(1) Initially, this Court intended to hear the case finally, but the respondents No.1,2 and 5 have filed reply / counter affidavit today i.e. 27.5.2011 during the court hours. However, the respondent No.6 - Dental Council of India has filed reply on 23.5.2011 but the same was not on record, therefore, the case was passed over and all the aforesaid replies/counter affidavit were called from the Registry and taken on record and thereafter, the case was taken up for hearing,in the second round. In these circumstances, counsel for the parties were asked to address the Court finally either on 30th or 31st May, 2011 i.e. the next working days just before the summer vacations or on any other date during the summer vacations but as the Pre-entrance Test for admission to MBBS/BDS has been scheduled to be held on 29.5.2011, therefore, Mr.Ashok Gaur, Sr.Advocate appearing for the petitioner Institution has expressed urgency for consideration of the interim relief today.
(2) After careful perusal of the writ petition, reply / counter affidavit of the respondents, the case was heard for consideration of the interim relief.
(3) The petitioner – NIMS University Rajasthan (in short `the petitioner Institution') has filed an application for staying operation of the order dated 4.3.2011 (Anx.1) passed by the respondent No.2 whereby, on account of not giving option for admission in MBBS / BDS either through PCPMT or RPMT, the petitioner Institution has violated the judgment of the Supreme Court, therefore, it was directed to ensure that the admissions in MBBS and BDS in academic session 2011-2012 be given through RPMT,2011.
(4) Submission of counsel for the petitioner Institution is that in the letter dated 4.3.2011 (Anx.1) as well as the explanation letter dated 16.9.2010 (Anx.2), the respondent No.2 has referred extract of para 16 of the judgment of Islamic Academy of Education V. State of Karnataka (2003) 6 SCC 697 (5 Judges' Bench) which has been watered down in the later judgment of the Supreme Court in P.A.Inamdar V.State of Maharashtra (2005) 6 SCC 537 (7 Judges' Bench judgment) but the judgment in P.A.Inamdar has been ignored.
(5) Mr.Gaur then submits that the petitioner Institution is entitled to prescribe its own admission procedure as per Para 137 and 138 of P.A.Inamdar as the petitioner Institution satisfies the triple test of fairness, transparency and non-exploitation of the students. Mr.Gaur appearing for petitioner Institution has also placed reliance on the example of 24 other institutions affiliated to different Universities which have been allowed to conduct their own examinations, along with one paragraph of DB Special Appeal No.257/2010 Director,Geetanjali Medical College V. State of Rajasthan decided on 3.9.2009, which permitted the examinations either by the State agency or through the Federation.
(6) Mr.Gaur summed up his submissions that the petitioner Institution also fulfills all the three tests of fairness, transparency and non-exploitative, as referred to in Para 137 of Pai Foundation and has earlier been allowed to conduct its separate Pre Entrance Test,2010 for MBBS/BDS, and further relied on in para No.32 of the counter affidavit filed by the M.C.I., therefore, the petitioner Institution being a University imparting medical education is entitled to hold separate entrance examination.
(7) Mr.N.A.Naqvi, Addl.AG submits that although the judgment of Islamic Academy of Education (supra), has been referred to in the Explanation as well as the order dated 4.3.2011, which is under challenge, but the same has not been diluted even in P.A.Inamdar as regards holding of the Common Entrance Test (CET) in Para 136, and there is no illegality in the order dated 4.3.2011.
(8) Counsel for the State further submits that the petitioner Institution has neither opted for the RPMT nor PCPMT by joining of other Institutions imparting same or similar professional education, for holding a Common Entrance Test (CET) with the further satisfaction of the triple tests of fairness, transparency and non-exploitative, as directed by the Supreme Court in P.A.Inamdar in Paras 136 and 137, therefore, the State has rightly issued order dated 4.3.2011 (Anx.1) directing the petitioner Institution to ensure admission in the MBBS for the academic session 2011-2012 through RPMT,2011. Counsel further submits that the RPMT, 2011 has been held on 22.5.2011, the result of which has been declared on 26.5.2011 and further the seats of the petitioner Institution have been included in the RPMT, 2011 therefore, there are chances that the students who are desirous of getting admission in the petitioner Institution have also applied for RPMT, 2011, looking to the large number of seats, and for seats of the private colleges, PCPMT for all other private unaided medical institutions will be held on 29.5.2011 for which the petitioner Institution has not opted and further the students who stand in merit in RPMT,2011 may get admission in the petitioner Institution also in case the petitioner Institution is now allowed to hold its independent separate examination then it will create further complications.
