IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.07.2010 CORAM: THE HONOURABLE MS. JUSTICE K.B.K.VASUKI W.P.No.19946 of 2009 Minor I.Aravind Adhavan Rep. by his father and natural guardian P.Ilangovan ... Petitioner Vs. 1.The State of Tamil Nadu Rep. by the Secretary to Government, Health and Family Welfare Department, Fort. St. George, Chennai – 600 009. 2.The Secretary, Selection Committee, Directorate of Medical Education, No.162, Periyar E.V.R. High Road, Kilpauk, Chennai – 600 010. 3.The Registrar, Tamil Nadu Dr.M.G.R.Medical university, Chennai. 4.The Dean, Chennai Medical College Hospital and Research Center, Irungalur, Mannachanallr Taluk, Trichy District – 621 105. 5.The Dean, Deen Dayal Medical College and D.D.Hospital, Chennai. 6.The Secretary, Medical Council of India, Pocket-14, Sector-8, Dwarka, New Delhi – 110 077. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the third respondent to enforce the seat sharing policy with the 4th and 5th respondents https://hcservices.ecourts.gov.in/hcservices/ herein and thereby directing the 2nd respondent to conduct counselling for the surrendered seats for admission to M.B.B.S. Course for the year 2009-2010 conducted by the 2nd respondent and to consider the petitioner for selection for admission to M.B.B.S. Course for the year 2009-2010. For Petitioner : Mr.N.Surya Senthil for Mr.A.R.Suresh For R -1 & R - 2: Mr.G.Sankaran, Special Govt. Pleader assisted by Mrs.E.Ranganayaki, Government Advocate (Edn.) For R – 3 : Mr.A.Saravanan For R – 5 : Mr.B.Saraswathi For R – 6 : Mr.V.P.Raman O R D E R The writ petition is filed for issuing appropriate direction to the third respondent to enforce the seat sharing policy with the respondents 4 and 5 herein with further direction to the second respondent to conduct counselling for the surrendered seat for admission to M.B.B.S. course for the year 2009-2010 conducted by the second respondent and to consider the petitioner for selection for admission to M.B.B.S. course for the year 2009-2010. 2.The brief facts which are relevant for consideration herein are as follows: (i) The minor petitioner belonging to backward class community passed the Higher Secondary Certificate Examination (Academic) conducted by Tamil Nadu State Board in March, 2009 and he has secured 1122 out of 1200 marks and has secured of 193.75 in the main papers. Then he has applied for admission to M.B.B.S./B.D.S. course for the Academic year 2009-2010 and he was assigned the rank of 1822 for the purpose of counselling. Based on his total marks and his rank, he was called for the third counselling held on 26.09.2009 and the same was postponed to 28.9.2009 and the postponement, according to the petitioner, was due to the failure of the respondents 4 and 5 to surrender 50% of their total intake capacity. According to the petitioner had 50% equivalent to 75 each seats are duly surrendered and made available to the Government on the date of counselling on 26.09.2009 or on 28.9.2009, the petitioner being in number 35 in the waiting list would have been allotted one seat and https://hcservices.ecourts.gov.in/hcservices/ the respondents 4 and 5 have been thus allowed to fill up all the vacancies under the management quota and thus way less meritorious students are allotted medical seats against meritorious students like that of the petitioner thereby meritorious students, who are unable to get seats in the medical course by paying huge capitalization fees are deprived of their legitimate claim for being admitted under Government quota. It is further contended by the petitioner that the third respondent University, to which the respondents 4 and 5 colleges are affiliated, should have insisted the colleges to surrender the seats on time for the benefit of such of those students waiting in the que to be admitted under Government quota . (ii) Such claim of the petitioner is very seriously opposed by the respondents 1 and 2 on one hand and by the 6th respondent and by the respondents 3 and 4 individually. Though all the respondents uniformly contended that the none of the self financing colleges are bound to surrender 50% of their seats and though one such seat sharing policy is in force in pursuance of relevant Government Order, the same is only volunteer act by the individual colleges and despite the currency of one such policy arrangement between the Government and the individual colleges the same cannot be in view of law laid down by the supreme court enforced as the unaided self financing colleges whether minority or non-minority are free to adopt their own admission process however subject to merit basis. 