Mridul Dhar (Minor) And Another (5) v. Union Of India And Others

Y.K Sabharwal, J.— About two decades ago, on 22-6-1984 in Pradeep Jain v. Union of India (1984) 3 SCC 654 it was directed that admissions in medical colleges or institutions run by the Union of India or the State Government or municipal or other local authorities for MBBS and BDS courses to the extent of at least 30% shall be granted on the basis of All-India Entrance Examination and 50% in respect of postgraduate courses. The percentage of seats to be allotted on all-India basis was modified in Dinesh Kumar v. Motilal Nehru Medical College (1985) 3 SCC 22 and in Dinesh Kumar (II) v. Motilal Nehru Medical College (1986) 3 SCC 727. For MBBS/BDS courses, the all-India quota was directed to be 15% of the total number of seats and 25% of total number of seats for postgraduate courses. The percentage of postgraduate courses has been increased to 50% (Saurabh Chaudri v. Union of India (2003) 11 SCC 146). The higher percentage would be operational from the academic year 2005 (Saurabh Chaudri v. Union of India (2004) 5 SCC 618).

2. The question whether the all-India quota of MBBS/BDS courses should be increased from its present 15% is one aspect but the real and main aspect to be considered is about giving full effect to the 15% quota by including all seats while working out 15% quota and by strictly adhering to the time schedule by the State colleges and institutions.

3. The aforesaid aspects came to light when this petition was filed on 10-7-2004 by two students through their father, as legal guardian, they being minors, apprehending that they may be deprived of a seat in the all-India quota despite having secured a fairly high ranking on merits in the All-India Entrance Examination taken by about 2,00,000 students. It was, inter alia, brought to the notice of the Court that various States had not complied with the time schedule for completion of the admission process and had not given full information to DGHS besides not taking into consideration many seats while working out the 15% all-India quota. On 29th July, 17 States/Union Territories through their Chief Secretaries and Secretaries of their Health Department were directed to supply to the Director General, Health Services (DGHS), the requisite information as to the date of the tests conducted by the States, the dates of first counselling and the dates of joining of the candidates. This information was of paramount importance as the second counselling for the allotment of 15% all-India quota was to commence from 1st August. In the absence of the requisite correct information, meritorious students looking for admission in this category on the basis of All-India Entrance Examination could be seriously prejudiced. The importance of the time-frame has been noticed in brief in the order dated 2-8-2004 which reads as under:

“In the Graduate Medical Education (Amendment) Regulations, 2004 published in the Gazette of India dated 1-3-2004, a time schedule for the completion of the admission procedure for the first MBBS course has been provided for (Appendix E). The said time schedule provides that the second round of counselling for allotment of seats from waiting list from All-India Entrance Examination shall be filled by the Central Government by 8th August. It also provides that the first round of counselling/admission of seats filled up by the State Governments/Union Territories/institutions shall be over by 25th of July of each year. The time gap of two weeks between the first round of counselling/admission of seats by the State Governments/Union Territories and second round of counselling for allotment of seats from the all-India quota seems to have been provided for so that such of the students who, in the first instance may have got admission out of the allocation by the Central Government, may change over to the seats allotted by the State Government/Union Territory so that seats becoming available would be known by the time the second counselling by the Central Government is over. It appears that the second round of counselling for allotment of Central Government seats has already commenced with effect from 30th July. It further appears that many of the State Governments/Union Territories have not even commenced the first counselling which was required to be over by 25th of July. We direct the State Governments/Union Territories to file affidavits giving details of the dates of counselling and the reasons for delay. We may note that ordinarily 15% seats of the quota under All-India Entrance Examination cannot be permitted to be made ineffective and many of the seats therefrom reverting back to the States/Union Territories. The affidavits shall also be filed by the Director General of Health Services, Ministry of Health, Government of India as also by the Medical Council of India. The petitioners are also given opportunity to file additional affidavits. The affidavits shall be filed within four days.

We wish and hope that at least by the next date of hearing the first counselling by the State Governments/Union Territories would be completed.”

