SAW 257/09 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** 1-Special Appeal No.257/2009 in Civil Writ Petition No.10945/2008 Director, Gitanjali Medical College Versus State & Ors. 2-Special Appeal No.241/2009 in Civil Writ Petition No.10858/2008 Rajan Purohit & others Versus State & Others. 3-Special Appeal No.621/2009 in Civil Writ Petition No.8420/2008 Federation of Pvt. Medical & Dental Colleges, Rajasthan & others Versus Vibhor Khandal & Others. 4-Special Appeal No.01441/2009 in Civil Writ Petition No.10859/2008 Principal, Gitanjali Medical College Versus State & Ors. 5-Special Appeal No.01442/2009 in Civil Writ Petition No.11589/2008 Principal, Gitanjali Medical College Versus State & Ors. 6-Special Appeal No.01443/2009 in Civil Writ Petition No.11202/2008 Principal, Gitanjali Medical College Versus State & Ors. 7-Special Appeal No.01444/2009 in Civil Writ Petition No.11461/2008 Principal, Gitanjali Medical College Versus State & Ors. 8-Special Appeal No.01445/2009 in Civil Writ Petition No.12617/2008 Principal, Gitanjali Medical College Versus State & Ors. 9-Special Appeal No.01446/2009 in Civil Writ Petition No.8428/2008 Principal, Gitanjali Medical College Versus State & Ors. 10-Special Appeal No.01447/2009 in Civil Writ Petition No.10858/2008 Principal, Gitanjali Medical College Versus State & Ors. 11-Special Appeal No.296/2009 in Civil Writ Petition No.10858/2008 State & Ors. Versus Abhishek Sain & Ors. 12-Special Appeal No.426/2009 in Civil Writ Petition No.12617/2008 State & Ors. Versus Piyush Kr. Agrawal & Ors. 13-Special Appeal No.427/2009 in Civil Writ Petition No.10859/2008 State & Ors. Versus Miss Hena & Ors. 14-Special Appeal No.428/2009 in Civil Writ Petition No.11589/2008 State & Ors. Versus Rakhi Soni & Ors. 15-Special Appeal No.429/2009 in Civil Writ Petition No.11461/2008 State & Ors. Versus Geetika Chopra & Ors. SAW 257/09 //2// 16-Special Appeal No.386/2009 in Civil Writ Petition No.10859/2008 Sukhveer Tanwar & Others Versus State & Ors. Date of Order ::: 03/09/09 /Reportable/ Hon'ble Mr. Justice Ajay Rastogi Hon'ble Mr. Justice Raghuvendra S. Rathore Mr. Uday U. Lalit & Mr. S.M.Mehta, Sr. Advocates with Ms Naina Saraf, Sarva Shri Sri Ram Yadav,Banwari Sharma; & Mr. Ashok Gaur (for Federation) - Advocates for appellants Mr. SN Kumawat, Addl. Advocate General, for State Mr. NK Joshi, & Mr. RA Katta, for University of Health Science Mr. Angad Mirdha, for respondent MCI Mr. Rajendra Soni &) Mr. PC Sharma) for respondents (writ petitioners) (Per Ajay Rastogi, J.) Since all these special appeals arise out of common order dt.18/03/2009 passed by learned Single Judge in CWP- 10858/2008 whereby admissions in MBBS course for academic year 2008-09 against 85% of intake 150 seats were declared illegal, hence at joint request, were heard together and are being disposed of at admission stage. Core issue raised before learned Single Judge for consideration was as to whether admission in MBBS course for academic session 2008-09 in a private unaided professional medical college made on the basis of qualifying examination(10+2) is permissible and what will be the effect of Reg.4.2(2) of Medical Council of India Regulations on Medical Education, 1997 (“MCI SAW 257/09 //3// Regulation”), which clearly specifies that in a State where there are more than one University/Board/ examining body conducting examination (or where there is more than one medical college) for qualifying examination (10+2), competitive/common Entrance Test (CET) should be held to achieve a uniform evaluation as there may be variation of standards at qualifying (10+2) examination conducted by different education agencies; and how far, admissions to MBBS course in present private unaided professional institution (Gitanjali Medical College) made on the basis of qualifying marks in 10+2 examination, are justified ? Before adverting to the core issue, it would be appropriate to narrate bare relevant facts for consideration of rival contentions made at the bar. Appellant- Gitanjali Medical College & Hospital is a private unaided institution, applied for grant of permission for teaching MBBS course through medical council of India (“MCI”) which recommended vide letter dt. 02/06/08 to the Ministry of Health, Government of India but the Ministry after examining infra structure facilities available at the SAW 257/09 //4// appellant institution denied permission vide letter dt. 04/08/08. Denial of permission was challenged by appellant institution by approaching the Apex Court in Writ Petition (Civil) NO.357/08 which was disposed of alongwith other Writ-Pet(Civil)-294/2008 (Rohilkhand Educational Charitable Trust Vs. Union of India), vide order dt.03/09/08, in view of statement recorded of Addl. Solicitor General that revised orders would be passed within a week in respect of Gitanjali Medical College. Accordingly, Government of India issued letter dt.16/09/08 sent by speed post, conveying approval of Central Government for establishment of new medical college at Udaipur Rajasthan by Geetanjali Foundation (appellant-institution) with an annual intake of 150 students with prospective effect from academic year 2008-09 U/s 10(A) of IMC Act, 