

Order dated 29.1.2009

Counsel for the State, Rajasthan University of Health Science and Medical Council of India are directed to give the copy of letter dated 17.1.2009 for seeking guidance from M.C.I. regarding filling of 117 seats from RPMT and recommendations of University and MCI to the counsel for the respondent No. 5.

The Addl.Advocate General Shri Kumawat is further directed to apprise the court why the final decision has not been taken by the State Government which is responsible for seeking compliance of the instructions of RPMT-2008 despite the court direction dated 18.12.2008.

Put up on 5.2.2009 along with CCP No. 508/2008, S.B.Civil Writ Petitions Nos. 8420/2008, 10859/2008, 11589/2008, 11461/2008, 12617/2008, 11202/2008 and 10945/2008.

Letter dated 31.12.2008

In reference to the above referred letter, it is submitted that at the very inception of conducting the RPMT-2008 by RUHS, the Geetanjali Medical College, Udaipur (GMC) has consented to be a member of the pool of RPMT-2008 at the level of Secretary, Medical Education Department, Govt. of Rajasthan and the RUHS being an agency of the State Government has conducted the RPMT-2008 including the GMC as one of the members of pool of the medical colleges of the State of Rajasthan and accordingly through RPMT- 2008 the merit list was prepared on the basis of entrance test and the GMC was repeatedly asked to participate in the counselling held by the RUHS for the purpose of allotment of the students upto the intake capacity sanctioned by MCI to GMC. But the RUHS did not receive any response from the GMC and after having expired time schedule fixed by the Hon'ble Supreme Court in the case of Mridhul Dhar, GMC has informed RUHS sending the list of 140 admitted candidates through PCPMT Federation (A Federation of Private Dental Colleges situated in the territory of State of Rajasthan) and this way out of total 150 intake capacity of GMC 140 students have been admitted and for rest of the 10 candidates the Hon'ble High Court, Jaipur Bench, Jaipur has passed an interim orders in S.B. Civil Writ Petitions directing the respondents to keep one seat vacant for about 10 petitioners and the writ petitions of these 10 petitioners for which about 10 seats have been kept vacant by the Hon'ble High Court are sub judice before Hon'ble High Court, Jaipur Bench,Jaipur. Further the order dated 18.12.2008, has come into existence passed by the Hon'ble Court and accordingly the RUHS is of the view which has been reflected into reply submitted by the RUHS before Hon'ble Court. However, the abstract of the reply is as under:

In the above subject matter this University have already taken a very clear stand before Hon'ble High Court by filing its reply that the respondent Geetanjali Medical College, Udaipur with the collusion of PCPMT Federation has admitted the students ignoring all cannons of law, whereby not only the mandatory calendar decided by the Hon'ble High Court in the case of Mridual Dhar, ha been flouted going beyond 30.09.2008 giving admission and moreover the merit has been ignored and all admissions have been done ignoring the provisions of Ordinance 272 of University of Rajasthan, whereas the Written Entrance Test is to be conducted by the State Agency in order to ensure the admission in the medical colleges situated in the State of Rajasthan.

Finally, RUHS is of the opinion as under:

Therefore, it will be justified that for the admissions made for the year 2008-09 in the respondent Geetanjali Medical College, Udaipur may be treated as irregular admissions.

Letter dated 2.1.2009 (date wrongly mentioned as 2.1.2008 at the top)

With reference to your above cited letter on the captioned subject, I am directed to state that the stand of the Council in the instant case has already been mentioned in the various affidavits in reply filed by the Council before the Hon'ble High Court in the present case till date.

Your attention is invited to the following which is already contained in the Additional reply Affidavit filed on behalf of MCI:

21. It is respectfully submitted that the mandatory provisions of law and the judgments of the Hon'ble Supreme Court clearly lay down that the admission procedure adopted by unaided Private institutions or group of institutions should be transparent,merit based and non exploitative. It is further submitted that admissions are to be on the basis of the common entrance test held by the State Government/authorities or by the Association of Private Colleges/Institutions in a transparent manner. Students are required to fulfill the eligibility norms prescribed by the MCI through the statutory regulations at both the stages, i.e. in the 10+2 examination and then in the Common Entrance Test. It is further respectfully submitted that the primary concern and responsibility of the respondent MCI is that each of the medical college makes admissions in the recognized medical courses to the extent of its annual sanctioned intake capacity in each academic year and that the entire admission process is completed in accordance with the time schedule including the date of commencement of the academic course and also the last date of admissions having been fixed by the MCI in accordance with the directions of the Hon'ble Supreme Court issued from time to time.

22. The conduct of entrance examination for admission to any medicine course, counselling and admission of candidates in accordance with their merits position and the category etc. is the responsibility of the admitting authority designated specifically for the purpose. It is further submitted that in terms of the directions issued by the Hon'ble Supreme Court, State Governments have constituted Fee Committees and Admission Committees in each of the State for monitoring admission process so as to ensure compliance with the principles of law laid down by the Hon'ble Supreme Court in this behalf.

23.It is however, most humbly and respectfully submitted that the council is obliged to take appropriate action, in accordance with law and having regard to the reply affidavits of the Rajasthan University of Health Sciences and the competent State authorities, now becoming available, to the effect that the admissions made by this college are illegal, as the admission procedure adopted by the said college was neither transparent, merit based andnon exploitative nor as per the policy/guidelines dated 14.5.2003 and also the directions passed by the Hon'ble Supreme Court from time to time. It is the most humble submission of the answering Respondent that the Council would take necessary action, including issuing the discharge notices to the students admitted in contravention of the Regulations and the directions passed by the Hon'ble Supreme court from time to time as per the directions issued by this Hon'ble Court in the present case.

In view of the above, it is reiterated that the stand which can only be takenby the Council is to issue the discharge notice in respect of all the students admitted by the said college for the academic session 2008-09 in 1st Year MBBS course.

Minutes of the State filed on 17.1.2009

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(i) mi;qZDr fooj.k U;k;ky; esa izLrqr djus ds fy, vfrfjDr egkf/koDrk ls fuosnu fd;k tk;sA

18. The counsel for the petitioners in order to substantiate their arguments have placed strong reliance on Harish Verma v. Ajay Srivastava : AIR2003SC3371 and Manish Ujjawal v. M.D.S.University 2005 (8) RDD 217 (SC). Although counsel for the petitioners have also placed reliance on T.M.A. Pai Foundation, Islamic Academy and P.A.Inamdar v. State of Maharashtra but on different para.

