Shantanu Kemkar, J.:— Heard the learned counsel for the parties on the question of admission.

2. Rule.

3. Heard on the question of grant of interim relief.

4. The Petitioner Nos. 1, 3 and 4 are the Deemed Universities established under Section 3 of the University Grants Commission Act. They have challenged the Government Resolution dated 20th August, 2016 issued by the State Government (Respondent No. 1) on the basis of a letter dated 9 August, 2016 issued by the fourth Respondent/Government of India through the Ministry of Health and Family Welfare. By the said Government Resolution, the Petitioners have been directed to admit the students on the basis of Combined Counseling/Centralized Admission Process to be conducted by the State Government. According to the Petitioners their right to give admission cannot be taken away by issuance of the said Resolution as they are empowered by the University Grants Commission (the Institutions Deemed to be Universities) Regulation, 2016 (for short “the regulation of 2016”) notified on 11 July, 2016 to admit the students. It is also the case of the Petitioners that in view of the Amendment Notification dated 5 August, 2016 (for short “the amendment notification 2016”) issued by the Medical Council of India under Section 33 of the Indian Medical Council Act, 1956 the Petitioners being the Deemed Universities are authorized to organize the admission process in accordance with the time schedule appended in the said Amendment Notification 2016 as Appendix F.

5. The learned Senior Advocate Mr. Anil Anturkar for the Petitioners submit that the Deemed Universities have exclusive right to give the admission on the basis of merit list drawn on the basis of All India Ranking after declaration of results of National Eligibility-cum-Entrance Test(NEET) and that the Deemed Universities cannot be restrained by the State Government from giving admission as per the said merit list drawn on the basis of NEET. In support of his contention, the learned senior counsel has placed reliance on the judgments in 1) Sankalp Charitable Trust v. Union of India 2016 7 SCC 487, 2) Modern Dental College and Research Centre2 3) P.A Inamdar v. State of Maharashtra 2005 6 SCC 537 as also the order passed by the Division Bench of the Kerala High Court on 26 August, 2016 in W.P (C) Nos. 28401, 28150, 28151, 28197, 28210, 28414 of 2016.

6. The Respondent-State has filed reply and opposed the Petitions. Mr. Rohit Deo, the learned acting Advocate General has argued that the State Government in exercise of its powers conferred under Entry 25 of List III of the Constitution of India read with Article 162 of the Constitution of India has issued the said Government Resolution and submits that in spite of the Petitioners being the Deemed Universities, they cannot be granted free hand to give admission at their end as the same would not be in the interest of the students. He submits that in order to benefit all the students, the said Government Resolution had been issued so that there would be a single window system and the students need not to fill the separate admission forms for getting admission in different institutions thereby spending thousands of rupees on pre admission process only. He has also argued that no case for grant of interim relief is made out as the State Government after centralized counseling would provide a list out of which the Petitioners can admit the students on the basis of inter se merit. He also placed reliance on the judgment in Sankalp Charitable Trust (supra).

7. We have considered the submissions made by the learned senior counsel for the Petitioners and the learned Acting Advocate General for the State.

8. We find that in compliance to the Amendment Notification dated 5 August, 2016 the Petitioners have issued schedule for admission for preparation of provisional merit list for first years M.B.B.S and B.D.S course in their Deemed Universities/Medical and Dental colleges as per the merit of NEET-UG-2016 on the basis of powers vested in them under clause (6AA) of the amendment notification dated 5 August, 2016. The clause (6AA) reads thus:

“(6AA) - The Universities and other authorities concerned for the Academic year 2016-17 only shall organize admission process in accordance with the Time Schedule indicated in Appendix F”.

9. Clause 6.3, 6.4 and 6.12 of the Regulation 2016 are also relevant and are extracted below:

6.3: Admission of students to an institution deemed to be university, public or private, shall be made in the following manner:

(i) In case the appropriate statutory has specified the process of selection for admission to any course, or programme of study in any institution which includes conducting competitive admission test for ascertaining the competence of any person to pursue such course or programme of study, in that case, no person shall be admitted to such course or programme of study in such institution, except through an admission test conducted by a recognized body or such institution or a group of institutions if such institution or group of institutions have been so authorized by the Central Government or a State Government or any statutory authority.

(ii) In case the process of selection for admission to any course or programme of study in any institution including conducting competitive admission test has not been specified under sub-clause (I), in that case, no person shall be eligible for admission to such course or programme of study in such institution except through inter se merit to be specified in the prospects of each institution and the inter se merit so arrived at shall be published on the website of the institution, along with the scores attained by all individuals in each of the parameters taken into reckoning for arriving at such interese list. Students to institutions deemed to be universities shall be governed by the Guidelines/Regulations framed by the Commission in this behalf from time to time.

6.4: Every institution deemed to be university shall -

(a) maintain the records of the entire process of selection of candidates and preserve such records for a minimum period of five years.

(b) exhibit such records on its website and

(c) be liable to produce such record, whenever called upon to do so by any statutory authority or by the Government under any law for time being in force.