3. Before going into the petitioner's claim on merits, the first aspect to considered is the respondents against whom the relief can be sought for. Though the petitioner has in the writ petition sought the relief against the respondents 4 and 5 colleges, the petitioner in the course of argument does not press the relief against the 5th respondent/Deen Dayal Medical college and D.D. Hospital as the Medical college did not at all come to be established and the authority concerned i.e., the 6th respondent/Medical Council of India (herein after referred to as "MCI") has already returned the application for establishment of new Medical College submitted by Deen Dayal Medical College and educational trust, Chennai and relief is now focussed only against the 4th respondent college. 4. As far as the 4th respondent/Chennai Medical College and Research centre is concerned the application for establishment of 4th respondent college was also simultaneously processed along with the application filed by the 5th respondent Deen Dayal Medical and Educational Trust and the letter of intent and the letter of permission for the establishment of new Medical college at Thiruchirrappalli, Tamil Nadu by SRM University, Chennai with intake capacity of 150 students with prospective effect i.e, from the Academic year 2009-2010 are issued to the Registrar, SRM University by the Government of India on 13.07.09 and 14.07.09 respectively. The facts made available herein further reveal that the 4th respondent Medical College is initially affiliated to Tamil Nadu Dr. M.G.R. https://hcservices.ecourts.gov.in/hcservices/ Medical University, Chennai where as the communication sent to the college, in this regard wrongly referred it as SRM University, Chennai. In view of the same, the 4th respondent has completed admission for its entire intake capacity of 150 seats through entrance exam conducted by SRM University and has submitted through its letter dated 05.10.2009 to MCI for its approval, the admission list along with other particulars pertaining to the students so selected such as their community, marks secured in the +2 course and marks secured in the entrance exam and the date of admission etc. The 6th respondent/MCI has on receipt of the same sent its communication dated 16.11.09 enclosed at page 120 of the typed set filed by the 6th respondent in and under which the 4th respondent is informed that the affiliation granted to the same is only with 3rd respondent/Tamil Nadu Dr. MGR Medial University, Chennai and the admission of 150 students made by the college through an entrance conducted by the university is against the communication of the Central Government and the institution is to hence discharge all the students admitted and to report the compliance immediately. On receipt of such communication the 4th respondent immediately addressed the Ministry of Health and Family Welfare, Government of India to ratify the action of the college as the same not violative of rules and procedure and the Secretary Ministry of Health and Family Welfare has also requested the 6th respondent to take further necessary action on the representation dated 16.3.2010. The 4th respondent has also requested the 6th respondent/MCI not to initiate any action against the institution, pending decision by the Ministry of Health and Family Welfare. The 4th respondent has also simultaneously approached the MCI for granting affiliation with SRM University and the same is till date pending consideration before the 6th respondent. 5. Regarding the claim made herein it is noteworthy to mention that the process and the manner of admission to medical courses is subjected to judicial review before Hon'ble Apex Court and Apex Court has time and again laid down guidelines in this regard and the guidelines so issued by 11 judges Constitution bench on 31.10.2002 in W.P.No.317 of 1993 in T.M.A. Pai foundation case leads to issuance of regulations by the Government of India and relevant G.O. by the State of Tamil Nadu The Union of India has in pursuance of the directions of the 11 Judges Constitutional Bench and in consultation with the concerned State Secretaries issued uniform policy communication dated 14.12.2003 containing various guidelines in the matter of appropriation of seats, fees structure, time schedule for commencement and completion of admission in medicine courses. The Medical Council of India in exercise of its power conferred in Sec.35 of the MCI Act has with the approval of the Central Government passed Graduate Medical Education Amendment Regulation 2004 published in the Gazette on 01.03.2004 laying down various guidelines in the same line including time schedule for commencement and completion of admission process for the Ist year MBBS course/PG and/Speciality courses. The State Government has also issued G.O. Ms.No.19, Higher Education (J1) https://hcservices.ecourts.gov.in/hcservices/ Department, dated 13.03.2003 in compliance with the direction of 11 Judges Constitutional Bench of Supreme Court in T.M.A. Pai foundation case. As per the G.O. the directions are issued to unaided, non- minority and minority institutions thereby the colleges be allowed to admit 50% of its total intake capacity by themselves, by following a transparent and reasonable method of admission and this 50% of the seats includes NRI quota and the remaining 50% to be filled up by the Government through single window system of admission by following the rule of reservation. The colleges above referred to are also free to part with more percentage of seats over and above 50%. 