IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1533 of 2008 (M/S) Km. Himani Sharma & others ...…………. Petitioners Versus State of Uttarakhand and another ...…………. Respondents ALONG WITH 2) Writ Petition No. 1545 of 2008 (M/S) Manoj Singh Mehta ...…………. Petitioner Versus State of Uttarakhand and another ...…………. Respondents 3) Writ Petition No. 1550 of 2008 (M/S) Ms. Nuzhat Zahin ...…………. Petitioner Versus State of Uttarakhand and others ...…………. Respondents 4) Writ Petition No. 1557 of 2008 (M/S) Ms. Kirti Arora ...…………. Petitioner 2 Versus State of Uttarakhand and others ...…………. Respondents 5) Writ Petition No. 1559 of 2008 (M/S) Km. Srishti Jaina ...…………. Petitioner Versus State of Uttarakhand and others ...…………. Respondents 6) Writ Petition No. 1569 of 2008 (M/S) Jayant Singh ...…………. Petitioner Versus State of Uttarakhand and others ...…………. Respondents 7) Writ Petition No. 1570 of 2008 (M/S) Km. Nida Nafees ...…………. Petitioner Versus State of Uttarakhand and others ...…………. Respondents 8) Writ Petition No. 1581 of 2008 (M/S) Vinay Dwivedi ...…………. Petitioner Versus 3 State of Uttarakhand and others ...…………. Respondents 9) Writ Petition No. 1595 of 2008 (M/S) Raj Chandra Singh Kharayat ...…………. Petitioner Versus State of Uttarakhand and another ...…………. Respondents 10) Writ Petition No. 1597 of 2008 (M/S) Kapil Upadhyay ...…………. Petitioner Versus State of Uttarakhand and others ...…………. Respondents 11) Writ Petition No. 1606 of 2008 (M/S) Manvendra ...…………. Petitioner Versus State of Uttarakhand and others ...…………. Respondents 12) Writ Petition No. 1618 of 2008 (M/S) Jigyasa Agarwal ...…………. Petitioner Versus State of Uttarakhand and others 4 ...…………. Respondents 13) Writ Petition No. 1627 of 2008 (M/S) Ms. Surabhi Singh ...…………. Petitioner Versus State of Uttarakhand and others ...…………. Respondents 14) Writ Petition No. 1629 of 2008 (M/S) Ashita Aggarwal ...…………. Petitioner Versus State of Uttarakhand and others ...…………. Respondents 15) Writ Petition No. 1630 of 2008 (M/S) Kumari Anu Goel ...…………. Petitioner Versus State of Uttarakhand and another ...…………. Respondents AND 16) Writ Petition No. 1659 of 2008 (M/S) Ravinder Singh Mer ...…………. Petitioner Versus State of Uttarakhand and others 5 ...…………. Respondents Mr. M.S. Pal, Sr. Advocate assisted by Mr. D.N. Sharma, Advocate Mr. V.K. Kohli, Sr. Advocate assisted by Mr. I.P. Kohli, Advocate Mr. B.D. Upadhyay, Mr. Siddhartha Sah, Mr. Syed Nadim, Mr. G.C. Kandpal, Mr. T.A. Khan, Mr. C.P. Pant, Mr. Bipin Mohan Pingal, Mr. Deep Chandra Joshi, Mr. K.S. Bora, Mrs. Anjali Bhargava, Mr. Pradeep Joshi, Mr. Raman Kumar Sah and Mr. Pooran Singh Rawat, Advocates for the petitioners. Mr. Sudhanshu Dhulia, Sr. Advocate assisted by Mr. K.P. Upadhyay, Addl. Chief Standing Counsel for the respondent State. Mr. Rajendra Dobhal, Advocate for the Uttarakhand Forest Hospital Trust Medical College, Haldwani. Mr. Arvind Vashistha, Advocate for the Intervener (Union of India). Mr. H.M. Bhatia, Advocate for Ms. Ishita Gupta, and Mr. Ravi Bahulkar, Advocate for Ms. Kopal Khanna and Ms. Shivali Singh (the candidates who are admitted vide impugned order challenged by the writ petitioners). Hon’ble Prafulla C. Pant, J. In all the above writ petitions, the admissions made in the Uttarakhand Forest Hospital Trust Medical College, Haldwani, vide Government Order dated 30th August 2008, for M.B.B.S. course 2008-09, against NRI quota, are under challenged. In the writ petition Nos. 1533 (M/S) of 2008; 1550 (M/S) of 2008 (petitioner’s combined rank 651); 1559 (M/S) of 2008; 1570 (M/S) of 2008; 1618 (M/S) of 2008; 1581 (M/S) of 2008; 1627 (M/S) of 2008 and 1630 (M/S) of 2008, the petitioners claiming themselves to be candidates belonging to the category of sponsored NRI, and placing reliance on the terms mentioned in the corrigendum issued by the Medical College on 14th August 2008, have sought their admissions for aforesaid course. And, in Writ Petition Nos. 1545 (M/S) of 2008 (combined merit ranking 352); 1557 (M/S) of 2008 (combined merit ranking 333); 1606 (M/S) of 2008 (combined merit ranking 182); 1595 (M/S) of 2008 (combined merit ranking 214); 1597 (M/S) 6 of 2008 (combined merit ranking 200); 1629 (M/S) of 2008 (combined merit ranking 264); 1630 (M/S) of 2008 (combined merit ranking 317) and Writ Petition No. 1659 (M/S) of 2008 (combined merit ranking 203), the petitioners have claimed themselves to be higher in merit in the UPMT Examination 2008, to those admitted by the State Government (against the NRI quota), and sought their admission to fill the seats for which no NRI candidate is available, as per the original terms mentioned in the advertisement dated 27.07.2008, issued by the Medical College. 