Federation Of Private Medical And Dental Colleges Of Rajasthan v. State Of Raj. & Ors.

The Judgment of the Court was delivered by

K.S Rathore, J.:— This present petition is filed on behalf of the Federation of Private Medical and Dental College of Rajasthan through its President Dr. M.L Swarnkar.

2. The brief facts of the case are that the petitioner is a Federation of the Private Medical and Dental Colleges of Rajasthan, which has been constituted as per the law laid down by Hon'ble Supreme Court in the case of Islamic Academy of Education v. State of Karnataka (1). The purpose of the Federation is to regulate and conduct the examination of Common Entrance Test and Viva-Voce. The Federation consists 8 members out of which two private Medical Colleges and six Dental Colleges.

3. The controversy arose when phone calls were received by the President of the Federation from unidentified blackmailers, who have threatened and blackmailed him through phone calls to make the payment of Rs. 2 crores, failing which they will not only defame him but also release the CDs. After receipt of the phone calls the petitioner lodged a complaint on 24.5.2004 and upon the complaint submitted by the President of the Federation Dr. M.L Swarnkar an FIR No. 139/2004 has been registered at P.S Sadar Thana, Jaipur.

4. This writ petition is filed by the Federation also against the order dated 27.5.2004 passed by the Principal Secretary of Higher & Technical Education Department, Secretariat, Jaipur by which the respondent No. 1 informed the petitioner regarding news clippings published in the Rajasthan Patrika dated 27.5.2004 wherein it is alleged that seats of private medical and dental college are sold and it was also given in the news item that the entrance examination is only an eye-wash. Looking to the seriousness of the news the petitioner Federation was called upon to submit the explanation within a period of three days. The Federation also filed this petition for seeking writ, order or direction to quash and set aside the notice under Section 91 of Cr. P.C with further direction to respondents to conduct the investigation with regard to the blackmailers in FIR No. 139/2004.

5. The matter was fixed on 4.6.2004 and the Court after hearing the parties has passed the following order, which is reproduced as under:

“The petitioner submits that the blackmailers have threated the petitioner through phone call that if he will not give Rs. 2, crores, they will defame the petitioner and release the CD. The petitioner lodged a complaint on 24.5.2004, which was registered as FIR No. 139/2004 at P.S Sadar Thana, Jaipur.

I have also perused the impugned order dated 27.5.2004 passed by the Principal Secretary, Medical Education, Government of Rajasthan regarding cancellation of entrance examination dated 30.5.2004 for admissions to management quota seats. It was also observed in the impugned order dated 27.5.2004 that it has come to the notice of the Government through media reports and C.D released by unknown person private Medical & Dental Colleges in Rajasthan have given assurance of admissions to some persons in lieu of heavy sum even before holding the examination.

It is given out at bar that no FIR pursuant to this media report has been lodged against such, Medical & Dental Colleges in Rajasthan.

To this effect, Superintendent of Police, Sadar, is directed to submit the explanation as to why if such serious facts have been brought to the notice of the Government through media as to why the police has not registered case against such person normally. The Police have to lodge the FIR against Medical & Dental Colleges and should have investigated into the matter.

It appears that the Chairman of the Committee Hon'ble Mr. Justice Jagat Singh appointed under the order of the Hon'ble Supreme Court; to supervise the conduct of the examination, has recommended to cancel the examination immediately. In view of this fact, the Principal Secretary, Medical Education informed the petitioner Federation to inform the candidates immediately and further informed that decision of admission to the management quota would be conveyed to the petitioner separately by the State Government. Till that time, the petitioner was directed no to take any action to fill the management quota seats and to inform the management of other private Medical & Dental colleges at his level.

Issue notice to the respondents to show cause why petition be not admitted, returnable by 7.7.2004 Notice be given Dasti.

In the meanwhile, the students who applied for entrance examination through respective private Medical & Dental Colleges are provisionally allowed to appear in the entrance test conducted by University, but it shall not create any equity in their favour and this will be subject to decision of this writ petition. It is further directed to University that the result of such students will not be declared without prior permission of this Court.

It is expected from the police agency that immediately after the knowledge of such incidence through media and by way of C.D released by some unidentified person against the private Medical & Dental College, they should act in accordance with the provisions of law and investigate into the matter promptly as this is serious matter and such private Medical & Dental Colleges are playing with the fate of the students.

I have also perused the Annexure-7 written by SHO, P.S Sadar. It appears that SHO, Sadar is not properly investigating into the matter on the complaint lodged by the petitioner as FIR No. 139/2004 under Section 384 IPC and simply asking some record from the Controller Examination which are secret documents. The SHO instead of asking such documents, can only inspect the documents at the office of the Controller Examination so that the secrecy can be maintained.

The SHO, Sadar is directed to remain present on the next date along with case diary.”

6. The petition was listed on 7.7.2004 before this Court and the Court has observed that the members of the petitioner Federation are expected to co-operate with the investigating agency and similarly, the Government is also expected not to harass the persons concerned related to the Federation of Private medical & Dental Colleges unnecessarily. It was also expected from the State to decide and take appropriate steps regarding examination of the students as the fate of the students is at stake and whatever material is required by the State Government from the Federation, the Federation is supposed to furnish the same immediately to the Commission so that the Commission may decide this question expeditiously.

7. Pursuant to the direction issued by this Court vide order dated 7.7.2004, on 29.7.2004 learned Addl. Advocate General Mr. Bharat Vyas placed a letter dated 20.7.2004 for perusal of this Court. Upon perusal of the letter and after hearing learned counsel for the petitioner the respondents were directed to issue examination calender for conducting the examination of the students of the Federation of Private Medical & Dental Colleges in the months of August, 2004 and shall complete the examination formalities prior to 15.09.2004 with the request that University to prepare the list of eligible students in accordance with the record and issue the permission letter for the examinations forthwith with the direction to complete the aforesaid exercise prior to 15.09.2004

8. Pursuant to the direction the University prepared the list of eligible candidates and issued the permission letter and also conducted the examination and the result of the examination was also declared and the respondents also prepared the merit list.