4. On 9-8-2004, it was directed that in whichever State the first counselling of the State quota seats in government medical colleges is not complete, it shall positively be completed by 20th August and latest by 21-8-2004, the seats of all-India 15% quota that may become available as a result of such counselling, shall be intimated to the DGHS, further directing that all-India 15% quota would not revert back to the State quota till further orders, despite the fact that the second counselling of the all-India 15% quota may have been already over, its last date being 8-8-2004. On 31-8-2004, it was noticed that out of 93 medical colleges participating and contributing to 15% all-India medical quota, 15 colleges had not supplied the requisite information and likewise out of 25 dental colleges, five colleges had not supplied the said information. These colleges were directed to supply the requisite information on that very day by 9.00 p.m to the DGHS. The requisite information was supplied as noticed in the order dated 1-9-2004. Out of 1550 MBBS seats, 122 seats had fallen vacant and out of 144 seats in dental colleges, 38 seats had fallen vacant. As a special case and without it being treated as a precedent, the Court permitted a limited continuation of the second counselling so as to minimise the hardship to the students but not permitting the continued second counselling to everyone but limiting it in the manner stated in the order as under:

“6. The continued second counselling would be confined to only those, as per merit, who have not already been admitted in MBBS course in any of the government medical colleges in the country. If a student has already been admitted there would be no question of such a student being permitted counselling again so as to change the medical college with a view to get admission in some other medical college. The students who, as a result of the counselling already held, have taken admission in dental colleges would, however, be permitted to participate in the counselling for getting a chance for admission in MBBS on their merit position. Further, as a consequence, certain seats in dental colleges may fall vacant. They would be given as per merit in the ranking in the all-India quota. We make it clear that those admitted in MBBS would not be permitted to change the college. Those who have taken admission in dental college would also not be permitted to change from one dental college to another dental college. The information about continued counselling would be given to all concerned by publication in electronic and print media by DGHS. The continued counselling must be over by 8-9-2004. The students must join by 13-9-2004. It is necessary to adhere to this schedule so that the remaining unfilled seats can revert and be filled by the State and only bare minimum number of seats may lapse. The States shall also take timely action so that the seats to a great extent may not lapse and all the admissions and joining by students are over by 30-9-2004.

7. We make it clear that under no circumstances, we are inclined to extend the date beyond 30-9-2004. The order shall not be treated as a precedent so as to open floodgates of litigation in other cases in the country.

8. To consider the issue of further directions for the next academic year, list the matter on 5-10-2004.”

5. The aforesaid direction did not undo injustice to all the students because we permitted only limited counselling but it was necessary to adopt that course in larger interests of students and medical education as by reopening the entire counselling, there would have been considerable amount of delay in commencement of courses in various colleges. The admission process could have gone on till the end of the year and that is why permission was granted for only limited counselling.

6. Having regard to the utter chaos and confusion mainly on account of non-adherence to the time schedule, we permitted parties to file suggestions so that directions could be issued to streamline admissions from the next year. The suggestions have been filed by the Ministry of Health, Government of India, Medical Council of India and some individual parents. We have heard Mr Mohan Parasaran, learned Additional Solicitor General, appearing for the Central Government, Mr Vivek Tankha, Advocate who placed before us the point of view of students and medical colleges, Mr Maninder Singh, Advocate representing the Medical Council of India (MCI), Mr A.K Ganguli for the West Bengal Government and Mr Minocha in person.

7. It is a matter of anguish that despite various decisions of this Court and laying down of a time schedule for completion of admission process, the time schedule has not been adhered to at various stages by various authorities resulting in otherwise avoidable discontentment and hardship to the candidates. The observance of the time schedule is paramount for effective utilisation to all-India quota of medical and dental seats. The denial of a seat in the college of choice on the basis of one's merit position leads to frustration and results in injustice to the young students. The admission to a professional course based on merit position is paramount for the career of a student. The omission and commission in respect of admissions this year, as is evident from the orders aforenoted, adversely affected the career of meritorious students in their not getting admission in the college of their choice. Any frustration and feeling of injustice at an impressionable age at which the students compete in all-India competition is neither desirable from the point of view of either the young students nor for the country's future. We are concerned with the career of those bright candidates who compete in a tough all-India competition. In this background, it is necessary to examine the acts of omission and commission at various levels, the suggestions that have been made and submissions put forth, to consider the issuance of directions for streamlining admissions from the next academic year in MBBS/BDS courses.

8. In Medical Council of India v. Madhu Singh (2002) 7 SCC 258 while making it clear that no admissions can be granted after the scheduled date, which essentially should be the date for commencement of the course, MCI was directed to ensure that the examining bodies fix a time schedule specifying the duration of the course, the date of its commencement and the last date for admission. It was further directed that different modalities for admission can be worked out and necessary steps like holding of examination if prescribed, counselling and the like have to be completed within the specified time and no variation of the schedule so far as admissions are concerned shall be allowed. In case of any deviation by the institution concerned, action as prescribed shall be taken by MCI.