2) Heard learned counsel for the petitioners; Mr. Sudhanshu Dhulia, Sr. Advocate assisted by Mr. K.P. Upadhyay, Addl. Chief Standing Counsel for the respondent State; Mr. Rajendra Dobhal, Advocate for the Uttarakhand Forest Hospital Trust Medical College, Haldwani; Mr. Arvind Vashistha, Advocate for the Intervener (Union of India); Mr. H.M. Bhatia, Advocate for Ishita Gupta and Mr. Ravi Bahulkar, Advocate for Ms. Kopal Khanna and Ms. Shivali Singh (the candidates who are admitted vide impugned order challenged by the writ petitioners). 3) The background of the case is that the Uttarakhand Forest Hospital Trust Medical College, Haldwani, District Nainital, is run by a Trust (in which almost all Trustees are the ex-officio Bureaucrats and the College is funded by the State Government). It is pertinent to mention here that in Writ Petition No. 5951 (M/B) of 2004, Himalayan Institute Hospital Trust Medical College Vs. State of Uttaranchal 7 (2004) 2 Uttaranchal Cases 1291, a Division Bench of this Court held that it is illegal to provide NRI quota to a medical college funded by the Government and denying the same to a private medical college (petitioner of said writ petition) and it was further held that Forest Hospital Trust Medical College be declared as Government medical college. However, said judgment appears to have been challenged by the State Government before the Apex court, and stayed. 4) This Court is also conscious of the fact that the admissions in the medical colleges must be over by 30th September as directed by the Apex court in Medical Council of India Vs. Madhu Singh; (2002) 7 Supreme Court Cases 258 and Neelu Arora and another Vs. Union of India and others; (2003) 3 Supreme Court Cases 366. 5) From the pleadings of the petitioners it is clear that Uttarakhand Pre Medical Test 2008 was held on 30th May 2008. A Government Order was issued on 23rd July 2008, prescribing the procedure for admissions in the aforesaid medical college for its MBBS course for the year 2008-09, which provided that out of the total 100 seats, 15 seats would be filled from amongst the Non Resident Indians (NRIs) and in case said seats remained un-filled, the same would be filled from amongst the candidates who deserve as per the merit list of UPMT 2008. It was required under said Government Order that the candidates selected under the category would be required to pay U.S. $ 12000 per annum or in terms of Indian Currency Rupees 6,00,000/- per annum. On 27th July 2008, an advertisement was issued 8 by the Medical College for counseling under NRI quota. In said advertisement it was provided that the NRI seats would be filled from amongst members of NRI and if unfilled the same would be filled from the candidates of UPMT. It was required that the candidates (of UPMT) must have secured at least 50 per cent marks in UPMT 2008. A fresh advertisement was issued on 14.08.2008, whereby a fresh date for counseling was published and it was stated that sponsored NRI candidates can also be permitted to fill the seats and only if neither NRI nor sponsored NRI candidates are available, then seats can be filled from the candidates of UPMT 2008. It was mentioned that the candidates of NRI and sponsored NRI were required to have 50 per cent marks in their 10+2 examination. It appears that yet another advertisement was issued on 20th August 2008, extending last date of submission of applications to 27th August 2008. According to the petitioners, shockingly, vide impugned order dated 30th August 2008, a list was sent by the State Government vide Government Order No. 3022 / X-3-2008- 09(8) / 2004 T.C. dated 30th August 2008, the State Government directed the Medical College to admit fifteen candidates namely (1) Saad Mohammad Shakir (an NRI) (2) Ankita Debrani (3) Kopal Khanna (4) Sakshi Bhatt (5) Suchita Pathak (6) Arunima Saini (7) Ishita Gupta (8) Sobha Tiwari (9) Jagdish Joshi (10) Hemant Prakash (11) Samridhi Gairola (12) Tanoj Tiwari (13) Dikshya Maikhuri (14) Kritika Bhatt and (15) Sibali Singh in the Medical College. It is alleged by the writ petitioners that the candidates admitted by the Government were totally in violation of the terms mentioned in the advertisement and 9 the prospectus of the Medical College giving a total go bye to the merit list of UPMT 2008. It was further alleged that the admitted candidates did not fulfill the conditions required for the NRI quota. 