THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO W.P.Nos.11257, 23510 & 26463 OF 2010 COMMON ORDER: These three cases can be dealt with together as they arise out of common set of facts. W.P.Nos.11257 and 23510 of 2010 have been instituted by Dr. Divya, while W.P.No.26463 of 2010 has been instituted by Dr.Jamal Dudekula. In the first writ petition the petitioner is aggrieved by the action of the respondents 3 and 4 in not issuing her an Application Form for securing admission to Post Graduate (Medical course), in particular, M.D. (General Medicine). The second writ petition has been instituted by her aggrieved by the action of the respondents in not permitting her to attend the M.D. (General Medicine) course. W.P.No.26463 of 2010 has been instituted by Dr.Jamal Dudekula for declaring the Proceedings issued on 06-10-2010 and 05-10-2010 canceling his admission in M.D.(General Medicine) course, as illegal. The 4th respondent Medical College is run by the 3rd respondent Educational Trust. The 2nd respondent University of Health Sciences has been constituted in terms of Section 3 of the Dr. N.T.R. Health Sciences Act, 1983. The Medical Council of India, 1st respondent herein, is the competent authority for evaluating the infrastructural facilities that are available in various medical institutions across the country and based upon the result of its assessment, it sanctions Post Graduate courses to be offered for study. Apart from the 4th respondent private Medical College, several medical colleges are established at various places in the State by the Government of Andhra Pradesh, and by private bodies where Post Graduate medical education is also offered. The State Legislature has enacted the Andhra Pradesh Educational Institutes (Regulation of Admission and Prohibition of Capitation Fee), Act, 1983 (Act No.5 of 1983), which prohibits collection of capitation fee, in any form, from any student for purpose of studying any course of education. Where as in Private medical colleges, the admission process to Post graduate medical courses is regulated by certain set of rules promulgated by the Governor exercising the power available to him under Section 3 r/w Section 15 of Act No.5 of 1983. These Rules are called the Andhra Pradesh Un-aided Non-Minority Professional Institutions (Regulation of Admissions into Post Graduate Medical and Dental Professional Courses) Rules, 2003. They shall apply to all un- aided non-minority professional institutions imparting Post Graduate professional education in Medical and Dental courses. Importantly, these Rules apply to both the streams of admission, which are called as competent authority seats as well as the management seats. Competent authority seats are defined in Rule-2(v) as seats earmarked from out of the sanctioned intake in each course and in each college, to be filled in by the Committee for Admissions. The expression ‘management seats’ is defined in Rule-2(vi) as seats earmarked from out of the sanctioned intake in each course to be filled in by the Management of the Un-aided Non-Minority Professional Institutions in such manner as may be prescribed by the Government or by the Committee of Admissions constituted by the competent authority. The expressions ‘qualified candidate’ and ‘qualifying examination’ are defined as under in Rule-2(xi) and (xii): “(xi) “Quality Candidate” in respect of seats to be filled by the ‘Competent Authority’ means the candidate who has appeared for the Entrance Test for Post Graduate course admission and has been assigned ranking in the Common merit list. (xii) “Qualifying Examination” means the examination of the minimum qualification prescribed which entitles one to seek admission into the relevant Professional Post Graduate Course.” Rule-3 of these Rules dealt with the allotment of seats. 50% of the sanctioned intake is recognized as the competent authority’s seats. These seats are required to be filled-in in accordance with the Andhra Pradesh Un-aided Non- Minority Professional Institutions (Regulation of Admissions into Post Graduate Medical and Dental Professional Courses) Rules, 2003, as amended from time to time. The balance 50% of the seats are reserved for allotment of the Managements. These seats shall be filled in by the Management of the Private Colleges. Rule-4 dealt with the allotment of seats on rotational basis. If only one post graduate seat is sanctioned in the first year, the said seat will go to the Management and the next year the same seat will go to the competent authority quota. Similarly, if one seat is sanctioned for degree and diploma courses respectively, in the first year, the seat in degree course will go in favour of the Management, while the seat in diploma course, to the Convener quota and this process gets reversed the next year. If there are three seats sanctioned or any other odd number, the equal number of seats will go to the Management and the Competent Authority quotas and the odd seat will rotate between the Management and the Convener quota every alternate year. Rule-8 has prescribed the fee structure. While the fee structure has been prescribed for the competent authority’s seats, no such fee structure has been prescribed for the management quota seats. But however, Rule-8(ii) adds that the Management of the Institution concerned shall fix a reasonable fee taking into consideration both the recurring and non-recurring expenditure. Most importantly, Rule-9 stipulates that the Management shall not charge any capitation fee or collect any other amount, in any form, other than the fee fixed under Rule-8(i). A closer scrutiny of Rule-9 makes it clear that a student, who has been granted admission under the Competent Authority quota, shall not be charged with any other fee by the Management of the private medical college, but at the same time, the Management shall not also resort to collecting capitation fee from the students even in respect of those admitted against the Management quota. The only freedom, which Rule-8 accords to such