1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER (1) Abhishek Sain & ors. V. Raj.University of Health Sc. S.B. CIVIL WRIT PETITION NO.10858/2008 (2) Vibhor Khandal V. Raj.University of Health Sc.& ors. S.B. CIVIL WRIT PETITION NO. 8420/2008 (3) Miss Heena Soni V. Raj.University of Health Sc. S.B. CIVIL WRIT PETITION NO.10859/2008 (4) Rakhee Soni V. Raj.University of Health Sc. S.B. CIVIL WRIT PETITION NO.11589/2008 (5) Geetika Chopra V. Raj.University of Health Sc. S.B. CIVIL WRIT PETITION NO. 11461/2008 (6) Piyush Kumar & ors. V. Raj.University of Health Sc. S.B. CIVIL WRIT PETITION NO.12617/2008 (7) Ruchira Mishra V. Raj.University of Health Sc. S.B. CIVIL WRIT PETITION NO.11202/2008 (8) Vibhor Khandal V. S.L.Bohra and others S.B. CIVIL CONTEMPT PETITION NO. 508/2008 (9) Santosh Takhar V. State of Rajasthan and others (SB Civil Writ Petition No.10945/2008) Date of order ::: March 18, 2009 HON'BLE MR.JUSTICE PREM SHANKER ASOPA Mr.Rajendra Soni, Mr.P.C.Sharma, Mr.C.P..Sharma, Mr.D.S.Poonia, Mr.D.P.Sharma for the petitioners Mr.R.A.Katta, for the University Mr.S.N.Kumawat, Addl.AG for the State Mr.Angad Mirdha, for the MCI Mr.A.K.Bhandari, Sr.Advocate with Ms.Parinitoo Jain and Mr.Abhay Jain, for the respondent Institution Mr.Ashok Gaur, for the respondent-Intervener REPORTABLE BY THE COURT (1) Since common questions of fact and law relating to not operating the waiting list of RPMT-2008 and giving 2 admissions in M.B.B.S. only on the basis of PC-PMT of BDS as well as 10+2 are involved in all these writ petitions, therefore, all the aforesaid writ petitions have been clubbed together, heard together and are being decided together. (2) By these writ petitions, the petitioners have prayed for an appropriate writ, order or direction to the respondents to consider and give admission to the petitioners in MBBS Course in Geetanjali Medical College and Hospital by considering their candidature against the available 85% seats of 150 seats for their admission in MBBS on the basis of their respective merit in RPMT-2008 by holding counselling and further no person be admitted against the aforesaid seats from any other source except the RPMT-2008. In order to better appreciate the aforesaid issue involved in the matter, the leading facts have been taken from SBCWP No.10858/2008 Abhishek and others V. Rajasthan University of Health Sciences and others. (3) Some of the undisputed details regarding the month/date(s) of RPMT-2008 and counselling for admission in M.B.B.S. which are relevant for the purpose of deciding the controversy are as under: 26.2.2008 - RPMT-2008 was notified. Name of respondent No.5 Institution at Sl.No.10 in anticipation of sanction of seats. June, 2008 - Result of RPMT-2008 declared. 14th to 16th - Date of first counselling July, 2008. 3.9.2008 - Date of Supreme Court order regarding allotment of seats to Geetanjali Medical 3 College and Hospital within a week as per statement of the Addl. Solicitor General. 16.9.2008 - Sanction of 150 seats by the Medical Council of India. 23/24.9.2008- Date of last counselling. Respondent No.5 Institution did not participate in counselling. 25-28.9.08 - Date of admissions given by Geetanjali Medical College and Hospital on the basis of PC-PMT BDS as well as 10+2. 29.9.2008 - Date of show cause notice issued by the State for taking students as per Ordinance 272 and against direction of the Supreme Court not to change or tinker with and non compliance with State action against the Institution will be taken. 30.9.2008 - Last date fixed by the Govt.of India for admission in MBBS in consultation with MCI, State and University. Last week of - Between last week of September, 2008 Sept.08/ and 2nd week of October, 2008 all the second week of aforesaid writ petitions were filed after Oct.2008 notice for demand of justice. Schedule – A. Date of filing the writ petition, interim order(s) passed in SBCWP No.10858/2008 and other writ petitions. (4) The main grievance raised in these writ petitions by the petitioners is that they all stand in the merit list prepared by the University in the RPMT-2008 but could not be admitted for want of seats but when the seats were made available on 16.9.2008, the list was not operated by the respondents which has resulted in sacrificing the merit or circumventing the same by admitting students from PC-PMT of BDS as well as 10+2 examination in MBBS Course by Geetanjali Medical College and Hospital against all 150 seats contrary to 4 Regulation No.5 of the M.C.I. Regulations on Graduate Medical Education, 1997 (in short the MCI Regulations, 1997'), Ordinance 272 of the University and Supreme Court judgments therefore, the said action of the Geetanjali Medical College and Hospital is not only contrary to Regulation No.5 of the MCI Regulations, 1997 and Ordinance 272 of the University but violative of Article 14 of the Constitution of India as well as various judgments of the Supreme Court. (5) The