19. There are other judgments directly on the issue relating to MBBS which are also relevant for the purpose of deciding the controversy with regard to holding of the common entrance test for admission in medical college as well as time schedule reported in Dr. Dinesh Kumar and Ors. v. Motilal Nehru Medical College, Allahabad : AIR1985SC1059 , Ravindra Kumar Rai v. State of Maharashtra : [1998]1SCR1146 , Ajay Kumar Singh v. State of Bihar : [1994]3SCR57 , Shri chander Chinar Bada Akhara Udasin Society and Ors. v. State of J&K; and Ors. : AIR1997SC399 , Dr. Preeti Srivastava and Anr. v. State of MP and Ors. : AIR1999SC2894 , N. Priyadarshini v. Secretary to Govt. and another AIR 2005 Mad 315 and the time schedule fixed by the Supreme Court in Medical Council of India v. Madhu Singh reported in : [2002]SUPP2SCR228 and Mridul Dhar (Minor) and Anr. v. Union of India and Ors. : AIR2005SC666 decided on 12.1.2005.

20. Mr. A.K.Bhandari, Sr.Advocate for the respondent Institution substantiated his submissions on the strength that in T.M.A.Pai Foundation and Ors. v. State of Karnataka : AIR2003SC355 , Islamic Academy of Education and Anr. v. State of Karnataka and Ors. JT 2003 (7) SC 1 decided on 14.8.2003, and P.A. Inamdar and Ors. v. State of Maharashtra and Ors. (2005) 6 SCC 537 the larger bench authorized the un-aided Institutions to hold their separate examination in professional and technical colleges so there is nothing wrong in admitting the students on the strength of the said examination.

21. The Additional Advocate General and counsel for the University changed their submission from `illegal' to `irregular' admissions.

22. On consideration of the aforesaid admitted pleadings and the grievance/submissions, the following core questions are involved in the matter:

(1) Whether the Supreme Court judgments in T.M.A.Pai Foundation, Islamic Academy and P.A.Inamdar (supra) are applicable in medical course(s) in respect of which there are separate series of judgments wherein even the Supreme Court has held the M.C.I.Regulations mandatory and the policy of the Government to hold Common Entrance Examination find place in University Ordinance for adjudging suitability on the basis of merit and not on the basis of eligibility ?

(2) When the examinations are taken by different University/Board, whether the Common Entrance Examination is still the well established mode of selecting the candidates on the basis of merit or the same is optional ?

(3) Whether merit of the candidates selected through Common Entrance Examination under Ordinance 272 read with Regulation No. 5 of the MCI Regulations, 1997 can be allowed to be sacrificed by the un-aided Institutions conducting medical course (s),if no, then whether admissions are `illegal' or `irregular' ?

(4) Whether the wrong doer or beneficiary of the wrong doer can claim equity ?

23. I have gone through the entire record of the writ petitions and carefully considered the rival submissions of counsel for the parties with reference to the aforesaid core questions.

24. Before proceeding further, I would like to quote relevant portion/clauses of the Information Booklet RPMT- 2008, wherein the name of Geetanjali Medical College and Hospital has been mentioned at Item No. 10 in anticipation of the sanction of the seats as the process was already initiated, and M.C.I. Regulation No. 5.The same are as under:

Relevant portion of the Information Booklet RPMT-2008

For admission of candidates on seats in MBBS/BDS/.V.Sc.& A.H. Courses in various Government and Private Colleges affiliated with the Rajasthan University of Health Sciences, Jaipur. List of affiliated colleges with numbers of seats are also available on the websites of RUHS (www.ruhsraj.org.)

1. S.M.S.Medical College, Jaipur.

2. R.N.T.MedicalCollege, Udaipur.

3. Dr. S.N.Medical College, Jodhpur.

4. Government Medical College, Kota.

5. J.L.N.Medical College, Ajmer.

6. S.P.Medical College, Bikaner.

7. Jhalawar Medical College, Jhalawar.

8. M.G.Medical and Dental College, Jaipur.

9. National Institute of Medical Sciences, Jaipur.

10.Geetanjali Medical College, Udaipur.

11.Government Dental College, Jaipur.

12.College of Veterinary & Animal Husbandry R.A.U.Bikaner.

13.College of Veterinary & Animal Science,Vallabh Nagar, Udaipur.

14.Mahatma Gandhi Veterinary College, Bharatpur.

15.Apollo College of Veterinary Medicine, Jaipur.

And other relevant colleges of Private Sector, in Rajasthan duly recognised and approved subsequently, if any.1. Examination 23rd,24th & 25th May, 20082. Declaration of result Before 15th June3. First counselling MBBS,BDS, 14th -15th -16th July, 2008 BVSC & AH 4. Second counselling MBBS, 23rd-27th Aug.2008 BDS, BVSC & AH5. Place of counselling for all RUHS Pratapcourses Nagar,Jaipur.

Instructions for admission to MBBS/BDS Degree courses for the session 2008-09

I. NAME OF THE INSTITUTIONS

List of Government and Private colleges may be seen on the Website www.ruhsraj.org. 85% of MBBS seats of NIMS/MGMC, Jaipur will be filled up through RPMT,85% of MBBS seats of Geetanjali Medical College, Udaipur and Jhalawad Medical College, Jhalawad will also be filled up through RPMT. Provided these institutions get LOP from MCI, New Delhi.

II. RESERVATION

(a) 15% of the seats in Govt. Colleges will be reserved in M.B.B.S./B.D.S. Course to be filled up by an All India Entrance Examination to be conducted by the agency of Govt. of India.

(b) Out of total 24 seats, 4 in each State Medical College of Rajasthan of MBBS Course will be reserved for candidates selected under the Central Government pool. These seats will be filled up by the Central Government Authority.

Note: The remaining seats shall be treated as the State seats and will be filled up on merit cum preference in State Pre Medical Test Examination with following reservations:.

III. ELIGIBILITY

No candidate shall be allowed to be admitted to the Medical curriculum of Bachelor of Medicine and Bachelor of Surgery (M.B.B.S.) Course until:

1. He/She shall complete the age of 17 years on or before 31st December, 2008 (D.O.B. 31st Dec.1991 or earlier).

2. He or she has passed the qualifying examination as under:

The Senior Secondary Examination or the Indian School Certificate Examination which is equivalent to 10+2 after a period of 12 year study. The last 2 years study must comprise of Physics, Chemistry, Biology with English as compulsory subjects.

Provided also that:

In case of admission on the basis of competitive entrance examination the candidate shall have to obtain not less than 50% marks in Physics, Chemistry, Biology (Zoology and Botany) taken together in the RPMT-2008 with at least 33% marks individually in each subjecton the result of which the candidate's admission of MBBS/BDS courses are regulated.