1956, initially for a period of one year renewable on yearly basis upon verification of achievement of annual targets, which as alleged, according to appellant institution, was received in its office on 25/09/08. Against intake of 150 students for admission in MBBS Course, 15% were made available for NRI-management quota while 85% SAW 257/09 //5// were available for open selection; and accordingly other than NRI quota, 16 students were admitted by appellant institution in MBBS course from a list prepared on the basis of Private Colleges Pre-Medical Test, 2008 (“PC-PMT-2008) held for BDS Dental Colleges of Rajasthan by Federation of Private Medical and Dental Colleges of Rajasthan-“Federation” which is a body registered under Registration of Societies Act for conducting PC-PMT through Mohanlal Sukhadia University, Udaipur. Further 101 students were admitted by appellant institution based on qualifying marks secured in 10+2 examination through its own advertisement dt.29/09/08; and admissions thereto were made of such students who participated in its counselling. In all 140 students (including 23 against NRI-management quota & 16 through list of PC-PMT-2008 of Federation were admitted and remaining 10 seats were kept vacant because of interim directions issued by learned Single Judge, keeping seats pending for writ petitioners. It is relevant to mention that particularly for academic year 2008-09, the Federation had held a competitive entrance test (PC-PMT-2008) only for admission in SAW 257/09 //6// private Dental Colleges (BDS course) in which appellant institution was neither included in the list duly circulated by Federation in its advertisement and brochure alongwith application form of PC-PMT-2008 nor any CET (PC-PMT-2008) was held by Federation for admission to MBBS course in private medical colleges like appellant institution. These admissions made by appellant institution in its Gitanjali Medical College and procedure adopted in granting admissions to 140 students in academic year 2008-09 who indisputably have not participated in competitive entrance test (CET, in Rajasthan known as RPMT) conducted in Year 2008, were assailed by writ petitioners (respondents herein special appeals) before learned Single Judge, who in fact participated in RPMT, 2008 and their names find place in select/wait list for admission in MBBS Course for academic Session 2008-09. Their grievance basically is that appellant-institution was legally under obligation to make admissions other than 15%NRI quota on the basis of the counselling from the select/wait list of participants in RPMT-2008 in which their names find place and who have preferential SAW 257/09 //7// right for being considered of admission in MBBS course, qua students admitted by it. According to writ petitioners (students), procedure for admissions made by appellant institution through list of PC-PMT, 2008, prepared only for admission to BDS course or based on qualifying marks secured in 10+2 examination, was in fact contrary to MCI Regulation-5.2 of 1997 and so also of University Ord.272. Thus it was violative as being not in conformity with authoritative pronouncements of Apex Court. Undisputed facts in regard to the Counselling held of Rajasthan Pre-Medical Test 2008 (“RPMT-08”) are that Rajasthan University of Health Sciences (“University”) issued notice on 26/02/08 published in Newspapers inviting applications for appearing in RPMT-08 for admission against 1050 seats of MBBS/BDS courses for academic session 2008-09 in various medical/dental colleges in which name of present institution appeared at S.No.10 with stipulation that it has been included in anticipation of sanction from MCI. RPMT-08written test was held on 23rd, 24th & 25th May, 2008 and its first counselling for admission in MBBS course was SAW 257/09 //8// scheduled for 14th to 17th July, 2008 and 2nd counselling was held on 23rd & 24th September, 2008. Other relevant facts are that in view of statement of Addl. Solicitor General recorded by Apex Court in its order dt. 03/09/08 while disposing of appellant- institution's Writ Petition (C) No.357/08 that revised orders would be passed within a week in respect of Gitanjali Medical College – pursuant to which, Government of India issued letter dt.16/09/08 granting permission for admission in MBBS course with 150 intake seats, was received in its office as alleged by appellant-institution on 25/09/08; whereas contrarily there is a document on record which depicts that a hard copy could be obtained through Internet explorer on 21/09/08, as having disclosed by MCI at its Internet site that approval was granted to institution. Even advertisement was published in Rajasthan Patrika on 25/09/08, itself, inviting applications from eligible candidates for admission against NRI quota with a specific note that institution has been approved by MCI and Government of India. Per contra, it has been the consistent stand SAW 257/09 //9// throughout on behalf of appellant institution before learned Single Judge that for the first time, it acknowledged information of sanction having been granted vide letter dt.16/09/08 only on 25/09/08 and not prior thereto, then how advertisement