IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3688 of 2009 VIKASH KUMAR RAJ SON OF SRI BRAJNANDAN PRASAD, RESIDENT OF MOHALLA SARDAR PATEL COLONY, SANDALPUR ROAD, P.O. MAHENDRU, P.S. SULTANGANJ, DISTRICT PATNA. :--------------------PETITIONER Versus 1. THE STATE OF BIHAR 2. THE SECRETARY- CUM- COMMISSIONER DEPARTMENT OF HEALTH, MEDICAL EDUCATION AND FAMILY WELFARE, GOVERNMENT OF BIHAR, PATNA. 3. THE CONTROLLER OF EXAMINATION BIHAR COMBINED ENTRANCE COMPETIVE EXAMINATION BOARD, I.A.S. ASSOCIATION BUILDING NEAR PATNA AIR PORT, PATNA. ----------- For the petitioner : Mr. Dhirendra Kumar ( Munna), Advocate. For the State & : Mr. P.K.Shahi, Advocate General, Bihar For respondent No.3 : with Mr. Vikas Kumar, Advocate. --------- 04. 02.07.2009. Heard learned counsel for the petitioner, State and the counsel for Bihar Combined Entrance Competitive Examination Board (hereinafter referred to as “B.C.E.C.E.B.”). 2. Petitioner is an M.B.B.S. from S.M.S. Medical College, Jaipur, Rajasthan (hereinafter referred to as the College). He got admitted in the said college after succeeding in the Medical Entrance Examination Test conducted by the Central Board of Secondary Education (hereinafter referred to as “C.B.S.E.”) in the year 1997. Having passed the M.B.B.S. Course from the College in the year 2002 he got himself registered on 22.12.2006 as a medical practitioner with the Bihar Council of Medical 2 Registration. His certificate number is 36347. Petitioner having registered himself as medical practitioner in Bihar wanted to appear in the Post Graduate Medical Admission Test, 2008 conducted by B.C.E.C.E.B. but could not appear in the same in view of Clause 6.1 (i & ii) of the prospectus which provides for Institutional preference. He assailed the aforesaid Clause providing for Institutional preference by filing C.W.J.C.No. 3137 of 2008 which was dismissed under orders dated 19.02.2008 against which he preferred Letters Patent Appeal No. 381 of 2008 which was also dismissed under orders dated 14.11.2008 observing that the admission having been completed as per time schedule fixed for the Post Graduate and Super Specialty Course Admission provided in the case of Mridul Dhar (Minor) and another Vs. Union of India and others, reported in (2005) 2 SCC 65 for the academic session 2008 the plea raised in the appeal do not deserve to be considered on merit. Aforesaid order of the Division Bench was challenged in S.L.P. (Civil) No. 3232 of 2009 which was dismissed under orders dated 20.02.2009, Annexure-3 observing that the question raised in the appeal is left open to be decided in another appropriate petition. In the year 2009 as well petitioner wanted to appear in the Post 3 Graduate Medical Admission Test, 2009 conducted by the B.C.E.C.E.B. but could not apply for such Test as the prospectus issued for the said test again provided for Institutional preference under Clause 6.1 (i & ii) which is quoted below for ready reference : “(i). The candidates must have passed the M.B.B.S. Examination from any Medical College of Bihar State included in the schedule of Medical Council of India. (ii). The candidates who are permanent residents/domiciled of Bihar and have been admitted in M.B.B.S. course on the basis of competitive examination conducted on behalf of Govt. of Bihar or by C.B.S.E. (under All India Quota) before the bifurcation of Bihar i.e. 15.11.2000 in Medical Colleges situated in Jharkhand and have obtained the degree of M.B.B.S. are also eligible for appearing in this competitive examination for admission in academic session 2009 in this Course Group.” 3. Perusal of the aforesaid Clause would indicate that candidates who have passed M.B.B.S. examination from any Medical College of Bihar State included in the schedule of Medical Council of India (hereinafter referred to as “M.C.I.”) are eligible to appear in the Post Graduate Medical Admission Test. 4 Petitioner passed M.B.B.S. examination from a college at Jaipur, his application form for the said test was not entertained in the light of the aforesaid Clause of the prospectus. Assailing the aforesaid Clause present writ application has been filed asserting that the Institutional preference granted in favour of candidates obtaining M.B.B.S. qualification from Medical Colleges of Bihar State tantamounts to granting 100 per cent reservation in favour of the candidates obtaining M.B.B.S. qualification from Bihar State which is violative of Articles 14, 15 and 16 of the Constitution of India. 4. From the counter affidavit it appears that the aforesaid Clause has been included in the prospectus in accordance with the scheme framed by the Hon’ble Supreme Court in the case of Saurav Choudhary Vs. Union of India and another, reported in (2003) 11 SCC 146. It further appears that Institutional preference is limited to 50 per cent of the total seats approved by the M.C.I. as the other 50 per cent seats are made available to the C.B.S.E. for being filled up from an open competition based purely on merits on All India basis in which medical practitioners registered by the M.C.I. passing from Medical College outside the State of Bihar like the 5 petitioner herein are at liberty to appear. In the counter affidavit orders of this Court dated 08.02.2007 passed in the case of Dr. Sucheta Kumari and Dr. Gyanendra Singh bearing C.W.J.C. Nos. 886 and 1071 both of 2007 has also been annexed and placing reliance on the said order it is submitted that the case of the petitioner being similar to Dr. Sucheta Kumari and Dr. Gyanendra Singh who passed M.B.B.S. examination from college outside Bihar and were not permitted to appear in the Post Graduate Medical Admission Test, 2007 filed the two writ petitions questioning the institutional preference but both the aforesaid writ petitions were dismissed under order dated 08.02.2007, case of the petitioner being similar, his writ petition should also be dismissed. 