9. So far as the examination, which was conducted by the University is concerned, the petitioner Federation has no objection but raised strong objection with regard to counseling part. Therefore, the petitioner Federation moved an application dated 10.9.2004 before this Court. On the application the arguments were heard at length and vide order dated 17.9.2004 before this Court. On the application the arguments were heard at length and vide order dated 17.9.2004 the application has been rejected and the respondents were given liberty to proceed further to conduct the counseling part also. It is also not disputed that the counseling is conducted by the Convener, Central PC PMT Admission Board. After conducting the counseling the Central PC PMT Admission Board allotted the students to the Private Medical Colleges and Dental Colleges and list of such students already sent to the respective Medical Colleges and the Dental Colleges.

10. Thus learned counsel for the petitioner only challenged the counseling part in this writ petition on the ground that it is the domain of the Private Medical Colleges and Dental Colleges to conduct the counseling at their own.

11. Learned senior counsel Mr. Bajrang Lal Sharma referred the clauses mentioned in the brochure issued by the Federation. In the introduction part of the brochure itself it is made clear that in accordance with the guidelines/principles laid down by the Hon'ble Supreme Court in the cases of TMA Pai Foundation v. State of Karnataka and Islamic Academy of Education v. State of Karnataka the Private Medical & Dental Colleges of Rajasthan has formed an Association for the purposes of conducting entrance examination, which has been duly approved by the Government of Rajasthan, Department of Health vide letter dated 19.3.2004

12. In clause 2 of the brochure the details of the member institutions are given. As per the list it appears that there are total 8 member of the Federation, which includes Private Medical Colleges and Dental Colleges. More particularly learned senior Advocate Mr. Bajrang Lal Sharma has referred Note-3 of clause 2, which is reproduced as under:

“50% of the seats available under the Management category in each of the member medical or dental college shall be reserved for the candidates of Rajasthan state domicile or bonafide residents of Rajasthan state and the remaining 50% seats will be filled by All India/NRI/Foreign National Candidates”

13. By referring this clause he gave much emphasis that so far as 50% seats of the Management Kota, it will be filled by All India/NRI/Foreign National Candidates by the Federation itself after conducting the Common Admission Test as stipulated in Clause 3 of the brochure.

14. As per Clause 3.1 the Federation of Private Medical & Dental Colleges of Rajasthan for the management category seats shall conduct an entrance examination for admission and selection procedure for MBBS & BDS Courses for the Academic Year 2004–2005 in the name of Rajasthan Medical Common Admission Test 2004–2005 (RMCAT-2004).

15. As per Clause 3.2 P.N Chaturvedi was appointed as Convener of Examination of Federation of Private Medical & Dental Colleges of Rajasthan.

16. Much emphasis has been given that the Federation is absolutely in accordance with the directions and guidelines issued by the Hon'ble Supreme Court in the cases of T.M.A Pai Foundation, Islamic Academy of Education and Medical Council of India v. Madhu Singh as the Hon'ble Supreme Court has held that the admission process should be completed prior to 30.9.2004 Keeping in view the Federation also issued a calender for academic year 2004–2005, which has been mentioned at Clause 3.3 of the brochure.

17. Mr. Sharma further referred Clause 4.3 of Brochure by which the Common Entrance Test shall consist of a written exam followed by a Viva-Voce Test. A candidate must secure 50% of total aggregate as per the MCI/DCI regulations. Candidates obtaining 50% and above shall be placed in the Merit list, which shall be put up on the Notice Board of all the Member Institutions. After written examination viva-voce test is to be conducted by the Federation, which is based on the principle of fairness for those candidates, who qualify in the entrance examination by securing not less than 50% marks for all general candidates and 40% marks in the case of reserved category candidates i.e OBC, SC, ST.

18. For the purposes of preparation of the merit list the break up is also given in Clause 4.7 The written test of 85 points and viva-voce test of 15 points and these 15 points are further subdivided in to two parts, for aptitude 8 points and for/General Knowledge and General Intelligence 7 points were prescribed. Thus out of total 100 points the merit is to be prepared as per Clause 4.7 of the brochure.

19. After referring the aforesaid clause of the brochure learned counsel for the petitioner Federation referred the case of T.M.A Pai Foundation v. State of Karnataka (2). Mr. Sharma referred the para Nos. 40, 49, 51, 56, 64, 65 and 68, which are reproduced as under:

Para No. 40-Any system of student selection would be unreasonable if it deprives the private unaided institution of the right of rational selection, which is devised for itself, subject to the minimum qualification that may be prescribed and to some system of computing the equivalence between different kinds of qualifications, like a common entrance test. Such a system of selection can involve both written and oral tests for selection, based on principle of fairness.

Para No. 49-Not only has demand overwhelmed the ability of the Governments to provide education, there has also been a significant change in the way that higher education is perceived. The idea of an academic degree as a “private good” that benefits the individual rather than a “public good” for society is now widely accepted. The logic of today's economics and an ideology of privatization has contributed to the resurgence of private higher education, and the establishing of private institutions where none of very few existed before.

Para No. 51-A University Education Commission was appointed on 4.11.1948, having Dr. S. Radhakrishnan as its Chairman and nine other renowned educationists as its members. The terms of reference, inter alia, included matters relating to means and objects of university education and research in India and maintenance of higher standards of teaching and examination in universities and colleges under their control. In the report submitted by this Commission, in paras 29 and 31, it referred to autonomy in education which reads as follows:

“University autonomy-Freedom of individual development is the basis of democracy. Exclusive control of education by the State has been an important factor in facilitating the maintenance of totalitarian tyrannies. In such Stated institutions of higher learning controlled and managed by governmental agencies act like mercenaries, promote the political purposes of the State, make them acceptable to an increasing number of their population and supply them with the weapons they need. We must resist, in the interests of our own democracy, the trend towards the governmental domination of the educational process.