(i) In respect of candidate belonging to SC/ST and OBC the marks obtained in Physics, Chemistry & Biology taken together in RPMT-2008 shall be 40% instead of 50%. However, the candidate has to secure at least 33% marks individually in each subject for admission to MBBS/BDS courses. (As per RPMT-2008 committee dated 22.11.2001 and judgment of Hon'ble Rajasthan High Court pronounced on 5.3.2002 in Sunita Meena v. State of Rajasthan and Ors. case).

Provided further that a candidate who has appeared in the qualifying examination, the result of which has not been declared is to be provisionally permitted to take up the competitive entrance examination and in case of selection for admission to the MBBS/BDS Course, he/she shall not be admitted in that course until he/she holds the eligibility criteria.

(ii) In the RPMT-2008, there will be three papers, one each from Physics, Chemistry and Biology of 300 marks each. Paper from Biology shall comprise of Section `A' Botany of150 marks and Section `B' Zoology of 150 marks of the standard of qualifying examination.

IV. SELECTION OF STUDENTS

i. The selection of students to a Medical College shall be based solely on the merit of the candidate through a Competitive Entrance Examination except for the candidates belonging to the categories of sub clause a & b of the Clause-II and reservation and priority cum merit through State Competitive Entrance Examination for the category of sub clause `e' of the clause -II Reservation.

ii. To be eligible for the State Pre Medical Test, the candidate must have fulfilled the eligibility criteria including the qualifying examination as enumerated under sub Clause 2 of the clause III.

iii.The eligible passed candidates in the State Pre Medical test will be admitted in the order of merit of the general as well as reserved seats except the seats belonging to the category of the sub clause `e' of Clause-II in which case it would be priority cum merit.

iv.Candidates securing equal marks in the State Pre Medical Test will be admitted in the following order or preference:

(a) One who has secured more marks in the science subject of 10+2 or its equivalent examination.

(b) Among candidates securing equal number of marks in the 10+2 or its equivalent examination, who have passed in lesser number of attempts will be given preference. If, there is a further tie, candidates who have secured more marks in Secondary examination or its equivalent examination will be given preference.

V. INTERVIEW BY ADMISSION BOARD AND ALLOTMENT OF COLLEGE.

i. The selection will be done by the Undergraduate admission Board consisting of all the Principals/Representatives of Institutions at Rajasthan University of health Science, Sector 18, Kumbha Marg, Pratap Nagar, Tonk Road, Jaipur 302 033.

ii. Eligible candidates who have passed the State Pre Medical Test shall be called for interview by the Chairman of the Undergraduate Admission Board to appear before the board constituted by the State Govt. The presence of the candidate or his/her authorised representative at interview is essential. The physically handicapped candidates will have to appear in person and no authorised representative will be allowed in case of physically Handicapped candidate. The intimation of the interview to candidates shall be by way of a letter under postal certificate (UPC) through newspapers, other Media and through Medical College Notice Board. Format of authority letter is enclosed (Annexure-1).

iii.The list of candidates called for interview will be put on the notice board of the Rajasthan University of Health Sciences, Jaipur three days before the date of interview. The candidates found unsuitable by the Admission Board will be rejected. All the original certificates and marks sheets must be brought by the candidates at the time of interview.

iv.The undergraduate admission board shall interview the candidates and allot them college strictly on the basis of merit cum preference list given in writing on or before the scheduled date. The candidates will be allowed to withdraw and submit a fresh preference list in writing at the time of his/her interview. The presence of candidates or his/her authorised representative at interviews is essential.

v.For reasons, to be recorded in writing,if the Admission oard suspects that a particular candidate has obtained certificate by misrepresenting facts, the matter will be referred to the concerned District Magistrate. On receipt of the enquiry report, the Admission Board shall take the final decision regarding the admission of the candidate...

Clause 5 of MCI Regulations 1997

5. Selection of students: The selection of students to medical college shall be based solely on merit of the candidate and for determination of merit, the following criteria be adopted uniformly throughout the country:

(1) In states, having only one Medical College and one university/board/examining body conducting the qualifying examination, the marks obtained at such qualifying examination may be taken into consideration.

(2) In states, having more than one university/board / examining body conducting the qualifying examination (or where there is more than one medical college under the administrative control of one authority) a competitive entrance examination should be held so as to achieve a uniform evaluation as there may be variation of standard at qualifying examination conducted by different agencies;

(3) Where there are more than one college in a state and only one university/board conducting the qualifying examination, then a joint selection board be constituted for all the colleges.

(4) A competitive entrance examination is absolutely necessary in the cases of Institutions of All India character.

(5) To be eligible for competitive entrance examination, the candidate must have passed any of the qualifying examinations as enumerated under the head note 'Eligibility Criteria'.

Provided also that -

(i) in case of admission on the basis of qualifying examination, a candidate for admission to medical course must have obtained not less than 50% marks in English and 50% marks in Physics, Chemistry and Biology taken together at the qualifying examination;

(ii) In case of admission on the basis of a competitive entrance examination, a candidate for admission to medical course must have obtained not less than 50% marks in English and 50% marks in Physics, Chemistry and Biology taken together, both at qualifying and competitive examinations;

Provided further that in respect of candidates belonging to Scheduled Caste/Scheduled Tribes and Other Backward Classes (OBCs) the marks obtained be read as 40% instead of 50%.

25. In the State of Rajasthan, although there is one University but students from more than two examining bodies of 10+2 examination are passing their examinations and further there are 15 government/private colleges of medical courses, therefore, as per Regulation No. 5(2) competitive entrance examination is necessary.

26. Question No. 1 Whether the ratio of P.A.Inamdar (supra) is applicable in medical courses or the same are governed by the MCI Regulations, 1997, University Ordinance as well as policy of the State Government ?

27. The judgment in P.A.Inamdar v. State of Maharashtra (2005) 6 SCC 537 is virtually to sort out the ratio of T.M.A.Pai Foundation and Islamic Academy (supra) and for the said purpose, the following four questions were framed:

(1) To what extent can the State regulate admissions made by unaided (minority or non-minority) educational institutions? Can the State enforce its policy of reservation and/or appropriate to itself any quota in admissions to such institutions ?

(2) Whether unaided (minority and non-minority) educational institutions arefree to devise their own admission procedure or whether the direction made in Islamic Academy : AIR2003SC3724 , for compulsorily holding an entrance test by the State or association of institutions and to choose therefrom the students entitled to admission in such institutions, can be sustained in light of the law laid down in Pai Foundation, : AIR2003SC355 ?

