IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 1. CWP. No. 9856 of 2009 Date of Decision: 24.9.2009. Mehak Trikha --Petitioner Versus Baba Farid University of Health Sciences and others --Respondents 2. CWP. No. 10911 of 2009 Ms. Ramanpreet Kaur --Petitioner Versus State of Punjab and others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. Amar Vivek, Advocate. Mr. Rajbir Sehrawat, Advocate. Mr. P.C. Goyal, Addl. A.G., Punjab. Mr. Anupam Gupta, Advocate. Mr. B.B.S. Sobti, Advocate. Mr. K.S. Dadwal, Advocate. *** PERMOD KOHLI.J (ORAL) Common questions of law having been raised in these writ petitions, the same are being disposed of by the common judgement. The State of Punjab framed guidelines for making admissions to MBBS/BDS/BAMS/BHMS courses in Medical, Dental, Ayurvedic and Homeopathic Institutions in the year 2008. These guidelines were notified vide notification No. 5/3/08-3HBIII/1934 dated 31.3.2008. Vide clause 1.2 of the aforesaid Govt. Notification, respondent no.2-university was authorized to conduct Punjab Medical Entrance Test, 2008 onwards for the CWP. No. 9856 of 2009 -2- selection of candidates for admission to the aforementioned medical courses in various institutions in the State of Punjab. On the strength of the aforesaid authorization, respondent no.2-university issued prospectus for holding Punjab Medical Entrance Test (hereinafter to be referred as PMET- 2009) for admission to the aforesaid medical courses. Both the petitioners in these writ petitions claiming themselves to be eligible applied for participation in the entrance test. Petitioner Ramanpreet Kaur in CWP No. 10911 of 2009 belongs to Scheduled Caste category, whereas petitioner Mehak Trikha in CWP No. 9856 of 2009 is from General category. Petitioner Ramanpreet Kaur passed her 10+2 examination from CBSE from Chandigarh, whereas the petitioner Mehak Trikha passed her 10+2 examination from CBSE as a student of Sri Sathya Sai Hr. Secondary School Prasanthinilayam, District Annantpur, Andhra Pradesh. Petitioner Ramanpreet Kaur secured rank 173 in the entrance test, whereas petitioner Mehak Trikha secured rank 156. They were called for counselling. Petitioner Ramanpreet Kaur was to appear for counselling on 13.7.2009, whereas petitioner Mehak Trikha was to appear on 10.7.2009 for counselling. It is common case of the parties that both the petitioners were denied admission on the ground that they have passed their 10+2 examination from the institutions outside the State of Punjab and thus not eligible for seeking admission against 85% quota meant for the students, who have qualified their 10+2 examination from the institutions located within the State of Punjab. The petitioners are seeking their admissions against 15% quota allegedly meant for the candidates other than the Punjab State for private colleges. Despite notice the State-respondent chose not to file any reply. CWP. No. 9856 of 2009 -3- However, respondent no.2-university has filed its reply in CWP No. 9856 of 2009. The categorical stand of the respondent-university is that 15% quota out of the said quota of 85% is meant for those candidates, who have passed their qualifying examination of 10+2 from the institutions outside the State of Punjab, who are entitled to exemption under clause 4 (D) of the prospectus. It is further case of the respondent-university that the petitioners do not fall in any of the exemptions specified under the prospectus and thus they having not passed 10+2 examination from the institutions located within the State of Punjab, they are not eligible for seeking admissions against the aforesaid quota. I have heard learned counsel for the parties. Both sides addressed lengthy arguments to convass their view points. The question relates to the interpretation, true import, purpose and scope of the clause 7.7 of notification dated 31.3.2008. During the course of the arguments various stipulations in the aforesaid Govt. notification have been referred to and relied upon. It is thus, necessary to take note of relevant clauses/stipulations of the aforesaid Govt. notification, which are as under:- “ 4. ELIGIBILITY CRITERIA FOR PMET. A. For PMET (Common criteria for all Courses). (i) The candidate should have passed 10+2 or its equivalent examination and the qualifying examination as a candidate from a recognized institution/university. (vi) Should have passed his/her and 10+2 examination or other qualifying examination in place of 10+2, as listed in 4 (A) (i) (a) to (f) above, as candidate from a recognized institution situated in the State of CWP. No. 9856 of 2009 -4- Punjab only except for the exemptions wherever applicable. The candidate would be required to submit a certificate to this effect from the Principal/Head of the Institute last attended in the prescribed proforma. Para amended vide notification No. 5/3/08-3HBIII/3389 dated 30.5.2008. (viii) The candidate should be bonafide resident of Punjab. The Resident status of the Punjab State, will be taken in terms of Punjab Govt. Department of Personnel and Administrative Reforms (PP II Branch) letter No. 1/3/05-3 PP II/9619, dated 6th June, 1996, ID