CWP No.14434 of 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: 25 .5.2010 Alisha Arora … Petitioner Versus Baba Farid University of Health Sciences, Faridkot (Pb.) & Ors …Respondents CORUM HON’BLE MR.JUSTICE PERMOD KOHLI Present: Mr.RK Malik, Sr.Advocate with Ms.Anju Arora, Advocate for the petitioner Mr.Anupam Gupta, Advocate for respondents no.1 and 2 Mr.SS Brar, Advocate for respondents no.3 and 4 PERMOD KOHLI, J. Punjab PMET 2009 was held on 14.6.2009 at Faridkot by Baba Farid University of Health Sciences (respondent no.1) (hereinafter referred to as “ University”) for making admissions to various medical courses. The petitioner was one of the candidates who participated in the test. She secured 432 marks with rank of 1384. Under Clause 2.2 of the notification dated 31.3.2008 issued by the State Government made part of the Prospectus, after declaration of result of the PMET, the candidates were required to apply to University for admission to government quota seats. In respect to Management/ minority quota seats as also the NRI seats, the candidate was to apply to the concerned Institute. Clause 7.4 of the Prospectus deals with admission to private institutes which reads as under:- 1 CWP No.14434 of 2009 “7.4 Admission to Private Institutes- (a) The distribution of seats in private medical institution would be: Government quota seats -50% Management/Minority quota seats -50% (Including 15% NRI quota) (b)The Government quota seats would be filled up, on the basis of PMET merit, by the Admissions Committee appointed by the Government. (c) The Management Quota seats would be filled up by the admission committee headed by the Principal of the Institute concerned and comprising of the representative each of the Government and the University, strictly on the basis of merit in the PMET of the Corresponding year. The Principals of the concerned Institutes will request the Government and the University well in advance for nominating their representatives. Government quota seats remaining vacant will be transferred to management quota. University will adjust a calendar of admission to the management quota seats in such a way that admission dates do not clash. All candidates with compartment for consideration under NRI/Management/Special Management seats shall have to clear their compartment before their admission. Para amended vide notification No.5/3/09-3HBIII/2616 dated 22.4.2008” From the above Clause, it is evident that 50% government quota seats in private institutions shall be filled up on the basis of PMET merit by the Admission Committee appointed by the Government. However, in respect of 50% management/minority quota seats, the Principal of the Institute concerned is authorized to make admissions through a Committee comprising of representative each of the Government and the University and on the basis of the merit in the PMET. Apart from the above Clause, Clause 7.7 of the Prospectus further requires 15% of the seats out of the seats to be filled through PMET shall be open to candidates having passed 10+2 examination or equivalent examination from recognized institutions all over the country. It further provides that if eligible qualified candidates are not available under 85% State quota, the vacant seats shall be 2 CWP No.14434 of 2009 transferred to 15% quota and vice-versa. The relevant Clause 7.7 of the Prospectus reads as under:- “7.7. 15% seats out of the seats to be filled through PMET shall be open to candidates having passed 10+2 examination or equivalent examination with Physics, Chemistry, Biology and English from the recognized institutions all over the country. However, if the requisite number of eligible qualified candidates are not available under 85% State quota the vacant seats shall be transferred to 15% quota and vice-versa.” Clause 6.2 of the Prospectus deals with the filling up of the vacant NRI seats. Relevant extract of Clause 6.2 reads as under:- “6.2. XXX XXX XXX (c )Any seats remaining vacant under NRI quota till last date of admission in State Colleges shall go to general pool and in the Private Colleges shall go to the special management/minority quota. Under special management quota seats first priority shall be given to PMET. Ranking and residual seats, if any, shall be filled in accordance with inter-se merit of eligible candidates. (d)NRI unfilled seats under special management seats will be filled by management itself, however, it’s fee shall not exceed double than the management quota fee. Further the fee under special management quota seats is reduced by 16.67%.” Under the aforesaid Clauses, vacant NRI quota seats till the last date of admission in the State Colleges could be filled up from general pool and in private colleges shall be converted to the special management/minority quota. It is further provided that even under special management quota seats, the first priority is to be given to the PMET candidates and residue seats, if any, could be filled up on the basis of inter-se merit of eligible candidates. Thus, the management is entitled to fill up unfilled seats converted to special management quota. The petitioner who passed 10+2 examination from the Model Sr.Secondary School, Sector 16, Chandigarh applied to respondent no.4, a private institution for admission under the 3 CWP No.14434 of 2009 special management quota seats. Counselling for special management quota seats was held