wp-7799-10-final 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7799 OF 2010 Ms. Priyanka Dattatray Bamane ) Aged 17 years, Occupation -Student ) through her father and legal guardian ) Mr. Dattatray Baburao Bamane ) R/at Post Shirval, Taluka Khandala ) District Satara, Maharashtra 412 801 ).. Petitioner Versus 1) The State of Maharashtra ) through its Department of Medical Education ) through the Assistant Government Pleader ) Appellate Side, High Court, Bombay. ) 2) The Director of Medical Education & Research ) having his address at St. George Hospital ) Compound, Mumbai 400 001. ) 3) The Association of Management of Unaided ) Private Medical & Dental Colleges, Maharahtra ) (AMUPMDC), having his office address at ) Shreeji House, 75, Mint Road, Fort ) Mumbai 400 001. ) 4) The Competent Authority ) The Association of Management of Unaided ) Private Medical & Dental Colleges, Maharahtra ) (AMUPMDC), having his office address at ) Shreeji House, 75, Mint Road, Fort ) Mumbai 400 001. ) 5) The Dean ) Smt.Kashibai Navale Medical College and ) General Hospital, having its address at Narhe ) Pune 41. ) 6) The Dean, Ahmednagar Medical College ) having its address at Vilad Ghat, Vadgaon Gupta ) Ahmednagar, Maharashtra 411 111 ) wp-7799-10-final 2 7) The Dean, K.J. Somaiya Medical College ) Eastern Highway, Sion, Mumbai 400 022 ) 8) The Dean, Annasaheb Chudaman Patil ) Memorial College ) having its address at Jawahar Soot Girni ) Sakri Road, Dhule, Maharashtra 424 001 ) 9) The Dean, Terna Medical College ) having its address, Sector 12, Phase II, Nerul ) Navi Mumbai, Maharashtra 400 706 ) 10) The Dean, V.P. Dental College ) having its address, Kavalpur, Taluk Miraj ) Dist. Sangli, Maharashtra 416 306 ) 11) Pravesh Niyantran Samiti ) (Admission Monitoring Committee) ) through its Secretary, having its address at ) Room No.305, 3rd Floor, Government Polytechnic ) Building, 49, Ali Yawar Jung Marg, Bandra (East)) Mumbai 400 051. ) 12) The Dean, Nashik District Maratha Vidya ) Prasarak Samaja’s Medical College ) having its address, Vasantdada Nagar, Adgaon ) Nashik 422 003, Maharashtra ) 13) Mr. Kadam Akshay Patil ) having his c/o address at Ahmednagar Medical ) College (Padmashri Dr.Vithalrao Vikhe Patil ) Medical College), Vilad Ghat, Vadgaon Gupta ) Ahmednagar 414 111 ) 14) Ms. Kumbale Neha Dayanand ) having her c/o address at K.J. Somaiya College ) & Research Centre, Eastern Highway, Sion ) Mumbai 400 022. ) 15) Mr. Yogesh Nishad ) having his c/o address at Terna Medical College ) & Hospital, Sector 12, Phase II, Nerul ) Navi Mumbai 400 706 ) wp-7799-10-final 3 16) Mr. Tushar Deshmukh ) having his c/o address at Smt.Kashibai Navale ) Medical College & General Hospital, Narhe ) Pune-41. ) 17) Maharashtra University of Health Sciences ) having its address at Vani-Dindori Road ) Mhasrul, Nashik 422 004 ) 18) Medical Council of India ) having its address at Pocket 14, Sector-8 ) Dwarka Phase I, New Delhi 110 077 ).. Respondents Mr. Ulhas G. Kerkar i/b Mr.Victor K. Fernandes for the Petitioner. Mr. R.P. Behere, Additional Government Pleader, for Respondent Nos.1 and 2. Mr. N.H. Seervai, Senior Advocate, with Mrs.Chandana Salgaonkar for Respondent Nos.3 and 4. Mr. V.P. Malvankar for Respondent No.5. Mr. S.V. Marne for Respondent No.6. Mr. Rishit Badiani i/b Hariani & Co. for Respondent No.7. Mr. M.D. Naik for Respondent No.11. Mr. Tejas Dande for Respondent No.13. Mr. Raunak Shah for Respondent No.16. Ms. Simran Puri for Respondent No.18. CORAM : MOHIT S. SHAH, C.J. AND S.J. KATHAWALLA, J. Judgment reserved on : 18th April 2011 Judgment pronounced on : 09th June, 2011 JUDGMENT (Per Chief Justice) This is an unfortunate case where a less meritorious student than the petitioner, a student with 136 marks at the Common Entrance Test as against 137 marks obtained by the petitioner at the same test, secured admission to the first year MBBS course in respondent No.6 College. The petitioner moved this Court on 29th September 2010 but by wp-7799-10-final 4 the time all the relevant facts could come on record and the parties completed their pleadings and made their oral submissions through their respective learned counsel, the cut off date of 30th September 2010 had already gone past. This Court, therefore, noted in the order dated 5th October 2010, that this unfortunate situation arose because students, who had already secured admissions to seats in Government Medical Colleges did not give up their entitlement to secure admissions to the private unaided medical colleges till the third round of counselling, with the result that the seats were later on treated as vacant and taken out of the pool of seats to be filled in by respondent No.3 herein -Association of Management of Unaided Private Medical and Dental Colleges. One such seat reserved for NT-1 category then became available to the individual unaided private medical college in Pune-respondent No.6. This private college did not notify the vacancy on its website nor did it advertise the vacancy in any newspaper from Pune, but had notified the vacancy in a newspaper from Nagpur long before respondent No.3 Association had declared the vacancy. Respondent No.13 applied in response to that advertisement and secured admission to the first year MBBS course, leaving the petitioner at a disadvantage. 