6) As far as the direction to admit Saad Mohammad Shakir, an NRI, is concerned, with regard to him it is not challenged by any of the petitioners that he is not an NRI candidate. As to the remaining 14 candidates, the petitioners have challenged their admissions. In the supplementary affidavit filed in Writ Petition No. 1550 (M/S) of 2008, on the basis of the information received under Right to Information Act, 2005, photo copies of the documents relating to the 14 candidates are given which shows their merit rank, as under: Sl. No. Name of candidate combined merit ranking in UPMT 2008 15. Shivali Singh 619 14. Kritika Bhatt 1269 13. Dikshya Maikhuri (not appeared in UPMT?) 12. Tanoj Tiwari 2795 3. Kopal Khanna 430 11. Samridhi Gairola 617 10. Hemant Prakash (not appeared in UPMT?) 4. Shakshi Bhatt 3519 7. Ishita Gupta 654 9. Jagdish Joshi 1703 5. Suchita Patkak 868 8. Sobha Tiwari 2274 6. Arunima Saini (not appeared in UPMT?) 2. Ankita Debrani 2024 10 7) The second supplementary affidavit filed in Writ Petition No. 1550 (M/S) of 2008, Ms. Nuzhat Zahin Vs. State and others, further shows that under the Right to Information Act, she is given information that after the expiry of last date for receiving applications under the sponsored quota, 07 applications were received and their names are included in the impugned admission list. They are Samridhi Gairola, Tanoj Tiwari, Kritika Bhatt, Dikshya Maikhuri, Ishita Gupta, Shakshi Bhatt and Jagdish Joshi. 8) Learned counsel for the writ petitioners of Writ Petition Nos. 1545 (M/S) of 2008; 1558 (M/S) of 2008; 1608 (M/S) of 2008, 1595 (M/S) of 2008; 1599 (M/S) of 2008; 1629 (M/S) of 2008; 1630 (M/S) of 2008 and 1659 (M/S) of 2008 argued that it was not open for the petitioners even to permit NRI sponsored candidates, as there was no mention of their entry in the earlier advertisement dated 27.07.2008. However, learned counsel for the respondents drew attention of this Court to the copy of the prospectus of the Medical College, which is annexed by the writ petitioners themselves in the writ petitions, which shows that even at the time of the first advertisement for counseling it was provided that if no NRI candidate is available, the same would be filled from amongst the sponsored NRI candidates, and if they are also not available seats would be filled from the candidates of UPMT 2008, as per their merit. The selection criteria given in said prospectus shows a hypothetical example clarifying the allotment process, as under: 11 Type of applicant Assumed no. of available seats Assumed no. of qualified / allotted seats Assumed no. of remaining seats Remarks NRI 15 05 10 10 seats available for NRI sponsored applicants NRI Sponsored 10 Available after allotment to NRI 07 03 03 seats available for UPMT 2008 applicants UPMT 2008 03 03 Nil --- 9) Learned counsel for the writ petitioners in Writ Petition No. 1533 (M/S) of 2008; 1550 (M/S) of 2008; 1570 (M/S) of 2008; 1618 (M/S) of 2008; 1581 (M/S) of 2008; 1627 (M/S) of 2008; 1630 (M/S) of 2008 argued that their applications were under the category of the NRI sponsored candidates and their claim cannot be ignored. They further pleaded that the admission from the impugned list are arbitrary. In this connection they drew attention of this Court to the fact that four admitted candidates through the impugned list namely Shakshi Bhatt, Ankita Debrani, Jagdish Joshi, Kritika Bhatt did not even possess the 50 per cent prescribed minimum marks in UPMT examination. Said fact has been stated in Para 11 of the Writ Petition No. 1550 (M/S) of 2008. The copies of the applications of the admitted candidates through the impugned list which is annexed with the supplementary affidavit (after receiving the same under Right to Information Act, 2005) shows that the forms of the following candidates relating to sponsorship by NRI were blank – (1) Dikshya Maikhuri 12 (2) Tanoj Tiwari (3) Samridhi Gairola (4) Hemant Prakash (5) Jagdish Joshi (6) Sobha Tiwari (7) Arunima Saini (8) Shakshi Bhatt and (9) Ishita Gupta. Nor the above forms were accompanied with required U.S. $ 300 draft required to be submitted with the application. As such, the above named candidate could not have been admitted under NRI sponsored quota. Their UPMT merit has also been mentioned above. As such, after going through the contents of the affidavits and the annexures filed by the writ petitioners, it is clear that the admissions vide Government Order dated 30.08.2008 of above mentioned candidates are illegally. 