Higher education is, undoubtedly, an obligation of the State but State aid is not to be confused with State control over academic policies and practices. Intellectual progress demands the maintenance of the spirit of free inquiry. The pursuit and practice of truth regardless of consequences has been the ambition of universities. Their prayer is that of the dying Goethe: ‘More light’, or that of Ajax in the mist Light, though I perish in the light.’

The respect in which the universities of Great Britain are held is due to the freedom from governmental interference which they enjoy constitutionally and actually. Our universities should be released from the control of politics.

Liberal education-All education is expected to be liberal. It should free us from the shackles of ignorance, prejudice and unfounded belie. If we are incapable of achieving the good life, it is due to faults in our inward being to the darkness in us. The process of education is the slow conquering of this darkness. To lead us from darkness to light, to free us from every kind of domination except that of reason, is the aim of education.”

Para No. 56-An educational institution is established for the purpose of imparting education of the type made available by the institutions. Different courses of study are usually taught by teachers who have to be recruited as per qualifications that may be prescribed. It is no secret that better working conditions will attract better teachers. More amenities will ensure that better students seek admission to the institution. One cannot lose sight of the fact that providing good amenities to the students in the form of competent teaching faculty and other infrastructure costs money. It has, therefore, to be left to the institution, if it chooses not to seek any aid from the Government, to determine the scale of fee that it can charge form the students. One also cannot lose sight of the fact that we live in a competitive world today, where professional education is in demand. We have been given to understand that a large number of professional and other institutions have been started by private parties who do not seek any governmental aid. In a sense, a prospective student has various options open to him/her where, therefore, normally economic forces have a role to play. The decision on the fee to be charged must necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the Government.

Para No. 64-An educational institution is established only for the purpose of imparting education to the students. In such an institution, it is necessary for all to maintain discipline and abide by the rules and regulations that have been lawfully framed. The teachers are like foster parents who are required to look after, cultivate and guide the students in their pursuit of education. The teachers and the institution exist for the students and not vice versa. Once this principle is kept in mind, it must follow that it becomes imperative for the teaching and other staff of an educational institution to perform their duties properly, and for the benefit of the students. Where allegations of misconduct are made, it is imperative that a disciplinary enquiry is conducted, and that a decision is taken. In the case of a private institution, the relationship between the management and the employees is contractual in nature. A teacher, if the contract so provides, can be proceeded against, and appropriate disciplinary action can be taken if the misconduct of the teacher is proved. Considering the nature of the duties and keeping the principle of natural justice in mind for the purposes of establishing misconduct and taking action thereon, it is imperative that a fair domestic enquiry is conducted. It is only on the basis of the result of the disciplinary enquiry that the management will be entitled to take appropriate action. We see no reason why the management of a private unaided educational institution should seek the consent or approval of any governmental authority before taking any such action. In the ordinary relationship of master and servant, governed by the terms of a contract of employment, anyone who is guilty of breach of the terms can be proceeded against and appropriate relief can be sought. Normally, the aggrieved party would approach a court of law and seek redress. In the case of educational institutions, however, we are of the opinion that requiring a teacher or a member of the staff to go to a civil court for the purpose of seeking redress is not in the interest of general education. Disputes between the management and the staff of educational institutions must be decided speedily, and without the excessive incurring of costs. It would, therefore, be appropriate that an Educational Tribunal be setup in each district in a State, to enable the aggrieved teacher to file an appeal, unless there already exists such an Educational Tribunal in a State-the object being that the teacher should not suffer through the substantial costs that arise because of the location of the Tribunal; if the tribunals are limited in number, they can hold circuit/camp sittings in different distracts to achieve this objective. Till a specialized tribunal is set up, the right of filing the appeal would lie before the District Judge or Additional District Judge as notified by the Government. It will not be necessary for the institution to get prior permission or ex post facto approval of a governmental authority while taking disciplinary action against a teacher or any other employee. The State Government shall determine, in consultation with the High Court, the judicial forum in which an aggrieved teacher can file an appeal against the decision of the management concerning disciplinary action or termination of service.

Para No. 65-The reputation of an educational institution is established by the quality of its faculty and students, and the educational and other facilities that the college has to offer. The private educational institutions have a personality of their own, and in order to maintain their atmosphere and traditions, it is but necessary that they must have the right to choose and select the students who can be admitted to their course of studies. It is for this reasons that in St. Stephen's College case this Court upheld the scheme whereby a cut-off percentage was fixed for admission, after which the students were interviewed and thereafter selected. While an educational institution cannot grant admission on its whims and fancies, and must follow some identifiable or reasonable methodology of admitting the students, any scheme, rule or regulation that does not given the institution the right to reject candidates who might otherwise be qualified according to, say, their performance in an entrance test, would be an unreasonable restriction under Article 19(6), though appropriate guidelines/modalities can be prescribed for holding the entrance test in a fair manner. Even when students are required to be selected on the basis of merit, the ultimate decision to grant admission to the students who have otherwise qualified for the grant of admission must be left with the educational institution concerned. However, when the institution rejects such students, such rejection must not be whimsical or for extraneous reasons.

Para No. 68-It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forego or discard the principle of merit. It would, therefore, be permissible for the university or the Government, at the time of granting recognition to require a private unaided institution to provide for merit-based selection while, at the same time, giving the management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State/university and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of concealing by the State agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the Government according to the local needs and different percentages can be fixed for minority unaided and non-minority unaided and professional colleges. The same principles may be applied to other nonprofessional but unaided educational institutions viz. Graduation and post graduation non-professional college or institutes.”

20. By referring the aforesaid paras he submitted that freedom of individual development is the basis of democracy and idea of an academic degree as a “private good” that benefits the individual rather than a “public good” for society is now widely accepted. The petitioner Federation has right to admit students, to set up a reasonable fee structure, to constitute a governing body to appoint staff (teaching and non teaching) and to take action if there is dereliction of duty on the part of any employee.