2. It is necessary to examine the relevant clauses in the scheme prepared for admissions to private unaided medical colleges, which have been invoked by the Association and respondent No.6- College. Admission Procedure 3. From the affidavit in reply filed on behalf of the Director of Medical Education & Research (respondent No.2), Association of Management of Unaided Private Medical and Dental Colleges, Maharashtra (respondent No.3) and the Competent Authority of the said wp-7799-10-final 5 Association (respondent No.4) as well as the Dean, Ahmednagar Medical College (respondent No.6) it transpires that the Selection Process is as under :- Whilst there is a Centralised Admission Process being undertaken by the Director of Medical Education for admissions to seats in the first year MBBS course in the Government Medical Colleges and in the First Year BDS Course in Government Dental Colleges in the State, there is another Centralised Admission Process for admissions to the first year MBBS course in the private medical colleges and to the 1st year BDS course in private dental colleges in the State which is being undertaken by respondent No.3 Association. The Final Revised Scheme for Centralised Admission Process for unaided private medical and dental colleges, in so far as it is relevant for the purposes of this petition, reads as follows. 4. The Final Revised Scheme for Common Admission Process (as approved by this Court’s order dated 10th August, 2006). This Scheme will operate subject to the Legislation of either the Central Government or the State Government. The admissions to every Private Educational Institution conducting Health Science courses in the State of Maharashtra, aided or unaided, as also minority or non minority shall be carried out as under:- (a) All the admissions to each and every seat save and except the seats reserved for the children or wards of Persons of Indian Origin or Non Resident Indian or Foreign Students (which in any case shall not be in excess of the 15% of the total approved intake capacity of such Institution) shall be granted only, and only, on the basis of the merit position secured by the concerned student at the Common Entrance Test conducted by an Association formed by the Institutions conducting a Health Science Course in the same discipline. At present “Association of Management of Unaided Private Medical & Dental Colleges, Mumbai”, is conducting such Common Entrance Test and is therefore, hereinafter referred to as ‘such Association’. However, it will be open for any such wp-7799-10-final 6 Private Educational Institution to opt for the Common Entrance Test conducted by the State as also to be a part of admission process conducted by the State, as held by the Hon’ble Division Bench of this Hon’ble Court in Writ Petition (Lodging) No.930 of 2006 as per order dated 20th April, 2006. It is made clear that this option so provided is subject to the order that may be passed by the Hon’ble Supreme Court in this regard, in the pending proceedings arising out of the aforesaid Order of the Hon’ble Division Bench. (b) Allotment of each and every seat from and out of such Institutions shall be granted through a Centralised Admission Process (Single Window System) for the three rounds conducted in a fair and transparent manner by the aforesaid Association of Management. If any Professional College chooses not to admit from the Centralised admission process (Single Window System) conducted by the Association then that college must necessarily admit from the Centralized Admission Process (Single Window System) conducted by the State. (c) The Centralized Admission Process shall be conducted by the aforesaid Association of Management and in its absence by the State, in a computerized manner on the basis of the option forms submitted by the students in triplicate indicating choices course-wise/discipline-wise, college-wise and category-wise. Such option forms may also contain other requisite information including the income group of the parents of the students. (d) In case such admission process is conducted by such Association :- (i) One set of final merit list declared by the aforesaid Association (in case such Association has conducted the CET) along with its soft copy shall be submitted within one week of its declaration by the Association to the Admission Monitoring Committee ( Pravesh Niyantran Samiti) for publication thereof, in addition to its publication by such Association. The admission Monitoring Committee (Pravesh Niyantran Samiti ) shall, immediately on its receipt, display the same on its website. (ii) One set of all such option forms received by such an Association along with a soft