1. Heard.
2. The appeals have been preferred by six students-appellants whose admissions have been held to be illegal by the Single Bench as they were admitted by the institution without appearing in the Rajasthan Pre Medical Test (hereinafter referred to as ‘the rpmt, 2008’) conducted by the Rajasthan University of Health Sciences (hereinafter referred to as ‘the University’). The College has also come up in appeal in order to cater to the interest of the students.
3. Facts in short are that for admission in mbbs Course in the State of Rajasthan, rpmt, 2008 was conducted by the University. It is not in dispute that the four appellants did not appear in the rpmt, 2008 and two of them did not clear it. However, the appellant-College gave them admission on 30.9.2008 on the basis of the marks obtained in 10+2 Examination. It is not in dispute that 85% seats of the institution in question were to be filled by rpmt and 15% of the seats were to be filled by way of NRI quota by the institution. The institution had not opted for common entrance test conducted by the Federation of Private Medical Colleges. It had opted to the aforesaid mode of admission in medical college.
4. The Single Bench has opined that the admissions given on the basis of 10+2 Examination were per se illegal and dismissed the writ application with respect to the six appellants. Aggrieved thereby, the intra-court appeals have been preferred by six students and the College.
5. Mr. Maninder Singh, Senior Counsel appearing with Mr. Sunny Bhasin for students, Mr. Sanjeev Prakash Sharma, Senior Counsel appearing with Mr. Sandeep Singh Shekhawat for the College have submitted that the admission was rightly given to the six students in view of the State Government letter dated 30.5.2003 which enabled the institution to fill up the seats after the cut-off date. Reliance has also been placed on the communication dated 16.9.2009 of the Medical Council of India to the Secretary, Medical & Health Department, Government of Rajasthan mentioning that it might be open to the State Government to fill up the seats which remain vacant after the list of Common Entrance Test is exhausted by way of merit of the candidates on the basis of 10+2 Examination. Reliance has also been placed on the provision of Ordinance 272 contained in Chapter-XXXV of the Handbook of the University of Rajasthan prescribing criteria of eligibility and the proviso thereof. Submission is that both the modes are permissible to be adopted for admission i.e.10+2 as well as Common Entrance Test i.e.RPMT, 2008. Once the seats have remained vacant, out of 85% they cannot be permitted to go waste. Consequently, the first proviso of the Ordinance 272(III) containing the eligibility criteria comes into play. Thus, admissions were rightly given and the State Government has withdrawn its communication dated 30.5.2003 in the year 2009 after the admission had already been given to the six appellants. They have also submitted that the seven NRI seats have been surrendered by the institution in lieu of the admissions which were given to the appellants. They have also submitted that since the students have obtained admission in the year 2008 they could not be said to be at fault. Once they have pursued their studies, their admission may not be disturbed now after three years.
6. Shri N.A Naqvi, Additional Advocate General appearing on behalf of the State, Mr. R.A Katta appearing on behalf of Rajasthan University of Health Sciences, Mr. Angad Mirdha appearing on behalf of Medical Council of India and Mr. Rajendra Soni appearing on behalf of the intervenor have submitted that admissions were given in flagrant violation of the directions issued by the Medical Council of India (mci) and contrary to the Regulation 5 of the MCI. The letter of the State Government does not authorize the institution to give admissions in violation of the Regulations framed by the mci, even as per Instructions of RPMT and the provision of Ordinance 272, both modes cannot be permitted to be availed otherwise it would create anarchy. There has to be one set of procedure for admissions in the medical college. Once some of the students have failed in RPMT and some of them did not appear in RPMT, they could not have been admitted in the medical college. Submissions raised by the appellants are thus liable to be rejected. There is no infirmity in the decision making process of the Single Bench. Hence, no case for interference is made out in the intra-court appeals.
7. Main question for consideration is whether admissions could have been given by the College to six appellants without appearing or clearing RPMT, 2008 by them. MCI has framed Regulations on Graduate Medical Education, 1997 providing modes of selections of the students. Regulation 5 is quoted below:—
“5. Selection of Students: The selection of students to medical college shall be based solely on merit of the candidate and for determination of the merit, the following criteria be adopted uniformly throughout the country:
(1) In states, having only one Medical College and one university board/examining body conducting the qualifying examination, the marks obtained at such qualifying examination may be taken into consideration.