Managements, was that they can charge a reasonable fee keeping in view the recurring and non-recurring expenditure. It is well to remember that by Act No.5 of 1983, collection of capitation fee, in whatever form it could be, is recognized as a penal offence. Rule-10 dealt with the admission procedure. It made clear that if the admissions to a course in a private medical college exceeds 50% of the Management quota for any reason, then, the Management should surrender equal number of seats from its Management quota to the Convener quota for the next year. In accordance with Rule-10, as against permissible two seats in a particular Post Graduate Degree course, if the Management admits one more student, it shall surrender one seat from out of it’s quota in the next academic session to the Convener quota. This rule is, obviously, framed in view of the possibility of excessive intake, due to intervention of courts in the matter of regulating the admission process against the Post Graduate Degree course in the private un-aided medical colleges. Rule-13 of these Rules made it abundantly clear that the Competent Authority as well as the Management of the private medical college shall close the admission process on such date as notified by the Competent Authority and that subsequent to the said date no admissions in private un-aided professional institutions shall be made. The petitioner in W.P.No.11257of 2010 has specifically averred that she appeared for the Post Graduate entrance examination conducted by Dr. N.T.R. University of Health Sciences. She has qualified herself in the said examination, but however, realizing that her chances for securing admission into M.D. (General Medicine) post graduation course under the Convener’s quota would be bleak, sought for admission in the 4th respondent Medical College against one of the seats to be filled in under the Management quota. It is her case that in spite of making enormous efforts, the details of which have been set out in the affidavit filed in support of the writ petition, the 4th respondent medical college was reluctant to provide her an Application Form so that she can apply for the said admission process. It is stated that the 4th respondent Medical College was absolutely cold when requested to furnish an Application Form as the writ petitioner was reluctant to obey the unjust demand of the 4th respondent to pay a hefty amount. Though, the 4th respondent medical college has been served with notices, it had not preferred to contradict the averments made by Dr.Divya or contest the case. Hence, it can be assured that the factual averments made by Dr.Divya are true and correct. Entertaining WP No. 11257 of 2010 instituted by Dr.Divya, this court passed an interim order on 12.5.2010 directing the respondents 3 and 4 to furnish an application form to the petitioner for admission to MD General Medicine Post Graduate course and after the petitioner applies for the same to receive and consider her case in accordance with the rules. Thereafter, an application form appears to have been made available to Dr.Divya. The 4th respondent – Medical College has addressed the 2nd respondent University on 30.4.2010 that it has got a notification published in two popular newspapers calling for applications from prospective candidates seeking admission in Post Graduate courses and the list of applications received and the merit list based on the marks obtained by the respective candidates at the qualifying examinations is displayed on the notice board as well as the web site and based on the respective relative merit of the candidates admission to various post-graduate courses under the management quota for the academic year 2010-11 is prepared and submitted for approval. The 4th respondent – college has shown that it has received only four applications for admission to M.D. General Medicine course. Based upon the relative merit of the candidates Dr.V.Kishan who secured 62% of marks was shown at the top followed by Dr.Jamal who secured 60% of the marks. It will be appropriate right at this stage to notice that on 31.5.2010, the 4th respondent – Medical College has once again taken up the issue with the 2nd respondent University pointing out that Dr.Divya has instituted WP No. 11257 of 2010 in this court and hence necessary proposals are submitted for consideration of her admissions into Post-graduate MD General Medicine course in the college. It is now proposed by the 4th respondent – Medical College to grant admission to Dr.Divya who had secured 64.49% marks at the qualifying examination. The 2nd respondent University through its communications dated 31.8.2010 and 29.9.2010 after taking all relevant facts into account and consideration, pointed out certain lapses in the matter of the procedure adopted by the 4th respondent – Medical College in filling up the post-graduate seats. Ultimately, the 2nd respondent University has pointed out on 6.10.2010 that the admission into MD General Medicine course in respondent No.4 – Medical college can be confined only to Dr.Divya and Dr.V.Kishan who secured 64.49 and 62% marks respectively at the qualifying examination and hence called for compliance report from the 4th respondent – Medical College. In response to this communication, the 4th respondent – Medical College sought to cancel the admission of Dr.Jamal on 7.10.2010 as his admission has not been approved by the 2nd respondent – University. That gave rise to the third WP No. 26463 of 2010 instituted by Dr.Jamal. I have heard Sri V.Pattabhi, learned counsel for the writ petitioner Dr.Divya and Sri G.Vidya Sagar, learned counsel for Dr.Jamal and Sri D.Nagarjuna Babu, learned Standing Counsel for the 1st respondent University as well as learned Standing Counsel for Medical Council of India. The 4th respondent – Medical College has no doubt taken out a notification in newspapers having local circulation inviting applications from the prospective candidates who seek admission to post-graduate medical courses. The said notification