(9) Mr.Naqvi then submits that there are several private un-aided medical institutions in the State of Rajasthan and in case every such institution is allowed to hold its independent pre entrance examination, then from the month of May of the respective year, i.e. the month of holding of the examination of RPMT to the date of declaration of the result i.e. 15th June of the respective year, as per the calendar prescribed by the Supreme Court in MCI V. Madhu Singh ((2002) 7 SCC 258), there will be pre entrance examination on every alternate day, if not on each day and that will cause great hardship and mental agony to the students, therefore, the Supreme Court has emphasized the need of common entrance examination in para 16 of the Islamic Academy of Education and in paras 136 and 137 of P.A.Inamdar, the aforesaid principle of Islamic Academy of Education has not been deviated although in certain circumstances, in Para 137 it has been held that where there is a single Institution imparting a particular type of education which is not being imparted by any other institution or all institutions imparting same or similar professional education can join together for holding a common entrance test subject to the satisfaction of triple test of fairness, transparency and non-exploitation of the students. In Rajasthan, PCPMT for all other private medical unaided institutions, who have opted for the same, is to be held on 29.5.2011, for which also, the petitioner Institution has not given any option despite notice dated 16.9.2010 and 20.12.2010, therefore, the action of the State of inclusion of the seats of the petitioner Institution in the RPMT is not contrary to the aforesaid law laid down by the Supreme Court.
(10) Counsel for the Medical Council of India, in para No.20 and 29 of the counter affidavit has submitted that it is not open and permissible for any private medical college/institution to not to make admissions in the MBBS Course by admitting such candidates who do not hold merit positions in the common entrance test list of the Association of the Private Medical Colleges and/or in the merit positions in the common entrance test conducted by the State authority. The present prospectus issued by the petitioner Institution for holding the independent entrance examination for MBBS and BDS, without opting for the PCPMT, which is being held on 29.5.2011 for all other private unaided medical institutions, is violative of law laid down in P.A.Inamdar. Counsel for the MCI has further placed reliance on Paras No.136 and 137 of P.A.Inamdar. As regards earlier admissions made by the petitioner Institution, while holding independent examination, counsel for the MCI has submitted that the MCI has sought information on 23.11.2010, 14.1.2011, 23.3.2011, 12.5.2011 but till date, the MCI has not received the desired information which clearly reveals that the petitioner Institution failed to satisfy the triple test of fair, transparent and non exploitation, therefore, in the present facts and circumstances of the case, the State Government has not violated the Supreme Court judgment in directing the petitioner to ensure admissions through RPMT.
(11) Counsel for the Dental Council of India has supported the MCI and further submitted that since there are several Dental Colleges in Rajasthan but all have not joined their hands together, the petitioner Institution cannot be allowed to hold single entrance test.
(12) The crux of the submissions of counsel for both the parties is whether the Common Entrance Test (CET) is to be conducted by the State or the Common Entrance Test (CET) is to be conducted by all other private unaided medical institutions by joining their hands together, which is termed as PCPMT or each of the private unaided institutions is allowed to prescribe its own admission procedure and in order to substantiate the aforesaid submissions, counsel for both the parties have placed reliance on P.A. Inamdar but on different Paras of the judgment.
