RAJAN PUROHIT & ORS. v. RAJASTHAN UNIVERSITY OF HEALTH SCIENCE & ORS.

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A CONTENTIONS ON BEHALF OF THE RESPONDENTS:

8. Mr. Amarendra Sharan, learned senior counsel appearing for the MCI, on the other hand, submitted that seats which remained vacant even after the second counselling cannot be filled up in breach of the MCI Regulations. He 8 submitted that in the present case the High Court has clearly held that the admission of the 6 students was in violation of Clause (2) of Regulation 5 of the MCI Regulations which requires that students could be admitted on the basis of their merit as determined in Competitive Entrance Examination. He vehemently argued that since the Competitive Entrance Examination, namely, RPMT-2008, was conducted by the State Government of Rajasthan, the College could admit students to the MBBS Course in the seats remaining vacant after second counselling only from amongst the RPMT-2008 selected candidates on the basis of their merit. He submitted that this Court should not therefore disturb the impugned orders of the learned Single Judge and the Division Bench of the High Court. The learned counsel for the State adopted the arguments of Mr. Sharan. E FINDINGS WITH REASONS:

9. We have considered the submissions of the learned counsel for the parties and we do think that we can hold that because of the order dated 26.05.2009 passed by the learned F Single Judge of the High Court in S.B. Civil Writ Petition Nos.13419 of 2008, 10350 of 2008 an:l 11165 of 2008, which had attained finality, the MCI could not have issued the order dated 04.02.2010 discharging the six students from the MBBS Course on the ground that they had not been selected in the G RPMT-2008 and that their admissions were in breach of the provisions of clause (2) of Regulation 5 of the MCI Regulations. We take this view because we find on a reading of the order dated 26.05.2009 of the learned Single Judge of the High Court in the aforesaid three writ petitions that the question as to H

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HEALTH SCIENCE [A.K. PATNAIK, J.] whether the admission of the six students was in breach of clause (2) of Regulation 5 of the MCI Regulations was not in issue in the aforesaid three writ petitions. The learned Single Judge of the High Court has disposed of the three writ petitions on the basis of a compromise between the writ petitioners on the one hand, and the respondent nos. 4 and 5, on the other hand, and the compromise was that the three writ petitioners would be granted admission in the MBBS Course for the academic year 2009-2010. The learned Single Judge of the High Court, however, has further directed that their admissions will be adjusted against 15% management seats which are c available to the college and not against 85% seats which are to be filled strictly on the basis of the merit list sent by the Convener and that the students will be charged fee which is ordinarily to be deposited by the students who are admitted on the basis of their merit against 85% State quota seats and that 0 the admissions will be within the annual intake strength as approved by the MCI. As the College has not produced the pleadings before this Court in the three writ petitions to show that an issue was raised before the learned Single Judge of the High Court in the aforesaid three writ petitions by the MCI E that the admission of the 6 students was in breach of clause (2) of Regulation 5 of the MCI Regulations, the principles laid down in Section 11 of the Code of Civil Procedure, 1908 relating to res judicata will not apply. As a matter of fact, when the order dated 26.05.2009 was passed by the learned Single Judge of the High Court in the aforesaid three writ petitions, F the MCI had no information that the six students had not been selected in the RPMT-2008 and it was only in August, 2009, and thereafter that the MCI came to learn about the breach of the provisions of Regulation 5 and accordingly MCI issued orders to immediately discharge six students. G

10. We cannot also accept the contention of the appellants that the College could admit students on the basis of marks obtained by them in the qualifying examinations under Clause (1) of Regulation 5 of the MCI Regulations. The College has H

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A relied upon the letter dated 16.09.2009 of the Secretary of the MCI clarifying that for the purpose of completing the admissions within the time schedule fixed by the Court as in the case of Mirdul Dhar and Another vs. Union of India and Others (supra}, i.e., 30th September of the year, the admission to the B MBBS course could be done on the basis of marks secured in 10+2 Examination, as provided in Regulation 5(1) of the MCI Regulations. But a reading of Regulation 5(1) of the MCI Regulations quoted above would show that this provision applies only in a State where one university or board or C examining body conducts the qualifying examination, in which case, the marks obtained at such qualifying examination may be taken into consideration. In the State of Rajasthan, there are more than one university/board/examining body conducting qualifying examination and therefore Regulation 5(1) of the MCI Regulations does not apply. As the State of Rajasthan has 0 more than one University/Board/Examining Body conducting qualifying examinations, clause (2) of Regulation 5 of the MCI Regulations, which provides that a competitive entrance examination will have to be held so as to achieve a uniform evaluation, will apply. The College, therefore, was bound to hold E a competitive entrance examination in accordance with clause (2) of Regulation 5 of the MCI Regulations or enter into a consensual arrangement with the State Government to admit students on the basis of the Competitive Entrance Examination conducted by the State Government. This is exactly what the F College has done. It had entered into a consensual arrangement with the State Government to admit students on the basis of merit as determined in the RPMT-2008. In our considered opinion therefore, the clarification in the letter dated 16.09.2009 of the Secretary of the MCI that for the purpose of G admissions within the time schedule fixed by this Court, admission can also be made on the basis of marks secured in the 10+2 Examination as provided in Regulation 5(1) of the MCI Regulations is not in accord with the fact situation in State of Rajasthan. The admission of the six students by the College H