appears to have been published providing time for obtaining the application forms in person from the college from 26.4.2010 to 28.4.2010 between 9 AM to 4 PM on payment of Rs.1000/- in cash. The filled in application forms were required to be submitted before 4 PM on 29.4.2010. Thus, hardly any adequate or meaningful time has been accorded for the students who are desirous of seeking admission to approach the 4th respondent – Medical College in person for securing the application form. Hence, therefore, the 2nd respondent – University has taken a serious objection to this procedure adopted in the matter of inviting applications and receiving them in person from the candidates who are desirous of seeking admission in the said medical college. The 4th respondent – Medical College has been accorded permission by the Medical Council of India for granting admission to various post graduate medical courses. Therefore, the students who are desirous of seeking admission against the same, will be regulated to the extent of 50% by the Convener, on merit ranking obtained at the Post graduate entrance examination, who undertakes the admission process in the order of merit ranking when the students are invited for participating at the Counseling for post graduate admissions. Therefore, to the extent of 50% of the seats that were sanctioned to the private medical college, the Convener regulates the admission process while undertaking the admissions to the rest of the government medical colleges when centralized post-graduate medical admission counseling takes place at the University campus at Vijayawada. Therefore, the students who are desirous of seeking admission into one post graduate medical course or the other would all be assembling at the University campus at Vijayawada. The balance 50% of seats are allowed to be filled in by the private medical college concerned. These seats are required to be filled in on the basis of a transparent and fair procedure and further based upon inter se merit of the candidates. It shall not, however, be confined to the paying capacity of the students. It is therefore appropriate that the medical colleges concerned when, they offer admission to the remaining 50% management quota post-graduate seats, must allow applications to be submitted by the respective candidates ONLINE or there should be a facility for lodging of application forms with the 2nd respondent – University as well. Since each medical college was required to adopt transparent and fair procedure in the matter of admissions, it is imperative that they must seek to receive the application forms from the candidates ONLINE as well. They cannot confine the mode of collection of application forms through the actual and physical mode alone and consequently the students who may have been removed far away from where the private medical colleges are situate, may not respond. Every student who is desirous of seeking admission must be provided a fair chance to compete even against the management quota as well. When competition is encouraged the most meritorious and the most deserving candidate would get admitted against the 50% management quota. That would ensure that such of those candidates who by virtue of their merit ranking could not secure admission under the centralized counseling process undertaken by the 2nd respondent – University, will still have the next best choice to stake a claim for admission against the 50% management quota. Thus, the competitive edge, based upon the relative merit of the candidates will tilt the balance, but not any other factor including the paying capacity of a few fortunate people. Granting admission to Post graduate medical courses should be based upon the merit of the candidates. That would subserve the larger public interest as well. Therefore, all private medical colleges including the 4th respondent – Medical College must be insisted upon by the 2nd respondent University to receive applications for admission against the 50% management quota of seats ONLINE. Since the admissions against the 50% management quota also need to be approved by the 2nd respondent – University, the 2nd respondent – University, it may explore the feasibility of receiving applications from candidates for admission against the 50% management quota seats also by itself. All that the 2nd respondent – University, in such cases would be required to do was to transmit the application fee which the students would have paid in favour of the respective private medical colleges later on. If the 2nd respondent – University is also allowed and permitted to receive the applications from the prospective students against the 50% management quota seats, then there will not be any scope for repetition of complaints like those, raised by Dr.Divya that application forms are made available selectively. It is hard to imagine that only 4 or 5 students would be soliciting admission in a prestigious Post graduate medical course such as M.D. (General Medicine), particularly when thousands of students take Post Graduate Medical Entrance examination, each year. Since the 2nd respondent – University is any way well trained in receiving the applications from the students in large numbers, a provision can also be made for the prospective students to lodge their applications with the 2nd respondent – University against the 50% management quota also. The 2nd respondent – University can make over to the college concerned such applications at the time of approving the admissions against the management quota. This will ensure not only transparency but also provide for greater response for admission against the 50% management quota so that the highest merit ranking students can be granted admission. It is not in doubt that Dr.Divya secured the best merit ranking amongst the five candidates who competed for admission against the two seats available in MD General Medicine course under the 50% management quota of the 4th respondent college. In all other circumstances, if only she has been supplied