respondent Rajasthan University of Health Sciences (in short `the University'), the State and the Medical Council of India (in short `the Medical Council'), Principal, Geetanjali Medical College and Hospital (in short `the respondent Institution') have filed their respective reply. (6) The University in its reply has stated that in the controversy in question, the State has dominant role in the matter of framing policy/Scheme for the students to be admitted in medical courses and the respondent University is bound to follow and comply with the directions/orders issued by the State Government. It is further stated by the Univesity that in the notification dated 26.2.2008 it was made clear that the RPMT-2008 is going to start with the entrance test for admission in MBBS/BDS Course and the respondent Institution will be one of the members of the pool of RPMT- 2008 as they were expecting 150 seats of MBS/BDS. Large number of students applied for appearing in the RPMT-2008 generating legitimate expectation of admission in case the 5 seats are sanctioned and they stand in merit in accordance with the provisions of Ordinance 272 of the University, with the further mention that Ordinance 272(IV)(a)(i) categorically speak with regard to conducting pre-medical examination by the University. Accordingly, the University prepared the merit list of the successful candidates. The relevant ordinance 272(IV) of the University is as follows: “IV Pre Medical Test. a.(i) All candidates except those belonging to categories (b) of rule 2 will have to appear at the pre medical test to be conducted by the University of Rajasthan, Jaipur in the subjects of Physics, Chemistry, Zoology and Botany in the manner to be decided by it. The candidates may obtain journal guidelines for the Pre Medical Test Examination and application form for appearing at the examination and the also application form for admission to the medical college from the Controller of Examinations, University of Rajasthan, Jaipur on payment of the amount prescribed by the University. Forms can also be had by registered post on paymentof Rs.10 extra. Application forms for PMT Examination for admission to the medical colleges of Rajasthan after being duly filled in by the candidates along with a fee of Rs.100/- will be sent directly to the Controller of Examinations (PMT), University of Rajasthan, Jaipur. The fee will also cover the fee for the mark sheet. The eligible candidates will be admitted in the order of merit. (emphasis supplied) (ii)(a) Interview and allotment of College within 3 weeks of declaration of result of PMT. (b) The academic session should start within 2 weeks of allotment of college. (c) Last date of submitting vacancies position to Convener, Jaipur is within one month of allotment of colleges. (d) Re-allotment of vacancies within 14 days of (c).” (7) It is also stated in the reply that the respondent Institution is estopped from admitting students on the 85% of 150 seats from outside the merit list of RPMT-2008. 6 (8) The University further stated that on 16.9.2008, the respondent Institution addressed a letter to the Vice Chancellor stating therein that they have got approval from the Medical Council and are seeking guidance how the admissions are to be given in the Institution, which was made clear by the University on writing letter dated 23.9.2008 that the admissions could be made through the counselling scheduled to be held on 23.9.2008 of RPMT-2008. The letters dated 16.9.2008 and 22.9.2008 are as follows: “To Date:16.09.2008 The Vice Chancellor Rajasthan University of Health Sciences, Jaipur. Sub: Admissions in M.B.B.S. Course for Session 2008-09. Hon'ble Sir, In the above reference kindly note that till we have not received the approval for Govt.of India. However, if the approval comes after the second counselling then kindly suggest us the way or/Provide us the Merit List of RPMT Students for the admission in our college.” (emphasis supplied) Letter dated 22.9.2008 Annexure R-1/5A 22 िसतम् बर, 2008 िनितन शमार् गीतांजिल मेिडकल कॉलेज एण् ड होः पीटल, उदयपुर िवषय:- एम.बी.बी.एस. पाठ्यबम सऽ 2008-09 में ूवेश के सम् बन् ध में। उपरोक् त िवषयान् तगर्त आपके पऽ िदनांक 16.9.2008 के बम में लेख है िक यिद आप इस सऽ में छाऽों का ूवेश लेना चाहते हैं तो कृपया सीटों की संख् या के सम् बन् ध में िवँ विवघालय को अिवलम् ब सूिचत करें तािक तत् सबन् धी िनणर्य लेकर िदनांक 23.9.2008 को आयोिजत होने वाली आर.पी.एम.