9. The Ministry of Health and Family Welfare, Government of India convened a meeting of the State Health/Medical Education Secretaries and the Vice-Chancellors of the universities of health sciences and as a result of the discussion issued a directive dated 14-5-2003 to the Secretaries of Health and Medical Education in all the States and Union Territories and to all universities awarding medical/dental degrees laying down the policy guidelines on admission of students and other allied matters, inter alia, having regard to the decision in Madhu Singh case (2002) 7 SCC 258 laying down the schedule for completion of the various stages of admission process, commencing of academic session and closure of admissions in courses of medicine and dentistry to be applicable to all medical and dental colleges in the country from the academic session 2003-04 onwards. All State Governments, universities, medical and dental institutions in the country and any other authorities concerned were directed to strictly abide by the time-frame for completion of each of the stages of admission process indicated in the time schedule. It also directed that neither shall any student be admitted in any course of medicine or dentistry after expiry of the last date prescribed for closure of admission in that course nor shall any university register any such admission sought to be made. The State Governments were directed to take all necessary steps to prevent deviation from the prescribed schedule.

10. The directive dated 14-5-2003 also stipulates the cancellation of admission granted after the last date of closure of admission and warns the candidates of the consequences of taking admission after the last date for closure of admissions. Paras 8.4 and 8.5 of the directive read as under:

“8.4. In exercise of the powers conferred by the Hon'ble Supreme Court, the Medical Council of India or the Dental Council of India may direct that any student identified as having obtained admission after the last date for closure of admission be discharged from the course of study; or any medical or dental qualification granted to such a student shall not be a recognised qualification for the purpose of the Indian Medical Council Act, 1956 or the Dentists Act, 1948, as the case may be. The institution which grants admission to any student after the last date prescribed for the same shall also be liable to face such action as may be prescribed by MCI or DCI.

8.5. The time schedule for completion of the admission process as in the annexure shall also be printed in the bulletin of information for the candidates or the prospectus for admission to the course concerned. The candidates shall be clearly warned of the consequences of taking admission in any institution after the last date for closure of admissions.”

11. The time schedule for completion of the admission process for medical and dental courses is as under:

“Schedule for admission First MBBS/BDS course Postgraduate courses Superspeci-ality course All-India quota State quota All-India quota State quota Conduct of entrance examination Month of May Month of May Second Sunday of January Mid-Jan to mid-Feb May-June Declaration of result of qualifying exam/entrance exam By 5th June By 15th June Third week of Feb By 28th February By 30th June First round of counselling/admission 20th to 29th June To be over by 17th July 5th March to 22nd March To be over by 25th April To be over by 25th July Last date for joining the allotted college and course 18th July* 29th July 7th April 1st May 31st July Second round of counselling or allotment of seats from waiting list 1st August to 8th August 25th to 28th August No second counselling No second counselling No second counselling Last date for joining for candidates allotted seats in second round of counselling or from the waiting list 22nd August (seats vacant after this date will be surrendered back to the State/colleges) 30th August After 7th April, vacant seats will stand surrendered back to the States/colle-ges Not applicable Not applicable Commencement of academic session Between 1st August to 31st August 2nd May 1st August Last date up to which students can be admitted against vacancies arising due to any reason 30th September 31st May 30th September

*Note: Heads of the colleges should intimate the vacancies existing after 18th July in respect of the all-India quota of seats to the DGHS latest by 25th of July.”

12. Reference may also be made to notification dated 25-2-2004 issued by the Medical Council of India in exercise of the powers conferred by Section 33 of the Indian Medical Council Act, 1956 (for short “the Act”) with the approval of the Central Government, making the Graduate Medical Education (Amendment) Regulations, 2004, laying down the time schedule for completion of admission process for first MBBS course. It is on the same lines as the aforequoted time schedule. Time schedule (Appendix E) to the Regulations reads as under:

“Appendix E

Time Schedule for Completion of the Admission Process

for First MBBS Course

Schedule for admission Seats filled up by the Central Government through All-India Entrance Examination Seats filled up by the State Governments/institutions Conduct of entrance examination Month of May Month of May Declaration of result of qualifying exam/entrance exam By 5th June By 15th June First round of counselling/admission To be over by 30th June To be over by 25th July Last date for joining the allotted college and course Within 15 days from the date of allotment of seats 31st July Second round of counselling for allotment of seats from waiting list To be over by 8th August Up to 28th August Last date for joining for candidates allotted seats in second round of counselling from the waiting list Within 15 days from the date of allotment of seat (seats vacant after 22nd August will be surrendered back to the States/colleges) 31st August Commencement of academic session 1st of August Last date up to which students can be admitted against vacancies arising due to any reason 30th September”