on 10.9.2009, but the petitioner was not allowed to participate even though petitioner applied well within the prescribed time. The petitioner remained present at the time of counseling at the respondent no.4-Institute at Bathinda on the day of counseling, but was denied participation. It is stated that the petitioner approached the Admission Committee. It is further the case of the petitioner that even after 10.9.2009 counselling, seats remained vacant. It is specifically alleged that on 3.9.2009, three candidates were granted admission having lower merit than the petitioner and also the candidates who passed 10+2 from other States. The petitioner has been denied participation in the counseling and consequential admission against the management quota only on the ground that she did not pass 10+2 examination from Punjab and is thus ineligible for admission. The petitioner made representations (Annexures P-4 and P- 5), but no action was taken thereon. When this petition came up for consideration on 16.9.2009, following order was passed:- “Present: Mr.RK Malik, Sr.Advocate with Ms.Anju Arora, Advocate for the petitioner Notice of motion. Mrs.Pooja Bishnoi, Advocate who is present in the Court has been asked to accept notice on behalf of Mr.Anupam Gupta, Advocate for respondents no.1 and 2. Requisite copies of the petition be furnished to her during the course of the day. Notice to respondents no.3 & 4 for 22.9.2009. Objections in the meantime. The grievance of the petitioner is that she applied for admission against the unfilled vacancies against NRI quota in respondent no.3-Institution but the petitioner’s case has not been considered on flimsy grounds of ineligibility. Even though the petitioner is fully eligible for seeking 4 CWP No.14434 of 2009 admission against these vacancies. Mr.Malik has stated that according to his information, even two unfilled vacancies have been advertised today. Reference is made to Rule 6, whereunder the NRI seats can be allotted even to NRIs, who originally belong to State of Punjab. Similarly, the unfilled vacancies in the NRI quota can be converted into management quota. It is argued that the candidates with lesser merit have been admitted to respondent no.3-Institution. In view of the above circumstances, one seat in the MBBS Course under the special management quota, if, unfilled as on date, shall be kept reserved till further orders. Copy of this order be given under the signatures of Court Secretary.” While this petition was pending, this Court in CWP No.9856 of 2009, while interpreting Clause 7.7 of the Prospectus held that candidates who have passed the qualifying examination from outside the State of Punjab are eligible for admission under 15% quota prescribed under Clause 7.7 of the Prospectus. In view of the aforesaid judgment dated 24.9.2009 passed in CWP No.9856/2009, this Court vide order dated 25.9.2009 in this petition issued following directions:- “……..Keeping in view the aforesaid observations, it is directed that the petitioner be permitted to participate in the counseling which is scheduled to be held on 28.9.2009 pursuant to the public notice issued by respondent no.3-College. If the seats are available, the petitioner shall be admitted to the course, notwithstanding the fact that the petitioner has not done 10+2 from the State of Punjab. If the petitioner is otherwise found eligible, the petitioner shall be admitted within the time stipulated i.e. 30.9.2009. List on 3.11.2009…….” Vide another order dated 13.10.2009, a direction was issued to furnish the list of the selectees during the said academic session. Respondents no.1 and 2 filed their reply on 21.1.2010. 5 CWP No.14434 of 2009 Through CM No.18474 of 2009, the petitioner has placed on record names of as many as 8 students admitted against the Management quota in the respondent no.3-Institute, out of which four are having lower merit than the petitioner and four candidates were admitted with marks equal to the petitioner. One candidate, Sumit Mahajan with 432 marks as that of the petitioner was admitted on 30.9.2009 whereas all other seven candidates were admitted on 3.9.2009. In reply to the aforesaid application, it is stated that on 3.9.2009 when seven students were admitted, the petitioner was found ineligible and one student who was admitted on 30.9.2009 pursuant to the direction of this Court dated 25.9.2009, though had equal aggregate marks with the petitioner, but on the basis of marks secured in Physics, Chemistry and Biology, Sumit Mahajan with 188 marks was given preference as against 182 marks of the petitioner in these subjects. In the short reply filed by respondents no.1 and 2, the detail of admissions made under the special management quota/ NRI left over seats in respondent no.3-College is given. It is stated that as against 23 special management quota seats, only one application was received. The candidate was admitted after counseling on 7.8.2009 and remaining 22 seats were converted to special management quota in terms of the Punjab Government Notification dated 31.3.2008, as amended from time to time. It is further stated that counseling for the remaining 22 seats in this quota was held on 3.9.2009 and out of 27 candidates who applied 22 candidates against available seats were admitted on the basis of their inter-se merit on the same date. The petitioner was declared ineligible having passed 10+2 examination