IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.990 of 2009 1. DR.RAJNISH KUMAR, SON OF SHRI RAMJEE PRASAD, R/O SECTOR 12-F, QR. NO. 1026, BOKARO STEEL CITY, P.S. SECTOR 12 (BOKARO), DISTRICT BOKARO (JHARKHAND), 2. DR. ADITYENDRA NATH, SON OF SHRI BISWA NATH PRASAD, R/O LANE NO. 3, NAGENDRA NAGAR, BELA ROAD, MITHANPURA, P.S. BELA, DISTRICT MUZAFFARPUR, 3. DR. GAURAV PRAKASH, SON OF DR. RAI BHANU PRAKASH RUKHAIYAR, R/O MUHALLA SHIVPURI, ANISABAD, P.S. GANDANIBAGH, TOWN AND DISTRICT-PATNA ……… INTERVENERS-APPELLANTS Versus 1. THE STATE OF BIHAR 2. THE SECRETARY – CUM - COMMISSIONER, DEPARTMENT OF HEALTH, MEDICAL EDUCATION AND FAMILY WELFARE, GOVT. OF BIHAR, PATNA, 3. CONTROLLER OF EXAMINATION, BIHAR COMBINED ENTRANCE COMPETITIVE EXAMINATION BAORD, I.A.S. ASSOCIATION BUILDING NEAR PATNA AIRPORT, PATNA …… RESPONDENTS … RESPONDENTS 1ST SET, 4. VIKASH KUMAR RAJ, SON OF SHRI BRAJNANDAN PRASAD, R/O SARDAR PATEL COLONY, SANDALPUR ROAD, P.O. MAHENDRU, P.S. SULTANGANJ, PATNA ……………… WRIT PETITIONER – RESPNDENT 2ND SET. with LPA No.1010 of 2009 VIKASH KUMAR RAJ, SON OF SHRI BRAJNANDAN PRASAD, R/O MOHALLA - SARDAR PATEL COLONY, SANDALPUR ROAD, P.O. MAHENDRU, P.S. SULTANGANJ, PATNA ….. PETITIONER ….. APPELLANT Versus 1. THE STATE OF BIHAR 2. THE SECRETARY – CUM - COMMISSIONER, DEPARTMENT OF HEALTH MEDICAL EDUCATION AND FAMILY WELFARE, GOVT. OF BIHAR, PATNA, 3. THE CONTROLLER OF EXAMINATION, BIHAR COMBINED ENTRANCE COMPETITIVE EXAMINATION 2 BAORD, I.A.S. ASSOCIATION BUILDING NEAR PATNA AIRPORT, PATNA……...RESPONDENTS/RESPONDENTS with LPA No.1142 of 2009 THE CONTROLLER OF EXAMINATION, BIHAR COMBINED ENTRANCE COMPETITIVE EXAMINATION BAORD, IAS ASSOCIATION BUILDING, NEAR PATNA AIRPORT, PATNA….. RESPONDENT NO.3 / APPELLANT Versus 1. VIKASH KUMAR RAJ, SON OF SHRI BRAJNANDAN PRASAD, R/O MOHALLA - SARDAR PATEL COLONY, SANDALPUR, P.O. MAHENDRU, P.S. SULTANGANJ, PATNA ………………. PETITIONER ….. RESPONDENT, 2. THE STATE OF BIHAR, 3. THE SECRETARY – CUM - COMMISSIONER, DEPARTMENT OF HEALTH, MEDICAL EDUCATION AND FAMILY WELFARE, GOVT. OF BIHAR, PATNA …………………… RESPONDENTS / RESPONDENTS with LPA No.1198 of 2009 1. THE STATE OF BIHAR 2. THE SECRETARY – CUM - COMMISSIONER, DEPARTMENT OF HEALTH, MEDICAL EDUCATION AND FAMILY WELFARE, GOVT. OF BIHAR, PATNA …………………………… RESPONDENT …. APPELLANT, Versus 1. VIKASH KUMAR RAJ, SON OF SHRI BRAJNANDAN PRASAD, R/O MOHALLA - SARDAR PATEL COLONY, SANDALPUR, P.O. MAHENDRU, P.S. SULTANGANJ, PATNA ………………... PETITIONER ….. RESPONDENT, 2. THE CONTROLLER OF EXAMINATION, BIHAR COMBINED ENTRANCE COMPETITIVE EXAMINATION BAORD, IAS ASSOCIATION BUILDING, NEAR PATNA AIRPORT, PATNA ……… RESPONDENT/RESPONDENT ----------- (IN LPA No. 990/09) For the Appellants: Mr. Ganesh Pd. Singh, Sr. Advocate, Mr. Manish Kumar, Advocate. For the BCECE Board: Mr. P.K. Shahi, Sr. Advocate, Advocate General with Mr. Vikas Kumar, Advocate. 3 For the State: Mr. S.K. Ghosh, AAG II. (IN LPA No. 1010/09) For the Appellant: Mr. Dhirendra Kumar (Munna), Advocate. For the Respondents: Mr. P.K. Shahi, Advocate General. (IN LPA No. 1142/09) For the Appellant: Mr. P.K. Shahi, Sr. Advocate with Mr. Vikas Kumar, Advocate. For the Respondents: Mr.Dhirendra Kumar(Munna), Advocate. (IN LPA No. 1198/09) For the Appellants: Mr. Vikash Kumar, A.C. to A.G. For the Respondents: Mr. Dhirendra Kumar(Munna), Advocate. ------------- PRESENT- THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR JUSTICE MIHIR KUMAR JHA O R D E R (23.03.2010) As per Dipak Misra, C.J.- This batch of appeals preferred under Clause X of the Letters Patent being against the singular order dated 02.07.2009 passed by the learned single Judge in CWJC No. 3688 of 2009 by the writ petitioner-appellant as well as the respondents therein, assailing the order of the learned single Judge from various spectrums were heard analogously and are disposed of by a common order. 2. Shorn of unnecessary details, the factual exposé is that the writ petitioner after completing his M.B.B.S. Degree from S.M.S. Medical College, Jaipur, Rajasthan in the year 2002 got himself registered as a medical 4 practitioner with the Bihar Council of Medical Registration on 22.12.2006 and thereafter intended to appear in the Post Graduate Medical Admission Test, 2008, conducted by the Bihar Combined Entrance Competitive Examination Board (hereinafter referred to as `the Board’), but could not appear in the same in view of Clauses 6.1 (i & ii) of the prospectus which stipulate for institutional preference. It is worth noting he assailed the aforesaid clause provided for institutional preference by filing CWJC No. 3137 of 2008, which was dismissed vide order dated 19.02.2008. Being dissatisfied with the said order, he preferred LPA No. 381 of 2008 which also stood dismissed by the order dated 14.11.2008 on the ground as the time-schedule fixed for admission, as per the decision rendered by the Apex Court in Mridul Dhar (Minor) and another Vs. Union of India and others, (2005) 2 SCC 65, for the academic session 2008 was over. The said order came to be assailed in S.L.P. (Civil) No. 3232 of 2009 which was dismissed by their Lordships of the Apex Court by order dated 20.02.2009 observing that the question raised in the appeal was left open to be decided in 5 appropriate petition. 