1 CWP No.5946/2008 (NIMS) Anupam Sharma & ors.V.State and others IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER (1) Anupam Sharma and others V. State of Rajasthan & ors. (S.B. CIVIL WRIT PETITION NO.5946/2008) (2) Vinod Yogi and others V. State of Rajasthan & ors. (S.B. CIVIL WRIT PETITION NO.5476/2008) (3) Pankaj Ashiya and others V. State of Rajasthan & ors. (S.B. CIVIL WRIT PETITION NO.5165/2008) (4) Mohd. Zahid and others V. State of Rajasthan & ors. (S.B. CIVIL WRIT PETITION NO.3938/2008) (5) Amandeep and others V. State of Rajasthan & ors. (S.B. CIVIL WRIT PETITION NO.6392/2008) (6) Harendra Kumar and others V. State of Rajasthan & ors. (S.B. CIVIL WRIT PETITION NO.4182/2008) Date of order ::: January 06, 2009 HON'BLE MR.JUSTICE PREM SHANKER ASOPA Mr.A.K.Bhandari, Sr.Advocate with Mr.Ashok Gaur, Mr.R.D.Rastogi and Mr.G.K.Garg, for the petitioners Dr.A.S.Khangarot, Addl. GA Mr.Paras Kuhad, for the NIMS University Mr.R.A.Katta and Mr.B.C.Chirania for the respondents REPORTABLE BY THE COURT (1) In all the aforesaid six writ petitions, common questions of fact and law are involved, therefore, all have been heard together and are being decided together. (2) For the purpose of decision of these writ petitions, leading facts are taken from SBCWP No.5946/2008 Anupam Sharma and others V. The State of Rajasthan and others. 2 CWP No.5946/2008 (NIMS) Anupam Sharma & ors.V.State and others (3) The main relief sought by the petitioners in the aforesaid case is that the orders dated 1.4.2008 and 5.5.2008 (Anx.4 and Anx.1 respectively) be quashed and set aside. The order dated 1.4.2008 (Annexure-4) has been issued by the Principal and Controller, NIMS Medical College (respondent No.3) to the medical students of all Semesters to submit duly filled enrolment forms to his office by Thursday 3rd evening by 3.00 p.m. otherwise they will not be eligible for the University examination. The order dated 5.5.2008 (Annexure-5) has been passed by the State Government (Education Gr.IV Department) to facilitate the functioning of the NIMS University, Rajasthan, Jaipur notifying termination of the affiliation from the Rajasthan University of Health Sciences, Jaipur (in short `the R.U.H.S.') and that the enrolment of the students for the study to the aforesaid course and test for their admission to the first year of the aforesaid courses will be made by the NIMS University subject to the stipulation - (i) that the said programmes of study shall hereinafter be deemed to be conducted by the NIMS University, Rajasthan, Jaipur subject to such Statutes, Ordinances and Regulations, as the said University may establish from time to time; (ii) The said students shall be deemed to be the students of the NIMS University Rajasthan, Jaipur till completion of their 3 CWP No.5946/2008 (NIMS) Anupam Sharma & ors.V.State and others respective programmes in accordance with the Statutes, Ordinances and Regulations of the said University; and (iii) The said University will not charge additional fees of any type from the students who are already enrolled during the earlier sessions. By the aforesaid order, the NIMS University was also authorised to take any action as it deem appropriate to give effect to this order. (4) The factual matrix of the case is that in the year 2000, the NIMS Medical College, respondent No.3, was substantially started. On 26.2.2005, a notification came to be issued constituting the Rajasthan University of Health Sciences, Jaipur (RUHS) whereby all Medical Colleges, Dental, Pharmacy, Nursing, imparting education in the discipline and any other discipline of health sciences within the State of Rajasthan were required to be affiliated to the said University. As such, NIMS College also got affiliated to the said University. (5) Prior to the aforesaid notification, the jurisdiction of all the aforesaid courses was of the University of Rajasthan. Therefore, the State Government had to issue two Standing Orders i.e. S.O.No.208 and 209 under section 6 of the Rajasthan University of Health Sciences Act, 2005 (hereinafter referred to as the `Act of 2005') which were published in the Rajasthan Gazette dated 3.10.2006. 4 CWP No.5946/2008 (NIMS) Anupam Sharma & ors.V.State and others (6) By S.O.No.208, all Medical and Dental Colleges and Institutions notified vide Department notification dated 22.9.2006 affiliated with the University of Rajasthan, and Rajasthan Technical University, Kota shall be deemed to have been automatically affiliated with the Rajasthan University of Health Sciences w.e.f. 1.10.2006. It has also been mentioned in the last para of the notification that the RUHS will conduct examinations and declare the result of the students enrolled in various courses in all the colleges and the institutions affiliated with it. (7) By S.O.No.209, the State Government terminated the territorial jurisdiction of the University of Rajasthan over the Medical and Dental Colleges specified in Column No.2 of the table referred below wherein the name of the NIMS Medical College was mentioned