(3) Whether Islamic Academy, : AIR2003SC3724 could have issued guidelines in the matter of regulating the fee payable by students to the educational institutions ?

(4) Can the admission procedure and fee structure be regulated or taken over by the Committees ordered to be constituted by Islamic Academy : AIR2003SC3724 ?

28. The question No. (2) is relevant so far as it relates to own admission process but while answering the same, in Paras 136 and 137, there was no discussion by the Supreme Court for evolving own procedure contrary to Ordinance 272 M.C.I. Regulation and policy of the Government rather in para 137 State has also given authority tohold common entrance test with rider of triple test. In that case, the M.C.I. Regulations which have been held mandatory and Ordinance 272 read with the Government policy had not been discussed and decided therefore, the same would hold the field more particularly for the reason that the same is to secure fair merit based admissions and preventing mal-administration. In the instant cases, the aforesaid three tests are also conspicuously lacking with the lame excuse of shortage of time, although the waiting list of RPMT-2008 was alive and the respondent Institution admittedly did not participate in the counselling. Paras 133, 134, 135, 136, 137 and 138 of P.A.Inamdar (supra) relating to Question No. 2 - Admission procedure of unaided educational institutions, are as follows:

Q.2. Admission procedure of unaided educational institutions.

133. So far as the minority unaided institutions are concerned to admit students being one of the components of 'right to establish and administer an institution', the State cannot interfere therewith. Upto the level of undergraduate education, the minority unaided educational institutions enjoy total freedom.

134. However, different considerations would apply for graduate and post-graduate level of education, as also for technical and professional educational institutions. Such education cannot be imparted by any institution unless recognized by or affiliated with any competent authority created by law, such as a University, Board, Central or State Government or the like. Excellence in education and maintenance of high standards at this level are a must. To fulfill these objectives, the State can and rather must, in national interest, step in. The education, knowledge and learning at this level possessed by individuals collectively constitutes national wealth.

135. Pai Foundation has already held that the minority status of educational institutions is to be determined by treating the States as units. Students of that community residing in other States where they are not in minority, shall not be considered to be minority in that particular State and hence their admission would be at par with other non-minority students of that State. Such admissions will be only to a limited extent that is like a 'sprinkling' of such admissions, the term we have used earlier borrowing from Kerala Education Bill, 1957. In minority educational institutions, aided or unaided, admissions shall be at the State level. Transparency and merit shall have to be assured.

136. Whether minority or non-minority institutions, there may be more than one similarly situated institutions imparting education in any one discipline, in any State. The same aspirant seeking admission to take education in any one discipline of education shall have to purchase admission forms from several institutions and appear at several admission tests conducted at different places on same or different dates and there may be a clash of dates. If the same candidate is required to appear in several tests, he would be subjected to unnecessary and avoidable expenditure and inconvenience. There is nothing wrong in an entrance test being held for one group of institutions imparting same or similar education. Such institutions situated in one State or in more than one State may join together and hold a common entrance test or the State may itself or through an agency arrange for holding of such test. Out of such common merit list the successful candidates can be identified and chosen for being allotted to different institutions depending on the courses of study offered, the number of seats, the kind of minority to which the institution belongs and other relevant factors. Such an agency conducting Common Entrance Test (CET, for short) must be one enjoying utmost credibility and expertise in the matter. This would better ensure the fulfillment of twin objects of transparency and merit. CET is necessary in the interest of achieving the said objectives and also for saving the student community from harassment and exploitation. Holding of such common entrance test followed by centralized counseling or, in other words, single window system regulating admissions does not cause any dent in the right of minority unaided educational institutions to admit students of their choice. Such choice can be exercised from out of list of successful candidates prepared at the CET without altering the order of merit inter se of the students so chosen.

137. Pai Foundation has held that minority unaided institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admissions and the procedure therefor subject to its being fair, transparent and non-exploitative. The same principle applies to non-minority unaided institutions. There may be a single institution imparting a particular type of education which is not being imparted by any other institution and having its own admission procedure fulfilling the test of being fair, transparent and non-exploitative. All institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the abovesaid triple tests. The State can also provide a procedure of holding a common entrance test in the interest of securing fair and merit-based admissions and preventing mal-administration. The admission procedure so adopted by private institution or group of institutions, if it fails to satisfy all or any of the triple tests, indicated hereinabove, can be taken over by the State substituting its own procedure. The second question is answered accordingly.

138. It needs to be specifically stated that having regard to the larger interest and welfare of the student community to promote merit, achieve excellence and curb mal-practices, it would be permissible to regulate admissions by providing a centralized and single window procedure. Such a procedure, to a large extent, can secure grant of merit based admissions on a transparent basis. Till regulations are framed, the admission committees can oversee admissions so as to ensure that merit is not the casualty.

29. The decision in Unni Krishnan J.P. v. State of A.P. : [1993]1SCR594 was held to be not correct to the extent the said decision and consequent direction given to the U.G.C. AICTE, Medical Council of India, the Central and State Govt. etc. in TMA Pai Foundation (supra) and the said part of judgment in Unni Krishnan was over ruled. Para 45 of the judgment in TMA Pai Foundation (supra) is as under:

In view of the discussion hereinabove, we hold that the decision in Unni Krishnan case insofar as it framed the scheme relating to the grant of admission and the fixing of the fee, was not correct, and to that extent, the said decision and the consequent directions given to UGC, AICTE, the Medical Council of India, the Central and State Government etc. are overruled.

30. After the judgment in Islamic Academy of Education (supra), the issue of formation of the Committee in pursuance thereto was also decided in P.A. Inamdar (supra) as question No. 4 and the reference of M.C.I. Regulations was made in paras 142 & 143 and ultimately in Para 151 the formation of the Committees one each for admission and fee structure, was upheld but there is no specific finding on M.C.I. Regulations and Ordinance of the University of formation of Committee imparting medical education contrary to said Regulation and Ordinance except submissions in paras 142 and 143, rather in T.M.A.Pai Foundation (supra) vide Para 45 direction to UGC, AICTE and MCI as held in Unni Krishnan J.P. (supra) was over ruled. Paras 142, 143, 144, 145, 146 and 151 of the judgment in P.A.Inamdar (supra) are as follows:

142. Most vehement attack was laid by all the learned Counsel appearing for the petitioner-applicants on that part of Islamic Academy which has directed the constitution of two committees dealing with admissions and fee structure. Attention of the Court was invited to paras 35,37, 38, 45 and 161 (answer to question 9) of Pai Foundation wherein similar scheme framed in Unni Krishnan was specifically struck down. Vide para 45, Chief Justice Kirpal has clearly ruled that the decision in Unni Krishnan insofar as it framed the scheme relating to the grant of admission and the fixing of the fee, was not correct and to that extent the said decision and the consequent directions given to UGC, AICTE, MCI, the Central and the State Governments etc. are overruled. Vide para 161, Pai Foundation upheld Unni Krishnan to the extent to which it holds the right to primary education as a fundamental right, but the scheme was overruled. However, the principle that there should not be capitation fee or profiteering was upheld. Leverage was allowed to educational institutions to generate reasonable surplus to meet cost of expansion and augmentation of facilities which would not amount to profiteering. It was submitted that Islamic Academy has once again restored such Committees which were done away with by Pai Foundation.