21. It is also held by the Hon'ble Supreme Court in TMA Pai Foundation's case that the rights under Articles 19 and 26(a) that while the State has the right to prescribe qualifications necessary for admission, private unaided colleges have the right to admit students of their choice, subject to an objective and rational procedure of selection and the compliance with conditions, if any, requiring admission of a small percentage of students belonging to weaker sections of the society by granting them free seats or scholarships, if not granted by the Government. It is also given out that the right to establish and educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of management.

22. The Hon'ble Supreme Court further observed in TMA Pai Foundation's case that for admission into any professional institution, merit must play an important role. While it may not be normally possible to judge the merit of the applicant who seeks admission into a school, while seeking admission to a professional institution and to become a competent professional, it is necessary that meritorious candidates are not unfairly treated or put at a disadvantage by preferences shown to less meritorious but more influential applicants. Excellence in professional education would require that greater emphasis be laid on the merit of a students seeking admission.

23. Upon careful perusal of the aforesaid paras of the judgment of TMA Pai Foundation wherein the Hon'ble Supreme Court has observed that “while an educational institution cannot grant admission on its whims and fancies, and must follow some identifiable or reasonable methodology of admitting the students, any scheme, rule or regulation that does not given the institution the right to reject candidates who might otherwise be qualified.” It is also observed that however, when the institution rejects such students, such rejection must not be whimsical or for extraneous reasons.

24. Much emphasis has been given by learned counsel for the petitioner to para Nos. 65 and 68. Referring the para No. 65 it is submitted by learned counsel for the petitioner that the private educational institutions have a personality of their own, and in order to maintain their atmosphere and traditions, it is but necessary that they must have the right to choose and select the students who can be admitted to their courses of studies.

25. After referring the para No. 68 learned counsel for the Federation Mr. Sharma submits that it is unfair on the part of the respondents to apply the same rules and regulations regulating admission to both aided and unaided professional institutions and to conduct entrance test only the petitioner Federation is competent to hold such test as per the prospectus/brochure. In the same para the Hon'ble Supreme Court also observed that the common entrance test held by itself or by the State/university and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counseling by the State agency.

26. Here in the instant case since the petitioner has agreed to the extent that the examination be conducted by the University instead of Federation and the same has been conducted but raised the objections that in view of the ratio decided by the Hon'ble Supreme Court in TMA Pai Foundation's case that the petitioner is having a legal right to hold the counseling. This request, which was made through the application dated 10.9.2004 has been rejected by a detailed order dated 17.9.2004 and the Convener of the Central PC PMT Admission Board is authorised to conduct the counseling part also as laid down by the Hon'ble Supreme Court that the seats may be filled up on the basis of counseling by the State agency. The Hon'ble Supreme Court also gave the liberty to conduct the common entrance test held by the Association or by the State or by the University. Since the University has conducted the common entrance test, the counseling is to be conducted through the State agency. Since this controversy with regard to holding of counseling has been decided by this Court vide order dated 17.9.2004 I deem it proper to reproduce the order dated 17.9.2004 passed on the application dated 10.9.2004 moved on behalf of the petitioner Federation, which is read as under:

“Today the matter is listed on the application moved on behalf of the petitioner. Heard on the application dated 10.9.2004

This Court vide order dated 4.6.2004 has issued notices to the respondents to show cause why the petition be not admitted. It was also directed that meanwhile the students who applied for entrance examination through respective private Medical & Dental Colleges be provisionally allowed to appear in the entrance test conducted by University.

On 29.7.2004 learned Addl. Advocate General placed letter dated 20.7.2004 on record for perusal of this Court. After hearing the respective parties this Court directed to issue examination calender for conducting the examination of the students of the federation of Private Medical & Dental Colleges in the month of August, 2004 and shall complete the examination formalities prior to 15.9.2004 It is further observed that the University be directed to prepare the list of eligible students in accordance with the record and issue the permission letter for the examinations forthwith.

As per the aforesaid direction it is not disputed that the University had conducted the examination and declared the result on 13.9.2004

Presently the petitioner by way of this application raised the issue that the Federation be allowed to conduct interview in accordance with the prospectus approved by the Government of Rajasthan.

Learned counsel for the petitioner referred certain clauses of the prospectus. In clause 4.3 there is stipulation with regard to written examination and common entrance examination be conducted by RMCAT (Rajasthan Medical College Admission test) and the written exam so conducted under the RMCAT is followed by a Viva-Voce Test and a candidate must secure 50% of total aggregate as per the MCI/DCI regulations. Candidates obtaining 50% and above shall be placed in the Merit list which shall be put up on the Notice Board of all the Member Institutions.

Mr. Sharma referred Clause 4.6 wherein the written entrance examination will be followed by a rationale viva voce test based on principle of fairness for those candidates who qualify in the entrance examination i.e RMCAT-2004 examination by securing not less than 50% marks for all general candidates and 40% marks in case of reserved category candidates i.e OBC, SC and ST.

As per clause 4.7 merit is to be prepared and the bifurcation of the marks is also indicated. The written test will be of 85 points and viva voce will be of 15 points. Out of 15 points 8 points for aptitude test and 7 points for General knowledge and General intelligence. Thus the total 100 points examination is to be conducted.

Learned senior counsel Mr. Sharma also referred introduction part of the prospectus whereby the approval has been given by the Government of Rajasthan, Dept. of Health vide letter dated 19.3.2004 and the criteria laid down in the prospectus is also approved by the Government of Rajasthan under the guidelines as laid down by the Hon'ble Supreme Court.

In support of his submissions be referred the case reported in (2002) 8 SCC 481 (T.M.A Pai Foundation v. State of Karnataka). More particularly para Nos. 56, 59, 65 and 68 are referred by the petitioner. By referring the relevant paras he has tried to formulate the case that it is the domain of the individual institution after conducting entrance test, which has been conducted by the University, the University should provide the name of the students for viva voce and viva voce is to be conducted by the institution not by the State agency and University.