copy of total data collected of such option forms electronically by such an wp-7799-10-final 7 Association shall be submitted by such an Association to the aforesaid Admission Monitoring Committee (Pravesh Niyantran Samiti) within one week from the last date of submission of such option forms. The Association shall also furnish to such Admission Monitoring Committee (Pravesh Niyantran Samiti) category-wise detailed information as to the total intake capacity of each and every such Institution to which such admissions are to be granted. (iii) After duly processing these option forms such Association shall prepare a list of provisional admissions proposed to be granted to such Institutions and within three days of such preparation shall submit to the Admission Monitoring Committee (Pravesh Niyantran Samiti) with a soft copy thereof in a sealed cover, all the relevant papers of the proposed admissions to be granted to various such Institutions, category-wise, institution-wise, course of study- wise/discipline-wise. The information shall clearly state the full name of the students, requisite particulars as to the marks obtained by the student at the Common Entrance Test and other necessary particulars as may be required by such admission Monitoring Committee (Pravesh Niyantran Samiti). (iv) Solely for the sake of ensuring merit based selection and transparency in the admission process, the Association shall simultaneously also submit all the aforesaid information to the State Government through the Secretary, Medical Education and Drugs Department for the purpose of publishing the same on their Website. This will not in any way amount to a waiver of the Association’s constitutional rights, if any, laid down by the Hon'ble Supreme Court. (v) For the first round, within two weeks of receipt of such information from such an Association, the Admission Monitoring Committee (Pravesh Niyantran Samiti) shall carry out necessary verification of such proposed admissions and communicate to the said Association its non-approval, if any, for the grant of such admissions. In case if within two weeks such non approval is not wp-7799-10-final 8 communicated, it shall be presumed that the admissions so proposed are approved. The Admission Monitoring Committee (Pravesh Niyantran Samiti) may raise objection in such proposed admissions only if it is found that the proposed admissions are not in accordance with the merit determined by the Common Entrance Test, or the relative choice of the student, or is otherwise illegal. Such Institutions shall not grant a single admission in breach of such approved rules of admissions. (vi) Such Association shall conduct three rounds of aforesaid centralized admission process as may be required by 10th September every year.Every such additional process as may be required, shall be completed by or before 10th September every year. Before completing every such additional round of admissions such Association shall follow the procedure set out herein above. In addition to the same, such Association shall submit the total number of vacant seats institution-wise and category-wise to such Admission Monitoring Committee (Pravesh Niyantran Samiti) along with the provisional admissions suggested for every such round. (vii)The aforesaid Association as also such Admission Monitoring Committee (Pravesh Niyantran Samiti) and the Director of Medical Education shall publish on their websites the final list of admitted students along with the particulars such as the Name of the College, Category etc. immediately after the finalization of the admission list at the end of each round enabling the students so admitted to complete the formalities with their respective college, int which admission has been granted to them. (viii)The Scheme to be followed for effecting admission shall be as under for the year 2006-07..... (ix) The schedule to be followed for effecting admissions shall be as under, from the year 2007-08 onwards. wp-7799-10-final 9 Sr.No. Programme Schedule 1. Final merit list of CET to be displayed 15th June 2. CET merit list to be submitted to the Committee 16th June 3. Submission of Data : (i) Intake Capacity College-course-category-wise (seal Matrix) (ii) Preferences of candidates merit-wise with category. (iii) Provisional selection list 3rd July 4. Verification process to be concluded by the Committee for First Selection List. 17th July 5. Declaration of First Selection List and display on Website 18th July 6. Last date of joining the college- First Selection List 25th July 7. Last date of Retention Form Submission 27th July 8. Reporting of the college-wise vacancy by Association after First Selection List alongwith the Second Provisional Selection List 4th August 9. Verification process to be conducted by the Committee for Second Selection List. 11th August 10. Declaration of Second Selection List and display on Website. 