(2) Ins states, having more than one university/board/examining body conducting the qualifying examination (or where there is more than one medical college under the administrative control of one authority) a competitive entrance examination should be held so as to achieve a uniform evaluation as there may be variation of standards at qualifying examinations conducting by different agencies;
(3) Where there are more than one college in a state and only one university/board conducting the qualifying examination, then a joint selection board be constituted for all the colleges;
(4) A competitive entrance examination is absolutely necessary in the cases of Institutions of All India character;
(5) Procedure for selection to MBBS course shall be as follows:—
(i) In case of admission on the basis of qualifying examination under clause (1) based on merit, candidate for admission to MBBS course must have passed in the subjects of Physics, Chemistry, Biology & English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry, and Biology at the qualifying examination as mentioned in clause (2) of regulation 4. In respect of candidates belonging to Scheduled Castes, Scheduled Tribes or Other Backward Classes, the marks obtained in Physics, Chemistry and Biology taken together in qualifying examination be 40% instead of 50% as above;
(ii) In case of admission of the basis of competitive entrance examination under clause (2) to (4) of this regulation, a candidate must have passed in the subjects of Physics, Chemistry, Biology and English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry and Biology at the qualifying examination as mentioned in clause (2) of regulation 4 and in addition must have come in the merit list prepared as a result of such competitive entrance examination by securing not less than 50% marks in Physics, Chemistry and Biology taken together in the competitive examination. In respect of candidates belonging to Scheduled Castes, Scheduled Tribes or other Backward Classes the marks obtained in Physics, Chemistry and Biology taken together in qualifying examination and competitive entrance examination be 40% instead of 50% as stated above:
Provided that a candidate who has appeared in the qualifying examination the result of which has not been declared, he may be provisionally permitted to take up the competitive entrance examination and in case of selection for admission to the MBBS course, he shall not be admitted to that course until he fulfils the eligibility criteria under regulation 4.”
8. A bare reading of the Regulation 5 makes it clear that in case of States having only one Medical College and one university board/examining body conducting the qualifying examination, the marks obtained at such qualifying examination i.e.10+2 may be taken into consideration. In States where there are more than one medical college under the administrative control of one authority, a competitive entrance examination should be held so as to achieve a uniform evaluation and where there are more than one college in a State and only one university/board conducting the qualifying examination, then a joint selection board be constituted for all the colleges. Admittedly, in the State of Rajasthan, there are more than one college, as such, Regulation 5(1) is not applicable. Regulation 5(2) is applicable in the State of Rajasthan, which provides that a competitive entrance examination should be held for admission to the MBBS Course and it is admitted fact that in the instant case the College in question had opted for 85% of the seats to be filled by way of RPMT in consonance with Regulations framed by the MCI. The RPMT Information Booklet (RPMT 2008) has been issued by the University which contains instructions and eligibility. The eligibility prescribed in the said booklet is quoted below:—
“III ELIGIBILITY
No candidate shall be allowed to be admitted to the Medical curriculum of Bachelor of Medicine and Bachelor of Surgery (M.B.B.S) Course until:—
1. He/She shall complete the age of 17 years on or before 31st December, 2008 (D.O.B 31 Dec. 1991 or earlier).
2. He or she has passed the qualifying examination as under:—
The Senior Secondary Examination or the Indian School Certificate Examination which is equivalent to 10+2 after a period of 12 year study. The last 2 years study must comprise of Physics, Chemistry, Biology with English as compulsory subjects.
Provided also that:—
In case of admission on the basis of competitive entrance examination the candidate shall have to obtain not less than 50% marks in Physics, Chemistry, Biology (Zoology and Botany) taken together in the rpmt-2008 with at least 33% marks individually in each subject on the result of which the candidate's admission of MBBS/BDS courses are regulated.