in List-B of private medical colleges at Item No.2. (8) In the year 2005, the petitioners who were the students of MBBS II and III year of respondent No.3 NIMS College since 2005 have been enrolled with the RUHS. (9) On 22.8.2007, the Vice Chanceller of RUHS wrote a letter to the State Government in which he requested the State Government to take necessary steps that the Institutions including the NIMS College should not be given the status of private University or Deemed University in the 5 CWP No.5946/2008 (NIMS) Anupam Sharma & ors.V.State and others interest of medical education. (10) In the year 2008, the NIMS University Rajasthan, Jaipur Act, 2008 (hereinafter referred to as the `Act of 2008') came to be enacted and the same came into force from 19.1.2008. (11) The subsequent impugned orders dated 1.4.2008 and 5.5.2008 have already been referred to in the earlier paragraphs of this judgment. (12) On 23.5.2008, this Court passed an interim order in favour of similarly situate students in SBCWP No. 3938/2008 Mohd. Zahid and others V. The State of Rajasthan and others and further similar interim order was passed on 30.5.2008 in SBCWP No.5476/2008 (Vinod Yogi and others V. The State of Rajasthan and others) filed by similarly situated students Vinod Yogi and others. (13) Thereafter, in the present case, interim order of declaration of result was passed on 4.11.2008 and further interim order for taking internal practical examination of respective year was passed on 1.12.2008 and then final interim order was passed on 22.12.2008 whereby the RUHS was allowed to fill up the forms of final year IInd MBBS and conduct examination thereof with the further direction to allow the petitioners to appear in the examination, subject to their eligibility to be determined by the RUHS, which was 6 CWP No.5946/2008 (NIMS) Anupam Sharma & ors.V.State and others made subject to the decision of the writ petition. (14) The grievance raised in the writ petition by the petitioners is that they are enrolled with the RUHS and the students are neither students of the NIMS University nor they are governed by the provisions of the Act of 2008 for the reason of their aforesaid enrolment with the RUHS and passing their examination from the same in the past. It is stated in the writ petition that their status and enrolment from one University to another cannot be changed by putting them to any disadvantageous position and without their consent of taking any un-recognised degree. (15) The respondents No.3 and 4 have filed reply to the writ petition and submitted therein that prior to 2008, the NIMS College was a private medical college affiliated with the RUHS but after the enactment of the Act of 2008, the NIMS College becomes the constituent college of the NIMS University and lost its individual entity as private medical college as per Schedule-II specified at the end under Sec. 4 of the Act of 2008, and further affiliation of the constituent college automatically transferred from the RUHS to the NIMS University as there is difference between private medical college affiliated with the University and the students of the constituent medical college for which no termination of affiliation and further transfer of enrolment is 7 CWP No.5946/2008 (NIMS) Anupam Sharma & ors.V.State and others necessary. (16) On the issue of recognition of qualification/degree, it is stated that as per Sec.10B(1) of the Indian Medical Council Act, 1956 (in short `the Act of 1956') their qualifications/degrees are recognised as the College was first opened as a private college with the previous permission of the Central Government. Thus, they are competent to grant the recognised degree. (17) Submission of counsel for the petitioners is that the impugned order dated 1.4.2008 passed by the Principal and Controller of NIMS Medical College for filling of the enrolment form(s) is wholly without jurisdiction as there is no power vested in the Principal and Controller to ask for fresh enrolment under the Act of 2008. Otherwise also, no statute, ordinance, regulations, rules have been framed nor adopted as per the Act of 2008 and further, there is no provision of incorporation for the aforesaid statute, ordinance, regulations, rules as well as transitional provision, therefore, the order of the State Government dated 5.5.2008 is also without jurisdiction. They are still enrolled with the RUHS and the said University is to conduct their examination and declare the result. During the mid of the course, termination of affiliation as well as migration of the students is not permissible, therefore, direction be 8 CWP No.5946/2008 (NIMS) Anupam Sharma & ors.V.State and others issued to the RUHS to conduct the examination of the students who were enrolled with it prior to 19.1.2008 i.e. the date of enforcement of the Act of 2008. It has also been submitted by the counsel for the petitioners that when the RUHS Act, 2005 was enacted, there was Sec.6 regarding transfer of the territorial jurisdiction under which S.O.208 and 209 were