143. The learned senior counsel appearing for different private professional institutions, who have questioned the scheme of permanent Committees set up in the judgment of Islamic Academy, very fairly do not dispute that even unaided minority institutions can be subjected to regulatory measures with a view to curb commercialization of education, profiteering in it and exploitation of students. Policing is permissible but not nationalization or total take over, submitted Shri Harish Salve, the learned senior counsel. Regulatory measures to ensure fairness and transparency in admission procedures to be based on merit have not been opposed as objectionable though a mechanism other than formation of Committees in terms of Islamic Academy was insisted on and pressed for. Similarly, it was urged that regulatory measures, to the extent permissible, may form part of conditions of recognition and affiliation by the university concerned and/or MCI and AICTE for maintaining standards of excellence in professional education. Such measures have also not been questioned as violative of the educational rights of either minorities or non- minorities.

144. The two committees for monitoring admission procedure and determining fee structure in the judgment of Islamic Academy, are in our view, permissive as regulatory measures aimed at protecting the interest of the student community as a whole as also the minorities themselves, in maintaining required standards of professional education on non-exploitative terms in their institutions. Legal provisions made by the State Legislatures or the scheme evolved by the Court for monitoring admission procedure and fee fixation do not violate the right of minorities under Article 30(1) or the right of minorities and non-minorities under Article 19(1)(g). They are reasonable restrictions in the interest of minority institutions permissible under Article 30(1) and in the interest of general public under Article 19(6) of the Constitution.

145. The suggestion made on behalf of minorities and non-minorities that the same purpose for which Committees have been set up can be achieved by postaudit or checks after the institutions have adopted their own admission procedure and fee structure, is unacceptable for the reasons shown by experience of the educational authorities of various States. Unless the admission procedure and fixation of fees is regulated and controlled at the initial stage, the evil of unfair practice of granting admission on available seats guided by the paying capacity of the candidates would be impossible to curb.

146. Non-minority unaided institutions can also be subjected to similar restrictions which are found reasonable and in the interest of student community. Professional education should be made accessible on the criterion of merit and on non-exploitative terms to all eligible students on an uniform basis. Minorities or nonminorities, in exercise of their educational rights in the field of professional education have an obligation and a duty to maintain requisite standards of professional education by giving admissions based on merit and making education equally accessible to eligible students through a fair and transparent admission procedure and on a reasonable fee-structure.

151. On Question-4, our conclusion, therefore, is that the judgment in Islamic Academy, in so far as it evolves the scheme of two Committees, one each for admission and fee structure, does not go beyond the law laid down in Pai Foundation and earlier decisions of this Court, which have been approved in that case. The challenge to setting up of two Committees in accordance with the decision in Islamic Academy, therefore, fails. However, the observation by way clarification, contained in the later part of para 19 of Islamic Academy which speaks of quota and fixation of percentage by State Government is rendered redundant and must go in view of what has been already held by us in the earlier part of this judgment while dealing with Question No. 1.

31. But since the MCI Regulations are held to be mandatory, and further Ordinance 272 still holds the field, so far as medical courses are concerned, need of the same has been specifically emphasised by the Supreme court in the aforesaid pronouncement, therefore, the same would still hold the field and the respondents are bound to act accordingly and in case of management quota, they may act as per the PC-PMT held for MBBS.

32. Question No. 2. Whether the common entrance examination is essential or optional ?

33. I would like to deal with the judgments on common entrance examination in the medical courses i.e. MBBS/MD/MS wherein it has been categorically held by the Supreme Court that in case eligibility examinations are conducted by different Boards/Universities having different mode of marking, then common entrance examination is the best available method.

34. In Dinesh Kumar v. Motilal Nehru Medical College, Allahabad : AIR1985SC1059 , Shri Chander Chinar Beda Akhara Udasin Society v. State of J&K; : AIR1997SC399 and Ravindra Kumar Rai V. State of Maharashtra : [1998]1SCR1146 it has been held as under:

Dinesh Kumar v. Moti Lal Nehru Medical College

The State Governments have also been equally guilty of indifference and inaction in not taking any steps for the purpose of holding an entrance examination which would test the relative merits of the students seeking admission to the minimum 30% non-reserved seats in the MBBS Course in the medical colleges. Some of the State Governments and Universities, we are informed, are proposing to fill up the minimum 30% non-reserved seats for the MBBS Course on the basis of the mark obtained by the students at the qualifying examinations held by different States and/or Universities, totally ignoring the fact that the standard of judging at these different qualifying examinations cannot, by its very nature be uniform. Some Universities may be very liberal in their marking while some other may be strict. There would be no comparable standards on the basis of which the relative merits of the students can be judged. It would be wholly unjust to grant admissions to the students by assessing their relative merits with reference to the marks obtained by them,not at the same qualifying examination where standard of judging would be reasonably uniform but at different qualifying examinations held by different State Governments or Universities where the standard of judging would necessarily vary and not be the same. That would indeed be blatantly violative of the concept of equality enshrined in Article 14 of the Constitution.

Shri Chander Chinar Beda Akhara Udasin Society v. State of J&K;

It need not be pointed out that the percentage of marks secured by different applicants at different types of examinations at the higher secondary stage cannot be treated as uniform. Some of such examinations are conducted at the State level, others at the national level including the Indian School Certificate examination. The percentage secured at different examinations is bound to vary according to the standard applied by such examining bodies which is well known. As such a common entrance examination has to be held .