By referring para 65 wherein the Hon'ble Supreme Court has held that the private educational institutions have a personality of their own, and in order to maintain their atmosphere and traditions, it is but necessary that they must have the right to choose and select the students who can be admitted to their courses of studies. Therefore, it is the choice of the institution not the choice of the respondents.

He also referred the case of Islamic Academy of Education v. State of Karnataka reported in (2003) 6 SCC 697. More particularly learned counsel for the petitioner referred para 6, 11 and 16. In para 6 of the case of Islamic Academy of Education v. State of Karnataka the Hon'ble Supreme Court has formulated the questions for consideration. The question No. 3 is that whether private unaided professional colleges are entitled to fill in their seat, to the extent of 100%, and if not, to what extent and question No. 4 is that whether private unaided professional colleges are entitled to admit students by evolving their own method of admission.

The Hon'ble Supreme Court in the case of Islamic Academy of Education has answered the question Nos. 3 and 4 in para Nos. 10 and 11. While giving the answer to the question Nos. 3 and 4 the Hon'ble Supreme Court has considered the para 68 of the case of T.M.A Pai Foundation and also placed reliance on paragraph 58 and 59 of the same case wherein the Hon'ble Supreme Court has held that merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or schoolleaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies.

In para No. 16 of the case of Islamic Academy of Education the Hon'ble Supreme Court further observed as under:

“That brings us to the question as to how the management of both minority and non-minority professional colleges can admit students in the quota allotted to them. Undoubtedly, the majority judgment has kept in mind the sad reality that there are a large number of professional colleges which indulge in profiteering and/or charging of capitation fees. It is for this reason that the majority judgment provides that in professional colleges admission must be on the basis of merit. As has been rightly submitted, it is impossible to control profiteering/charging of capitation fees unless it is ensured that admission is on the basis of merit. Also, as has been rightly pointed out, if a student is required to appear at more than one entrance test it would lead to great hardship. The application fees charged by each institute, even though they may be only Rs. 500 to Rs. 1000 for each institute, would imposed heavy burden on the students who will necessarily have to apply to a number of colleges. Further, as has been rightly pointed out, students would have to arrange for transport from and to and stay at various places if they have to appear for individual tests conducted by each college. 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 that 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 student, of 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 lal 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 tray type in the State. The option of choosing, between either of these tests, must be exercised before issuing of prospectus 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 noticeboard of all colleges which have chosen to admit as per this test. A copy of the merit list will also be forthwith sent to the concerned authority and the Committee. Selection of students must then be strictly on the basis of merit as per that merit list. Of course, as indicated earlier, minority colleges will be entitled to fill up their quota with their own students on the basis of inter se merit amongst those students. The list of students admitted, along with the rank number obtained by the student, the fees collected and all such particulars and details as may be required by the concerned authority or the committee must be submitted to them forthwith. The question paper and the answer papers must be preserved for such period as the concerned authority or Committee may indicate. If it is found that any student has been admitted dehors merit, penalty can be imposed on that institute and in appropriate cases recognition/affiliation may also be withdrawn.”

The Hon'ble Supreme Court has also interpret the word “common entrance test”, which clearly indicate that each institute cannot hold a separate test. Therefore, the Hon'ble Supreme Court has held that the management could select students, of 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.

In this para the Hon'ble Supreme Court also expressed the view that if it is found that any student has been admitted dehors merit, penalty can be imposed on that institute and in appropriate cases recognition/affiliation may also be withdrawn.

Mr. Sharma also referred the case of Chandigarh Administration v. Manpreet Singh ((1992) 1 SCC 380) and the case of St. Stephen'S College v. University Of Delhi reported in (1992) 1 SCC 558. Much emphasis has been given by learned counsel for the petitioner to para 62 and 63 wherein the Hon'ble Supreme Court has held that the oral interview as a supplementary test and not as exclusive test for assessing the suitability of candidates for college admission has been recognised by the Supreme Court. But at the same time, to avoid arbitrariness in the selection there should not be allocation of high percentage of marks for oral interview test. Where candidate's personality is yet to develop, greater weight has perforce to be given to performance in the written examination and the importance to be attached to the interview test must be minimal and the Court fixed only 15% of the total makes for interview.

So far as the investigation, which is pending against various private medical and dental colleges, learned counsel for the petitioner submits that the investigation is under progress and after lapse of more than 4 months the investigating agency has still not arrived at conclusion whether the members of the Federation are on fault or not.

In support of his submissions he placed the order passed in S.B Criminal Misc. Bail Application No. 2775/2004 (Dr. Mohan Lal Swarnkar v. State) and S.B Criminal Misc. Bail Application No. 2774/2004 (Ramratan Soni v. State) wherein this Court while granting the bail has observed that “it may not be just, reasonable and appropriate to express any opinion on the merits of the case at this initial stage when the investigation is still going on, for it may prejudice the case either way, but keeping in view the above submissions made at the bar, the nature of accusation against them, the materials so far collected during investigation and all other facts and circumstances of the case, I find it a case, fit for grant of bail to the petitioners.”

Learned senior counsel Mr. Bajarang Lal Sharma has also referred sub clause 6 of Art. 19 of the Constitution. He also placed the circular dated 16.9.2004 published in the newspaper by which the counseling was notified and scheduled to be held on 19.9.2004 and 20.9.2004 at 9.00 a.m As per the result declared by the University of Rajasthan, Jaipur and published in the news papers on 13.9.2004 Dr. S.R Dharker was made convener to Central PC PMT Admission Board.