13. In various States, the first counselling and admissions in respect of State quota seats were not over and many States had not even commenced the process even though second round of counselling for allotment of seats from waiting list for all-India quota becoming vacant, as a result of candidates getting admission under State quota, was to commence on 1st August, to be completed by 8th August. The effect of the aforesaid inaction and also not sending timely intimation to DGHS is to deprive those who are high up in the merit list of All-India Entrance Examination and waiting to get admission in such vacated seats which otherwise would revert back to the State quota. The result is to effectively reduce 15% all-India quota and increase State quota seats. Directions that were issued to get requisite information from various States in respect of holding of counselling, and reporting of vacant seats to DGHS for admissions for 2004-05 have been earlier noticed. As stated above, despite such directions full and complete justice could not be meted out to all meritorious students regarding college of their choice as per their position in the merit list, on account of the time-frame and its all-India consequences on admissions and the possible result of extending the admissions much beyond the schedule date contrary to the aforesaid statutory regulations and resulting in grant of midstream admissions. To an extent possible, the seats of all-India quota would not revert to State quota. It was brought to our notice that in some cases the time schedule is deliberately not adhered to so that more number of seats may revert to State quota. If that be so, we deprecate the practice with a fond hope that such a practice would be discontinued failing which persons responsible therefor will have to face the consequences. Total impartiality is the need of the time and not the so-called loyalty to the State.

14. The academic session commences between 1st August and 31st August and the last date for joining MBBS/BDS courses is 30th August. However, students can be admitted against vacancies arising due to any reason by 30th September. The date 30th September is not for normal admission but is to give opportunity to grant admissions against stray vacancies. The adherence to the time schedule by everyone is paramount for the timely grant of admissions, commencement of academic session and for closure of the admissions after 30th September each year. In fact, the timely holding of 10+2 examination and declaration of its results is also of paramount importance for the entire admission process. If the results of CBSE or other equivalent examinations are not declared well before the commencement of first round of counselling/admission of all-India quota seats i.e 20th June, it is likely to adversely affect the candidates who may otherwise be toppers in the All-India Entrance Examination. A candidate may be in the first 200 positions, out of about 2,00,000 candidates in the merit ranking but if the results of his qualifying examination of CBSE or its equivalent are not available to him or to DGHS responsible for counselling, the candidate would lose chance to get admission in the college of his choice despite his merit position.

15. The Government of India has suggested that for effective implementation of scheme for allotment of 15% all-India seats for medical and dental colleges, it is imperative that all participating State and Union Territory Boards of Secondary Education must declare 10+2 result well in advance, at least one week before the start of first round of counselling. This suggestion was given as the West Bengal Secondary Education Board did not declare 10+2 examination result of their candidates before start of first round of counselling of 15% all-India quota during 2003 and 2004. Due to non-declaration of result, a couple of candidates qualifying in CBSE merit list could not appear in the first round of counselling. In this competitive world, real struggle of students for their career, in almost all the fields, starts after passing 10+2 examination. The result of this examination is important for almost all competitions. Therefore, the timely holding of these examinations and timely declaration of result is of utmost importance, in particular, by all participating States and Union Territories in All-India Entrance Examination for medical and dental seats. It is imperative that the CBSE or equivalent results are declared and the marksheets are made available to the candidates not later than five days before the commencement of first round of counselling. In other words, the marksheets shall be made available to the candidates by 15th June. A candidate may have to travel long distance to participate in the counselling which commences at Delhi from 20th June. In response to directions of this Court suggesting timely holding of 10+2 examination by all States/Union Territories so that the results thereof are not delayed beyond 10th June, at least from the year 2005, the only State Government which has put forth difficulties in so doing is the State of West Bengal.

16. The West Bengal Council of Higher Secondary Education has stated that schedule for 2005 examinations has already been announced on 27-7-2004, according to which, the theory examination for higher secondary conclude on 11-4-2005 and it takes three months therefrom to publish the results. As per this schedule, the results would be declared by 11-7-2005. It also states that if the dates for Board examination for Class XII are advanced, the students will face mental trauma due to lack of preparation. We are not suggesting the advancement of the date for the year 2005 for holding Board examination for Class XII. By maintaining the dates already fixed, if not the result of all students, at least the results of those who participate in the All-India Entrance Examination and are in high merit ranking can be declared and marksheets made available to them by 15th June so as to enable them to participate in the first counselling in all-India quota. Going by the past figures, the candidates requiring such facility may be only about 100. Only the candidates in the merit list up to 2500 may need such a facility and cooperation from the State authorities. From the year 2006, the State Government/West Bengal Council of Higher Secondary Education shall arrange its affairs in such a manner that the examinations are held timely, results are declared by 10th June and marksheets made available to the students by 15th June. The other States/Union Territories would ensure declaration of result by 10th June and availability of marksheets to the students by 15th June from the academic year 2005.