Ravindra Kumar Rai v. State of Maharashtra

6.We may at the outset point out that inasmuch as there are three Boards in Maharashtra State which conduct the qualifying examination and inasmuch as there are several Universities, the State of Maharashtra would clearly fall under Sub-clause (2) of Regulation 5 made by the Medical Council and not under sub-clause(3). The contention for the State that candidates from CBSE Board are small in number does not appeal to us. Inasmuch as there is no dispute that more than one Board conducts the qualifying examination and the Universities are more than one in number, Sub-clause (3) of Regulation 5, in our view, is not attracted. It is also not possible for the State to say that conducting a common entrance examination will delay the admission process or that it will be extremely difficult to conduct the examination. In fact the statement in the counter affidavit to the effect that the State has been conducting a common examination for 1,80,000 at the 10+2 level in the 7 divisional boards would itself show that the State is capable of conducting a common Entrance Examination for admission to medical colleges, even if the number of students is large. We may also say that in several States, Common Entrance Examination is being conducted even before 1997 when these Regulations made by the Medical Council came into force. In fact in some States, entrance examination is conducted jointly for Engineering and medical students also. We fail to see why the State of Maharashtra should say that it will be an arduous task.

7. In a recent judgment of this Court in Shri Chander Chinar Bada Akhara Udasin Society and Ors. v. State of J&K; and Ors. : AIR1997SC399 , in the context of admission to Medical Colleges, and the need for a Common Entrance Examination, this Court observed (p.738) (of SCC):(at p.3782 of AIR) as follows:

It need not be pointed out that the percentage of marks secured by different applicants at different types of examinations at the higher secondary stage cannot be treated as uniform. Some of such examinations are conducted at the State level, others at the national level including the Indian School Certificate examination. The percentage secured at different examinations are bound to vary according to standard applied by such examination bodies, which is well known. As such a common entrance examination has to be held.

It has been, therefore, held that a 'Common Entrance Examination' for admission to Medical Colleges has to be held.

10. In the result, we allow the writ petition and direct the State of Maharashtra and its Medical Education Department to start the process for holding the Common Entrance Examination for admission to Medical Colleges in Maharashtra for the year 1998 and conduct the said Examination in accordance with the `Regulations on Graduate Medical Education 1997' made by the Medical Council of India. Writ petition is allowed as stated above.

35. In Mridul Dhar (Minor) and Anr. v. Union of India and Ors. : AIR2005SC666 the Supreme Court approved the time schedule prescribed by the Government in consultation with the representatives of the respective States and the Universities after the judgment in M.C.I. v. Madhu Singh (supra). As per para 11 the last date of admission in MBBS is 30th September of the respective year. Paras 10 and 35 of the same are as follows:

10.The directive dated 14-5-2003 also stipulates the cancellation of admission granted after the last date of closure of admission and warns the candidates of the consequences of taking admission after the last date for closure of admissions. Paragraphs 8.4 and 8.5 of the directive read as under:

8.4 In exercise of the powers conferred by the Hon'ble Supreme Court, the Medical Council of India or the Dental Council of India may direct that any student identified as having obtained admission after the last date for closure of admission be discharged from the course of study; or any medical or dental qualification granted to such a student shall not be a recognized qualification for the purpose of the Indian Medical Council Act, 1956 or the Dentist Act, 1948, as the case may be. The Institution which grants admission to any student after the last date prescribed for the same shall also be liable to face such action as may be prescribed by MCI or DCI.

8.5 The Time Schedule for completion of the admission process as in the Annexure shall also be printed in the Bulletin of Information for the candidates or the Prospectus for admission to the concerned course. The candidates shall be clearly warned of the consequences of taking admission in any institution after the last date for closure of admissions.

35.Having regard to the aforesaid, we issue the following directions:

1. All participating States and Union Territories, Board of Secondary Education shall declare 10 + 2 result by 10th June of every year and make available the mark sheet to the students by 15th June. The aforesaid condition would not apply to West Bengal for the year 2005. As already noticed, the West Bengal would make available to the concerned students the marksheets by 15th June, 2005 Heads of Boards would be personally liable to ensure compliance.

2. The time table mentioned in Notification dated 25th February, 2004 shall be strictly adhered to by all concerned including States and Union Territories and results of State Medical/Dental Entrance Examination shall be declared before 15th of June.

3. The States/Union Territories shall complete the admission process of first round of State Level Medical/Dental College admission by 25th July i.e. a week before start of second round counseling or allotment of seats under All India Quota. The correct vacancy position shall be intimated by the Chief Secretary to the DGHS by 26th July. It shall be verified by the Head of the Institution/or Head of the Medical Institution/Health Department in the State.

4. It shall be the responsibility of all concerned including Chief Secretaries of each State/Union Territories and/or Health Secretaries to ensure compliance of the directions of this Court and requisite time schedule as laid down in the Regulations and noncompliance would make them liable for requisite penal consequences.

5. All seats in All India Quota must be fully disclosed giving details of the date of recognition/renewal to DGHS before a date to be notified by DGHS and the same shall be duly published.

6. By 31st October, the State through Chief Secretaries/Health Secretaries shall file a report in regard to admissions with the DGHS giving details about the adherence to a time schedule and admission granted as per the prescribed quota. The recalcitrant States, particularly officers personally will have to face consequences for violation.

7. The DGHS shall file by 31st January, 2005 report in regard to feasibility of conducting counseling through the process of video conferencing.

8. The DGHS shall file report within three months on the aspect of Section 10-A seats being subjected to 15 per cent All India Quota and about the increase of the quota from 15 per cent to 20 per cent.

9. The DGHS shall also file a report within three months on the aspect of constitution of high-power Committee/Ombudsman.

10. The seats allotted upto 15th July, shall also be subjected to respective State Quotas.

11. If any private medical college in a given academic year for any reason grants admission in its management quota in excess of its prescribed quota, the management quota for the next academic year shall stand reduced so as to set off the effect of excess admission in the management quota in the previous academic year.

12. The time schedule for grant of admission to postgraduate courses shall also be adhered to.

13. For granting admission, the merit determined by competitive examination shall not be tinkered with by making a provision like grant of marks by mode of interview or any other mode.

14. Time schedule for establishment of new college or to increase intake in existing college, shall be adhered to strictly by all concerned.

15. Time schedule provided in Regulations shall be strictly adhered to by all concerned failing which defaulting party would be liable to be personally proceeded with.

16. Copy of the judgment shall be sent to Chief Secretaries of all States/Union Territories for compliance.

36. In direction No. 12 of para 35, it was directed that the time schedule for grant of admission to the post graduate courses shall be adhered to. The said direction is equally applicable to the graduate courses in M.B.B.S. In direction No. 13 it was directed that for granting admission, the merit determined by competitive examination shall not be tinkered with by making a provision like grant of marks by mode of interview or any other mode. Ordinance 272 read with the Instruction Booklet of RPMT-2008 provides for admission against 85% seats from RPMT and the said merit could not have been tinkered with/scrapped.