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HEALTH SCIENCE [A.K. PATNAIK, J.] to its MBBS Course on 30.09.2008 was, therefore, in breach A of clause (2) of Regulation 5 of the MCI Regulations.

11. We are, however, of the view that in this case also, as in the case of Geetanjali Medical College, the violation of clause (2) of Regulation 5 of the MCI Regulations is by the College. In 8 this case also, as in the case of Geetanjali Medical College, the case of the MCI is not that the six students were not eligible for admission to the MBBS Course in accordance with the eligibility criteria laid down in Regulation 4 of the MCI Regulations, but that they have not been selected in the RPMT- C 2008, which was the competitive entrance examination conducted in accordance with clause (2) of Regulation 5 of the MCI Regulations. Moreover, in this c<=1se also, as in the case of Geetanjali Medical College, the six students had got admission to the MBBS course not on the basis of their merit determined in the RPMT-2008 in accordance with clause (2) of Regulation D 5 of the MCI Regulations, but on the basis of their marks in the 10+2 and thus they were beneficiaries of the violation of clause (2) of Regulation 5 of the MCI Regulations.

12. Hence, for the reasons stated in our judgment in the case of Geetanjali Medical College, we invoke our powers under Article 142 of the Constitution and direct that the admission of the 6 students in the MBBS Course will not be disturbed subject to the condition that each of the 6 students pay to the State Government Rs.3 lacs for development of infrastructure of government medical colleges within a period of three months from today failing which they will not be allowed to take the final MBBS examinations and their admission will be cancelled. Considering, however, the fact that the College has violated the provisions of clause (2) of Regulation 5 of the G MCI Regulations, as a deterrent measure to prevent similar breach of the MCI Regulations in future, we direct that the College will surrender six seats in the MBBS course for the academic year 2012-2013 to the State Government to be filled up on the basis of the RPMT or any other common entrance .H

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A test conducted by the State Government of Rajasthan or its agency for admission to the MBBS Course and the fee that will be payable by the students admitted to the six seats will be the same as are payable by the students admitted on the basis of RPMT or another common entrance test conducted by the State 8 Government or its agency. The impugned orders of the High Court are modified accordingly and the appeals are allowed to the extent as indicated in this judgment. No costs.

13. Before we part with this case, we would like to reiterate what we have held in paragraphs 30 and 31 of our judgment in the case of Priya Gupta v. State of Chhattisgarh & Ors. [2012 = (5) SCALE 328 JT 2012 (5) SC 102]:

"30. Thus, the need of the hour is that binding dicta be prescribed and statutory regulations be enforced, so that all concerned are mandatorily required to implement the time schedule in its true spirit and substance. It is difficult and not even advisable to keep some windows open to meet a particular situation of exception, as it may pose impediments to the smooth implementation of laws and defeat the very object of the scheme. These schedules have been prescribed upon serious consideration by all concerned. They are to be applied stricto sensu and cannot be moulded to suit the convenience of some economic or other interest of any institution, especially, in a manner that is bound to result in compromise of the above-stated principles. Keeping in view the contemptuous conduct of the relevant stakeholders, their cannonade on the rule of merit compels us to state, with precision and esemplastically, the action that is necessary to ameliorate the process of selection. Thus, we issue the following directions in rem for their strict compliance, without demur and default, by all concerned,.

(i) The commencement of new courses or increases in seats of existing courses of MBBS/BDS are to H

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HEALTH SCIENCE [A.K. PATNAIK, J.] be approved/recognised by the Government of India A by 15th July of each calendar year for the relevant academic sessions of that year. (ii) The Medical Council of India shall, immediately thereafter, issue appropriate directions and ensure B the implementation and commencement of admission process within one week thereafter.

(iii) After 15th July of each year, neither the Union of Jndia nor the Medical or Dental Council of India shall issue any recognition or approval for the current c academic year. If any such approval is granted after 15th July of any year, it shall only be operative for the next academic year and not in the current academic year. Once the sanction/approval is granted on or before 15th July of the relevant year, the name of that college and all seats shall be included in both the first and the second counselling, in accordance with the Rules.

