The Court
1. Petitioners are two Trusts of Subarna Banik SamaJ of Calcutta. They have Invoked the writ Jurisdiction of this Court through the proper representative of the SamaJ with supporting affidavit of competency.
2. The petitioner No. 1 Trust executed a deed of trust on 20th June, 1922 by making provisions of free medical education 4 (four) students of Subarna Banik SamaJ wherein petitioner No.2, the other trust was constituted on 12th August, 1927 for similar purpose in respect of 2 (two) students in a Medical College in Calcutta names as Carmichael Medical College Hospital now known as R.G. Kar Medical College & Hospital. Since the trusts donated such seats in the said Medical College such quota of seats are commonly known as doner's quota.
3. It is an admitted position that the above members of such sponsored students will be available for the entire educational period, but not as par year. In other words, when the students of such quota are coming out after passing the medical examinations such seats are declared as vacant seats for the purpose of filling up through the new incumbants under such quota. In further words inflow of students under such quota will be dependable upon out flow of students under such quota.
4. Accordingly, in this year, vacancy in four seats arose. Out of four seats, one has already filled up as against a candidate who has lost hisopportunity to study for various reasons which are not material hereunder. Therefore, the application is vertually made for the purpose of making provisions of other three candidates. Therefore, let me confine the subject matter of issue only in respect of those three candidates.
5. According to the petitioners, the Joint Entrance Examination of the year was held on or about 24/25th April, 1999 and the results were accordingly published on 14th July, 1999. The counselling by the Central Selection Committee was held in between 27th July and 28th July, 1999. On 2nd August, 1999, Honourary Secretary of the Trust enquired from the Medical College about the position of vacant seats in the MBBS Course under the two trusts. On 9th August, 1999, it was informed to the petitioners by the said Medical College that one seat is lying vacant in MBBS Course in 1999-2000 Session available for the petitioner No.1 trust. Re-counselling of the students were held on 14th August, 1999 wherein the selection of the candidates were made on 16th August, 1999 by sending list of selected candidates to the respective Colleges. The admission of the College remain closed by way of completion of the process on 24th August,1999.
6. On 25th August, 1999, first year classes have started.
7. On 16th September, 1999, the petitioner enquired from the principal of the College about other vacant seats for the purpose of taking decision of the trustees. Immediately on the next date, appropriate representative of the petitioners drew attention to the principal of the concerned Medical College by informing that four students nominated by the two trusts, namely Sri Avljlt Paul, Smt. Soma Sil (under B.C. Dey Trust), Ms. Sushmi Dutta and Mrs. Shyamashree Sll (under B. Dutta Trust) appeared in the final MBBS Examination in the year 1999, and requested the Principal to advise as to the results of those candidates as early as possible so that the position of the vacancy of medical seats could be ascertained.
8. On 22nd September, 1999 the Principal of the concerned Medical College in reply to their letter or letters intimated that the medical seats as above fell vacant on 13th October, 1998 due to one of the candidates Sri Rajarshy De, a B.C. De Trust Nominee fail to pass in first professional examination in four attempts and, thus, had to be declared out of the course as per the rules of the University of Calcutta.
9. On 27th September, 1999, the Principal of the Medical College also informed that out of the four candidates as above concerning two Trusts one candidate has failed but other three candidates have passed on the basis of the result published on 17th September, 1999. It was further informed that the Central Selection Committee had to be apprised of the vacancy of doner seat under the two Trusts in the concerned Medical College every year and this year only one vacancy to be nominated as reported to central Selection Committee on 19th July, 1999 for the academic year 1999-2000, due to the vacancy arise out of leaving of medical course by one candidate as above.
10. The interesting part of the reply under the letter is that save and except that vacancy of the doner seat as aforesaid other vacancies of the doner seat arose only when result of the final MBBS Examination held inthe year 1998 came out on 27th September. 1999. Therefore, vacancies arising out of passing three candidates cannot be accommodated in the academic session in 1999-2000 since the total vacancy of 150 students of the Institutions has already been earmarked for the different categories of students. These three vacancies will be accommodated for the candidates to be nominated by the Samaj in the next academic year i.e. 2000-2001,
11. Therefore, it is crystal clear that the dispute is not restricted with regard, to the filling of the three vacancies from the doners quota of the said two trusts, but the dispute in whether they should be accommodated in the year 1999-2000 or 2000-2001.
12. Mr. AJoy Krishna Chatterjee learned senior counsel appearing with Mr. Soumen Sen appearing for the petitioners has drawn my attention to various judgments to come to an appropriate finding. They have cited a single Bench decision reported in 1999(1) CLJ 274 (Miss Sanchita Biswas v. West Bengal Board of Examination for Admission to Engineering. Medical & Technological Colleges & Ors.) which speaks that making gift of huge amounts in those days the said humanitarians and propitiator of education dedicated the amount for the good of the society and the organiser accepted the same as those founders and the most well-wishers thought the same to be the best for the institution and the society, saddled with the contract not of monopolishing or commercialising the education but along with the benefit to the society at large.