17. Another connected aspect is declaration of result of qualifying examination/entrance examination for State quota seats. The State Governments, as per the time schedule are required to declare the said results by 15th June of every year. The timely declaration of result will enable the students to take a decision about participation in all-India counselling or State counselling. The Central Government has rightly pointed out that due to late declaration of results of State-level entrance examinations, candidates and their parents travel from all over the country to participate in all-India quota counselling which is conducted in Delhi and then travel to allotted medical/dental colleges. Later on, if the candidates get admission in the colleges of their choice in their respective States through State counselling, they have to travel back to the college allotted through all-India quota to get their college-leaving certificate and other documents which are deposited with the allotted college before joining the State college. By timely declaration of the results of the State-level entrance examination i.e by 15th June, which is before the start of all-India quota counselling, candidates and their parents can be saved from facing undesirable hardships.

18. We see no reasons for non-observance of the time schedule which has been provided after discussion with all the States' functionaries. The Chief Secretaries and Heads of Ministries/Departments concerned in participating States/Union Territories shall file affidavits before this Court within four weeks placing on record the timetable in regard to holding of State examination and declaration of results thereof on or before 15-6-2005.

19. For utilisation of all-India quota to its fullest extent, another vital stage of admission process is timely reporting to DGHS by Deans or any other authority, whatever be the designation, responsible for giving information as to the joining and/or non-joining of students after first round of counselling/admission of the State quota seats. The counselling for allocation of seats of all-India quota is conducted by DGHS at Delhi. The reporting to be made to DGHS has to be sincere and accurate as wrong reporting has chain reaction. As per the time schedule, the first round of counselling for the State quota is to be over by 17th July. There is no reason why this time schedule shall not be adhered to. After this counselling, the last date for joining the allotted college and course under the State quota is 29th July. The object of the admission and last date of joining college in State quota before the start of second round of counselling or allotment of seats from waiting list in all-India quota clearly is that the correct factual position as to the availability of the seats ought to be known to the DGHS before the start of second round of counselling. If it is not done, number of seats would be lost to the merit-ranking candidates from All-India Entrance Examination. They, though otherwise entitled, would be deprived of those seats and to that extent all-India 15 per cent quota would stand reduced. Such seats get reverted to State quota for no fault of the candidates on all-India quota, thus, reducing the all-India quota and increasing the State quota. The Heads of the colleges are required to intimate their vacancies existing after 18th July in respect of all-India quota seats to the DGHS by 25th July. This gives about a week to the DGHS before it starts second round of counselling on 1st August. This year (2004) it was found that the time schedule in this regard by most of the States, was not complied with. As per Appendix E to the notification dated 25-2-2004, the first round of counselling/admission of seats filled up by the State Governments/institution is to be over by 25th July. For State quota seats, one week after completion of first round of counselling to join the allotted college is sufficient. The date 29th July, mentioned in the time schedule attached to the directive dated 14-5-2003 shall be suitably changed and the date 25th July shall be mentioned to make it consistent with the date mentioned in the notification dated 25-2-2004. The intimation is required to be sent to the DGHS well before the commencement of second round of all-India quota counselling by it. The details about the vacancy position shall be signed/countersigned by three top functionaries responsible for admission of State quota seats.

20. To an extent possible, all possible facilities shall be afforded to students and their parents. Due advantage can be taken of advanced IT technology. In respect of counselling of all-India quota seats conducted by the DGHS at Delhi, with the advancement of IT technology, it should be feasible to conduct counselling of outstation students by availing the facilities of video-conferencing. It seems that every State capital has the facility of video-conferencing. The use of this facility would save time and money of not only the candidates and their parents but in the long term, it may be beneficial to the DGHS as well. Counselling by video-conferencing can commence from the year 2005, making a beginning from 20-6-2005. Before issue of directions in this regard, we deem it proper to direct that this aspect be examined first by the Ministry of Health, the DGHS and the States/Union Territories' officers in consultation with the officers of National Informatics Centre (NIC) and a report filed thereafter in this Court. Final directions will be issued on consideration of the report.