(i) In respect of candidate belonging to SC/ST and OBC the marks obtained in Physics, Chemistry & Biology taken together in RPMT-2008 shall be 40% instead of 50%. However, the candidate has to secure at least 33% marks individually in each subject for admission to MBBS/BDS courses. (as per rpmt-2008 Committee dated 22-11-2001 and judgment of Hon'ble Rajasthan High Court pronounced on 5-3-2002 in Sunita Meena v. State of Rajasthan case).
Provided further that a candidate who has appeared in the qualifying examination, the result of which has not been declared is to be provisionally permitted to take up the competitive entrance examination and in case of selection for admission to the MBBS/BDS Course, he/she shall not be admitted to that course until he/she holds the eligibility criteria.
(ii) In the RPMT-2008, there will be three papers, one each from Physics, Chemistry and Biology of 300 marks each. Paper from Biology shall comprise of Section ‘A’ Botany of 150 marks and Section ‘B’ Zoology of 150 marks of the standard of qualifying examination.”
9. The aforesaid eligibility criteria makes it clear that when admission is given on the basis of Competitive Entrance Examination, the candidates shall have to obtain not less than 50% in Physics, Chemistry, Biology (Zoology and Botany) taken together in the RPMT, 2008 with at least 33% marks individually in each subject on the basis of result of which the candidate's admission of MBBS/BDS courses are regulated. With respect to the vacant seats left in the Colleges when the competitive entrance examination is held, there is a provision in para V(xi) of RPMT Booklet 2008 which is quoted below:—
V.(xi). The vacancies due to not joining of the candidates within the stipulated time shall be filled by re-allotment by the Undergraduate Admission Board on the basis of merit cum preference and the resultant vacancies or such vacancies which could not be filled, by taken the candidates from the waiting list on merit cum preferences at the time of interview. The candidates can also give their names for waiting list for any vacancies to be created in future. Last date of admission shall be as per Hon'ble Supreme Court judgment dated 11-09-2002. The waiting list of second counselling will not be more than 25% of that particular category.”
10. It is apparent from the aforesaid provision that if the vacancies remained vacant due to non-joining of the candidates within the stipulated time, the same shall be filled by re-allotment by the Undergraduate Admission Board on the basis of merit cum preference and waiting list of second counselling will not be more than 25% of the particular category. Thus, waiting list to fill those seats also prepared on the basis of competitive entrance examination. There is no scope to fill vacant seats on the basis of 10+2 Examination.
11. Ordinance 272(III) of the University of Rajasthan provides eligibility to the effect that the candidate shall complete 17 years age on or before she qualify for admission to the MBBS course. He or she has passed the qualifying examination in the senior secondary examination. The eligibility criteria alongwith proviso (i) and (ii) are quoted below:—
“O.272.III ELIGIBILITY.
No candidate shall be allowed to be admitted to the Medical curriculum of 1 Bachelor of Medicine and Bachelor of Surgery (m.b.b.s) Course until:
(1) He/She shall completed the age of 17 years on or before 31 of the year of admission to the MBBS course.
(2) He or She has passed the qualifying examination as under:
(a) The Senior Secondary Examination of the Indian School Certificate Examination which is equivalent to 10 + 2 after a period of 12 years study, the last 2 years of study must compromise of Physics, Chemistry, Biology with English as compulsory subject. Note: Where the Course content is not as prescribed for 10 + 2 educational structure of the National Committee, the candidate will have to undergo period of one year Pre-professional training before admission to the Medical Colleges. The Pre-professional course may be conducted either at a Medical College or a Science College.
(3) All those students who are bonafied residents of Rajasthan but are studying in other states will also be eligible for appearing at Pre-Medical Test.
Provided also that:
(i) In case of admission on the basis of qualifying examination under clause (1) based on merit, a candidate for admission to MBBS Course must have passed in the subject of Physics, Chemistry, Biology and English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry and Biology at the qualifying examination. In respect of candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes, the marks obtained in Physics, Chemistry and Biology taken together in qualifying examination be 40% instead of 50% as above.