6. Following the 11 Judges Constitutional Bench Judgment and the regulations by the Government of India, the issues relating to admission process are decided by the Supreme Court in cantena of cases few among which are (i) [2002 (7) SCC 258] Medical Council of India vs. Madhu Singh; (ii) [AIR 2005 SCC 666] Mirthula vs. Union of India; (iii) [2005 12 SCC 626] Medical Council India vs. Nina Varma and others; and (4) Civil Appeal. No.4051 of 2004 in Medical Council of India vs. Udaya Bharathi and others wherein the Supreme Court has clearly laid down that the time schedule shall be strictly followed in the matter of admission and the admission shall be within annual intake capacity as sanctioned by Medical Council of India and no admission after the last date fixed in the time schedule is permissible and no mid-stream admission against any unfilled seats and the same shall get lapsed and there cannot be no carry forward of any MBBS seat of the previous year, which fell vacant, to the subsequent academic year and any management make extra benefit under the management quota during previous academic year would be required to surrender equal number of seats from the management quota for admission of meritorious students in the state list for the next academic year and no court can issue any direction or show any indulgence in respect of admission made in violation of rule and procedure. The Supreme Court has in the judgment third cited above gone to the extent of setting aside the admission given to the writ petitioner therein during December 2003 much after the closer of admission. 7. Here in this case, the petitioner is seeking the relief mainly by relying upon the State G.O.No.19, dated 13.03.2003 containing clause for appropriation of seats in equal ratio among the management and the Government. It is seriously contended on the side of the learned counsel for the petitioner, that as per the seat sharing policy the 4th respondent institution ought to have surrendered 50% of its intake capacity i.e., 75 seats and had it been complied with in time the petitioner could have been benefited and could have been allotted admission against such surrendered seats. Such claim of the petitioner is so seriously opposed on the side of the contesting respondents, mainly by relying upon the time schedule fixed in Government of India regulations 2004 and the Hon'ble 7 https://hcservices.ecourts.gov.in/hcservices/ Judges Judgment of Supreme Court reported in [AIR 2005 SCC 3226] in PA. Inamdar and others vs. State of Maharastra and others. 8. According to the respondents, as per the time schedule fixed by Government of India regulations, which is referred to above 1st year MBBS course shall be closed on 30th September, as such the reliefs sought for by the petitioner to get admission for the first year MBBS course for the academic year 2009-2010 as sought for in the writ petition filed on 30.09.2009 becomes ineffective and cannot be entertained. As far as the seat sharing policy introduced in State G.O.Ms.No.19, dated 13.03.2003 is concerned, the same is according to the respondent, unenforceable in view of the latest judgment of the Supreme Court reported in AIR 2005 SCC 3226 (cited supra). 9. Heard the rival submissions made on both sides and the relevant documents contained in the typed set papers filed on both sides. 10. Regarding the claim of the petitioner based on the seat sharing policy it is true that the State Government has introduced one such policy in GO.Ms.No.19, dated 13.03.2003. The same is as already referred to in compliance with Hon'ble 11 Judges Constitution Bench of Supreme Court in T.M.A. Pai foundation case. The directions issued by Hon'ble 11 Judges in the above referred case led to several issues and several writ petitions came to be filed resulting in constitution of Hon'ble 5 Judges bench to interpret the earlier judgment of 11 judges and the 5 judges bench judgment is pronounced on 14.08.2003 in Islamic Academic of Education case (herein after referred to as Islamic Academy case) reported in 2003 6 SCC 697. Even thereafter some of the main issues remain unsettled and those unsettled issues came up for clarification and settlement before the Apex Court bench of 7 Judges in PA.Inamdar vs. State of Maharastra reported in AIR 2005 SCC 3226, In PA.Inamdar case the Hon'ble 7 judges bench dealt with the issues raised before T.M.A. Pai foundation case and the