(13) Since both the parties have placed reliance on P.A.Inamdar V.State of Maharashtra wherein the ratio decidendi of Islamic Academy of Education V. State of Karnataka was examined with reference to Pai Foundation (2002) 8 SCC 481 (11 Judges' Bench) therefore, the history of both the references of Islamic Academy of Education V. State of Karnataka (2003) 6 SCC 697 (5 Judges' Constitution Bench) and P.A.Inamdar V.State of Maharashtra (2005) 6 SCC 537 (7 Judges' Larger Bench judgment) is necessary. In Islamic Academy of Education, the matter was referred to the Constitution Bench as Pai Foundation (2002) 8 SCC 481 (11 Judges' Bench) was interpreted differently by the Union of India, various State Governments and the educational institutions which led to litigation in several courts and the majority in Islamic Academy of Education considered the judgment in Pai Foundation of 11 Judges' Bench to find out the ratio decidendi of the said judgment by reading the entire judgment and not by reading a line from here and there from the judgment. The said judgment was delivered on 14.8.2003 by framing four questions out of which Question No.3 is with regard to the filling of the 100 percent seats by private unaided professional colleges, if not, then to what extent. Thereafter, in P.A.Inamdar, 7 Judges' Bench was constituted to cull out the ratio decidendi of Pai Foundation and to examine if the explanation or clarification given by the 5 Judges' Bench in Islamic Academy of Education (2003) 6 SCC 697 run counter to Pai Foundation, if so, to what extent. For admission procedure of unaided educational institutions, Question No.2 framed in Pai Foundation is relevant and the same has been answered in Paras 133 to 138.
(14) Before proceeding further, it would be relevant to quote relevant portion of para 16 of Islamic, Question No.2 – Admission procedure of unaided educational institutions,as framed in P.A.Inamdar, as also to quote relevant portion of para 134,complete paras 136 and 137 and relevant portion of para 138 of P.A.Inamdar relating to admission process of unaided educational institutions,and Sec.32 of the NIMS Act, which are as follows:
Relevant portion of Para 16 of Islamic Academy of Education
“16.....If a student has to go for test to each institute it is possible that he/she may not be able to reach, in time, the venue of a test of a particular institute. In our view what is necessary is a practical approach keeping in mind the need for a merit-based selection. Paragraph 68 provides that admission by the management can be by a common entrance test held by “itself or by the State/University”. The words “common entrance test” clearly indicate that each institute cannot hold a separate test. We thus hold that the management could select students, or their quota, either on the basis of the common entrance test conducted by the State or on the basis of a common entrance test to be conducted by an association of all colleges of a particular type in that State e.g. Medical, engineering or technical etc. The common entrance test, held by the association, must be for admission to all colleges of that type in the State. The option of choosing, between either of these tests, must be exercised before issuing of prospects and after intimation to the concerned authority and the Committee set up hereinafter. If any professional college chooses not to admit from the common entrance test conducted by the association then that college must necessarily admit from the common entrance test conducted by the State. After holding the common entrance test and declaration of results the merit list will immediately be placed on the notice-board of all colleges which have chosen to admit as per this test....”
(emphasis supplied)
Question No.2 framed by the Supreme Court in P.A.Inamdar V.State of Maharashtra
“Q.2 Whether unaided (minority and non-minority) educational institutions are free to devise their own admission procedure or whether the direction made in Islamic Academy, (2003) 6 SCC 697, 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 (2002) 8 SCC 481 ?
Relevant portion of para 134,complete paras 136 and 137 and relevant portion of para 138 of P.A.Inamdar
relating to admission process of unaided educational institutions.
“134..... Excellence in education and maintenance of high standards at this level are a must. To fulfil 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. (emphasis supplied)
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 the 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 the common entrance test (“CET for short) must be one enjoying utmost credibility and expertise in the matter. This would better ensure the fulfilment 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 centralised counselling 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 the list of successful candidates prepared at CET without altering the order of merit inter se of the students so chosen.
(emphasis supplied)
137.Pai Foundation has held that minority unaided institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admission 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 above said 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 maladministration. The admission procedure so adopted by a 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.
(emphasis supplied)
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 malpractices, it would be permissible to regulate admissions by providing a centralised and single window procedure. Such a procedure, to a large extent, can secure grant of merit based admissions on a transparent basis...”