12th August 11. Last date of joining the College- Second Selection List 20th August 12. Last date of Retention Form submission 22nd August 13. Reporting of the college-wise vacancy by Association after Second Selection List alongwith the Third provisional Selection List 29th August 14. Verification process to be concluded by the Committee for Third Selection List. 5th Sept. 15. Declaration of Third Selection List and display on the Website 6th Sept. 16. Last date of joining the college- Third Selection List. 12th Sept. 17. Individual Colleges to start granting admission(s) against the vacant seats strictly in accordance with inter-se merit from among the students applying to each of the colleges directly. 13th Sept. 18. Individual colleges to submit the list of such provisional admissions with the Committee. 20th Sept. 19. Verification process to be concluded by the Committee for admissions 27th Sept. 20. Last date for grant of admissions at colleges level in case of only MBBS and BDS courses 30th Sept. wp-7799-10-final 10 (ix) There will be a third round of Centralised Admission Process in conformity with the directions of the Hon’ble Supreme Court dated 27-7-2005 issued in SLP (Civil) No. 11367/2005. The seats remaining vacant after the third round of the Centralized Admission Process shall be filled in by the respective Colleges only and strictly in accordance with the order of merit determined by such Common Entrance Test after the written prior approval of the Committee. The seats remaining unfilled shall be filled in by these colleges at their own level strictly in accordance with inter-se merit of the applicants and in a fair and transparent manner. (emphasis supplied) 5. The above Scheme and Schedule are operative from 2007-08 onwards. On the basis thereof, the Association published the brochure Asso- CET 2010, the relevant extract whereof reads as under :- "Pursuant to the orders dated 10.8.2006 of the Hon’ble High Court of Bombay in Writ Petition No. 5655 of 2006, the Selection to all the Health Science Courses will be made as per Merit Cum Preference given by the candidates. The selection Process will be as follows:- 12.1 & 12.2 : As per the orders there will be three rounds of Selection Process for MBBS & BDS Courses only. 12.3. For MBBS & BDS Courses there shall be Three Rounds of Selection of candidates depending on the availability of vacant seats. The selection will be on the basis of Merit and the Preference submitted by the candidates in their Preference Form. For second and subsequent Rounds no separate Preference Form will be filled in by the candidates. The choice of the College & Course once entered in the data shall be final and irrevocable. This final data shall be used in entire selection process for the admission to first year Health Science Courses for the academic year 2010-11. wp-7799-10-final 11 12.4 The candidates may kindly note that while filling the Preference form Association -CET 2010 merit number will be operated from number one onwards in each Round of selection. The candidate selected in previous Round will be considered for betterment in the subsequent Round. The betterment means the higher Preference exercised by the candidate. The shift in such betterment shall be compulsory and mandatory except for those who have filled Status Retention Form . Such a candidate who has filled Status Retention Form will not be considered for any subsequent Rounds of Selection process for the year 2010-11. 12.5 Based on Merit and Preference given, the seat will be allotted on merit and the allotment will be displayed on Official Website of AMUPMDC (www.amupmdc.org). No separate letters will be issued to the candidates, they should report to the allotted Colleges with a printed copy of the allotment letter downloaded from the website. 12.6 Candidate as per the allotment should report alongwith all Original Certificates and a set of attested photocopies of each document at the allotted College as per the schedule. All Original Certificates will be verified by the allotted College before finalizing the admission. Certificates and documents should be submitted as per the list given below:- 12.7 & 12.8......................... 12.9 A candidate selected for any Health Science Course as per Merit cum Preference will not be allowed for change of college on mutual basis. Request for mutual transfer is not permissible. Such request will not be entertained. wp-7799-10-final 12 12.10 The selection made by the Competent Authority as per procedure is final and will be binding on the candidate. 12.11 Status Retention of Admissions : After selection in first or second round if the candidate desires to retain the same selection (Course & College) and does not want to take any further betterment then he/she can do so by filing “Status Retention Form” to be submitted to the Competent Authority through the College Principal/Dean where he/she is admitted. However, candidate should note that once Retention Form is given his/her admission is confirmed in that college and his/her name will be deleted from the further selection process for the academic year 2010-11 (Annexure- G). 