13. The petitioner has further cited a Judgment reported in : AIR1985SC981 (State of Punjab v. Bhagabant Singh & Ors.). The fact of the case is that the petitioner therein was a member of the Punjab Agricultural University Hockey team. The team had participated in the All India Inter Varsity Hockey Championship, but it was eleminated at the zonal level. On he basis of the C-II gradation certificate issued to him by the Director of Sports, Punjab, the petitioner had applied for admission for 1st year MDBS in the sports quota. It was held by the Supreme Court that the petitioner could not be denied admission on the ground as his team did not reach the stage of finals in the tournament, he was not qualified for the requisite sports certificate grade C-II.
14. These have been cited to support the right and privilege of the doner's quota.
15. They have also cited a decision reported in : [1983]2SCR801 (Punjab Engineering College v. Sanjoy Gulatt & Ors. with the other matters) wherein a three Judges' Bench of the Supreme Court held that the best solution about the wrongful admission and unjust exclusion is increasement of the strength of the seats in proportion to the wrongful admissions made. The authorities who made admissions by ignoring the rules of admission cannot be allowed to contend that the seats cannot correspondingly be increased since the State Government cannot meet the additional expenditure which will be cause of increasing the number of seats or that the institution will not be able to cope up with the additional influx of students or that in regard to Medical Colleges, the indian Medical Council will not sanction additional seats.
16. Relying upon all the aforesaid judgment learned counsel has drawn my attention to the R.G. Kar Medical College Act, 1958 to establish byshowing section 3(2) that Government is trustee to doners in respect of doners quota. Thereafter, he cited an order of a single Bench judgment of this Court in respect of W.P.No. of 1999 (Sudipia Mullick & Anr. v. State of West Bengal) dated 13th December, 1999 in respect of consideration for admission of two candidates in respect of some other trust. However, reference of such order is incidental so far this Court is concerned and cannot form any part and parcel of a decision making process in respect of relevant cause of action available before this Court in this respect.
17. The straight line case herein is that there is no dispute with regard to the admission of three candidates but whether such admission will be made available in this Session i.e. 1999-2000 or 2000-2001. The petitioner contended that unless information obtained by the trust, there is no occasion of filling up the vacancy which arise only on 27th September, 1999. It is contractual obligation between the trust and the Government by which Government is bound to doners to perform the part and parcel of the contract. He has drawn my attention to Page 54 of the writ petition to say that the secretary of the trust asked for the position of vacancy in respect of doners quota as far back as on 2nd August, 1999. He has drawn further attention to other part of the annexure 'A' at Page 19 and annexure 'B' at page 20 to show an instance with regard to Calcutta Medical College has increased five seats. Therefore, according to them Colleges have no embargo in increasing the seals for the year provide three candidates in the year 1999-2000 following the principle laid down in : [1983]2SCR801 (supra).
18. Mr. Debdatta Sen learned counsel appearing in support of the students vertually adopted the argument made by the petitioner but added one line by saying that the students should not be victimised and loose their one valuable academic year due to confrontation in between the doners and the Government in fixing academic year.
19. Mr. Tapan Dutta, learned counsel appearing on behalf of the Respondent did not raise any objection as to the admission of such students under doners quota in the year 2000-2001, but raised objection as to their admission in the year 1999-2000. According to him, it will not be encourageable to get admission of the students after starting of the class. It is an admitted position that one vacancy arose in respect of admission of the candidates under the doners quota in the year 1999-2000. But vacancies in respect of other three candidates never arose before the result of the joint Entrance Examination for the regular candidates or before counselling or recounselllng by the Central Selection Committee or before completion of admission of ihe selecled candldales or before starting of the first year class.
20. It is an admitted position that right to nominate for filling up the vacancies arose only after gelling the information from the principal of the Medical College as on 27th September, 1999 that three vacancies in respect of the doners quota seals are available due to passing of such candidates in final MBBS Examination. Therefore, if the College gives admission to such candidates in respect of Session of this year which has already started on 25th August, 1999 it will seriously hamper the administration as well as quality product of the students in such valuable technical courses. The right which have been accrued by the candidates cannot have any retrospectiveeffect but have the prospective effect and there is no difficulty in giving admission to such students for the year 2000-2001 and the seats will be vacant for them irrespective of any state of affairs.
21. He further contended that an example has shown before this Court for enhancement of seats in the Medical College under Memorandum No. H/MERT/583/2M-1/99t-1 dated 2nd June. 1999 although sanctioned intake capacity for the academic year 1999-2000 in respect of such Medical College is 100. but increased to 155 under subsequent Memo but the same was done under an order of the Court. Mr. Dutta contended that the said College faced serious problem in increasing such strength when Medical Council of India intervened and, ultimately, they have convinced the Medical Council to come to an appropriate solution in this respect. However, this part is not available in the affidavit of the College as such petitioners strongly opposed such submission.