from outside Punjab. In respect of the order dated 16.9.2009 passed by this Court, it is stated that this order was served upon the respondent-College on the same day when there was no vacant seat, all 6 CWP No.14434 of 2009 seats having been filled up on 3.9.2009 and thus, no seat could be reserved for the petitioner. It is, however, stated that thereafter one seat in the management quota SC Category fell vacant on account of surrender of seat by a candidate and applications were invited by the College against the vacant seat in management quota or any other vacant seat that may arise on the day of counselling, vide its advertisement dated 19.9.2009. In response to the aforesaid advertisement, one application was received from Ms.Ramanpreet Kaur under Scheduled Caste Category and seven applications were received against any “other seat” that may fall vacant. The counselling was held on 28.9.2009 and the only candidate under Scheduled Caste Category did not appear for counselling and in the meanwhile, another candidate Ms.Monika also surrendered her seat under the management (Scheduled Caste) Category quota. Thus two seats of Management quota (Scheduled Caste Category) became available. It is further stated that upto 30.9.2009, no SC Candidate was available and thus these seats were converted to management quota General Category on 30.9.2009. Counselling was held for these two seats on the same date and seven eligible candidates who had applied were considered. The petitioner was allowed to participate in compliance with the order dated 25.9.2009 passed by this Court. Out of seven candidates and the petitioner, two candidates, namely, Namnit Kaur and Sumit Mahajan were selected, provisionally against the two vacant seats. It is mentioned that Namnit Kaur were higher in merit than the petitioner whereas Sumit Mahajan had equal merit to the petitioner in PMT i.e. 432 and applying the aggregate of Physics, Chemistry and Biology (PCB), Sumit Mahajan with 188 marks as against 182 marks of the petitioner was admitted. After hearing learned counsel for the parties at length, it has 7 CWP No.14434 of 2009 emerged that against the special management quota seats, available with respondent no.3-Institute, four candidates with lesser merit than the petitioner were admitted on 3.9.2009 whereas Sumit Mahajan was admitted on 30.9.2009 with equal marks to the petitioner by applying “Tie Rule”. As regards the admissions made on 3.9.2009 are concerned, according to the respondents, the petitioner was ineligible on the said date, she having passed 10+2 examination from Chandigarh i.e. outside the State of Punjab. According to the respondents, judgment passed in CWP No. 9856 of 2009 came to be pronounced on 24.9.2009 interpreting Clause 7.7 declaring eligibility for candidates who have passed 10+2 examination even from outside State of Punjab against the unfilled special management quota. It is accordingly argued that at best, the petitioner could be said to have acquired eligibility on 24.9.2009. She was considered on the basis of her eligibility in terms of the judgment of this Court dated 24.0.2009, but could not be admitted as candidates with better merit were available and admitted. There is no dispute that in the counselling held on 30.9.2009, two candidates admitted against the available vacancies were better in merit than the petitioner. However, in the admission made on 3.9.2009, admittedly, four candidates had lesser merit than the petitioner, which fact is not disputed by the respondents. The only contention made is that till then the petitioner’s eligibility had not been established. Vide judgment dated 24.9.2009 passed in CWP No. 9856 of 2009, this Court had only interpreted and clarified Clause 7.7 of the Prospectus. As a matter of fact, it was not introduction of any new concept or enactment of a new law. Under Clause 7.7, the petitioner was eligible as on 3.9.2009. Candidates with lesser merit in PMET were admitted, though the petitioner had a better claim. Fact remains that the petitioner was denied 8 CWP No.14434 of 2009 admission as against candidates with lesser merit. It is vehemently argued on behalf of the respondents that no admission is permissible after 30.9.2009, in view of the judgment of Hon’ble Supreme Court in case of Mridul Dhar (Minor) and another vs. Union of India and others, AIR 2005 Supreme Court 666 wherein following directions have been issued:- “14.The academic session commences between 1st August and 31st August and the last date for joining MBBS/BDS courses is 30th August. However, students can be admitted against vacancies arising due to any reason by 30th September. The date 30th September is not for normal admission but is to give opportunity to grant admissions against stray vacancies. The adherence to the time schedule by everyone is paramount for the timely grant of admissions, commencement of academic session and for closure of the admissions after 30th September each year. In fact, the timely holding of 10+2 examination and declaration of its results is also of paramount importance for the entire admission process. If the results of CBSE or other equivalent examination are not declared well before the commencement of first round of counseling/admission of All India Quota seats, i.e., 20th June, it is likely to adversely affect the candidates who may otherwise be toppers in the All India Entrance