21. We may also note suggestions of Mr Arun Minocha, father and legal guardian of one of the students that intake of all-India quota shall be increased from 15% to 20% and the number of candidates to be placed on waiting list deserves to be increased from present 70% to 100% so that in case of availability of seats, the same may not go waste and the candidates on merit list are in a position to utilise the all-India quota to the fullest extent. According to him, having regard to the fact that many seats in medical and dental courses, though existing as having been enhanced many years earlier, were not taken into consideration while working out the all-India quota of 15% and the original direction in Dr. Pradeep Jain case (1984) 3 SCC 654 of 30% reduced later to 15% in Dr. Dinesh Kumar case and postgraduate seats having been increased from 25% to 50% and two decades having passed, the all-India quota deserves to be increased. We have no difficulty in accepting the suggestion regarding increase of waiting list from 70% to 100%, since its only effect is a little additional paperwork for the DGHS, without any adverse effect on anybody and possibly the advantage may be to more number of candidates as per their merit position depending upon the availability of seats. Regarding the suggestion for the increase of intake from 15% to 20%, we are of the view that it deserves to be first examined by the Central Government and the DGHS in consultation with States/Union Territories and report filed in this Court within four months so that the issue can be examined with reference to admissions to be made for all-India quota from the academic year 2006-07.

22. Yet another issue is about not taking into consideration, for determining all-India quota, those seats which are created under Section 10-A of the Act. In the writ petition, number of seats which were not taken into consideration have been mentioned. According to MCI, only seats recognised under Section 11 are taken into consideration and not seats which are permitted under Section 10-A of the Act. For deciding this issue, it is necessary to examine the provisions of the Act and the Regulations issued thereunder. Another connected issue also is regarding the establishment/renewal granted to medical and dental colleges including grant of permission to increase intake of the students. There is also the issue about the allocation of seats in respect of which the letter granting permission is issued as per time schedule by the Central Government by 15th July.

23. Section 10-A of the Act which was inserted by the Indian Medical Council (Amendment) Act, 1993 (Act 31 of 1993) with effect from 27-8-1992, makes it imperative to seek permission for establishment of a new medical college, new course of study. In view of this section, with effect from 1-6-1992 prior permission is necessary. Section 10-A, inter alia, provides that notwithstanding anything contained in the Act or any other law for the time being in force—

“(a) no person shall establish a medical college; or

(b) no medical college shall—

(i) open a new or higher course of study or training (including a postgraduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or

(ii) increase its admission capacity in any course of study or training (including a postgraduate course of study or training),

except with the previous permission of the Central Government obtained in accordance with the provisions of this section”.

24. Section 10-A(2)(a) provides that every person or medical college shall, for the purpose of obtaining permission under sub-section (1) submit to the Central Government a scheme in accordance with the provisions of clause (b) and the Central Government shall refer the scheme to the Council for its recommendations.

25. Along with Section 10-A, clause (fa) was also inserted in Section 33 to empower MCI to make regulations to provide for the form of the scheme, the particulars to be given in such scheme, the manner in which the scheme is to be preferred and the fee payable with the scheme under clause (b) of sub-section (2) of Section 10-A.

26. Section 11(1) of the Act, inter alia, provides that medical qualifications granted by any university or medical institution in India which are included in the First Schedule shall be recognised medical qualifications for the purposes of this Act. Section 11(2) provides that any university or medical institution in India which grants a medical qualification not included in the First Schedule may apply to the Central Government to have such qualification recognised, and the Central Government, after consulting the Council, may, by notification in the Official Gazette, amend the First Schedule so as to include such qualification therein, and any such notification may also direct that an entry shall be made in the last column of the First Schedule against such medical qualification declaring that it shall be a recognised medical qualification only when granted after a specified date.

27. In exercise of the powers conferred by Section 10-A read with Section 33 of the Act, MCI made the establishment of new medical colleges, opening of higher courses of study and increase of admission capacity in the Medical Council of India Establishment of Medical College Regulations, 1999. The Regulations, inter alia, provided as a qualifying criterion that the eligible organisation shall abide by the Indian Medical Council Act, 1956 as modified from time to time and the Regulations framed thereunder and shall qualify to apply for permission to establish new medical colleges only if the conditions therein are fulfilled. One of the conditions is that essentiality certificate regarding the desirability and feasibility of having the proposed medical college at the proposed location has been obtained and that the adequate clinical material available as per Medical Council of India requirements has been obtained by the applicant from the respective State Government or the Union Territory Administration. It also provides that the applicant own and manage a hospital of not less than 300 beds with necessary infrastructural facilities and capable of being developed into a teaching institution as prescribed by the Medical Council of India, in the vicinity of the proposed medical college. MCI has also made the establishment of the Medical College Regulations, 1999 in exercise of powers conferred by Section 10-A and Section 33 of the Act, inter alia, prescribing the form of essentiality certificate as a qualifying criterion to make application for permission to establish a medical college. These Regulations stipulate that essentiality certificate in Form 2 regarding no-objection of the State Government/Union Territory Administration for the establishment of the proposed medical college at the proposed site and availability of adequate clinical material as per the Council Regulations, have been obtained by the person from the State Government/Union Territory Administration concerned. The form of essentiality certificate requires a certificate from the competent authority to the following effect:

“It is certified that:

(a) The applicant owns and manages a 300-bedded hospital which was established in….