22. Mr. Dutta finally pin pointed the following :
(a) Determination of number of vacancies in the quota in terms of Government order is to be read with reference to the trust candidates reading at the material point of time. No vacancy was there excepting Sri Rajarshi De, therefore, this is the appropriate vacancy at the material point of time for the year 1999-2000.
(b) The State has no authority to preserve the possible vacancy for the future in respect of donors quota even after completion of the process. Once Joint Entrance seats are filled up any trust quota vacancy occurred subsequently to be accommodated in the next year. Since these three vacancies arose subsequently, naturally they will be accommodated for the year 2000-2001 and the respondents are given assurance to the Court to that extent.
(c) As per instruction of the Medical Council of india under the signature of the Secretary being No.34(41)/98-MED/(10B)/MED-79201 dated 22nd January, 1999 being annexure A to the affidavit-in-opposition, the Secretary of the Medical Council of India specified that the sanctioned intake capacity in respect of the Medical Colleges functioning in this State for admission to MBBS course will be as per the list enclosed with this letter. The sanctioned intake capacity indicated in this letter i.e., 150 seats for the College shall apply and wilt be strictly followed for admission of students in the MBBS Course during the academic year 1999-2000 and onwards. No admission beyond the sanctioned intake capacity indicated herein is to be made failing which action will be initialed under the provisions of the Indian Medical Council Act, 1956.
23. However, surprisingly from the third paragraph of the letter of Medical Council of India being annexure A to the petition as referred above it appears as follows :
'You are also requested to ask all the concerned Medical Colleges to send to this council a list of students admitted during the academic year 1999-2000 (an onwards as and when applicable) in the MBBS Course within one month from the closer of admission or 11th October, 1999,whichever is earlier supported by an affidavit by Dean of respectiveCollege as per provisions of said regulations.'
24. Therefore, it is crystal clear that the dictate of the Medical Council of India provides two conditions about filling up the vacancies for the respective year 1999-2000 onwards giving a cut off period for the purpose of sending the list of the students to the Council finally (a) within one month from the closer of admission or (b) 11th of October, 1999.
25. It appears that the learned counsel appearing for the respective College has contended that publication of the result of the final MBBS course is not in the hands of the respective Colleges, but in the hands of the concerned University. Therefore, the course of action for the purpose of filling up the vacancies arose only after getting the results of the final MBBS candidates as against donors quota i.e., the petitioner hereunder which has happened after closer of the admission i.e.. on 24th August, 1999. If it is so in that case as per the dictate of the Medical Council of India, the right of the students under the donors quota herein were available from 24th August. 1999 for a month i.e., upto 24lh September, 1999 or upto 11th October. 1999. Since the cause of action arose by the communication of the Principle of the College only on 27th September, 1999 and by this time, the final list has been forwarded and the students lost their valuable one academic year due to the laches, inaction or negligence on the part of the College itself. This is an unfortunate situation and a matter of criticism of the Court.
26. Under such circumstances, the Court direct the College to follow the dictate of the Medical Council of India dated 22nd January, 1999 taking into consideration of all events; (a) Joint Entrance Examination; (b) Filling up the quota as against passed candidates of such quota when both are available before the cut off date i.e., 11th October, 1999 without making any hurry to avoid purpitual injustice, if any, for academic year in respect of the similarly placed situation.
27. So far the filling up the vacancies in respect of these three students are concerned for the benefit of study of these candidates also to give respect to the highly technical course I declare that these three students should be given accommodation for the academic year 2000-2001.
28. One may feel that although cause of action arose before the 11th October, 1999, but then as to why the Court has given such verdict that these students should be accommodated in the year 2000-2001 in the place and instead of 1999-2000.
29. It is to be remembered that the extraneous consideration under the three Judges' Bench of Supreme Court in : [1983]2SCR801 (supra) was made available on account of quashing the admissions of the students even after completing one or two semesters of the academic year considering the same as sensitive human issue but in the case students are yet to get admission. However, I have already held in W.P. No. 14427(W) of 1999 (Dr. Moloy Kumar Dasgupta v. University of Calcutta) relying upon ratio of the Supreme Court Judgments that the admission in the midst stream would disturb the courses and also works handicapped to the students themselves to achieve excellance and I see no reason to deviatefrom such Judgment of this Court either in the graduate level or Master level since both are having technical values. It is to be remembered that if the High Court under its writ jurisdiction interfere with the matter as proposed by direction to give admission now for the year 1999-2000 it will create serious disturbances in completing-studies in the Medical courses which ultimately give production of the Doctors without excellence and the society at large will suffer for that. Vacancies of the seats not only cannot be the ground to give admission but also cannot give the excellant outcome of the students.
Therefore, writ petition stands disposed of with the above observations and orders. No order is passed as to costs.
If xeroxed certified copy of the Judgment applied for, the same will be given to the parties within 7 days from the date of putting requisition.
30. Petition disposed of