37. The Supreme Court, right from the beginning of 1985 till date, from Dr. Dinesh Kumar and Ors. v. Motilal Nehru Medical College : AIR1985SC1059 , in Ravindra Kumar Rai V. State of Maharashtra AIR 1988 SC 1227, Shri Chander Chinar Bada Akhara Udasin Society and Ors. v. State of J&K; and Ors. (1996) 5 SC 732, Dr. Preety Srivastava v. State of M.P. : AIR1999SC2894 , Ravindra Kumar Rai v. State of Maharashtra and Ors. : [1998]1SCR1146 to Mridul Dhar v. Union of India : AIR2005SC666 has emphasized the need of common Entrance Examination in medical courses for the reason that different mode of the marking by different Universities are tobe put at par. Some of them are lenient and others are strict. Otherwise also, where the seats are lesser in number and the candidates are large in number, it would be in the interest of all the students and the Government to hold a Common Entrance Examination which have been affirmed by the Constitution Bench of the Supreme Court in Dr. Preeti Srivastava v. State of M.P. : AIR1999SC2894 in P.G.Medical Course holding that the M.C.I. Regulations are mandatory. Relevant portion of paras 27, 28,and 57 of the same are as under:

Entrance exmaination for postgraduate courses and qualifying marks

27. When a common entrance examination is held for admission to postgraduate medical courses, it is important that passing marks or minimum qualifying marks are prescribed for the examination. It was, however, contended before us by learned Counsel appearing for the State of Madhya Pradesh that there is no need to prescribe any minimum qualifying marks in the common entrance examination. Because all the candidates who appear for the common entrance examination have passed the MBS Examination which is an essential prerequisite for admission to postgraduate medical courses. PGMEE is merely for screening the eligible candidates.

28. ...A common entrance examination, therefore, provides a uniform criterion for judging the merit of all candidates who come from different universities. Obviously, as soon as one concedes that there can be differing standards of teaching and evaluation in different universities, one cannot rule out the possibility that the candidates who have passed the MBS Examination from a university which is liberal in evaluating its students, would not, necessarily, have passed, had they appeared in an examination where a more strict evaluation is made. Similarly, candidates who have obtained very high marks in the MBBS Examination where evaluation is liberal, would have got lesser marks had they appeared for the examination of a university where stricter standards were applied. Therefore, the purpose of such a common entrance examination is not merely to grade candidates for selection. The purpose is also to evaluate all candidates by a common yardstick. One must, therefore, also take into account the possibility that some of the candidates who may have passed the MBBS Examination from more `generous' universities, may not qualify at the entrance examination where a better and uniform standard for judging all the candidates from different universities is applied. In the interest of selecting suitable candidates for specialised education, it is necessary that the common entrance examination is of a certain standard and qualifying marks are prescribed for passing that examination. This alone will balance the competing equities of having competent students for specialized education and the need to provide for some room for the backward even at the stage of specialized postgraduate education which is one step below the superspecialities.

57. In the case of Medical Council of India v. State of Karnataka Bench of three Judges of this Court has distinguished the observations made in Nivedita Jain. It has also disagreed with Ajay Kumar Singh v. State of Bihar and has come to the conclusion that the Medical Council regulations have a statutory force and are mandatory. The Court was concerned with admissions to the MBBS course and the regulations framed by the Indian Medical Council relating to admission to the MBBS course. The Court took note of the observations in State of Kerala v. T.P. Roshana (SCC at p.580) to the effect that under the Indian Medical Council Act, 1956, the Medical Council of India has been set up as an expert body to control the minimum standards of medical education and to regulate their observance. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. There is, under the Act an overall vigilance by the Medical Council to prevent sub-standard entrance qualifications for medical courses. These observations would apply equally to postgraduate medical courses. We are in respectful agreement with this reasoning.

38. MCI Regulations have been held to be mandatory in Dr. Preeti Srivastava v. State of MP (supra) by the Constitution Bench, therefore, the Institutions are bound to follow the same. In the instant case, Regulation No. 5 holds the field. In one of the cases - N. Priyadarshini v. Secretary to Government, Education Department, Chennai AIR 2005 Madras 315, the Tamil Nadu government decision of abolishing the Common Entrance Examination, 2005 has been held by the Madras High Court as illegal and unconstitutional or shockingly arbitrary in the Wednesbury sense. Paras 60 and 82 of the aforesaid judgment are as follows:

60. We are further of the opinion that since the Medical Council Regulations 1997 have been framed in pursuance of Section 33 of the Medical Council Act, 1956 which is a law made by Parliament, the field is occupied and hence also the impugned G.O is illegal. For the same reason, the G.O entrenches on a field occupied by the A.I.C.T.E and Dental Council Regulations.

82. Mr. R.Krishnamoorthy,leaned senior counsel appearing for a Consortium of Management, submitted that since the 1997 Regulations and other regulations were framed in pursuance of the decision of the Supreme Court in Unnikrishnan v. State of A.P. : (1993)4SCC111 , and since Unnikrishnan's case has been reversed in T.M.A. Pai Foundation v. State of Karnataka : AIR2003SC355 it has to be held that the Regulations have ceased to be in force. We do not agree with this submission. The Regulations only give effect to Article 14 of the Constitution, and surely it cannot be seriously argued that Article 14 is no longer in force.

39. Supreme Court in Medical Council of India v. Madhu Singh (supra) has fixed the time schedule for admission and further cast the responsibilities upon the M.C.I. to adhere the said time schedule.

40. In the instant case, the M.C.I. is well aware of the fact that in Rajasthan RPMT is being held as per Regulation No. 5 of the MCI Regulations, 1997 and Ordinance 272 of the University for government as well as private unaided institutions but still has not directed the respondent Institution to take students on 85% of the 150 seats from the RPMT while issuing the sanction letter dated 16.9.2008. The State Government has also failed to hold counselling on 23.9.2008 for the 85% seats of Geetanjali Medical College and Hospital and has created the present situation which is being faced by the meritorious candidates and at their cost, persons who failed or who did not appear had been admitted in the MBBS Course in the Institution. Similar kind of situation arose before the Supreme Court in Harish Verma (supra) wherein the minimum qualifying marks prescribed in first proviso to Regulation 9 of the Post Graduate Medical Education Regulation, 2000 was relaxed for in-service candidates and in para 21 the Court has quashed the entire selection even after having undertaken the course by the students for more than one year and a half. Para 21 of Harish Verma (supra) is as follows:

21. As a consequence,the admissions given to such of the in-service candidates who have secured marks less than the minimum prescribed by Regulation 9 framed by the Medical Council of India are struck down and set aside. The counselling shall have to be done afrsh to the extent necessary. We are conscious of the fact that there would be some delay in commencement of post graduation studies and to some extet the 2002 and 2003 batches would overlap. However, that is a situation which cannot be voided. It is an inevitable consequence for which the successful candidates for the year 2002 and 2003 i.e. those who will be held entitled to admission in post graduation courses of studies consequent upon this judgment, cannot be made to suffer for no fault of theirs. It will be for the State of Rajasthan, if necessary then in consultation with the Medical Council of India, to sort out the difficulties and to run the regular courses of the studies.