टी.2008 की काउंसिलंग में ूवेश सम् बन् धी कायर्वाही की जा सके। कुलसिचव" 7 (9) Lastly, it was submitted by the University that in order to fulfil the oblique motive, the respondent Institution has requested the Federation for giving membership and allotting students through PC-PMT-2008 which was all foul play and after thought. The University, in the aforesaid changed circumstances of irresponsible behaviour of the Institution have to stay the proceedings in the manner that the students of RPMT-2008 be admitted in the respondent Institution as the action of the respondent Institution of admitting students through PC-PMT-2008 which was meant for BDS only, was not only contrary to Ordinance 272 but various judgments of the Supreme Court. (10) Ultimately, the University has stated that it is not liable for giving enrollment to such illegally admitted students and to take their examination. (11) The gist of the aforesaid submissions has been referred at pages 77, 78 and 79 of the reply filed by the University in Paras 18 and 19, which are as follows: “18....Meaning thereby the respondent No.5 with the collusion of PCPMT Federation has admitted the students ignoring all canon of law, whereby not only the mandatory calendar decided by the Hon'ble Supreme Court in the case of Mridul Dhar, has been flouted going beyond 30.09.2008 giving admission and moreover the merit has been ignored and all admissions have been done ignoring the provisions of Ordinance 272, of University of Rajasthan, whereas the Written Entrance Test is to be conducted by the State agency in order to ensure the admission in the medical colleges situated in the State of Rajasthan. Moreover PCPMT Federation seems to be a device to make the admission in collusion for member colleges ignoring not only the mandatory calendar fixed by the Hon'ble Supreme Court but also without being recognised from competent authority conducting the Counselling without conduct the entrance test. 8 Therefore, the admission made in illegal manner for session 2008-09 by respondent No.5 deserves to be cancelled because in the similar circumstances the Hon'ble Supreme Court in the case of Harish Verma V/s.Ajay Srivastava, when reached to a conclusion, that the admission in PG Courses through Pre PG has been ensured lowering down by the minimum qualifying marks by Medical Council of India from 40% to 50%. Even on this illegality, Hon'ble Supreme Court has set aside and cancelled all illegal admissions after one and half year of studies of all the students. Therefore, now when no equity has been created in such illegal admitted students, the Hon'ble Court calling the judicial review may cancel all such 150 admissions are made by the respondent No.5. (emphasis supplied) 19. That beside to the above, the answering University is accountable only up till when the respondent No.5 was requesting to allot 150 students through merit list of RPMT-08, but when the students are illegally admitted. Thus the answering University has got no liability towards giving admissions and for giving enrollment to such illegally admitted students and to take Examinations thereof.” (emphasis supplied) (12) The State Government in its reply has stated that in the notification booklet of RPMT-2008, the name of Geetanjali Medical College and Hospital was included on the assumption that the Institution will get letter of permission and that the Institution will agree to take 85% out of the 150 seats from RPMT-2008 in case they got the letter of permission. It is further stated that the respondent Institution in collusion with the PC-PMT Federation had admitted the students ignoring the provisions of law, therefore, the show cause notice was issued on 29.9.2008 and a supervising team was constituted which found glaring illegalities in the admissions given by the respondent Institution. The State has also relied on the reply filed by the University that the admissions made in an illegal manner deserve to be cancelled as in the similar 9 circumstances, the Supreme Court in the case of Harish Verma V. Ajay Srivastava (supra) set aside the illegal admissions even though the students in that case had undertaken 1 year and a half of their course of study. Lastly, it was submitted by the State Government that the respondent Institution has committed grave illegality and violated not only Ordinance 272 and R.P.M.T.-2008 but has also acted contrary to law laid down by the Supreme Court. Paras 5,8 and 9 of the reply of State are as follows: “5.That pursuant to the notice dt.20.09.2008 a supervision team was found by the State Government to observe the counselling process of PCPMT for admission of students at the respondent college. The Supervision team found glaring irregularities in the admissions given by the respondent College. A copy of the report of the supervision team is annexed herewith and marked as Annexure R-2. 8. That the Rajasthan University of health Sciences in its reply has stated that in the counselling held by the PCPMT Federation the representative/nominee of the Health University was not called. Meaning thereby that the respondent College with the collusion of PCPMT Federation has admitted the students ignoring the statutory provisions, whereby not only the mandatory calendar as laid down by the Hon'ble Supreme Court in the case of Mridul Dhar has been flouted and moreover, the merit has been ignored. All admissions have been done ignoring the provisions of Ordinance 272 of the University of Rajasthan, where a written entrance test is to be conducted in order to ensure admissions in the Medical Colleges situated in the State of Rajasthan. It has been further stated that the admissions, since made in an illegal manner by the respondent University, deserve to be cancelled as in the similar circumstances the Hon'ble Supreme Court in the case of Harish Verma V. Ajay Srivastava set aside and cancelled all illegal admissions even when the students therein had undertaken one and half years of their studies. 