(ii) In case of admissions on the basis of competitive entrance examination, a candidates must have passed in the subject of Physics, Chemistry, Biology and English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry & Biology at the qualifying examination and in addition must have come in the merit list as a result of such competitive entrance examination by securing not less than 50% marks in Physics, Chemistry & Biology taken together in the competitive examination. In respect of candidate belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes, the marks obtained in Physics, Chemistry and Biology taken together in qualifying examination and competitive entrance examination be 40% instead of 50% as stated above. Further that a candidate who has appeared in the qualifying examination, the result of which has not been declared, he may be provisionally permitted to take up the competitive entrance examination and in case of selection for admission to the mbbs Course, he shall not be admitted to that course until he holds the eligibility criteria.
… … …”
12. It is apparent from the aforesaid eligibility criteria that proviso (i) cannot come into play in case when admission is on the basis of competitive entrance examination i.e.RPMT Once seats are to be filled on the basis of competitive entrance examination, it is not open at all to give admission on the basis of 10+2 examination. Regulation 5(2) framed by the MCI quoted above makes it clear that in case of more than one college in the State, the method of admission has to be competitive entrance examination. On conjoint reading of the aforesaid provisions, it was not open to the college to give admissions to six appellants on the basis of qualifying examination of 10+2. Both the modes of selection as against 85% seats were not permissible to be adopted. As such, in our considered opinion, the Single Bench was right in holding that the admissions given to the six appellants were per se illegal and unauthorized act of the college. In the matter of admissions in the medical colleges, the standard prescribed and the mandatory regulations are to be observed and once mode of RPMT is prescribed, the seat are to be filled by that mode. The Apex Court has also considered this question in Ravindra Kumar Rai v. State of Maharashtra, (1998) 3 SCC 183, in the State of Maharashtra, qualifying examination used to be conducted by the Board and there were several medical colleges affiliated to various universities. The Apex Court considered the Regulations on Graduate Medical Education, 1997 framed by the MCI and laid down that the case falls in Regulation 5(2) and their Lordships laid down that admission to medical colleges in such a State has to be on the basis of common entrance examination. Merely the fact that number of students passing from one of the said Boards was very small, was inconsequential. The plea taken that the process would be difficult one or would delay the admission was rejected by their Lordships of the Apex Court. The Apex Court has laid down thus:—
“6. We may at the outset point out that inasmuch as there are three Boards in Maharashtra State which conduct the qualifying examination and inasmuch as there are several universities, the State of Maharashtra would clearly fall under sub-clause (2) of Regulation 5 made by the Medical Council and not under subclause (3). The contention for the State that candidates from CBSE Board are small in number does not appeal to us. Inasmuch as there is no dispute that more than one Board conducts the qualifying examination and the universities are more than one in number, sub-clause (3) of Regulation 5, in our view, is not attracted. It is also not possible for the State to say that conducting a common entrance examination will delay the admission process or that it will be extremely difficult to conduct the examination. In fact the statement in the counter-affidavit to the effect that the State has been conducting a common examination for 1,80,000 at the 10+2 level in the 7 divisional boards would itself show that the State is capable of conducting a common entrance examination for admission to medical colleges, even if the number of students is large. We may also say that in several States, common entrance examination was being conducted even before 1997 when these Regulations made by the Medical Council came into force. In fact in some States, entrance examination is conducted jointly for engineering and medical students also. We fail to see why the State of Maharashtra should say that it will be an arduous task.
8. We next come to the contention of the respondent based upon Article 371(2)(c) of the Constitution of India. That article permits the Governor to require an equitable arrangement to be made for providing adequate facilities for “technical education and vocational training” in respect of the areas Vidarbha, Marathwada and the rest of Maharashtra. Assuming that medical education falls within the scope of the said article, we do not think that compliance with Regulation 5(2) of the Regulations made by the Medical Council of India will in any manner come in the way of giving effect to the provisins of Article 371(2)(c).”