on its behalf was published in Rajasthan patrika dt. 25/09/08 or its approval was available at Internet site on 21/09/08. Thus, its stand that for the first time sanction letter dt.16/09/08 was received on 25/09/08 appears to be doubtful. More over, after 1st counselling, despite information & notice sent to the appellant institution for its participation in 2nd counselling scheduled for RPMT-08 on 23rd & 24th September 2008, institution declined to participate only on the premise that sanction has not been received so far. Counsel for Federation informs that since academic year 2005-06 process of admission was being initiated by the Federation every year for admission in all such private dental colleges/institution which are its members duly recognised by Dental Council of India & Government of Rajasthan. Process of admission initiated by SAW 257/09 //10// Federation for academic year 2008-09 by holding PC-PMT-2008, related to BDS course only; and it was never held for admission to MBBS course for any of its member-college. State Government vide letter dt. 28/01/08 granted permission to Mohanlal Sukhadia University to organise Pre-medical test for admission to BDS course in private dental colleges of Rajasthan and accordingly, Federation published advertisement in Dainik Bhaskar dt.11/04/08 inviting application for admission for total 715 seats in different private Dental colleges of Rajasthan enlisted therein – against which 400 candidates appeared in PC-PMT 2008 held on 11/06/08 and 78 candidates only qualified in Competitive Entrance Test (CET), out of which, only 47 candidates appeared in counselling on 10/08/08 who were allotted Dental colleges as per their merit and preference. Since appellant institution was not enlisted in brochure with application form notified by Federation for PC-PMT 2008, no CET was conducted for admission as regards MBBS course for appellant institution. At the same time, indisputably appellant institution wrote a letter to the State authority on SAW 257/09 //11// 16/09/08 itself that since counselling was scheduled on 23rd & 24th September, 2008, it may be advised that if sanction is later on received from Government of India, how their seats could be filled in and wait list of RPMT, 2008 would be available for admission to its institution. In reply to it, the University vide its letter dt.22/09/08 informed that if they are really intended to participate in 2nd counselling scheduled for 23rd & 24th September, 2008, they should inform about number of seats for allotment so that it may be taken note of while conducting 2nd counselling. But, as is evident from document (Ann.R2/6) filed by the University, neither the institution turned up nor sent any intimation. Hence Under-graduate Admission Board constituted by State Government decided not to include the appellant-institution in second counselling. However, it was observed that if any further information is received from appellant institution, students would still be provided out of wait list prepared of RPMT-2008 by holding counselling to appellant institution at their costs. However, as is evident from record, SAW 257/09 //12// appellant institution was interested in making admissions against 85% of intake seats through CET from wait list of RPMT-2008. But after 25/09/08, when according to institution, it received sanction of intake of 150 students granted by Government of India vide letter dt.16/09/08, appellant institution took a complete U-turn and sent its letter on 26/09/08 to the Federation that they may allot students – pursuantly their request was accepted by Federation through letter dt.27/09/08 and the matter was sent for holding counselling on 30/09/08. Moreover, even prior thereto, on 26/09/08 one advertisement (Ann.12) was got published by appellant institution in news papers circulated in State of Madhya Pradesh for holding counselling on the basis of qualifying 10+2 examination with minimum 50% marks in Physics, chemistry & biology (PCB) and inviting applications lastly by 28/09/08. At the same time, notice for admission in MBBS course by Co-ordinator-PC- PMT-2008 on 27/09/08 was published in Rajasthan Patrika while appellant institution also published its own notification in daily news paper of Rajasthan and simultaneously in SAW 257/09 //13// newspaper “Sandesh” published in State of Gujarat on 29/09/08 inviting applications for admission based on marks secured in qualifying 10+2 examination. In fact, whether it was a list of allotted students of PC-PMT-2008 prepared for admission in BDS courses for private Dental colleges in Rajasthan, or on the basis of qualifying 10+2 examination, counselling took place on 30/09/08 itself, in reference to advertisements ibid, 16 students were admitted on 30/09/08 out of list provided by Federation and 101 students were admitted based upon qualifying 10+2 examination by appellant institution. Prior thereto, however, writ petitions were filed by students named in wait list of RPMT-08 (respondents herein) raising grievance that merit/wait list of RPMT-08 is not being invoked by appellant institution and despite being higher in merit, on having participated in twin test (RPMT-08), they