questions formulated by Islamic Academy case and has finally proceeded to deal with the issues which are as follows : "27. In the light of the two orders of reference, referred to herein above, we propose to confine our discussion to the questions set out hereunder which, according to us, arise for decision:- (1)To what extent the State can regulate the admissions made by unaided [minority or non-minority] educational institutions? Can the state enforce its policy of reservation and/or appropriate to itself any quota in admissions to such institutions? https://hcservices.ecourts.gov.in/hcservices/ (2)Whether unaided [minority and non-minority] educational institutions are free to device their own admission procedure or whether direction made in Islamic Academy for compulsorily, holding entrance test by the State or association of institutions and to choose therefrom the students entitled to admission in such institutions, can be sustained in light of the law laid down in Pai Foundation? (3)Whether Islamic Academy could have issued guidelines in the mater of regulating the fee payable by the students to the educational institutions? (4)Can the admission procedure and fee structure be regulated or taken over by the Committees ordered to be constituted by Islamic Academy? 11. The Hon'ble 7 judges bench of Supreme Court after hearing the arguments discussed the issues starting from Para 112 at Page 3259 of the Judgment. As far as, the issue involved in the present case is concerned, the issue involved herein is covered in question No.1 above referred to i.e. appropriation of quota by state and enforcement of reservation policy. The relevant observation of the Supreme Court on question no.1 is quoted as follows : "1. Minority Educational institution unaided and unrecognized - They are free to admit all students of its own community if they choose to do so (para 145 T.M.A. Pai foundation case) such institution cannot indulge in any activity which is violative of any law of the land. 2. Minority unaided educational institution asking for affiliation or recognisation - Urge or need for affiliation or recognisation brings in concept of regulation by way of laying down conditions consistent with requirement of ensuring merit, excellence of education and preventing maladministration.... However there cannot be interference in the day to day administration The essential ingredience of the management including admission of students, recruiting of staff and the quantum of fees to be charged cannot be regulated (Pare 55 Pai foundation case).... Any regulation accompanying affiliation or recognisation must satisfy the triple tests (a) the tests of reasonableness and rationality (b) the regulation would be conducive https://hcservices.ecourts.gov.in/hcservices/ to making the institution an effective vehicle of education for the minority community or other persons who resort to it and (c) there is no in road on the protection conferred by Article 30 (1) of the Constitution i.e. by framing the regulation the essential character of the institution being a minority educational institution is not taken away (para 122 T.M.A. Pai foundation case) 3. Minority educational institution receiving state aid - Conditions which normally be permitted to be imposed on the educational institution receiving the grant must be related to the proper utilization of the grant and fulfillment of the objectives of the grant without diluting the minority status of the educational institutions as held in (Pai Foundation para 143 there of)" 12. The 7 judges bench of Supreme Court then proceed to discuss the issue of appropriation of quota by the state and the enforcement of its reservation policy in respect of non-minority unaided institutions and the discussion and the conclusion arrived at by the Supreme Court is reproduced herein : "121. So far as appropriation of quota by the State and enforcement of its reservation policy is concerned, we do not see much of difference between non-minority and minority unaided educational institutions. We find great force in the submission made on behalf of the petitioners that the State have no power to insist on seat sharing in the unaided private professional educational institutions by fixing a quota of seats between the management and the State. The State cannot insist on private educational institutions which receive no aid from the State to implement State's policy on reservation for granting admission on lesser percentage of marks. i.e. on any criterion except merit. 122. As per our understanding neither in the judgment of Pai Foundation nor in the Constitution Bench decision in Kerala Education Bill, which was approved by Pai Foundation, there is anything which would allow the State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions. This would amount to nationalization of seats which has been specifically disapproved in Pai Foundation. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy https://hcservices.ecourts.gov.in/hcservices/ of private professional educational institutions. Such appropriation of seats can also not be held to be regulatory measure in the interest of minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution. Merely because the resources of the State in providing professional education are limited, private educational institutions, which intend to provide better professional education, cannot be forced by the State to make admissions available on the basis of reservation policy to less meritorious candidate. Unaided institutions, as they are not deriving any aid from State funds, can have their own admissions if fair, transparent, non-exploitative and based on merit. 123. The observation in paragraph 68 of the majority opinion in Pai Foundation on which the learned counsel for the parties have been much at variance in their submissions, according to us, are not to be read disjointly from other parts of the main judgment. A few observations contained in certain paragraphs of the judgment in Pai Foundation, if read in isolation, appear conflicting or inconsistent with each other. But if the observations made and the conclusions derived are read as a whole, the judgment nowhere lays down that unaided private educational institutions of minorities and non-minorities can be forced to submit to seat sharing and reservation policy of the State. Reading relevant parts of the judgment on which learned counsel have made comments and counter comments and reading the whole judgment (in the light of previous judgments of this Court, which have been approved in Pai Foundation) in our considered opinion, observations in Paragraph 68 merely permit unaided private institutions to maintain merit as the criterion of admission by voluntarily agreeing for seat sharing with the State or adopting selection based on common entrance test of the State. There are also observations saying that they may frame, their own policy to give free-ships and scholarships to the needy and poor students or adopt a policy in line with the reservation policy of the state to cater to the educational needs or weaker and poorer sections of the society. 124. Nowhere in Pai Foundation, either in the majority or in the minority opinion, have we found any justification for imposing seat sharing quota by the State on unaided private professional policy of the State or State quota seats or management seats. 125. We make it clear that the observations in Pai Foundation in Paragraph 68 and other paragraphs mentioning https://hcservices.ecourts.gov.in/hcservices/ fixation of percentage of quota are to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State. 126. In Pai Foundation, it has been very clearly held at several places that unaided professional institutions should be given greater autonomy in determination of admission procedure and fee structure. State regulation should be minimal and only with a view to maintain fairness and transparency in admission procedure and to check exploitation of the students by charging exorbitant money or capitation fees. 127. For the aforesaid reasons, we can not approve of the scheme evolved in Islamic Academy to the extent it allows States to fix quota for seat sharing between management and the States on the basis of local needs of each State, in the unaided private educational institutions of both minority and non-minority categories. That part of the judgment in Islamic Academy, in our considered opinion, does not lay down the correct law and runs counter to Pai Foundation. 134. Pai Foundation has held that minority unaided institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admissions the procedure therefor subject to its being fair, transparent and non-exploitative. The same principle applies to non- minority unaided institutions." 13. The interpretation given by 7 Judges bench of Apex Court to the judgment of 11 Judges Constitutional Bench of Supreme Court in T.M.A. Pai foundation case and Islamic Academy case is the latest ruling and still holds good as per which no guideline is issued in T.M.A. Pai foundation case for appropriation of seats between Management and State and the observation to that effect made in T.M.A. Pai foundation case is only by way of illustration tant amounting to just a suggestion or observation as to how the state can device a possible mechanism so as to take care of poor and backward sections of the society and as to how the same to be reached either by consensual agreement or persuasion and imposing any seat sharing quota by the state on unaided private professional educational institutions is unjustified and the colleges are free to frame its own policy to give free ships or scholarships to the needy and the poor students or adopt a policy of the