13. Our conclusion is fortified by the aforesaid dictum of the Apex Court.
14. Reliance has been placed by appellants on the communication of the Deputy Secretary, Medical & Health Department, Government of Rajasthan dated 30.5.2003 which mentions that admission have to be given as per the law laid down by the Apex Court in various decisions till the cut-off date and thereafter, seats are to be filled by the institutions. The said communication does not deal with question whether institutions have to give admissions on the basis of 10+2 examination or RPMT and in view of mandatory regulations of MCI, the provisions of the ordinance and RPMT Instructions, the said letter could not have been utilized to give admissions. The aforesaid communication was not dealing with the mode of filling of the seats, it could not have clothed any right to the institution to fill the seats in flagrant violation of the procedure envisaged by the MCI, Ordinance and instructions contained in RPMT. It passes apprehension that how without appearing/clearing in the RPMT six appellants could have secured admissions. It was stated that some of the students have appeared in the RPMT subsequently, but none of them cleared it. Merit cannot be compromised.
15. We are not at all impressed by the submission that by now students have completed 2 or 3 years, their admission should not be disturbed. It is apparent from the communications issued by the MCI in 2008 itself that MCI required the institution to disclose the marks obtained by the six appellants in the common entrance examination as they were not disclosed to the MCI. It is also apparent from the aforesaid communication that the college played hide and seek and did not initially furnish the marks of these students to the MCI. Marks were not disclosed pursuant to letter of MCI dated 13.8.2009 written with reference to the letters dated 10.11.2008, 6.7.2009, 17.7.2009, and 6.8.2010 of the MCI. It is mentioned in the communication that vide communications dated 10.11.2008 and 17.7.2008 the college was required to furnish information/documents with respect to marks of the rpmt, 2008 in respect of the students whose names appear at serial No. 124 to 127 of the list. It was also mentioned in the said communication that as the institution has failed to provide the information as desired by the Council in respect of the six students even during personal appearance of the Registrar-cum-OSD of the College on 10.8.2009 The letter also contains that two of the students failed namely, Ankit Mehra, Anubhiti Bhardwaj, who have secured marks 359/900 and 325/900 respectively. It was mentioned in the communication that six students have not secured required percentage of marks in RPMT 2008 and they should be discharged as per Regulation 5.5(ii) of the Graduate Medical Education, 1997 and the request was made to the College to discharge the students. Thus, it is apparent that the MCI had objected initially and had taken decision way back in 2009 and issued direction to discharge them. Thus the college and students very well knew as to the illegality of the admissions. Merely the fact that they have continued to obtain instructions cannot validate their per se illegal admission in the course to which they were at all not entitled. Admissions obtained in such a manner cannot be permitted to be legalized. Reiteration was made in the communication dated 4.2.2010 (Ann.R/1/2) of the MCI to discharge the six appellants and the direction issued to immediately discharge them. Vide communication dated 10.11.2008 and 6.7.2009 complete information was sought with respect to the six appellants in the prescribed format. However, the requisite information was not furnished by the College inspite of various reminders. Thus, action of the college being impermissible and college had not furnished information and suppressed it for various reasons that admissions were given in surreptitious manner contrary to the Regulations in unauthorized manner.
16. Coming to the submission that the college has surrendered seven seats of NRI quota as per common order dated 26.5.2009 of Single Bench of this Court in rendered Civil Writ Petition no. 13419/2009 (Miss Divya Gupta v. Rajasthan University of Health Sciences) and other connected writ petitions wherein grievance of the petitioners was that despite they were much higher in the order of merit in the list prepared on the basis of RPMT, 2008, persons lower in merit were given admissions on 30.9.2008 The Single Bench of this Court directed the admission of the three petitioners to be made in MBBS Course for academic session 2009-10 by respondents nos. 4 and 5. As a matter of fact, in the aforesaid writ application the dispute was totally different. The decision of MCI was not in question. The admission of six appellants were not cancelled.
17. The interim order has also been relied upon which has been passed on 8.7.2010 in the case by the Single Bench of this Court. The Court has directed in view of the offer made by the learned counsel for the college, to keep six seats vacant from NRI quota for the academic session 2010- 11. Thus the interim order was passed on the prayer made by the college to keep six seats of MBBS Course in academic session 2010-11 vacant without increasing intake capacity. The aforesaid stand of the college projected at the time of passing of the interim order was to save its own skin and no right accrues to the appellant or to the college on the basis of concession given by the college appearing through counsel. Question is of legality of the admission which has been dealt with at the time of final haering. Thus, we find that no sustenance can be derived from concession recorded in the interim order for which offer was made at the instance of the college.