issued and published in the gazette for termination of the affiliation as well as transfer of the enrolment with the further direction to conduct the examination and declare the result but there is no such provision in the Act of 2008. (18) Counsel for the respondents submits that as soon as the Act of 2008 came into force on 19.1.2008, by virtue of Schedule-II of Sec.4 thereof, the NIMS Medical College became the constituent college of the NIMS University and for the constituent college, neither any affiliation is required nor the students of the same constituent college can be allowed to be enrolled with any other University. The students of the NIMS Medical College, which was earlier affiliated with the RUHS, stand transferred to the NIMS University and the students became the students of the constituent college for whom they are entitled to hold the examination. The NIMS University is empowered to confer the degree under Section 30(c) of the Act of 2008 and the 9 CWP No.5946/2008 (NIMS) Anupam Sharma & ors.V.State and others same is deemed to be recognised under section 10B(1) of the Act of 1956. (19) Further submission of Mr.Paras Kuhad is that the statutes, ordinances, regulations of the University of Rajasthan stand adopted by the NIMS University as the same were earlier adopted by the RUHS, therefore, the students who were earlier enrolled as members of the affiliated college before entering upon the course prescribed for such examination shall be deemed to be the students of the NIMS University, as would be evident from the perusal of Section 4A, 32 of the University of Rajasthan Act read with Ordinance 83, 92 and 143 of the University of Rajasthan Ordinance. The counsel has also submitted that the students of the merging college automatically become the students of the NIMS University and there was no need for enactment of any specific provision under the Act of 2008. (20) From the pleadings of the parties, the core questions which arise for consideration are as under: (1) Whether the impugned order dated 1.4.2008 and 5.5.2008 are without jurisdiction. (2) Whether any statute, ordinance, regulation are required to be framed and enforced prior to the termination of the affiliation and transfer of the students and enrolment 10 CWP No.5946/2008 (NIMS) Anupam Sharma & ors.V.State and others of the same with the new University as well as examination and conferment of degree. (3) Whether it was incumbent upon the State Government to examine the issue that there was any transitional provision or incorporation in the Act of 2008 or adoption/continuation of the statutes, ordinance of the University of Rajasthan as done by RUHS or by enacting any saving clause in the Act of 2008 which permit termination of the affiliation, transfer of the students and enrolment of the same as well as examination as per the statute, ordinance and regulation of the University of Rajasthan adopted by the RUHS and even if there was no such specific provision, then it was essential to first approve the Ordinance and the statute ? (21) Before proceeding further, it is pertinent to reproduce the impugned orders dated 1.4.2008 and 5.5.2008 and to refer Sec.4A and 32 of the University of Rajasthan Act, Ordinance 83, 92, 143 of the University of Rajasthan Ordinance, Sec.6 of the Rajasthan University of Health Sciences Act, 2005, S.O.No.208 and 209, and Sec.1(1), 2 (r), 2(v), Sec.3(2), Sec.4(4), Sec.5(b), 5(n), 5(x), sec.7,Sec.11, Sec.13(6), Sec.22(1)(d), Sec.22(2)(a) and 22 (2)(f), Sec.23(3), Sec.29(1)(k), Sec.29(2), Sec.29(3), Sec.29(4), Sec.29(5), Sec.30(1)(a), (b), (d), Sec.30(2), 11 CWP No.5946/2008 (NIMS) Anupam Sharma & ors.V.State and others Sec.30(3), Sec.30(4), Sec.31, Sec.34, Sec.35, Sec.38, Sec.41, Sec.42, Sec.44, Sec.45, Sec.46, Sec.47, Sec.48 of the Act of 2008 and Sec.10B(1) and Sec.11(1) and 11(2) of the Indian Medical Council Act, 1956, which are as follows: Order dated 1.4.2008 "OFFICE OF THE PRINCIPAL NIMS Medical College, Shobha Nagar, Jaipur Ref.No. Date: 01/04/2008 Medical students of all semester have to submit duly filled enrolment form to this office by Thursday 3rd evening by 3.00 p.m. otherwise they will not be eligible for University examination. Sd/- Dr.Vinod Shah, Principal & Controller NIMS Medical College (emphasis supplied) Copy to: - 1. All HODs 2. Notice Board 3. Vice Chancellor 4. Registrar" (emphasis supplied) Order dated 5.5.2008 "Govt. of Rajasthan Education (Gr.IV) Department F.3(27)Edu.4/2005/Part-II Jaipur, dated 5.5.2008 ORDER WHEREAS there has arisen an urgent need for the Nims University Rajasthan, Jaipur to exercise its powers and perform its functions pursuant to Section 5 of the Nims University Rajasthan, Jaipur A ct, 2008 in respect of the admissions to the programmes of professional study being conducted by the NIMS Institutions imparting Medical and Dental Education and other allied programmes of study being conducted by NIMS Institutions of Indian Medical Trust, Jaipur. 