6.12: On being declared an institution deemed to be university, an institution shall admit students to its approved academic programme, under its enrolment, only from the academic session that follows the Notification issued by the Central Government:

Provided that enrolment of students to the institution, for any reason whatsoever, in anticipation of the declaration as an institution deemed to be university or inclusion of the institution under the ambit of an institution deemed to be university, shall render the application invalid. Provided further that the students already on the rolls of the institution prior to the date of application for declaration as an institution deemed to be university or its inclusion under the ambit of an institution deemed to be university shall continue to be students, for all purpose, of the affiliating university with whom they have already been enrolleld, and shall also be awarded degree only by that affiliating university.

10. Having considered the aforesaid statutory provisions, we are of the view that the universities coming under the purview of Deemed Universities under Clause 2.11 of Regulation 2016 are entitled to admit the students as per the merit list drawn on the basis of All India ranking of NEET. In our prima facie view in view of the statutory provisions as extracted above, the State Government cannot transgress the powers of the Deemed Universities by issuing Government Resolution. When the field of holding the counseling and right to admit the students is occupied by the central legislation like Amendment Notification 2016 and Regulation 2016 the Government Resolution cannot override the said statutory provision. We also find that the Hon'ble Supreme Court in the case of Modern Dental College (supra) has categorically held the rights which encompass the right to occupation of educational institutions includes “a right to admit students”. We also find that in identical circumstances the Kerala High Court vide order dated 26 August, 2016 has stayed the Government Resolution issued by the State of Kerala by observing at para 9 and 10 as under:

9. We have given our anxious consideration to the respective contentions advanced before us. It is contended by the learned Advocate General that the impugned orders are issued to ensure that students are admitted only on the basis of merit as per the ranking in NEET, 2016. However, we notice that the admission process itself has been directed to be done by the Commissioner for Entrance Examinations which is not permissible. Though it is contended that it is for the respective colleges to furnish to the Commissioner for Entrance Examinations the list of students who have applied to their colleges, and that it would be only on the basis of such list that students would be admitted, we are not satisfied that the said arrangement is in accordance with the dicta laid down by the Apex Court in T.M.A Pai Foundation case (supra) and P.A Inamdar case (supra). In the said decisions, the Apex Court has clearly laid down that, the right to make admissions forms as integral part of the right of the Self Financing Institutions to establish and administer the same. By the impugned orders, the power of admitting students is conferred on the Commissioner for Entrance Examinations. Though we had put a pointed question to the learned Advocate General as to what was the source of the power that has been exercised by the State, we have not been able to get an answer. It is one thing to say that the admission procedure should be fair, transparent, non-exploitative and merit based. It is a totally different thing to say that in order to ensure the same, the allotment would be made by the Commissioner for Entrance Examinations. The limited power that the State has been conceded, extends only to ensuring that the admission process satisfies the criteria laid down by the Supreme Court in T.M.A Pai Foundation case (supra) and P.A Inamdar case (supra). Prima facie, the impugned orders by conferring the power to admit students on the Commissioner for Entrance Examinations has impinged upon the right of the Petitioners to admit students. Therefore, we are satisfied that an interim order of stay of the impugned orders is necessary to be granted. However, we are conscious at the same time that, it is necessary to ensure the admission process to be fair, transparent, non-exploitative and merit based. Therefore, the interim stay shall be subject to appropriate conditions.

10. Accordingly, there shall be interim stay of operation and implementation of the impugned orders, G.O (Rt.) No. 2314/2016.H&FD dated 20.08.2016, subject to the following conditions:

(i) Admissions to the MBBS/BDS Courses shall be only on the basis of the ranking of candidates in the rank list of NEET, 2016 on the basis of the inter-se merit among the candidates, who have applied to the respective colleges.

(ii) All the colleges agree that, the applications for admission are received only through on-line and that, the said process provides transparency with regard to the merit as well as the identities of the applicants. Such applications shall therefore be uploaded for the scrutiny of the Admission Supervisory Committee also immediately on the expiry of the last date for submission of applications.

(iii) Since the counsel for the Admission Supervisory Committee has voiced a complaint that some of the colleges have not obtained approval of the Admission Supervisory Committee, for their prospects, the admission process shall be proceeded with only on the basis of a prospects, for which approval of the Admission Supervisory Committee has been obtained.

(iv) The Admission Supervisory Committee is directed to either approve or disapprove the Prospectus submitted to them for approval, within three days of such submission.

11. Having regard to the aforesaid, we are of the view that the impugned letter dated dated 9 August, 2016 issued by the Government of India through the Ministry of Health and Family Welfare, the Government Resolution dated 20 August, 2016 issued by State of Maharashtra and the consequential notice of the Government of Maharashtra dated 21st August, 2016 deserves to be and are hereby stayed. However, it is made clear that the admission as may be given by the Petitioners shall be strictly by abiding the Clause 6.4 of the Regulation 2016 and the Petitioners shall admit the students strictly on the basis of ranking of the candidates in the list of NEET on the basis of inter se merit amongst the students who have applied to the Petitioner's institution.

12. The Petitions be listed after four weeks for final hearing. Meanwhile, the other Respondents to file reply.