(b) It is desirable to establish a medical college in the public interest.

(c) Establishment of a medical college at … by (the name of society/trust) is feasible.

(d) Adequate clinical material as per the Medical Council of India norms is available.

It is further certified that in case the applicant fails to create infrastructure for the medical college as per MCI norms and fresh admissions are stopped by the Central Government, the State Government shall take over the responsibility of the students already admitted in the college with the permission of the Central Government.”

28. The time schedule for the receipt of applications for establishment of new medical colleges and processing of the applications by the Central Government and the Medical Council of India is fixed under the schedule to the 1999 Regulations. The said schedule is as under:

“Schedule for Receipt of Applications for Establishment of New Medical Colleges and Processing of the Applications by the Central Government and the Medical Council of India

Stage of processing Last date 1. Receipt of applications by the Central Government From 1st August to 31st August (both days inclusive) of any year 2. Receipt of applications by MCI from the Central Government 30th September 3. Recommendations of the Medical Council of India to the Central Government for issue of letter of intent 31st December 4. Issue of letter of intent by the Central Government 31st January 5. Receipt of reply from the applicant by the Central Government requesting for letter of permission 28th February 6. Receipt of letter from the Central Government by the Medical Council of India for consideration for issue of letter of permission 15th March 7. Recommendations of the Medical Council of India to the Central Government for issue of letter of permission 15th June 8. Issue of letter of permission by the Central Government 15th July

Note: (1) The information given by the applicant in Part I of the application for setting up a medical college that is information regarding organisation, basic infrastructural facilities, managerial and financial capabilities of the applicant shall be scrutinised by the Medical Council of India through an inspection and thereafter the Council may recommend issue of letter of intent by the Central Government.

(2) Renewal of permission shall not be granted to a medical college if the above schedule for opening a medical college is not adhered to and admissions shall not be made without prior approval of the Central Government.”

29. According to Regulation 8(3) of the 1999 Regulations, the permission to establish a medical college and admit students may be granted initially for a period of one year and may be renewed on yearly basis subject to verification of the achievements of annual targets. It shall be the responsibility of the person to apply to the Medical Council of India for the purpose of renewal six months prior to the expiry of the initial permission. This process of renewal of permission will continue till such time the establishment of the medical college and expansion of the hospital facilities are completed and a formal recognition of the medical college is granted. Further admissions shall not be made at any stage unless the requirements of the Council are fulfilled. The Central Government may at any stage convey the deficiencies to the applicant and provide him an opportunity and time to rectify the deficiencies.

30. It cannot be doubted that proper facilities and infrastructure including a teaching faculty and doctors is absolutely necessary and so also the adherence to time schedule for imparting teaching of highest standards thereby making available to the community best possible medical practitioners. It cannot be said that such facilities are not insisted upon for Section 10-A seats. No instance has been brought to our notice where a Section 10-A seat in a government college has not been recognised under Section 11. The all-India quota seats are applicable only to government colleges. In many colleges, full-fledged seats for all intent and purposes insofar as medical education is concerned, whether in a new medical college or in the increased intake in an existing college, are continuing as Section 10-A seats. Prima facie, we see no reason why such seats shall not be taken into consideration for calculating 15% share of all-India quota. The 15% quota seats get substantially reduced by not taking into account Section 10-A seats. We direct the Central Government, DGHS and MCI to examine this aspect in detail and submit a report, on consideration whereof we would finally decide the matter regarding inclusion of Section 10-A seats for working out 15% all-India quota.

31. The time schedule for postgraduate and superspeciality course admissions may also be noted as under:

“Time Schedule for Postgraduate and

Superspeciality Course Admissions

Schedule for admission Postgraduate courses Superspeciality courses All-India quota State quota Conduct of entrance examination Second Sunday of January Mid-Jan to Mid-Feb May-June Declaration of result of qualifying exam Third week of February By 28th February By 30th June First round of counselling/admissions 5th March to 22nd March To be over by 25th April To be over by 25th July Last date for joining the allotted college and course 7th April 1st May 31st July Second round of counselling or allotment of seats from waiting list No second counselling No second counselling No second counselling Last date for joining for candidates allotted seats in second round of counselling or from the waiting list After 7th April vacant seats will stand surrendered back to the States/colleges Not applicable Not applicable Commencement of academic session 2nd May 1st August Last date up to which students can be admitted against vacancies arising due to any reason 31st May 30th September”

32. Having regard to the professional courses, it deserves to be emphasised that all concerned including Governments, State and Central both, MCI/DCI, colleges — new or old, students, Boards, universities, examining authorities, etc. are required to strictly adhere to the time schedule wherever provided for; there should not be midstream admissions; admissions should not be in excess of sanctioned intake capacity or in excess of quota of anyone, whether State or management. The carrying forward of any unfilled seats of one academic year to next academic year is also not permissible.