12.12 To confirm the admission the Candidate will have to deposit his/her all relevant Original Certificates, documents along with the complete tuition fees to the concerned college where the candidate is admitted. 13. PROCESS FOR FILLING VACANT SEATS OF MBBS & BDS Courses only. 13.1 After first round, the vacant seats will be filled-in. For these seats, the selected as well as not selected candidates who have filled the Preference Form are eligible. For this process Association-CET 2010 Merit List will be operated from Merit Number 1 onwards. The Candidate selected in round one will be considered for betterment in the 2nd and 3rd round of selection process. “Betterment” means the higher preference exercised by the candidates. The shift in such betterment shall be compulsory and mandatory, except as provided in para no.12.11. 13.2 The Competent Authority will issue notice which will be displayed on the website of AMUPMDC indicating the date of subsequent round of selection process. wp-7799-10-final 13 13.3 The following candidates will not be eligible for subsequent admission process. 13.3.1 Candidate who is selected as per his/her merit cum preference, but does not join the allotted college or cancels the admission after joining, is not eligible for further selection process. 13.3.2 Accepting admission but not reporting to the College and/or not paying the fees. 17. Cancellation of Admission and Refund of fees 17.1. CANCELLATION 17.1.1. The Selected candidate must join the College at which he/she is selected on or before the date prescribed by the Competent Authority, failing which his/her admission stands cancelled. 17.1.2. The selected candidate who has confirmed the admission wishes to cancel the admission should cancel it at the respective College. The College should accept the cancellation and inform the Competent Authority along with copy of the cancellation Letter immediately (Annexure H). (emphasis supplied) FACTS 6. Two students (Ajinkya Parhe and Sonal Kumawat) each with 152 marks at the Common Entrance Test conducted by the Government of Maharashtra (MHT-CET) were offered admissions in the first found of the centralised admission process for the Government Medical Colleges which took place on 17th July 2010. The same two students were offered seats of their choice in the third round of the wp-7799-10-final 14 centralised admission process for the private medical colleges which took place on 6th September 2010. Whether it was lack of co-ordination or negligence or carelessness on the part of the Director of Medical Education or respondent No.3 Association, the fact remains that the Director of Medical Education did not inform respondent No.3 Association that Ajinkya Parhe and Sonal Kumawat had already secured admissions to seats in the first MBBS course in the Government Medical colleges. It appears that even respondent No.3 Association did not check up with the Director of Medical Education. Respondent No.3 Association accordingly considered names of five students who were already offered admissions in the Government Medical colleges and had secured such admissions. Two of them i.e. Ajinkya Parhe and Sonal Kumawat had already accepted admissions as far back as in the first round in the Centralised Admission Process of the Government on 17th July 2010 but still they did not withdraw their candidature for admissions to private medical colleges. Accordingly, when the third round of counselling took place on 6th September 2010, these five students were given six days’ time to join the concerned private medical colleges i. e. 12th September 2010 which was extended by the Association upto 15th September, 2010. On the ground that these five students did not join the concerned private medical colleges, those five seats were treated as vacant after the third round and were made available to the concerned private medical colleges including respondent No.6 college. One of those seats being the seat in respondent No.6 college was reserved for an NT-I category student. 7. However, respondent No.6-College filled in the said seat reserved for NT-1 category by giving admission to respondent No.13, also belonging to NT-1 category, through he had obtained only 136 CET wp-7799-10-final 15 marks as against 137 marks obtained by the petitioner (who also belongs to NT-1 category) in the same test. Respondent No.13 was thus granted admission to respondent No.6 college on 18th September 2010. 8. The defence of respondent no.6-College is that it had notified the vacancy in the advertisement published in a newspaper on 2nd September 2010 and that respondent No.13 applied in response to that advertisement and the petitioner did not apply and therefore, respondent No.13 was granted admission. Submissions 9. The learned counsel for the petitioner submitted that in the first place a student having secured admission to a Government Medical College cannot be allowed to participate in