3. As the factual matrix would reveal in the year 2009 the writ petitioner intended to appear in the Post Graduate Medical Admission Test, 2009, conducted by the Board but could not apply for such test as the prospectus issued for the said test provided for institutional preference. Being dissatisfied with the aforesaid action of the Board, he invoked the extra-ordinary jurisdiction of this Court contending, inter alia, that the institutional preference granted in favour of the candidates obtaining M.B.B.S. qualification from Medical College of Bihar State tantamounts to 100 percent reservation in favour of the candidates obtaining M.B.B.S. qualification from Bihar State which is violative of Articles 14, 15 and 16 of the Constitution of India. The said stand of the petitioner was resisted by the State Government as well as by the Controller of Examination of the Board contending, inter alia, that the said clause had been included in the prospectus in accordance with the scheme framed by the Apex Court in Saurabh Chaudri and others Vs. Union of India and another, (2003) 11 SCC 146. The learned 6 single Judge adverted to the factual scenario, Clause 6.1 (i & ii) of the prospectus, and eventually came to hold as under: “5. Clause 6.1(i & ii) has been included in the prospectus of the Post Graduate Medical Admission Test, 2009 by the B.C.E.C.E.B. providing for Institutional preference in the light of the scheme framed by the Hon’ble Supreme Court. The Institutional preference, however, does not exceed 50 per cent of the total seats recognized by the M.C.I. as the remaining 50 per cent of the recognized seats are made available by the B.C.E.C.E.B. to C.B.S.E. for being filled up through an open competitive test conducted by the C.B.S.E. in which medical practitioner registered by the M.C.I. passing from Medical Colleges outside the State of Bihar have the liberty to apply for appearance. In my opinion, therefore, Institutional preference provided under Clause 6.1 (i & ii) does not violate any of the Constitutional provisions and the writ application has to be dismissed which is, accordingly, dismissed.” 4. Being of this view, the learned single Judge did not grant the relief to the writ petition. 5. Be it noted, being grieved by the aforesaid, the 7 writ petitioner has preferred LPA No. 1010 of 2009. 6. At this juncture it is apposite to note the learned single Judge took certain other aspects into consideration, namely, paragraph 18 of the counter affidavit, the recommendations made by the Board for admission against which approval from the Medical Council of India was wanting and certain courses which were yet required to be recognized by the Medical Council of India. After noting the said facts and referring to the decisions rendered in Medical Council of India Vs. State of Karnataka and others, A.I.R. 1998 SC 2423 and Medical Council of India Vs. Madhu Singh and others, (2002) 7 SCC 258, the learned single Judge came to hold as follows: “7. Having heard counsel for the parties I express my inability to accede to the request made by the learned Advocate General. In view of the provisions contained in Section 10A of the Medical Council of India Act it is evident that the B.C.E.C.E.B. should have made recommendation for admission only against seats which are duly recognized by the M.C.I. and not against seats which are likely to be recognized in future. It is evident from the 8 counter affidavit that the recommendations have also been made against seats which are yet to be recognized by the M.C.I., such recommendation is absolutely illegal and in teeth of the statutory provision. Reference in this connection may usefully be made to the judgment of the Hon’ble Supreme Court in the case of Medical Council of India Vs. State of Karnataka and others, reported in A.I.R. 1998 Supreme Court 2423 and in the case of Medical Council of India Vs. Madhu Singh and others, reported in (2002) 7 Supreme Court Cases 258. 8. As recommendation/admission have been made on seats which are yet to be recognized by the M.C.I., such recommendation and admission is absolutely illegal and the illegality having been brought to the notice of this Court by the B.C.E.C.E.B. itself by filing counter affidavit, such illegality cannot be allowed to be perpetuated and, accordingly, it is directed that the B.C.E.C.E.B. should not only cancel the recommendation made against a seat which is yet to be recognized by the M.C.I. but should also ask the Medical College concerned to cancel the admission of those who have been recommended and admitted against seats/course which are yet to 9 be recognized by the M.C.I. Necessary action in terms of this order be taken by the B.C.E.C.E.B. as early as possible, in any case within a period of one month from today. 