12 CWP No.5946/2008 (NIMS) Anupam Sharma & ors.V.State and others AND WHEREAS special provisions are required to be made to enable the Nims University Rajasthan, Jaipur to remove difficulties in admitting the students to the said courses conducted by the NIMS Institutions of Indian Medical Trust, Jaipur. Now, therefore, to facilitate the functioning of the Nims University, Rajasthan, Jaipur, the Government of The State of Rajasthan does hereby notify that:- (1) The programmes of the studies of all the batches of Medical (M.B.B.S.), Dental (B.D.S.) and other professional courses are hereby transferred from NIMS Institutions of Indian Medical Trust to the Nims University Rajasthan, Jaipur by terminating their affiliation from the Rajasthan University of Health Sciences, Jaipur. (emphasis supplied) (2) the enrolment of the students for the study to the aforesaid courses, and test for their admission to the first year of the aforesaid courses, will be made by the NIMS UNIVERSITY subject to the following stipulations: (emphasis supplied) i) The said programmes of study shall hereinafter be deemed to be conducted by the NIMs University, Rajasthan, Jaipur subject to such Statutes, Ordinances and Regulations as the said University may establish from time to time. (emphasis supplied) ii) The said students shall be deemed to be the students of the Nims University Rajasthan, Jaipur till completion of their respective programmes in accordance with the Statutes, Ordinances and Regulations of the said University; and (emphasis supplied) iii) The said University will not charge additional fee of any type from the students who are already enrolled during the earlier sessions. The Nims University Rajasthan, Jaipur is hereby authorised to take any action as it may deem appropriate, to give effect to this order. By order, 13 CWP No.5946/2008 (NIMS) Anupam Sharma & ors.V.State and others Sd/- (Atul Kumar Garg) Pr.Secretary, Hr.Education" University of Rajasthan Act, 1946 Sec.4A The University shall have the following powers, namely : - (1) to (4) .... (4A) to admit colleges and institutions to the privileges of the University and to withdraw such privileges; (emphasis supplied) (5) to (15) ..." Sec.32. The affiliated colleges shall be such as may after the commencement of this Act, be recognised by the Syndicate in accordance with this Act and Statutes, but shall include all colleges recognised at the commencement of this Act as colleges of the University so long as such recognition continues." Ordinance 83 of the University of Rajasthan "O.83. A student shall be recognised as member of a college as soon as he has been accepted by the Principal and has paid the college fees." Ordinance 92 of the University of Rajasthan "O.92. The application for enrolment together with the enrolment fee and the migration certificate from the University/Board concerned (wherever necessary) shall be submitted by a college student through the Principal of the college concerned so as to reach the Registrar by the 1st of September in the academic year in which he first joins an affiliated college and by a private candidate directly to the Registrar along with the application form for the examination so as to reach him by the 15th September in the year preceding in which he takes his first examination in the University. Candidates migrating from the Board of Secondary Examination, Rajasthan shall not be required to produce the migration certificate. (emphasis supplied) Students seeking admission to a college affiliated to the University and private candidates seeking admission to an examination of the University after having been 14 CWP No.5946/2008 (NIMS) Anupam Sharma & ors.V.State and others admitted as members of another University incorporated by any law for the time being inforce, willnot be enrolled unless their applications for enrolment are accompanied by a migration certificate from the previous University. (emphasis supplied) Candidates who are enrolled after the date fixed under this Ordinance on account of late submission of application or the fee or both or for want of a Migration Certificate shall be required to pay a further fee of Rs.3/- in each case. Candidates who fail to get themselves enrolled even on payment of a late fee of Rs.3/- upto 1st December may be enrolled on payment of a special late fee of Rs.25/- upto 31st January, after which the admission will automatically stand cancelled and the candidate shall not be permitted to sit for any of the next ensuing examinations of the University and no refund of any fee paid by the candidate till then will be permissible. Notes:- (1) The last dates for submission of applications for enrolment by the students of correspondence studies will be the same as for college students. If, however, the students of a particular correspondence course areexamined along with the non- collegiate candidates, then in that case the last dates shall be the same as prescribed above for non-collegiate candidates. (2) In the case of (i) students admitted to the Medical Colleges, and (ii) students having been declared supplementary admitted provisionally to the next higher class in the beginning of the session under the provisions of O.198 and subsequently declared successful at the supplementary examinations, the last date for submission of application for enrolment shall be 15th October without late fee and 1st December with a late fee of Rs.3/-." Ordinance 143 of the University of Rajasthan "O.143. Every candidate for an examination of the University shall, except when exempted by any of the Ordinances, be enrolled as a member of an affiliated college before entering upon the course prescribed forsuch examination and should have undergone a regular course of study at that college." (emphasis supplied) Rajasthan University of Health Sciences Act, 2005 Sec.6 Jurisdiction.