No. ½/96-3PP- 2/8976 dated 7th july, 1998 and ID No. letter No.1/3/95-3PP II/81, dated 1st January 1999 and further instructions issued by the Department, if any and the same, shall be adhered to in letter and spirits in PMET. B. For MBBS/BDS/BAMS/BHMS Courses. Candidates must have passed in the subjects of Physics, Chemistry, Biology and English individually and must have obtained a minimum of 50% marks (40% for SC/BC) taken together in PCB and also in Physics, Chemistry and Biology (PCB) in 10+2 examination. C. For BAMS/BHMS Courses. (i) For BAMS/BHMS course if PMET qualified candidates are not available then out of the PMET appeared candidates shall be admitted on the basis of his/her marks in the qualifying examination in PCB and also in Physics, Chemistry and Biology (PCB) in 10+2 examination. In case of BHMS, has secured 40% (for SC/BC 33%) marks in aggregate at 10+2 in PCBE as well as PCB group taken together. Para amended vide notification No. 5/3/08-3HBIII/3389 dated 30.5.2008. CWP. No. 9856 of 2009 -5- D. Exemption under para 4 A (i) (a) to (f) for 4 A (vi) and 4C (i). (vi) Candidates getting admission on all India basis in BAMS, BHMS courses in case the Punjab candidates are not available. 5. RESERVATION B. For Private Institutes: C. Explanation: The following points shall be observed while granting above reservation both in Govt. and in private Institutes: (xi) In BAMS/BHMS for seats filled on all India basis, after exhausting Punjab candidates, the reservation shall be 15% for SC, 7.5% for ST and 3% for Handicapped. 6. FOREIGN INDIAN STUDENT (NRI) SEATS. 6.1 Seats- 15% seats in all private Institutes/University College and specified number of seats in Govt. Institutes shall be earmarked for the Non Resident Indians in the following order of priority to the exclusion of next category below: Category I: NRIs who originally belonged to the State of Punjab. Category II: NRIs who originally belonged to an Indian state other than Punjab. The institute wise details of seats under this quota can be downloaded from the website of BFUHS. The NRI quota in private institutes will be part of the management quota. 7. ELIGIBILITY AND PROCEDURE FOR ADMISSION . 7.1 Eligibility- For admission to MBBS/BDS, candidate must have CWP. No. 9856 of 2009 -6- secured at least 50% (40% for SC/BC) in the PMET. For admission to BAMS course, the candidate must have secured at least 40% (33% for SC/BC) in the PMET and for BHMS course, the candidate must have secured at least 33% marks in the test. 7.2 Equal Marks in PMET- In case of two or more candidates securing equal marks in PMET, their inter-se merit will be determined as under:- (i) Firstly the candidate having higher percentage of aggregate marks at +2 level in PCB calculated up to 3 decimal points. (ii) Then the candidate having higher marks in the subject of Biology in qualifying examination i.e. 10+2. (iii) Then the candidate, older in age. 7.3 Admission to the Govt. Institutes. Out of the total seats 15% seats in MBBS/BDS/BAMS courses (All India Quota) shall be filled by the Govt. of India on all India basis through all India Competitive Entrance Test. The procedure for filling up the NRI seats has been explained in para 6 above. Except NRI and Tsunami Victim the remaining state quota seats shall be filled through the PMET-merit. Para amended vide notification No. 5/3/08-3HBIII/3389 dated 30.5.2008. 7.4 Admission to private institutes. (a) The distribution of seats in private medical institution would be : CWP. No. 9856 of 2009 -7- Govt. quota seats --- 50% Management/Minority quota seats. --- 50% (including 15% NRI quota). (b). The Govt. quota seats would be filled up, on the basis of PMET merit, by the Admissions Committee appointed by the Govt. (c) The Management Quota seats would be filled up by the admission Committee headed by the Principal of the Institute concerned and comprising of the representative each of the govt. and the University, strictly on the basis of merit in the PMET of the corresponding year. The Principals of the concerned institutes will request the Govt. and the University well in advance for nominating their representatives. Govt. quota seats remaining vacant will be transferred to Management Quota. University will adjust a calendar of admission to the management quota seats in such a way that admission dates do not clash. All candidates with compartment for consideration under NRI/Management/Special Management seats shall have to clear their compartment before their admission. Para amended vide notification No. 5/3/08-3HBIII/2616 dated 22.4.2008. (d) In case of BAMS/BHMS if the candidates who have qualified PMET are not available then the PMET appeared candidates in the corresponding year, on the basis of their score in qualifying examination. If Punjab candidates are not available than candidates from the other states shall also be eligible to be admitted. (e) Foreign Indian Student (NRI) seats shall be filled up as per the procedure described in para 6. CWP. No. 9856 of 2009 -8- (f) The private institutions would give wide publicity in at least three leading newspapers one each in English, Hindi and Punjabi