5. Clause 6.1(i & ii) has been included in the prospectus of the Post Graduate Medical Admission Test, 2009 by the B.C.E.C.E.B. providing for Institutional preference in the light of the scheme framed by the Hon’ble Supreme Court. The Institutional preference, however, does not exceed 50 per cent of the total seats recognized by the M.C.I. as the remaining 50 per cent of the recognized seats are made available by the B.C.E.C.E.B. to C.B.S.E. for being filled up through an open competitive test 6 conducted by the C.B.S.E. in which medical practitioner registered by the M.C.I. passing from Medical Colleges outside the State of Bihar have the liberty to apply for appearance. In my opinion, therefore, Institutional preference provided under Clause 6.1 (i & ii) does not violate any of the Constitutional provisions and the writ application has to be dismissed which is, accordingly, dismissed. 6. Before parting with this order I deem it necessary to notice the facts stated in paragraph 18 of the counter affidavit dated 21.05.2009 affirmed by Sri Amrendra Narayan Singh, Controller of Examination in the B.C.E.C.E.B. For such purpose it is useful to quote the paragraph in extenso. “18. That in reply to the statement made in para 5 (i) to (iv) of the writ application it is stated that as per the order/judgment passed by the Hon’ble Supreme Court in Saurav Chaudhary case (supra) State is allowed to fill up by giving institutional preference on all the remaining seats after due contribution to All India Quota. So far as numerical difference in number of seat of PGMAT-09 it is stated that PG Medical degree courses available in the Govt. 7 Medical Colleges are of two types (i) Courses recognized by MCI and (ii) Courses yet to be recognized by MCI. The open central quota seats include 50% of the total seats in PG Medical courses duly recognized by MCI whereas those seats of PG Medical courses, which are yet to be recognized, do not contribute to 50% central quota. Hence the total number of seats in open central quota obviously differ from the total of the seats in State quota. Therefore, allocation of more than 50% seats under State quota is fully justified and the allegation of the petitioner is false and fictitious.” It is thus, evident that the Board is recommending admission against seats which has the approval of the M.C.I. as also against the seats which are yet to be approved by the M.C.I. Recommendation by the B.C.E.C.E.B. against the seats which are yet to be recognized by the M.C.I. is violative of Section 10A of the Medical Council of India Act which inter alia empowers the M.C.I. to grant recognition for medical teaching as also to fix intake capacity of the course/college. It is, thus, obvious that 8 recommendation made by the B.C.E.C.E.B. against seats which are yet to be recognized by the M.C.I. is wholly illegal. Having noticed such illegality this Court called upon the learned Advocate General appearing for the B.C.E.C.E.B. to justify the recommendation made by the B.C.E.C.E.B. for admission against seats which are not recognized by the M.C.I. He was further called upon as to why further direction be not made to cancel the admission taken against seats which are not recognized by the M.C.I. Learned Advocate General then submitted that matter of recognition of seats is a continuous process and the seat may not be recognized today but it is likely to be recognized in near future and the B.C.E.C.E.B. awaiting such recognition has made recommendations even against seats which are likely to be recognized by the M.C.I. in near future. In this connection learned Advocate General further submitted that as the petitioner was not qualified to appear in the Post Graduate Medical Admission Test at his instance this Court should not issue any direction for cancelling the recommendation/admission made against seats not recognized by the M.C.I. 7. Having heard counsel for the parties I express my inability to accede to the request made by 9 the learned Advocate General. In view of the provisions contained in Section 10A of the Medical Council of India Act it is evident that the B.C.E.C.E.B. should have made recommendation for admission only against seats which are duly recognized by the M.C.I. and not against seats which are likely to be recognized in future. It is evident from the counter affidavit that the recommendations have also been made against seats which are yet to be recognized by the M.C.I., such recommendation is absolutely illegal and in teeth of the statutory provision. Reference in this connection may usefully be made to the judgment of the Hon’ble Supreme Court in the case of Medical Council of India Vs. State of Karnataka and others, reported in A.I.R. 1998 Supreme Court 2423 and in the case of Medical Council of India Vs. Madhu Singh and others, reported in (2002) 7 Supreme Court Cases 258. 8. As recommendation/admission have been made on seats which are yet to be recognized by the M.C.I., such recommendation and admission is absolutely illegal and the illegality having been brought to the notice of this Court by the B.C.E.C.E.B. itself by filing counter affidavit, such illegality cannot be allowed to be perpetuated and, accordingly, it is directed that the B.C.E.C.E.B. should not only cancel 10 the recommendation made against a seat which is yet to be recognized by the M.C.I. but should also ask the Medical College concerned to cancel the admission of those who have been recommended and admitted against seats/course which are yet to be recognized by the M.C.I. Necessary action in terms of this order be taken by the B.C.E.C.E.B. as early as possible, in any case within a period of one month from today. 9. In terms of the judgment of the Hon’ble Supreme Court in the case of Mridul Dhar (Minor) and another vs. Union of India and others (supra) the admission process has to be completed within a time schedule. Thus, it is obvious that only those seats which have got recognition until the last date as per the time schedule fixed by the Hon’ble Supreme Court should be considered for recommendation and admission in terms of the result obtained in the Test. Any seat/course recognized by the M.C.I. after the closure of the admission as per the time schedule fixed by the Hon’ble Supreme Court should be considered for recommendation and admission only in the next year. A.F.R. P.K.P. ( V.N.Sinha, J. ) 11