9. That a perusal of the facts narrated above, as well as the response of the MCI and the Rajasthan Health University, denotes in clear terms that therespondent College has committed grave illegalities and violated, not only the relevant statutory provisions but has also acted contrary to the law laid down by the Hon'ble Supreme Court.” 10 (13) Medical Council has filed reply in SBCWP No.11589/2008 Rakhee Soni V. R.U.H.S. and stated that the primary responsibility for making admission in the medical course in accordance with the directions of the Supreme Court issued from time to time squarely lies with the competent admitting authorities of the State/University. The Medical Council is required to ensure admission in all the medical courses by competent State/University authorities within the annual intake. However, the Medical Council has not denied the fact that it is liable to check the sub-standard admissions in the medical courses. Relevant paras 31, 32, 33, 34, 35 and 36 of the reply filed by the Medical Council are as follows: “31. It is further the case of the petitioner that respondent No.5 has got permission of admitting 150 students in MBBS course for the session 2008-09 from MCI on 16.9.2008 and admission to the aforesaid seats is required to have given on the basis of the merit of RPMT-2008 by considering the candidature of the petitioners as prescribed in the information booklet of RPMT 2008. The respondent No.5 has even issued advertisement dated 25.9.2008 for filling 15% management quota but nothing has been done with regard to 85% seats which are required to be filled in through RPMT, 2008. (emphasis supplied) 32. It is further the case of the petitioner that the Geetanjali College has advertised on 26.9.2008 in the newspaper of M.P. and not in Rajasthan that even hold selection on the basis of marks of Senior Secondary Examination which is totally contrary to the judgment of Hon'ble Supreme Court in Islamic Academy and TMA Pai's case. (emphasis supplied) 33. It is respectfully submitted that the inspection for grant of Letter of Permission for Establishment of New Medical College at Udaipur, Rajasthan by Geetanjali Foundation was carried out by the Council Inspectors on 16th and 17th April 2008 and the inspection report was placed before the Executive Committee of the Council for its reconsideration. It is further submitted that the 11 Executive Committee at its meeting held on 12.05.2008 where the members of the Adhoc Committee appointed by the Hon'ble Supreme Court were also prsent took the following decision: “The members of the Adhoc Committee appointed by the Hon'ble Supreme Court and of the Executive Committee of the Council considered the Council Inspectors report (16th & 17th April, 2008) and decided to recommend to the Central Government to issue Letter of Permission for establishment of New Medical College at Udaipur, Rajasthan by Geetanjali Foundation, Udaipur, Rajathan u/s 10A of the IMC Act, 1956 with an annualintake of 150 (one hundred & fifty) students for the academic session 2008-09.” The Council vide its letter dated 02.06.2008 communicated the decision of Executive Committee to the Secretary, Government of India, Ministry of Health & Family Welfare, New Delhi. Copy of the letter dated 02.06.2008 of MCI is annexed as Annexure R-4/5. 34. It is respectfully submitted that the Government of India, Ministry of Health & Family Welfare vide its letter dated 04.08.2008 informed the Council as well as the said college that after the recommendations of the Council vide its letter dated 02.06.2008, the Central Team of the Ministry conducted the inspection of the proposed medical college on 01.07.2008 and due to the gross deficiencies found by the said team, it has been decided with the approval of the competent authority not to grant permission to the Geetanjali Foundation, Udaipur for Establishment of New Medical College at Udaipur for the academic year 2008-09. A copy of the letter dated 04.08.2008 issued by Govt. of India, Ministry of H & F.W.New Delhi is annexed herewith as Annexure R-4/6. 