18. Reliance has been placed by the appellants on decision of the Apex Court in Association of Management of Unaided Private Medical & Dental College v. Pravesh Niyantran Samiti, (2005) 13 SCC 704, on an interim order passed in 2005, the Apex Court has observed that admission to MBBS/BDS courses should be on the basis of merit and merit alone and in order to ensure that no seat go waste, any seat remain unfilled out of the mangement quota till 27.9.2005 due to non-reporting of the students can be filled up by the management though again on the basis of merit. The interim order was passed in the year 2005 thus cannot be said to be applicable to the appellants in 2008. In view of the clear regulations the said decision is of no avail to the appellants and college in question were not parties to the aforesaid cases, particularly in view of the fact that the interim order was passed taking care of the situation prevailing in 2005.
19. Reliance has also been placed by appellants on decision of the Apex Court in P.A Inamdar v. State of Maharashtra, (2005) 6 SCC 537 wherein the Apex Court, with respect to the appropriation of quota by the State and enforcement of its reservation policy, has observed that the States have no power to insist on seat sharing in unaided private professional educational institutions by fixing a quota of seats between the management and the State. The State cannot insist on private educational institutions which receive no aid from the State to implement State's policy on reservation for granting admission on lesser percentage of marks. The said observation of the Apex Court is of no avail in the instant case as the institution had agreed for 85% of its seats to be filled through rpmt 2008. Thus, in view of regulation 5(2) of the MCI Regulations, no help can be derived on the basis of the decision of the Apex Court in P.A Inamdar (supra). It was also submitted on the basis of the decision of the Apex Court in Association of Management of Unaided Private Medical & Dental College (supra), that after exhausting list provided by the State, which conducted the Pre Medical Test, the management has adopted a fair and transparent procedure following merit for filling up the remaining 21 unfilled seats. Once decision had been taken to fill up 85% seats by way of RPMT, it was not open to the College to resort to the said method.
20. Reliance has also been placed on the decision of the Apex Court in Monika Ranka v. Medical Council of India, (2010) 10 SCC 233, wherein the dispute arose that appellants joined mbbs Course and completed one year of their course, but subsequently, the college declared that they failed to secure minimum percentage of marks. In that case, it was contended by the appellants that the marks secured by them in the entrance examination were not made known to them at the time of admission. The High Court held the admission to be illegal and irregular. The Apex Court in the facts of the case held that there was nothing on record to show that the appellants were informed about their marks in the entrance examination. Considering the case of the appellants a special one, they were permitted to continue their studies and their results were ordered to be declared. However, the Apex Court further observed that the equal number of students as admitted regularly, to be reduced from the management quota for the next academic session. The facts are quite different in the instant case and thus, the decision is of no avail in the instant case.
21. In Vishveswaraiah Technological University v. Krishnendu Halder, (2011) 4 SCC 606, the Apex Court has laid down that the need to fill the seats cannot be permitted to override the need to maintain quality of education. Creeping commercialization of education in the last few years should be a matter of concern for the central bodies, states and universities. While prescribing the eligibility criteria for admission to institutions of higher education, the State/University cannot adversely affect the standards laid down by the Central Body/AICTE. The term “adversely affect the standards” in Preeti Srivastava (Dr.) v. State of M.P, (1999) 7 SCC 120 refers to lowering of the norms laid down by the central body/AICTE. Prescribing higher standards for admission by laying down qualifications in addition to or higher than those prescribed by aicte, consistent with the object of promoting higher standards and excellence in higher education, will not be considered as adversely affecting the standards laid down by the central body/AICTE. Thus standards cannot be diluted and admission are to be given strictly in accordance with the Regulations and the same cannot be given go by.
22. Thus we are not inclined to accept the prayer of the appellants that they may be allowed to continue as their admission was in flagrant violation of the Regulations of the MCI and Instructions of RPMT, 2008. The College has acted in an illegal and unauthorized manner and did not comply with the directions of the MCI and 2008 & 2009 issued to it in connection with six students/appellants.
23. In view of the aforesaid, we find no merit in the intra court appeals. The same are hereby dismissed. Stay applications are also dismissed.