Examination. A candidate may be in the first 200 position, out of about 2,00,000 candidates in the merit ranking but if the results of his qualifying examination of CBSE or its equivalent are not available to him or to DGHS responsible for counseling, the candidate would lose chance to get admission in college of his choice despite his merit position.” These directions have been implemented by framing regulations under the Medical Council of India Act, 1956. There is no dispute that no admission in the academic session, 2009-2010 is permissible beyond 30.9.2009. At the same time, it is equally a fact that the petitioner with better merit was denied admission on 3.9.2009 on total misinterpretation, misconstruction and misconception of Clause 7.7 of the Prospectus which otherwise certifies the eligibility of candidates who passed their 10+2 examination from the institutions outside the State of Punjab against the special management quota. Thus, the petitioner was illegally and wrongly denied consideration/admission against the special management quota seats as on 3.9.2009. Later consideration of the petitioner on 30.9.2009 was 9 CWP No.14434 of 2009 confined to inter-se merit of only seven candidates who had applied against two available vacancies and the petitioner, of course, had lesser merit than those. The petitioner’s non-consideration on account of alleged ineligibility on 3.9.2009 was totally impermissible. Mr.Malik, learned counsel appearing on behalf of the petitioner has argued that petitioner having been wronged is entitled to admission in the next academic session. His contention is that the embargo created in the judgment of Mridul Dhar (Minor) (supra) is only for midstream admissions for the current academic session and in order to do justice, the petitioner should be granted admission in the next academic session. To support his contention, reliance is placed upon the case of Aman Deep Jaswal vs. State of Punjab and others, (2006) 9 Supreme Court Cases 597. In this case, the candidate was ignored despite higher merit in the M.D. Course and candidates with lower merit were admitted. Hon’ble Supreme Court directed the admission of the candidate in the next academic session. Relevant observations are as under:- “3.It is not in dispute that the appellant Aman Deep Jaswal was much higher in rank in the selection and had also opted for MD Anaesthesia as one of the options. There could be no valid reason for denying her admission simply because of the word “any” written by her as third preference. Her first preference was MD Gynecology and the next was MD Anaesthesia but in the second counselling her first option was MD Anaesthesia. The same could not be denied for the use of the word “any” when it is not disputed that she was more meritorious than Dr.Radhika Dhawan. The High Court was, however, right, despite these facts, in denying admission being granted to her during mid- session. 4.On these peculiar facts, we are of the view that the appellant Aman Deep Jaswal is entitled to be admitted in MD Anaesthesia in Government Medical College, Patiala in the next academic year 2006-2007 within the sanctioned intake of the college. Ordered accordingly.” 10 CWP No.14434 of 2009 A Division Bench of this Court in the case of Vikram Singla and others vs. State of Punjab and others, 2006(1) SLR 376, while considering a similar issue of denial of admission to meritorious candidate in CMC issued following directions:- “42.Accordingly, this writ petition stands allowed in the following terms:- (1)The Admission of the private respondents to the MBBS Course at the CMC for the academic year 2005-06 is protected. (2)The petitioners cannot be granted admission in MBBS classes in the current academic year after 30.9.2005, as their admission would be a midstream admission which has been prohibited by the Hon’ble Supreme Court. (3)The petitioners will be admitted to the MBBS Course at the CMC for the academic session 2006- 2007 against the management quota seats in terms of the directive contained in para 35(1) of Mridul Dhar’s Judgment, as it has exceeded its quota during the academic year 2005-2006. (4)The CMC would compensate each of the petitioners with an amount of Rs.2 lacs each for the last of one year, for the mental tension and for economic loss caused to them. (5)The CMC is burdened with the costs of Rs.2 lacs to be deposited with the Baba Farid University of Health Sciences, Faridkot, within 3 months from today, for being utilized towards students welfare fund.” I am informed that this judgment of the Division Bench attained finality. Thus from ratio of above judgments what emerges is :- (i)that where a candidate is denied rightful claim of admission in an academic session, he/she cannot be admitted midstream in the said session, in view of the directions in the case of Mridul Dhar (supra); and (ii)That such candidate is, however, entitled to be admitted on the basis of his earlier merit in the next academic session. 11 CWP No.14434 of 2009 In view of the above, this petition is allowed. Respondents no.3- Institute is directed to admit the petitioner to MBBS Course in the academic session 2010-2011 against the special management quota, in view of the order dated 16.9.2009 passed in this petition, reserving one vacancy in the said quota for the petitioner. (PERMOD KOHLI) JUDGE 25 .5. 2010 MFK NOTE:Whether to be referred to Reporter or not:YES 12