41. Here in the instant case, the notice of demand for justice has been given to the respondents prior to the last date of admission i.e. 30.9.2008 and some of the writ petitions have been filed prior to 30.9.2008 wherein interim order of reserving one seat has been passed but the other respondents have allowed the Institution to continue with the illegal admission at the cost of the meritorious students.

42. (2) Different Universities/Boards are having strict/liberal approach of marking, therefore, all the candidates who have secured marks in the requisite/eligibility examinations cannot be treated at par and still the best available mode is the Common Entrance Examination as required in Clause 5(2) of the MCI Regulations, 1997 and Ordinance 272 of the University. Question No. 2 is answered accordingly.

43. The ratio of TMA Pai Foundation, Islamic and Inamdar is for the professional course wherein medical courses have not been specifically neither discussed nor debated nor decided although admission procedure in non-minority unaided institution was also decided with triple test and State has alsos given authority but not with reference to M.C.I.Regulations for P.G. and Medical Courses. However, in para 79 of P.A.Inamdar (supra), there is reference of Dr. Preeti Srivastava v. State of MP (supra) and Prof. Yashpal v. State of Chhattisgarh with reference to the submission of the counsel that the State is bound to ensure admission to the colleges that are made purely on relative merit to be objectively assessed by the respondents' agency. The decisions of the Supreme Court rendered from time to time constantly and unanimously held that the MCI Regulations are mandatory and the common entrance test could be held for achieving standards of excellence in medical education.

44. It would also be relevant to mention here that in Dr. Preeti Srivastava (supra) para No. 24 to 29, 55 and 57 while dealing with the M.C.I. Regulations, the Constitution Bench has held that the M.C.I. Regulations are mandatory and M.C.I. is to ensure that no sub standard admission be made in medical courses.

Q.3 Whether merit of common entrance examination canbe sacrificed or not even in case of private unaided institutions.

45. 3.Having held the Common Entrance Examination by the State/University is still the best available mode, the respondents cannot be allowed to sacrifice the merit of the RPMT-2008 students for the reason that the students admitted by the respondent No. 5 Institution in the course either might not have appeared in the said examination and even if appeared, then might not stand in merit, therefore, in such situation, merit could not have been sacrificed and the admission of such type of students at the cost of meritorious students is arbitrary and violative of Article 14 of the Constitution of India on account of treating un-equals equally. The answer to the question No. 3 is that the policy of the Government to hold the Common Entrance Examination for government as well as private un-aided medical institutions as regards 85% seats are concerned, is reasonable, fair, transparent therefrom mal administration and further in the interest of students and public, therefore, the same is valid. The admissions given by the respondent No. 5 Institution from PC-PMT, BDS and 10+2 examination are illegal not irregular.

Q.4 Conduct of the Institution and Equity

46. 4.Here, the Institution acted with ulterior motive right from the date when the Supreme Court delivered its judgment for sanction of the seats and the order of sanction was issued on 16.9.2008 by adopting non-cooperative attitude for the simple reason to frustrate MCI Regulation No. 5 of MCI Regulations, 1997/Ordinance 272 and the policy of the Government and admit the students as per their choice at the cost of meritorious students of waiting list thereby cause injustice to meritorious students.

47. In view of the above, neither the Institution - Geetanjali Medical College and Hospital nor the students can claim any equity. The question No. 4 is answered accordingly.

48. A perusal of Ordinance 272(IV), Instruction Booklet RPMT-2008, notice of demand for justice, filing of the writ petitions and further not taking any time by the petitioner students clearly reveal that they were/are not at fault and they have been made to suffer by the respondent Institution ignoring the MCI mandatory regulation No. 5, Ordinance 272 (IV), and the Instruction Booklet RPMT-2008, as detailed out hereinabove and further respondent No. 5 Institution admitted students from PC-PMT BDS which is not at all relevant for MBBS 10+2 examination without there being any representative of the University and MCI. The admissions have been granted to candidates who have either not appeared and even if appear, then failed to secure any merit position. Thus, the admissions made by the respondent Institution in the batch 2008 in MBBS course are illegal.

49. Now the question arises as to what relief can be granted to the petitioner students. The Supreme Court in such similar circumstances, in Harish Verma and Ors. v. Ajay Srivastava and Anr. (supra), after cancelling the admissions of the students of the batch of 2002 and 2003 after one and half year in case batch of 2002 on 16.9.2003 held that the candidates who stand in merit above the minimum qualifying marks, are entitled to admission in post graduate courses and studies consequent upon the said judgment as they cannot be made to suffer for no fault of theirs, with the further direction to the State of Rajasthan, if necessary, then in consultation with the MCI sort out the difficulties and run regular course of studies. Para 21 of the aforesaid judgment in Harish Verma (supra) has already been quoted above.

50. The students admitted in 2008 have not been enrolled by the University.

51. Accordingly, the writ petitions are allowed and -

(i) the admissions made by the respondent Institution - Geetanjali Medical College and Hospital in MBBS Course for the batch 2008 against 85% of 150 seats are declared illegal;

(ii) The interim orders passed in these writ petitions are made absolute and orders which have not been complied with so far be complied with now;

(iii) In the aforesaid facts and circumstances of the case, the State have to hold counselling from the waiting list of students of RPMT-2008 and the petitioners who stand in merit are entitled for admission and process be completed before commencement of RPMT-2009;

(iv) It will be for the State of Rajasthan, if necessary then in consultation with the MCI and University, to sort out the difficulties and to run the regular courses of MBBS batch 2008.

(v) Although the petitioners have suffered much mental agony for the wrongs committed by the respondents but taking lenient view in the matter,I am not inclined to impose cost/penal cost upon the respondents. However, I leave the matter upon the State, University and the MCI to take appropriate action.

S.B. Civil Contempt Petition No. 508/2008

52. In view of relief No. (ii) the contempt petition stands disposed of.