- (1) Notwithstanding anything contained in any other law for the time being in force, the jurisdiction of the Rajasthan University of Health Sciences shall extend to allthe Medical, Dental, Pharmacy and Nursing Colleges, imparting education in these disciplines and any other disciplines of health sciences within the 15 CWP No.5946/2008 (NIMS) Anupam Sharma & ors.V.State and others State of Rajasthan and also to such other constituent affiliated or autonomous colleges, institutes, institutions within the State of Rajasthan as may be specified by notification in the Official Gazette, by the State Government. (2) The State Government may,by order in writing - (a) require any institute, institution or college within the territorial limits of the University to terminate, with effect from such date as may be specified in the order, its association with, or its admission to the privileges of any other University incorporated by law to such extent as may be considered necessary and proper, or (emphasis supplied) (b) exclude to such extent as may be considered necessary and proper from association with or from admission to the privileges of the University constituted by this Act any institute, institution or college specified in the order which in the opinion of the State Government, is required to be self governing or to be, associated with or admitted to the privileges of any other University or body. (3) The State Government may in consultation with the University, by notification published in the Official Gazette, enumerate any Government college situated in the jurisdiction of the University to be a constituent college of the University. The land, buildings, laboratories, equipments, books and any other properties of such college shall then vest in the University and the officers, teachers and employees of such college, after being found suitable through screening and on fulfilling such terms and conditions as may be laid down in the notification, shall be deemed to be the officers, teachers or as the case may be employees of the University." S.O.No.208 and 209 S.O.208 "Consequent upon promulgation of the Rajasthan University of Health Sciences Act, 2005 (act No.1 of 2005), the State Government hereby orders that:- All medical and dental colleges and institutions notified vide this department Notification No.F.27(41) ME/Gr.I/91 Pt.I dated 22.09.2006 affiliated with the University of Rajasthan Jaipur and Rajasthan Technical University, Kota shall be deemed to have been temporarily affiliated with the Rajasthan University of Health Sciences, Jaipur with effect from 01.10.2006 with the same state of affiliation in which they were affiliated with the University of Rajasthan and Rajasthan Technical University, Jaipur prior to termination of their affiliation. The terms and 16 CWP No.5946/2008 (NIMS) Anupam Sharma & ors.V.State and others conditions regarding affiliation of medical and dental colleges and institutions with the University of Rajasthan and Rajasthan Technical University shall stand automatically modified/amended as per enactment of the Rajasthan University of Health Sciences Act. All such colleges and institutions shall seek affiliation as per provisions of the said act. The Rajasthan University of Health Sciences will conduct examinations and declare results for students enrolled in various courses in all the colleges and institutions affiliated to it." (emphasis supplied) S.O.209 "In exercise of the powers conferred by sub-section (2) of section 6 of the Rajasthan University of Health Sciences Act, 2005 (Act No.1 of 2005), the State Government hereby terminates the territorial jurisdiction of University of Rajasthan over the Medical and Dental Colleges and Institutions specified in column No.2 of the following table for the purposes of operation of the said Act, with effect from 01.10.2006, namely: (emphasis supplied) TABLE A. S.No. Names of Government Medical and Dental Colleges -- ---- B. S.No. Names of Private Medical Colleges 1 Mahatma Gandhi National Institute of Medical Sciences, Sitapura Industrial Area, Jaipur. 2 National Institute of Medical Sciences, Jaipur- Delhi National Highway, Jaipur (emphasis supplied) C. S.No. Names of Private Dental Colleges -- ---- 17 CWP No.5946/2008 (NIMS) Anupam Sharma & ors.V.State