10) On behalf of the respondent State Principal Secretary, Medical and Health, filed short counter affidavit stating that he is not concerned with the admissions made in the Medical College and the Government Order was not passed by him. The impugned Government Order dated 30th August 2008, shows that it was issued by Secretary, Forest, to Government of Uttarakhand. Mr. R.K. Mishra, Additional Secretary, Department of Forest and Environment, filed a short counter affidavit in the Writ Petition No. 1533 (M/S) of 2008, in which he has made averments in its Para 5 to 9, as under: 5. That at the very outset it is most respectfully stated that there has been some deviations in process of admission by the Respondents but it has not caused over all prejudice to any one as right from the beginning it was the endeavour and intention of the Respondents that in case NRI candidate is not available against NRI 13 seats then NRI sponsored or UPMT candidates would be admitted who are from Uttarakhand. It was with the intention and motive that admissions have been granted in NRI quota. 6. That it is true that as per the terms and conditions of advertisement the NRI seats would go in the following manner. Firstly to the NRI candidates secondly to NRI sponsored candidates and in case no NRI or NRI sponsored candidates is available then it would go to UPMT candidates in accordance with their merit. 7. That for the 15 NRI seats only one namely Saad Mohammad Shakir applied as NRI candidate and was granted admission. For the remaining seats applications were called from NRI sponsored candidates and regarding this suitable amendment was made in the G.O. dated 23.07.2008. Consequent to the advertisement 36 candidates applied, including the NRI candidate namely Saad Mohammad Shakir for which there is no controversy. 8. That now amongst these 36 NRI candidates the relevant merit could not be judged in as much as they were from different boards and hence there was a draw of lots for these 35 candidates. On the draw of lots 14 candidates who succeeded in getting in lots combined with one NRI candidate was included in the list. This list was published on 30.08.2008 of 14 the 15 candidates. A true copy of list of these 15 candidates dates 30.08.2008 is being filed herewith and marked as Annexure No. SCA- 1 to this short counter affidavit. 9. That the criteria for NRI quota was they should belong to State of Uttarakhand and since the fee structure had already been reduced from six lakh rupees to fifteen thousand rupees per annum under this quota also. The candidates taking admission under NRI quota have to execute a bond that they will serve for five years in the remote areas of State of Uttarakhand in State Medical Health services. In the above counter affidavit filed on behalf of the State Government it has been stated that by lots the admissions were made, vide impugned order. Neither that kind of procedure is prescribed in the advertisement nor in the prospectus it is so disclosed. On the part of the Government making admissions by lots that too mainly of those candidates who did not qualify the conditions required for the admission is arbitrary and illegal. In the counter affidavit filed on behalf of the respondent Uttarakhand Forest Hospital Trust Medical College, Mr. B.S. Karki, Deputy Manager (Personnel) it has been admitted that the State Government directed the Medical College to make admission vide order dated 30th August 2008, and out of the 15 mentioned in the list, 10 have turned up for admission before the interim stay order granted by this Court. But, it has not been stated that the admissions which were directed to be made vide impugned 15 order dated 30th August 2008, were in terms of the conditions mentioned in the advertisement or the prospectus. 