Per contra learned Addl. Advocate General Mr. Bharat Vyas has drawn my attention towards prayer clause of the application and submits that the prayer, which has been asked for by way of arguments are not even mentioned in the application. In the prayer of the application it was prayed that clarification/further orders be passed by this Court directing the university and the State Government only to fix the date of examination and conduct the examination as per the prospectus already issued and supplied to the candidates, which has been duly approved by the State Government earlier and the sanctity of the examination procedure be maintained as it is. It was further prayed for seeking direction to the University to ensure that all the students, who had already been issued admission cards and who had applied, be allowed to appear in the examination and no candidate, who had already applied, should be debarred from appearing in the examination on any pretext as all the candidates have already deposited the examination fees to the Federation.

By referring the aforesaid prayer clause he further submits that since the examination has been conduced by the University and the result has been declared on 13.9.2004, in view of this fact the relief claimed in the application is already meted out and the application becomes infructuous.

Learned Addl. Advocate General Mr. Bharat Vyas further submits that it is not a routine case where the ratio decided by Hon'ble Supreme Court in the cases of T.M.A Pai Foundation and Islamic Academy of Education has to be complied with. Since the serious allegations and CD is prepared showing the conduct of the members of the Federation. He also referred the contents of the FIR and read over certain portions of the FIR to show the conduct of the members of the petitioner Federation and the investigation is under progress and since the serious allegations have been alleged against the members of the petitioner Federation, therefore, it was decided by this Court that the examination should be conducted by the University and the same has been conducted and the result has been declared.

Mr. Vyas further submits that it is misconception of the petitioner that the examination includes only written test, it also includes counseling. He referred the letter dated 16.9.2004 by which it was made clear that no viva voce will be conducted and only counseling will be conducted. Therefore, under the compelling and peculiar circumstances the job of the counseling is assigned to the Convener appointed by the State.

Mr. Vyas further placed a letter dated 16.9.2004, which is taken on record whereby the Convener Dr. S.R Dharker has notified the programme of the counseling and the Convener also requested the Principal Secretary to the Govt. Technical, Higher & Medical Education Deptt. to furnish certain informations, which are as under:

1. Names of Private Medical/Dental Colleges to be included for counseling who have been granted permission by the Medical Council of Indian Dental Council of India, University of Rajasthan and the Rajasthan Government.

2. Number of seats to be filled up by this counseling in each Medical/Dental College.

3. It there any reservation/category of seats like SC/ST/OBC/NRI/Girls/Disabled etc.

4. Copy of Hon'ble Rajasthan High Court's Orders for the counseling.

5. What will be the last date for deposition of fees and joining.

6. Do we have to prepare the Waiting List?

7. If waiting list is prepared, can a candidate be permitted to include his/her name for more than one College?

8. Instructions regarding Bank Guarantee.

It was also requested to nominate the Representative of the Government and University of Rajasthan and High Court Observer not less than the rank of Addl. Advocate General. It is also suggested to invite the Principals of Government Medical/Dental Colleges as Admission Board Member, and all Principles of Private Medical/Dental Colleges as Representatives.

Mr. Vyas submits that in view of the request made on behalf of the Convener they are going to nominate the Government Representative and also asking University to appoint representative and also approving the proposal made by the Convener that the Principals of Government Medical/Dental Colleges as Admission Board members including the Principles of Private Medical/Dental Colleges as representatives of the Admission Board. Thus the representation has been given to members of the petitioner Federation also.

Heard rival submissions of the respective parties and carefully perused the judgment referred before me and the prospectus as well as the material available on the record. It is to the case that respondents are violating the principles and criteria laid down by the Hon'ble Supreme Court but it is a case where members of the petitioner Federation not only misusing the liberty given by the Hon'ble Supreme Court and committing serious irregularities in admission of management quota.

Since the learned senior counsel for the petitioner vehemently argued and placing strong reliance on the judgments of T.M.A Pai Foundation and Islamic Academy of Education formulated the arguments that after conducting the written test by the University for the purpose of interview the Federation should be given liberty to conduct interview at their level. As already discussed herein above that serious allegations be alleged against the Federation regarding use of demand of huge amount and it was also apprehended that fair entrance test and the interview are under cloud. The investigation in the criminal offences under Section 420, 468, 511, 120B IPC is under progress. In such circumstances for conducting entrance test through University and counseling through the Committee constituted by the State is decided and it is a temporary arrangement and the moment after completion of the investigation report if everything will find in order, it is no doubt that the Federation will be at liberty to conduct the entrance test in accordance with the prospectus and in accordance with the guidelines laid down by the MCI and the principles laid down by the Hon'ble Supreme Court in the cases of T.M.A Pai Foundation and Islamic Academy of Education. The aforesaid arrangement is only made temporarily looking to the facts and the circumstances of the case as indicated herein above.

It is pointed out that 50% of the seats available under the management category in each of the member medical or dental college shall be reserved for the candidates of Rajasthan state domicile or bonafide residents of Rajasthan state and the remaining 50% seats will be filled by All India/NRI/Foreign National Candidates. It is expected from the Convener to take care of this clause also during counseling for the admission in the Private Medical College/Dental College against the Management Quota.

In view of this fact I find no fault that the State Government is undertaking counseling through independent agency and since the petitioner's institution has representation in the counseling, they should not raise any grievance and they should show their bonafides. At this stage the request of the petitioner cannot be accepted and the respondent are at liberty to proceed further in view of the observations made herein above.

With these observations the application dated 10.9.2004 stands rejected.”

27. The order dated 17.09.2004 has been challenged by the petitioner Federation before the Division Bench by way of filing D.B Civil Special Appeal (W) No. 01746/2004 (Def.). The Division Bench of this Court Vide order dated 20.9.2004 observed as under:

“This appeal is directed against the order of the learned Single Judge, dated 17.9.2004 rendered an application for grant of interim relief filed by the appellant herein.

The impugned order passed by the learned Single Judge does not finally dispose of the writ petition. This being so, the appeal is not maintainable. Accordingly, the appeal is dismissed as not being maintainable.

The writ petition however needs to be decided expeditiously in view of the time schedule envisaged by the Supreme Court in Medical Council of India v. Madhu Singh ((2002) 7 SCC 258) and which has been fixed by the Medical Council of India pursuant thereto.