35. It is further respectfully submitted that the respondent-college filed the writ petition bearing WP (C) No.357 of 2008 before the Hon'ble Supreme Court against the decision of the Central Government dated 04.08.2008 and after recording the statement given by Ld. Additional Solicitor General that revised orders would be passed within a week in respect of the present petitioner/Geetanjali Foundation, the Hon'ble Supreme Court vide its order dated 03.09.2008 disposed of the said writ petition filed by the respondent college. Copy of the order dated 03.09.2008 in WP(C) No.357 of 2008 along with other petitions is annexed and marked as Annexure R-4/7. It is further submitted that thereafter the answering respondent received the copy of `Letter of Permission' dated 16.09.2008 from Government of India, Ministry of Health & Family Welfare, New Delhi, thereby, granting approval for Establishment of New Medical College at Udaipur by Geetanjali Foundation, with an annual intake of 150 students with prospective 12 effect i.e. from the academic year 2008-09 u/s 10(A) of the IMC Act, 1956. Copy of the letter dated 16.09.2008 issued by Govt. of India, Ministry of H & FW is annexed herewith as Annexure R-4/8. 36. It is respectfully submitted that the answering respondent-MCI with reference to admissions of 1st year MBBS students made by various medical colleges/institutions for the academic year 2008-09 send a letter dated 29.8.2008 requesting the Health Secretary and Director of Medical Education, Govt. of Rajasthan,Jaipur to provide the following information: (i) Ratio fixed by the State Govt. if any, for Govt. and Management quota for unaided self financing medical colleges for the academic year 2008-09. (ii) List of minority as well as non-minority private medical college/institutions in the State. Copy of the letter dated 29.8.2008 of MCI is annexed as Annexure R-4/9.” (14) Lastly,it was stated in para 48 of the reply that the facts and the submissions made by the Medical Council are required to be examined in accordance with the principles laid down in 2002(8) SCC 481 TMA Pai Foundation, 2005(6) SCC 537 Inamdar and 2005(2) SCC 65 Mridul Dhar V. UOI. In the event it is found that the admissions made by the respondent Institution are in violation of the principles of law laid down by the Supreme Court, appropriate orders deserve to be passed. The Medical Council prayed accordingly. (15) The respondent Institution in its reply has claimed that it has right to administer education and further rightly admitted the students from the PC-PMT and thereafter, the vacant seats were filled from 10+2 examination. It is also stated that the respondent Institution is not bound to take the students from the RPMT-2008 in view of the aforesaid 13 larger bench judgment. (16) Federation of Private Medical Colleges for Medical and Dental Colleges was allowed to intervene in this matter. Mr.Ashok Gaur, counsel for the Intervener supported the respondent No.5 with additional submission that the Federation was formed as per the Supreme Court judgment in Islamic Academy (supra) and admissions from the RPMT and PC-PMT are optional as per State Government letter dated 19.11.2007 and 4.12.2007 but has not disputed the fact that the PC-PMT was for BDS and Ordinance 272 is applicable. (17) It would be pertinent to mention here that in these particular cases, the petitioner students have not taken time and right from the beginning, they are pressing for the final disposal of the writ petition but the respondents first took time for filing reply and in the reply filed by the University, State and MCI, although submitted that the admissions are illegal, but no action was taken therefore, the record was called and orders were passed on 12.12.2008, 16.12.2008, 18.8.2008, 13.1.2009, 19.1.2009 and 29.1.2009 but none of the authorities which are responsible to check the illegal admissions and to see that the merit is not sacrificed, passed final order despite issuance of direction by this Court. However, the Medical Council came to the conclusion and issued letter on 2.1.2009 directing the respondent Institution to discharge the illegally admitted students in 1st Year MBBS 14 2008 but surprisingly, the University has changed its stand from `illegal admissions' to `irregular admissions' in their letter dated 31.12.2008 and the State, despite two orders of this Court dated 18.8.2008 and 29.1.2009, has not passed any final order. The aforesaid orders dated 12.12.2008, 16.12.2008, 18.12.2008, 13.1.2009, 19.1.2009 and 29.1.2009 along with letter of the University dated 31.12.2008, MCI order dated 2.1.2009 and Minutes of State filed on 17.1.2009 pursuant to the orders dated 18.12.2008 and 13.1.2009 are as follows: Order dated 12.12.2008 “Heard learned counsel for the parties for final disposal. During the course of arguments, it transpires from the reply of the respondent State that it has sissued show cause notice to the respondent-institution, but the institution has not responded to the said show cause notice issued on 29.09.2008 (annexure-R/1) and 11.11.2008 (annexure R/3) followed by the reminder dated 27.11.2008. From the reply, it is also not clear that why the Government has not proceeded further ex parte in a matter where there is