11) Before disposing of this writ petition, this Court would have liked to give sufficient time to the candidates admitted vide impugned order as they are the affected persons. In many of these writ petitions, they are arrayed as party only three of them are represented through their counsel before this Court namely, Kopal Khanna, Ishita Gupta and Shivali Singh. Ishita Gupta is a candidate who has applied as a sponsored NRI candidate, while Shivali Singh and Kopal Khanna have applied under UPMT 2008 category. Learned counsel for the writ petitioners contended that Ishita Gupta who applied under the category of sponsored candidate submitted her sponsorship form after the expiry of the last date of the application. But, keeping in view the direction of the Apex court in the case of Medical Council of India Vs. Madhu Singh (supra) and Neelu Arora Vs. Union of India (supra), this Court has to dispose of these writ petitions so as to give sufficient time to the Medical College to complete the admission process by 30th September 2008. 12) It is also pertinent to mention here that the Government Order dated 01.09.2008, issued by the Government of Uttarakhand, whereby the fee of NRI quota candidates has been reduced from Rs. 6,00,000/- per annum to mere Rs. 15,000/- per annum, has further made the admissions ridiculous under the NRI category, as their admissions have been made equated to the candidates who 16 were selected through UPMT 2008, within the 85 per cent quota. 13) Before concluding, this Court thinks it just and proper to mention here that an affidavit has been filed on behalf of the intervener (Union of India), by Additional Director General, Medical Examination Cell, and an application moved on behalf of the intervener has been made directing the Medical College to fill the 15 per cent All India quota. The issue of 15 per cent All India quota is not in question before this Court in any of the writ petitions. Nor is it clear whether CBSE while holding its PMT examination had included for Uttarakhand Forest Hospital Trust Medical College showing the seats for which the candidates appeared. Apart from this after the Apex court has stayed judgment of this Court passed in Writ Petition No. 5951 (M/B) of 2004, whereby this Court declared NRI quota illegal, it may not be proper on the part of this Court to direct not to fill NRI quota and to treat it all India quota. 14) In the above circumstances, having heard learned counsel for the parties, this court disposes of all the above 16 writ petitions, with following directions: 1. All the admissions made vide impugned Government Order dated 30th August 2008, against NRI quota, in the Uttarakhand Forest Hospital Trust Medical College, Haldwani (except to the extent of admission of Saad Mahammad 17 Shakir, an NRI, at Sl. No. 1), are hereby quashed. 2. The aforesaid Medical College is directed to make admissions in unfilled seats of NRI quota by advertising fresh date for UPMT 2008 candidates for submission of their applications, and counseling be done strictly in terms of advertisement dated 14.08.2008, and the terms mentioned in the prospectus of the Medical College and the Government Order dated 23.07.2008. 3. Only those NRI sponsored candidates shall be eligible to participate whose applications were received in pursuance to earlier advertisement within last date and fulfill all conditions. 4. All the 14 candidates whose admissions are quashed by this judgment, may also participate in the counseling provided they fulfill the conditions for seats against NRI quota, and shall be considered as per merit within their category. 5. The admission process should be completed in all respect by 30th of September 2008. 6. Though reduction of fee from Rs. 6,00,000/- per annum to Rs. 15,000/- per annum is very strange, but since nobody has challenged the reduction made vide Government Order dated 01.09.2008, as 18 such, this Court leaves it open to the authorities concerned to charge the fee as provided in said Government Order. 15) With the above directions, all the above writ petitions and applications moved therein, including that of the intervener stand disposed of. Registry is directed that copy of this order be issued to the parties, who apply for it, by tomorrow i.e. 20th September 2008. (Prafulla C. Pant, J.) Dt.: September 19, 2008 H.Negi