We order accordingly.

We, however clarify that the counseling being conducted by the University shall be subject to the final disposal of the writ petition. The admissions of the students to the private medical colleges may be made but this shall be subject to the final decision of the writ petition by the learned Single Judge.”

28. Learned counsel for the petitioner also raised the objection regarding constitution of the committee and submitted that vide order dated 29.10.2003 Hon'ble Mr. Justice Jagat Singh (Retd.) has been nominated by the Hon'ble the Chief Justice of Rajasthan as Chairman of the Committee and the Secretary, Medical and Health as Member Secretary. But so far as other three members like eminent doctor, nominee of Vice Chancellor and an independent person of a repute in the field of education are not nominated vide order dated 29.10.2003 It is also alleged that the Committee, which has been constituted under the direction of Hon'ble Supreme Court has not even hold any meeting.

29. Learned counsel for the petitioner referred the FIR reported against the members of the petitioner Federation and more particularly against the President of the Federation Dr. M.L Swarnkar. He submits that since 4.6.2004 to till date no progress in the investigation has been shown and no material against the petitioner Federation as well as the members of the Federation has been found to the investigation so far conducted by the investigating agency. On the basis of mere allegations it cannot be said that the process of admission is the private medical colleges and dental colleges are under could of doubts. In such circumstances since no material is against the Federation, in view of the judgment passed by the Hon'ble Supreme Court in the cases of TMA Pai Foundation and Islamic Academy of Education the petitioner Federation cannot be deprived from his valuable right to give admission in the management quota after conducting the entrance test by the Federation and holding viva voce at their own level.

30. Mr. Sharma also referred Art. 19(a), 141 & 144 of the Constitution of India. By referring Art. 141 of the Constitution Mr. Sharma submits that the law declared by the Supreme Court shall be binding on all courts within the territory of India. As per the provisions of Art. 144 of the Constitution all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.

31. Mr. Sharma also pointed out certain irregularities committed by the Convener during counseling. The Convener admitted the students, who are not present in the counseling. He referred the notification dated 16.9.2004 issued by the Convener, Central PC PMT Admission Board. In Clause 2 of this Notification it is stipulated that the presence of the candidate or his/her authorised representative at interview is essential. In case candidate is not able to come for interview in person and sent his/her authorised representative, the candidate should ensure that he/she has verified the signature and photograph of the authorized representative. In clear violation of Clause 2 of the Notification dated 16.9.2004 the Convener, Central PC PMT Admission Board has given admission to as many as 51 students, who were not present in the counseling.

32. He also placed reliance on the judgment in (P.A Inamdar v. State of Maharashtra) (3), wherein the Hon'ble Supreme Court has held as under:

“The sentence in the judgment of Islamic Academy which appears to have created the debate between the parties is, “It is clarified that different percentage of quota for students to be admitted by the management in each minority or non-minority unaided professional college(s) shall be separately fixed on the basis of their need by the respective State Government and in case of any dispute as regards fixation of percentage of quota, it will be open to the management to approach the Committee.”

We are, prima facie, of the view that the phrase “their needs” in the sentence quoted above refers to the need of the institutions mentioned and not of the State. In the circumstances, we are of view that the interim measure as stated in paragraph 21 of Islamic Academy (supra), namely, that the seats should be filled up by the institutions concerned in the ratio of 50:50 will be continued for this academic year purely as a temporary measure and without prejudice to the contentions of the parties for the purpose of the final disposal.

By way of an interim measure, we permit the Islamic Academy Education Colleges to hold separate entrance examinations.

As far as the State of Maharashtra is concerned, it has fixed the quota at 75:25 in respect of minority professional institutions i.e 75% in favour if the institution and the balance in favour of the State Government. The institution in this case has already admitted 70% of its quota by holding its examination and is in the process of admitting the rest. Having regard to the facts of the case, we permit the petitioner to conclude the process as far as the management quota along is concerned. This interim order will continue until the disposal of the special leave petition.

As at present the quota has been fixed at 70% for the minority institutions and 30% for open admissions. Out of the 70 percent, 55% has been allocated to the management i.e, 55% for minority students, 15 percent for management quota and 30% for State Government Quota. The association is yet to hold its examination. However, having regard to the facts of the case, we permit the admission of CET successful minority candidates against the 55% quota, if they so choose. The State Government will be permitted to fill the 30% quota also out of the CET candidates who need no necessarily belong to the minority community on the basis of merit and according to the choice of the candidate. In respect of 15% management quota and the balance seats if remaining after making an adjustment of the successful candidates as particularised above it will be open to the institutions concerned to admit them on the basis of the entrance test or MEMCET which may be held by them for this year. It is being made clear that by this order we do not intend to decide as to whether the petitioner association is entitled to ask for separate examination or whether the petitioner is an association, whether Islamic Education has limited rights of the Minority to associations alone nor do we decide the appropriateness alone nor doi we decide the appropriateness of the MEMCET examination. It is made clear that this order is restricted to the members of the petitioner colleges.”

33. Learned Addl. Advocate General Mr. Bharat Vyas also placed reliance on the judgments rendered by the Hon'ble Supreme Court in the cases of Islamic Academy of Education, TMA Pai Foundation and Medical Council of India v. Madhu Singh and submitted that it is not a case where the respondents have acted contrary to the guidelines and directions issued by the Hon'ble Supreme Court in the case of TMA Pai Foundation, Islamic Academy of Education and Medical Council of India v. Madhu Singh. But it is a case where the petitioner Federation has acted contrary to the guidelines and directions issued by the Hon'ble Supreme Court in the aforesaid cases.