(emphasis supplied)
Sec.32, NIMS University Act, 2008.
“32. Admission – (1) Admission in the University shall be made strictly on the basis of merit.
(2) Merit for admission in the University may be determined either on the basis of marks or grade obtained in the qualifying examination and achievements in co-curricular and extra-curricular activities or on the basis of marks or grade obtained in the entrance test conducted at the State level either by an association of the universities conducting similar courses or by any agency of the State:
(emphasis supplied)
Provided that admission in professional and technical courses shall be made only through entrance test.”
(15) Having carefully considered the rival submissions of counsel for the parties and the relevant portion of para 134,complete paras 136 and 137 and relevant portion of para 138 of the aforesaid judgment of the Supreme Court in P.A.Inamdar (7 Judges' Bench) and Sec.32 of the NIMS University Act, 2008, this Court is of the prima facie view that as per the ratio decidendi of Pai Foundation as culled out in P.A.Inamdar, emphasis is on the Common Entrance Test (CET) and the ratio of Para 137 of P.A.Inamdar for allowing single Institution to conduct its own examination, is not applicable in Rajasthan where several private unaided medical institutions are imparting medical education, and they have joined their hands together to conduct common entrance test which is termed as PCPMT,2011, and the petitioner Institution neither opted for PCPMT,2011 nor for RPMT, 2011, therefore, considering the inclusion of the seats of the petitioner Institution in the RPMT, 2011, vide order dated 4.3.2011 (Anx.1) prima facie appears to be correct and further balancing the equities on account of holding of the RPMT, 2011 on 22.5.2011 and declaration of the result on 26.5.2011 and further the issue of holding Pre-Entrance Test by only one petitioner Institution independently in Rajasthan where several private unaided Institutions imparting medical education, have joined their hands together and opted for the PCPMT,2011 which is being held on 29.5.2011, prima facie appears to be not permissible by P.A.Inamdar case, in Rajasthan and the said issue also requires detailed examination at the time of final hearing of the writ petition with reference to the later judgments of the Supreme Court after P.A.Inamdar on the same issue as also to avoid further complications in the matter,as the same set of students might have appeared in RPMT, 2011 or PCPMT,2011 considering large number of seats and further might stand in merit. As regards submission of Mr.Gaur of satisfying the triple test of fairness, transparency and non-exploitative, by the petitioner Institution, earlier also in 2010, MCI has sought information but the same has not been supplied by the petitioner Institution which prima facie reveal that there was no transparency in the Pre Entrance Test of 2010 conducted by the petitioner Institution. In case each private Institution is allowed to conduct its own several pre entrance test for MBBS / BDS, which may be held every alternate day, if not every day, from May to 15th June of the respective year, as per the calendar prescribed by the Supreme Court in Madhu Singh's case, for holding the examination in the month of May and declaration of result thereof by 15th June, holding separate and independent examination by the petitioner Institution only may result in causing inconvenience, harassment and mental agony to the students. Otherwise also, the seats of the petitioner Institution will be filled from the candidates of RPMT, 2011, which has been held for all the students of Rajasthan, therefore, no irreparable loss will be caused to the petitioner Institution.
(16) In the result, no case for staying operation of the order dated 4.3.2011 (Anx.1) and further no case for interim relief to hold the Pre Entrance examination by the petitioner Institution independently as a single institution for 100% seats is made out. As regards 15% management quota seats, the petitioner Institution may apply its own procedure of admission and the admissions made by the State Government against the 85% seats of MBBS/BDS (after excluding 15% management quota seats) shall be treated as provisional and the same shall also be specified at the time of counselling by the State Government.
(17) Since the matter relates to the admission of the students in MBBS / BDS by the petitioner Institution, list the writ petition for final disposal at admission stage on 29.6.2011 i.e. the first opening day after the summer vacations. In case the petitioner feels any urgency, the petitioner is at liberty to make a mention before the Hon'ble Vacation Judge for final disposal of the case.