33. Before we come to the matter of issue of directions, some other small aspects may also be considered. All seats under all-India quota deserve to be fully disclosed and published by a date to be specified by the DGHS so that at a glance, if required, it may be possible to verify whether the said quota has been correctly worked out or not. The States shall file compliance report, in regard to admission, with the DGHS about annual admissions indicating adherence to the schedule and the seats taken into consideration for working out the all-India quota and giving details of other seats. The compliance report shall give details of filling up of seats with names of students admitted and dates of admission. It shall be signed by the Principal/Director or Head of the medical institution by whatever name called and by the Vice-Chancellor. The recalcitrant States, particularly officers, will personally have to face the consequences.

34. It was suggested by Mr Tankha that MCI/DCI and also the colleges should be made answerable to a High-Powered Committee, which may be directed to be constituted, for not following a fair and transparent procedure in their duties and obligations including carrying out inspections and sending reports by MCI/DCI to the Central Government on the basis whereof the requisite recognition is granted and to also look into other medical admissions-related matters and matters relating to the establishment of medical colleges and increase of intake, etc. Various petitions are pending in this Court where grievances have been made in regard to inspections carried out by MCI/DCI and other aspects pointed out by learned Senior Counsel. The suggestion made about constituting a body like ombudsman to which the above authorities may be answerable deserves to be examined in depth by the Ministry of Health and a report submitted to this Court.

35. Having regard to the aforesaid, we issue the following directions:

1. All participating States and Union Territories' Boards of Secondary Education shall declare 10+2 result by 10th June of every year and make available the marksheets to the students by 15th June.

The aforesaid condition would not apply to West Bengal for the year 2005. As already noticed, West Bengal would make available to the students concerned the marksheets by 15-6-2005.

Heads of Boards would be personally liable to ensure compliance.

2. The timetable mentioned in notification dated 25-2-2004 shall be strictly adhered to by all concerned including States and Union Territories and results of State medical/dental entrance examination shall be declared before 15th of June.

3. The States/Union Territories shall complete the admission process of first round of State-level medical/dental college admission by 25th July i.e a week before start of second round counselling or allotment of seats under all-India quota. The correct vacancy position shall be intimated by the Chief Secretary of the State/Union Territory to the DGHS by 26th July. It shall be verified by the Head of the institution/or Head of the medical institution/Health Department of the State.

4. It shall be the responsibility of all concerned including Chief Secretaries of each State/Union Territory and/or Health Secretaries to ensure compliance with the directions of this Court and requisite time schedule as laid down in the Regulations and non-compliance would make them liable for requisite penal consequences.

5. All seats in all-India quota must be fully disclosed giving details of the date of recognition/renewal to DGHS before a date to be notified by DGHS and the same shall be duly published.

6. By 31st October, the States, through the Chief Secretaries/Health Secretaries shall file a report in regard to admissions, with the DGHS giving details about the adherence to a time schedule and admission granted as per the prescribed quota. The recalcitrant States, particularly officers personally will have to face the consequences for violation.

7. The DGHS shall file by 31-1-2005 report in regard to feasibility of conducting counselling through the process of video-conferencing.

8. The DGHS shall file report within three months on the aspect of Section 10-A seats being subjected to 15 per cent all-India quota and about the increase of the quota from 15 per cent to 20 per cent.

9. The DGHS shall also file a report within three months on the aspect of constitution of High-Powered Committee/ombudsman.

10. The seats allotted up to 15th July, shall also be subjected to the respective State quotas.

11. If any private medical college in a given academic year for any reason grants admission in its management quota in excess of its prescribed quota, the management quota for the next academic year shall stand reduced so as to set off the effect of excess admission in the management quota in the previous academic year.

12. The time schedule for grant of admission to postgraduate courses shall also be adhered to.

13. For granting admission, the merit determined by competitive examination shall not be tinkered with by making a provision like grant of marks by mode of interview or any other mode.

14. Time schedule for establishment of new college or to increase intake in existing college, shall be adhered to strictly by all concerned.

15. Time schedule provided in the Regulations shall be strictly adhered to by all concerned failing which the defaulting party would be liable to be personally proceeded with.

16. Copy of the judgment shall be sent to the Chief Secretaries of all the States/Union Territories for compliance.

36. List the case in the third week of February, 2005.