9. In terms of the judgment of the Hon’ble Supreme Court in the case of Mridul Dhar (Minor) and another vs. Union of India and others (supra) the admission process has to be completed within a time schedule. Thus, it is obvious that only those seats which have got recognition until the last date as per the time schedule fixed by the Hon’ble Supreme Court should be considered for recommendation and admission in terms of the result obtained in the Test. Any seat/course recognized by the M.C.I. after the closure of the admission as per the time schedule fixed by the Hon’ble Supreme Court should be considered for recommendation and admission only in the next year.” 7. We have heard Mr. Dhirendra Kumar (Munna), learned counsel for the appellant in LPA No. 1010/2009, Mr. P.K. Shahi, learned Advocate General with Mr. Vikas Kumar in LPA No. 1142/2009 and LPA No. 1198/2009, and Mr. Ganesh Prasad Singh, learned Senior Counsel 10 along with Mr. Manish in LPA No. 990/ 2009 for the appellants respectively and, as far as the respondents are concerned, in the case of the case of the appellant-writ petitioner we have heard Mr. P.K. Shahi, learned Advocate General and, in other cases, their respective counter-parts. 8. As far as the case of the appellant-writ petitioner is concerned, we are of the considered opinion the view expressed by the learned single Judge is in accord with the decision rendered in Saurabh Chaudri (supra). Their Lordships in paragraphs 72 and 73 have held as follows: “72. Having regard to the facts and circumstances of the case, we are of the opinion that the original scheme as framed in Dr Pradeep Jain case [Pradeep Jain (Dr) v. Union of India, (1984) 3 SCC 654 : AIR 1984 SC 1420] should be reiterated in preference to Dr. Dinesh Kumar (II) case (Dinesh Kumar (Dr) (II) v. Motilal Nehru Medical College, (1986) 3 SCC 727)]. Reservation by way of institutional preference, therefore, should be confined to 50% of the seats since it is in public interest. 73. For the purpose of selecting the candidates, 11 it is necessary to hold an all-India entrance examination by an impartial and reputed body. We must, therefore, lay down the criteria therefor. AIIMS in terms of an order passed by this Court has been conducting the said examination. It may continue to do so unless a competent body is created by the Central Government in terms of a parliamentary Act or otherwise. All expenses for conducting such examination shall be borne by the Central Government which would also provide the requisite infrastructure therefor. One test shall be held for all the students taking admission throughout the country. This order is passed keeping in view the fact that now one common entrance test is held for admission against 25% of all-India quota and other tests are being held by the respective universities. Disparities in such tests should be done away with and merit of the students should be judged on the basis of one test held therefor.” 9. In view of the aforesaid, the appellant-writ petitioner, who has graduated in medicine from Rajasthan, could not have appeared in the examination meant for State quota. As far as the examination in respect of All- India quota is concerned, he chose not to appear and, 12 therefore, his case is totally bereft of merit and, accordingly, the learned single Judge has rightly dismissed the same. Resultantly, we concur with the conclusion arrived at by the learned single Judge as far as the case of the appellant-writ petitioner is concerned. 10. As far as other aspects are concerned, it is highlighted by Mr. Shahi, learned Advocate General and Mr. Ganesh Prasad Singh, learned Senior Counsel that the learned single Judge has travelled beyond the controversy and issued directions against the authorities and also against the students, who were not parties in the writ petition. 11. Having heard learned counsel for the parties, we have no scintilla of doubt that when the controversy was not raised and persons likely to be affected were not before the Court, the same should not have been adverted to and a sweeping order should not have been passed. Thus, we have no other option but to set aside the aforesaid directions. 12. In the result, LPA No. 1010/2009, preferred by the appellant-writ petitioner, stands dismissed and the 13 other appeals, namely, LPA Nos. 990/2009, 1142/2009 & 1198/2009 are allowed. However, in the facts and circumstances of the case there shall be no order as to costs. Patna High Court. The 23rd March, 2010. NAFR. Dilip ( Dipak Misra, C.J. ) ( Mihir Kumar Jha, J. )