are not being considered for admission in appellant College for MBBS course. At the initial stage of admission, this Court granted interim order to keep one seat vacant subject to final decision in the SAW 257/09 //14// petitions; and by virtue of interim stay orders (ibid) being in operation, 10 vacant seats in all could not be filled in by appellant institution. Ultimately, learned Single Judge has set aside all admissions against 85% quota made by appellant institution for MBBS course in academic year 2008-09. After notices were issued by learned Single Judge, State Government, University of Health Sciences, Jaipur, and Medical Council of India (MCI) filed their separate reply. State Government in its reply specifically averred that the institution has made admission in collusion with Federation ignoring statutory provisions and flouting the law laid down by Apex Court in its authoritative decisions. Rather, admissions are being made by ignoring University Ord.272 whereas admissions are to be made only on the basis of marks secured in competitive entrance test (“CET”) like RPMT-08 and that being so, all such admissions made by appellant institution are illegal and deserve to be cancelled as held by Apex Court in Harish Verma Vs. Ajit Srivastava (2003(8) SCC 69) wherein illegal admissions, despite SAW 257/09 //15// students having undertaken post graduate medical education for and one & half years, were cancelled. State Government also averred that a notice dt.11/11/08 (Ann.R/3) has been served upon institution calling explanation in regard to illegal admissions and it was further followed by reminder dt.27/11/08 (Ann.R/4) filed alongwith State's reply. However, separate reply to writ petition was filed by University and it has been inter-alia averred that 85% intake seats allotted to appellant institution was to be filled only through RPMT-08 and that too by providing vertical/horizontal reservation as laid down by Government of Rajasthan; that during counselling by Federation, Government observer (Dr. SK Kaushik) was supposed to be present but he was neither invited nor informed about such constituted Board and admissions were being made in absence of Government observer; and that the Institution in collusion with Federation admitted students ignoring all canons of law particularly the provisions contained in University Ord.272. As such, all admissions made by appellant institution are illegal and SAW 257/09 //16// that being so, the University would not enroll any such illegally admitted students. There shall not be equity created in their favour and accordingly prayed for cancellation of admissions of such students. MCI also filed its reply along with affidavit. It was averred in para 39 of its reply that admissions made by appellant institution in 1st Yr MBBS course of academic year 2008-09, based on marks secured in 10+2 qualifying examination (PCBE) are completely in violation of MCI regulations, 1997 and of policy decision dt.14/05/03 taken by Ministry of Health Government of India. It has also been averred that as per MCI Regulations, 1997 admissions in any medical college to MBBS course have to be within annual intake capacity fixed by MCI and to be made from amongst eligible students fulfilling eligibility norms in their qualifying 10+2 examination, based on their merit in Competitive entrance Test held by State agency. Finally averred that admissions made by appellant institution are illegal and procedure for admission adopted was neither transparent, merit-based & non-exploitative nor in consonance with MCI regulations; SAW 257/09 //17// policy decision dt.14/05/03 and directions of Apex Court issued from time to time. Therefore, prayed for taking action and issuing the discharge notices to the students admitted in contravention of MCI regulations and directions issued by Apex Court from time to time. A letter was sent to appellant institution on 03/11/08 (Ann.R4/12) asking for sending complete details and procedure adopted in admitting students in MBBS course of academic Year 2008-09, qua intake of 150 seats. It appears from record that much prior to academic session 2008-09, a meeting was held in the office of Secretary, Department of medical education (Gr.I) on 15/12/2007 for initiation of supervision over holding PC-PMT 2008, which was attended by Chairman of Federation & after deliberation, it was resolved (Ann.R1/4) that in private institutions like appellant College & National Institute of Medical Sciences, Jaipur, 85% of its intake seats would be filled in only through list of candidates prepared in RMPT. That apart, vide letter dt.25/06/08 (Ann.R1/5), permission sought for SAW 257/09 //18// admitting students in MBBS course from PC- PMT-08-list was declined while specifically informing appellant-institution that in academic year 2008-09, 85% of its intake seats would be filled in from among named in RPMT-08 only. After State Government & University having specifically averred in their counter to the writ petitions about all the admissions being made in illegal manner and notices having been issued to the institution calling for explanation, learned Single Judge called upon them to know as to