1. Heard on I.A No. 12356/2016 for amendment in the petition.
2. For the reasons stated in the application, the same is allowed.
3. Necessary amendments be incorporated and amended copy of the petition be supplied to the learned counsel for the respondents within seven days.
4. The petitioners have filed these petitions challenging the legality and validity of Madhya Pradesh Sahayata Naa Panea Wale Niji Chikitsa Mahavidyalayon Avam Dant Chikitsa Mahavidyalayon Mai M.B.B.S Tatha B.D.S Pathyakram Mai Pravesh Ki Patrata, Pravesh Ki Reeti Tatha Sthano Ke Arakshan (Aniwasi Bhartiya Ke Liyea Sthano Ka Aarakshan Sammilit Hai) Ke Liyea Viniyam, 2016.
5. Admit.
6. Issue notice after amending the petition to the respondents as well as to the newly added respondents, on both counts, on payment of P.F within seven days.
7. Also heard on the question of interim relief.
8. On the last date of hearing the learned Govt. Advocate appearing for the State had prayed for time to submit a reply to the ad-interim prayer made by the learned counsel for the petitioners praying for staying the applicability of the provisions of reservation while making selection and allocation to the NRI seats to various Medical and Dental Colleges that is being made pursuant to the National Eligibility Entrance Test (NEET) conducted by the C.B.S.C in accordance with the MCI Regulation and the order passed by the Supreme Court in this regard.
9. The learned Senior Counsel for the petitioners submits that the examination is over and now the respondents propose to apply the provisions of reservation while making admission on the seats reserved under the NRI quota on the basis of the impugned regulation that has been notified on 27.8.2016 It is stated that the respondent authorities, totally ignoring the provisions of the M.P Niji Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007 (hereinafter referred to as the Rules of 2007), and the M.P Private Medical and Dental Post Graduate Course Entrance Examination Rules 2008 (hereinafter referred to as ‘the Rules of 2007’) framed thereunder are proceeding to apply the impugned regulation.
10. It is submitted by the learned Senior Counsel for the petitioners that there is no provision providing for making reservation in the seats reserved for the NRI quota either under the Rules or in the Act. It is submitted that, on the contrary, the provisions of Rule 2(h-a) and 4(2) of the Admission Rules of 2008, expressly provide that the NRI quota is excluded from the applicability of the provisions of reservation. It is submitted that in the circumstances as the regulation, which provides for reservation in the NRI quota, is contrary to the Act of 2007 and the Rules of 2008 framed thereunder, the same cannot be permitted to be applied by the respondents and as the matter is urgent, an interim order be passed staying the applicability of the provisions of reservation to the allocation and admission being made in the seats reserved for NRI.
11. The respondent State has filed a return opposing the interim relief. The learned Dy. Advocate General appearing for the State opposes the interim prayer made by the petitioners on the ground that the Rules of 2008 have no applicability to MBBS and BDS Courses which are now fully governed by the impugned Regulation of 2016. It is also submitted that Section 8 of the Act of 2007, gives power to the State to make reservation in the admission made to the private and unaided professional educational institutions and provision of section 8 does not exclude the seats reserved for NRI and, therefore, the respondent authorities in exercise of the powers under Section 8 and 13 of the Act of 2007 have notified the regulations. It is submitted that as the respondent authorities have the right and authority to deal with the entire field of admission relating to the private unaided professional educational institutions, therefore, no fault can be found with the impugned regulations.
12. We have heard the learned counsel for the parties on the limited prayer for grant of ad-interim relief.
13. From a bare perusal of the Act of 2007, it is apparent that the Act has been framed by the State for the purpose of regulating admission, fixation of fee as well as reservation of seats in private professional educational institutions in the State of M.P From a perusal of the Admission Rules of 2008 it is also clear that the Rules have been framed by the State of M.P in exercise of powers under section 12 of the Adhiniyam prescribing eligibility of admission, manner of admission and allocation of seats in private unaided professional educational institutions including NRI candidates.
14. Rule 2(g-1) of the Admission Rules of 2008, gives the definition of the word “course” in respect to which the Rules apply and by way of illustration specifically states that the word “course” includes courses like B.E Electrical, B.E Mechanical, M.C.A, M.B.A, D.Pharma, MBBS, BDS, etc.
15. Rule 4(2) of the Rules of 2008, states that in every institution and in its each branch 16%, 20% and 14% of the seats in the “General pool” shall be reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Categories respectively.
16. The term ‘General pool” has been defined in the Admission Rules of 2008, in Rule 2(h-a) in the following terms:-
“2(h-a) “General pool” means 85% seats of the sanctioned intake per course, where in the total sanctioned intake 5% seats are being filled up by Non-resident Indian candidates and 10% seats under institutional preference category, and it shall mean 95% of the sanctioned intake per course, where the total sanctioned intake 5% seats are being filled up by Non-resident Indian candidates only, and when no admissions are being done under Non-resident Indian and under institutional preference category then it shall mean 100% of the sanctioned intake per course.”
17. From a conjoint reading of the aforesaid provisions it is apparent that the Rules of 2008 are applicable to MBBS and BDS Courses and that the provisions for making reservation of seats for Scheduled Castes and Scheduled Tribes is restricted to the General pool which specifically and clearly excludes the seats that are to be filled up by NRI candidates and institutional preference category.
18. A perusal of section 13 of the Act of 2007, provides that the State may by notification in the Official Gazette make regulation consistent with this Act and the rules made thereunder.
19. From a perusal of the aforesaid statutory provisions, it is clear that the Act of 2007 and the Rules of 2008 framed thereunder specifically provide that the provision of reservation would not be applicable to the NRI category and that the power of the State to frame regulations under Section 13 of the Act, can be exercised only in a manner which is consistent with the Act and the Rules made thereunder.
20. Prima facie from a perusal of the Rules, Act and Regulations, it appears that the provisions in the impugned regulation providing for reservation for the SC, ST and OBC categories in the NRI quota is inconsistent and contrary to the provisions of the Act of 2007 and Rules 2008.
21. In the circumstances, as an interim measure it is ordered that the provisions of reservation would not be applied to the admissions being made in the seats reserved under the NRI quota till the next date of hearing without leave of this court.
22. The learned Dy. A.G for the State prays for and is granted time to file a detailed return and prays that the return filed by them, may be treated as a reply to the ad-interim relief prayed for by the petitioners.
23. Prayer is allowed.
24. Two weeks' time to file a detailed return is granted to the learned Dy. Advocate General.
25. As prayed for by the learned counsel for the parties, list immediately after two weeks.
26. C.C as per rules.
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