with an application form in time, she would have surely been granted admission. In such an event, Dr.Jamal being the 3rd amongst the merit ranking would not have been granted admission. But, however, because of the failure of the 4th respondent – Medical College to furnish an application form to Dr.Divya, Dr.Jamal being the 2nd ranker, immediately after Dr.Kishan, he was granted admission. By 6.10.2010, Dr.Jamal has pursued M.D. General Medicine Post Graduate course for nearly four months period. No fault therefore can be attributed to Dr.Jamal. Fault lies at the doorstep of the college, but not with that of Dr.Jamal and therefore there is no justification to turn away and cancel the admission of Dr.Jamal nearly after four months. However, since Dr.Jamal cannot be granted admission as there is no corresponding seat available under the management quota in the 4th respondent – Medical College, his admission shall be counted and approved by the 2nd respondent – University and also by the Medical Council of India as to have been accorded against one of the seats available under the Management Quota for the Academic Session 2011-12, as Dr.Jamal shall be treated to have been admitted in excess of management quota for the academic session 2010-11. In other words, Dr.Jamal would be considered as if he has been admitted against the 1st seat available under the management quota in MD General Medicine course for the academic session 2011-12. This would save to a large extent injustice that is meted out to Dr.Divya on one hand by denying her the right to apply for admission against the management quota seat and also Dr.Jamal who has been granted admission by virtue of his 2nd merit rank amongst the four applications received by the Medical College. It is also appropriate at this stage to notice what the Supreme Court has pointed out in Mridul Dhar (Minor) and another v. Union of India[1] in paragraph 35 and Direction No.11: `if any private medical college in a given academic year for any reason grants admission in its management quota in excess of its prescribed quota, the management quota for the next academic year shall stand reduced so as to set off the effect of excess admission in the management quota in the previous academic year…” Accordingly, the intake capacity in MD General Medicine Post Graduate course for the 4th respondent – Medical College for the academic session 2011-12 shall stand reduced by one seat. It will also be important to bear in mind that as per Rule 10 of the Rules framed by the Governor, referred to supra, which bind the 2nd respondent as well that if a private medical college exceeds the 50% of the management quota while granting admissions for any reason beyond its limits, then the management shall surrender equal number of seats from its management quota to government quota for the next year. Obviously this is a punitive measure contemplated by the rule making authority to discourage private medical colleges from exceeding their quota while granting admissions to post-graduate medical courses. The rule making authority has preferred this provision as a deterrent. In the instant case, as against two seats available in the management quota in MD General Medicine Post Graduate Medical Course, the fact situation remains that three candidates have been granted admission viz., Dr.Divya, Dr. Kishan and Dr. Jamal. It is therefore imperative that the management of the 4th respondent – Medical College shall also surrender one seat from out of its management quota towards government quota/convener quota in MD General Medicine course for the academic session 2011-12, apart from treating Dr.Jamal’s admission against one of the two seats for the next academic year 2011-12. In other words, while Dr.Jamal be treated and deemed to have been granted admission against the 1st of the two seats available for the management quota in MD General Medicine courses for the academic session 2011-12, the 2nd seat available in the said course in the 4th respondent – Medical College shall be surrendered to the government/ convener quota in terms of Rule 10 and consequently the 4th respondent – Medical College shall not grant admission to any candidate in MD General Medicine course under management quota for the academic session 2011-12. By virtue of the operation of Rule 10, the Convener will utilize the surrendered seat for granting admission in the 4th respondent – Medical College under the Convener’s quota. By virtue of operation of Rule 10, the intake strength of the private medical college remains the same, but the only difference is that the Convener gets the right to allot the said seat to a meritorious candidate. The regulations framed by the Medical Council of India known as `Post Graduate Medical Education Regulations’ in no unmistakable terms specify that each student shall require to spend three years of study and research to enable him to complete for Post Graduate course leading to awarding the post-graduate medical degree. Post Graduate Medical Education being a premier course of education involving rigorous study of theory and practical orientation coupled with research work, it is imperative that every candidate should be allowed to appear for the examinations leading to awarding of post-graduate medical degrees only after successful completion of three years tenure, but not before. The 2nd respondent – University would therefore ensure that the students who have been pursuing their MD General Medicine course in the 4th respondent – Medical College for the academic session 2010-11 would be permitted to appear for the said examination only upon being satisfied that they have completed three years of actual attendance and academic work but not otherwise. These writ petitions stand allowed as indicated supra. No costs. --------------------------------- Nooty Ramamohana Rao, J Knk 13th April 2011 Note: Copy of the judgment be furnished to the learned Standing Counsel for the 2nd respondent – University within two days (b/o) knk [1] AIR 2005 SC 666