34. As evident by this fact that the FIR has been lodged against the members of the Federation and through media report and CDs, which were released by unidentified person that the person belonging to the Management of Private Medical and Dental College of Rajasthan have given assurance to give admission in lieu of heavy sum even before holding the examination and this fact has been confirmed in conversation recorded in the CDs. Apparently the fairness and transparency of the examination to be conducted on 30.5.2004 has come under cloud of doubts, which is in gross violation of the judgment of Hon'ble Supreme Court in the cases of Islamic Academy of Education and TMA Pai Foundation. Therefore, looking to this peculiar facts and the circumstances all the private medical and dental college were informed by the Principal Secretary, Medical Education not to hold the examination of common entrance test, which were scheduled to be held on 30.5.2004

35. The Hon'ble Supreme Court in the case of TMA Pai Foundation has categorically held that the entrance test should be conducted in a fair manner and students should be selected on the basis of merit. When the institution rejects such students and not acts fairly the Government is empowered to take action against such private institution.

36. Mr. Vyas further submits that it is not necessary that after conclusion of the investigation the respondent can only take the step. In the interest of public at large and in the interest of the students in case the doubts create that the petitioner Federation is not conducting the common entrance test fairly and assured admissions to the students on their whims and fancies and after charging the huge amount of fee, on such eventuality only the respondent can act in accordance with the directions issued by the Hon'ble Supreme Court in the cases of TMA Pai Foundation and Islamic Academy of Education. Thus the violation of guidelines/directions issued by the Hon'ble Supreme Court is committed by the petitioner not by the respondent.

37. As the petitioner has not raised any finger regarding the test conducted by the University and only raised the objection regarding the counseling, therefore, this Court directed to submit the original record of the counseling and on the direction the same has been placed before this Court for perusal.

38. Mr. Vyas submits that the counseling is totally based on merit basis and since this Court has directed to complete all process of admission upto 15.9.2004 and keeping in mind to comply with the direction issued by the Hon'ble Supreme Court in the case of Medical Council of India v. Madhu Singh in any case the respondents have to complete the admission process prior to 30.09.2004 Thus inspite of issuing the call letters for counseling the respondent has published the news in the newspaper and also considering this fact that the students who belong to outside the State must not be aware of the news item and are not able to attend the counseling, therefore, it was decided to allot the respective colleges and faculties as per their option submitted in their forms and as per their merit by taking precautionary steps to provide more chance the respondents are also going to hold the re-counseling on 27.9.2004 In case absentee not able to attend re-counseling also, their admission will be cancelled and other students will be given admission in place of such students as per their merit and choice. Therefore, in short span of time the Convener, Central PC PMT Admission Board has held the counseling and allot the students to respective private medical and dental colleges as per their merit and preference. Mr. Vyas vehemently denied the allegations alleged against the PC PMT Admission Board that any irregularity has been committed by the Board during counseling.

39. Heard learned counsel for the parties, throughly considered all the judgments referred before this Court as well as clauses of the brochure and prospectus and the original record submitted by the respondents.

40. Under the direction of this Court the common entrance test has been held by the University and the counseling also under the direction of this Court has been held by the Convener, Central PC PMT Admission Board and all process of common entrance test as well as the counseling and allotment of the colleges and already over. Now only reshuffling remains, which is going to be held on 27.9.2004 In such circumstances, the relief claimed by the petitioner by way of this writ petition cannot be accepted and the writ petition is not maintainable so far as the admission for session 2004–05 is concerned.

41. However, the Government is directed to complete the investigation expeditiously but in any case complete the investigation within this academic year to that the students may not remain under doubt about the ensuing academic session.

42. The Committee, which has been constituted in view of the direction issued by the Hon'ble Supreme Court and Hon'ble Mr. Justice Jagat Singh (Retd.), who has been nominated by the Hon'ble Chief Justice of this High Court as Chairman of the Committee be also requested to complete the enquiry so far as the private medical and dental colleges are concerned expeditiously.

43. It is also expected from the State that generally the provisional sanction to the private medical colleges and dental colleges should be avoided. If any college is given provisional permission and pursuant to that admissions are given and after inspection permission is withdrawn, in such eventuality the students, who studied in that college will suffer. To avoid such eventualities the State should ensure whether the private medial colleges or the dental colleges fulfill all the requisite requirements or not and having proper infrastructure, prior laboratory and the staff etc. or not and after verifying this fact the State as well as M.C.I should only give the permission to establish such private medical colleges and dental colleges so that the future of the students be protected.

44. It is also expected from the State and M.C.I to publicly notify that the particular medical college and the dental college are only having a provisional sanction, which is subject to approval given by the State as well as MCT so that being aware of this fact the students may take the admission in such institution at their risk.

45. The State Government is further directed to complete the enquiry against the private medical colleges and dental colleges and after obtaining a report from the Committee, which is headed by Hon'ble Mr. Justice Jagat Singh (Retd.), shall arrive at conclusion to take appropriate steps/action against the private medical colleges and dental colleges according to the norms prescribed by the MCI or shall recommend the MCI to take appropriate steps against such institutions if so warrants. In case everything is found in order it is expected from the respondent-State to allow all private medical colleges and dental colleges to proceed with the common entrance test and viva voce test in accordance with the brochure issued by the Federation for ensuing academic session in view of the guidelines/directions issued by the Hon'ble Supreme Court in the case of TMA Pai Foundation and Islamic Academy of Education because this arrangement for allowing to conduct the common entrance test by the University of Rajasthan and counseling by the Convener, Central PC PMT Admission Board is a temporary arrangement and only with relation to academic Sessions 2004–2005 keeping in view the complaint and serious allegations made against the private medical colleges and dental colleges.

46. I also deem it proper to direct the State to verify all aspects which are essentially required for recognition of private medical colleges and dental colleges and after fulfillment of all requisite requirements shall issue the recognition. The provisional permission to establish private medical colleges and dental colleges normally should be avoided in the interest of public as well as students at large.

47. Since M.C.I is not party in this writ petition, therefore, copy of this judgment be sent to the M.C.I for information.

48. In view of the aforesaid observations and directions the writ petition fails and is herewith dismissed with no order as to costs.