what steps have been taken after notices were issued to the institution and the committee be constituted to take appropriate action. From the order-sheet dt.18/12/08, having been noted in order impugned, it is revealed that Government Counsel sought time on the premise that the Ministry has not been formed till date, which is likely to be formed soon; as such matter is pending for final decision with the Government. Taking note whereof, learned Single Judge directed the State Government to decide after consultation with University and MCI. At this stage, after the Government SAW 257/09 //19// being formed upon change in Ruling party, State of Rajasthan took a complete u-turn and the Committee formed had proceeded with the aid & advise of Addl. Advocate General for examining the very process of admissions adopted by appellant institution and in its minutes of meeting dt.17/01/09, referred to in order impugned, finally observed that the committee constituted at the time of counselling, has observed about admission being irregular as when candidates were not available from PC-PMT-08 list prepared by Federation, certainly admissions could have been made on marks secured in 10+2 qualifying examination and finally opined that these admission can be considered to be irregular but not illegal. Here we must hasten to observe that neither any amendment was sought by State Government in its counter to writ petitions or by University and it appears that merely on change of Government, the State Counsel also got changed in Jan. 2009 and took somersault and tried its best to save such admissions made by appellant-institution. We are also constrained to take note of peculiar fact that the committee initially SAW 257/09 //20// constituted has submitted its report, having been annexed with counter filed by State Government to writ petitions, which in an unequivocal terms disclosed about process of admissions impugned herein, as wholesome illegality while categorically observing that admissions have been made by appellant institution in collusion with Federation. Accordingly the University also averred that since these are illegal admission such illegally admitted students should not be enrolled; and finally reiterated in the reply that the admissions deserves to be cancelled. However, the latter change speaks volumes about State authority which has certainly taken decision by taking a complete u-turn, supportive to appellant institution. It is always expected from the State and its authority to display an independent role within four corners of law. But in the instant case, we find that before learned Single Judge the State & University, at a later stage, came to rescue of the Institution and only because of change of the Government in the State, its counsel also changed. In such changed circumstances, the Government took a somersault having also been SAW 257/09 //21// noticed by learned Single Judge, as well, we are not prone to comment upon any further except that it is expected from State & its authority to be more cautious because they are meant to serve the people at large and not to individuals in the society. Interest of society is the paramount consideration for which we the people are meant. It is always to be kept in mind that the law is made for the society as the society is not made for law. In the instant case, in larger interest of students who are entitled and eligible for admission on the basis of their performance in competitive entrance test (CET) and where procedure prescribed under MCI Regulations have been given a complete go-bye by the appellant institution. This Court can take judicial notice that for admissions in MBBS course, parents are spending time & huge amount of money for coaching and at the same time, their children have also burnt midnight oil for months together, with the hope and belief that their wards will achieve the goal by getting admission in MBBS course which is one of their desires in life for betterment in their SAW 257/09 //22// career. But by these indirect methods like the present one impugned, adopted in violation of MCI regulations despite being mandatory in nature and so also judicial directives given consistently in a plethora of decisions of Apex court viz. TMA Pai Foundation Vs. State of Karnataka (2002(8)SCC 481); Islamic Academy of Education Vs. State of Karantaka (2003(6) SCC 697); & PA Inamdar Vs. State of Maharashtra (2005(6) SCC 537) that 85% of its annual intake seats are to be filled in MBBS course in private unaided professional medical colleges only on the basis of CET and by this method alone, twin test laid down from time to time by apex court could be achieved & fulfilled. Admissions made on the basis of 10+2 qualifying examination have never been recognised/approved by Apex Court. Both the Senior Counsel Shri Uday U. Lalit appearing for students (appellants herein) and Shri SM Mehta, appearing for institution jointly submit that appellant institution is an unaided private medical college and as per decisions of Apex Court, in TMA Pai Foundation Vs. State of Karnataka (2002(8) SCC 481) having been further taken SAW 257/09 //23// note of in Islamic Academy of Education