(iv) Any medical or dental college, or seats thereof, to which the recognition/approval is issued subsequent to 15th July of the respective year, shall not be included in the counselling to be conducted by the concerned authority and that college would have no right to make admissions in the current academic year against such seats. F

(v) The admission to the medical or dental colleges shall be granted only through the respective entrance tests conducted by the competitive authority in the State or the body of the private colleges. These two G are the methods of selection and grant of admission to these courses. However, where there is a single Board conducting the state examination and there is a single medical college, then in terms of clause 5.1 of the Medical Council of India Eligibility H

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A Certificate Regulations, 2002 the admission can be given on the basis of 10+2 exam marks, strictly in order of merit. (vi) All admissions through any of the stated selection processes have to be effected only after due B publicity and in consonance with the directions issued by this Court. We vehemently deprecate the practice of giving admissions on 30th September of the academic year. In fact, that is the date by which, in exceptional circumstances, a candidate c duly selected as per the prescribed selection process is to join the academic course of MBBS/ BOS. Under the directions of this Court, second counselling should be the final couns.elling, as this Court has already held in the case of Ms. Neelu D Arora & Anr. v. UO/ & Ors. [(2003) 3 SCC 366) and third counselling is not contemplated or permitted under the entire pr-0cess of selection/grant of admission to these professional courses.

E (vii) If any seats remain vacant or are surrendered from All India Quota, they should positively be allotted and admission granted strictly as per the merit by 15th September of the relevant year and not by holding an extended counselling. The remaining F time will be limited to the filling up of the vacant seats resulting from exceptional circumstances or surrender of seats. All candidates should join the academic courses by 30th September of the academic year. G (viii) No college may grant admissions without duly advertising the vacancies available and by publicizing the same through the internet, newspaper, on the notice board of the respective feeder schools and colleges, etc. Every effort has H

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HEALTH SCIENCE [A.K. PATNAIK, J.] to be made by all concerned to ensure that the A admissions are given on merit and after due publicity and not in a manner which is ex-facie arbitrary and casts the shadow of favouritism.

(ix) The admissions to all government colleges have to 8 be on merit obtained in the entrance examination conducted by the nominated authority, while in the case of private colleges, the colleges should choose their option by 30th April of the relevant year, as to whether they wish to grant admission on the basis of the merit obtained in the test conducted by the nominated State authority or they wish to follow the merit lisUrank obtained by the candidates in the competitive examination collectively held by the nominated agency for the private colleges. The option exercised by 30th April shall not be subject to change. This choice should also be given by the colleges which are anticipating grant of recognition, in compliance with the date specified in these directions. E

31Copy pinpoint31. All these directions shall be complied with by all concerned, including Union of India, Medical Coun.cil of India, Dental Council of India, State Governments, Universities and medical and dental colleges and the management of the respective universities or dental and medical colleges. Any default in compliance with these conditions or attempt to overreach these directions shall, without fail, invite the following consequences and penal actions:- a) Every body, officer or authority who disobeys or avoids or fails to strictly comply with these directions stricto sensu shall be liable for action under the provisions of the Contempt of Courts Act. Liberty is granted to any interested party to take out the contempt H

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A proceedings before the High Court having jurisdiction over such Institution/State, etc. b) The person, member or authority found responsible for any violation shall be departmentally proceeded against and B punished in accordance with the Rules. We make it clear that violation of these directions or overreaching them by any process shall tantamount to indiscipline, insubordination, misconduct and being unworthy of becoming c a public servant. c) Such defaulting authority, member or body shall also be liable for action by and personal liability to third parties who might have suffered losses as a result of such default. D d) There shall be due channelization of selection and admission process with full cooperation and coordination between the Government of India, State Government, Universities, E Medical Council of India or Dental Council of India and the colleges concerned. They shall act in tandem and strictly as per the prescribed schedule. In other words, there should be complete harmonisation with a view to form a uniform pattern for concerted action, according to the framed scheme, schedule for admission and regulations framed in this behalf. e) The college which grants admission for the current academic year, where its recognition/ approval is granted subsequent to 15th July of the current academic year, shall be liable for withdrawal of recognition/approval on this ground, in addition to being liable to indemnify such students who are denied

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HEALTH SCIENCE [A.K. PATNAIK, J.) admission or who are wrongfully given A admission in the college. f) Upon the expiry of one week after holding of the second counselling, the unfilled seats from all quotas shall be deemed to have been surrendered in favour of the respective B States and shall be filled thereafter strictly on the basis of merit obtained in the competitive entrance test. g) It shall be mandatory on the part of each college and University to inform the State c and the Central Government/competent authority of the seats which are lying vacant after each counselling and they shall furnish the complete details, list of seats filled and vacant in the respective states, immediately D after each counselling. h) No college shall fill up its seats in any other manner." K.K.T. Appeals partly allowed. E