before filling up seats and the candidates would be given at least 14 days time to apply. The applications shall be received by the institutions directly. Admission Form would not be denied to any candidate. The minority quota seats shall be filled on the basis of inter se merit of the candidates in the test conducted by the minority institute, or on the basis of PMET of the corresponding year in case of management quota. The admissions would be finalized by the Committee as per provisions of para 8 (E). The representative of the University would be at liberty to place on record the copies of applications sent by the candidates directly for admission to the institutes, for consideration by the Committee. Para amended vide notification No. 5/3/08-3HBIII/2616 dated 22.4.2008. (g) The forms for Management Quota seats will have to be made available on the website of the University also so that the same may be downloaded by the candidates to enable them to apply for the said quota by paying the requisite fee in the form of demand draft payable in the name of the institute which should reach the institute concerned by the last date and time fixed by them. The institute shall not refuse the acceptance of the form under any circumstances and shall be bound to issue a receipt of the same. In case of refusal by the institute, the Application Form may be sent to the Chairman of Admission committee/University giving details of refusal in the forwarding letter. 7.5 Declaration by Candidates- Each Candidate and the parents shall submit a sworn declaration that the candidate has not passed the qualifying examination from more than one Board/University/ any other CWP. No. 9856 of 2009 -9- examining body. 7.6 Candidates already admitted- Any candidate who has taken admission in the previous year (s) in any course governed by this notification, shall not be eligible to seek admission through PMET in the corresponding year in the same course again in any institute. However, if any candidate who is admitted during the academic session in the corresponding year in any institute/course at any place may opt for admission through PMET by submitting a sworn declaration at the time of counselling that he/she surrenders the earlier seat. However, he/she can avail such opportunity only if the 2nd counselling in that State/UT is yet to take place so that the precious seat may not go waste in that State/UT. 7.7 15% seats out of the seats to be filled through PMET shall be open to candidates having passed 10+2 examination or equivalent examination with Physics, Chemistry, Biology and English from the recognized institutions all over the country. However, if the requisite number of eligible qualified candidates are not available under 85% State Quota the vacant seats shall be transferred to 15% Quota and vice-versa. Para amended vide notification No. 5/3/08-3HBIII/4563 dated 23.7.2008.” Under clause 1.1 the admission to the MBBS/BDS/BAMS/BHMS courses is to be made to the under graduate degree courses in all the institutions Govt. or private, aided or unaided, minority or non-minority for the State of Punjab except the Christian Medical/Dental College, Ludhiana. Clause 1.3, however, provides for making admissions to all the medical courses except MBBS on the basis of the qualifying examination, if, PMET qualified candidates are not available CWP. No. 9856 of 2009 -10- of the corresponding year. This clause further permits the admission to outside Punjab candidates, if, Punjab candidates are not available. Clause 4 lays the eligibility criteria of PMET, which is common for all the courses. Under Clause 4 (A) (i) the minimum qualification prescribed is 10+2 or its equivalent examination from any recognized institution/university. Some of the qualifications have been specified from clauses A to F of the aforesaid clause (i). Clause 4 (A) (vi) restricts the admission to candidates, who have passed 10+2 examination or other qualifying examination from recognized institution, situated in the State of Punjab only except those, who may be entitled to exemption under the later clause (D) of this notification. Clause 4(A) (viii) further permits the admission to bonafide residents of Punjab as specified vide notifications mentioned therein. Clause 4 (B) further provides that admission to BAMS/BHMS courses can also be made from PMET appeared candidates, if, PMET qualified candidates are not available, on the basis of their qualifying exam by taking into consideration their marks in PCB (Physics, Chemistry & Biology). Clause 4 (D) deals with the exemptions. Various categories of the candidates are specified, who are entitled to exemption from passing their 10+2 from the institutions within the State of Punjab as per the stipulation under Clause 4 (A) (vi) of the notification. The candidates belonging to the exempted categories are also entitled to seek admission on the basis of PMET, even if, they have passed 10+2 from the institution outside the State of Punjab. Clause 4 (D) (vi) even permits the admission on all India basis for admission to BAMS and BHMS courses in case Punjab candidates are not available. Clause 5 (A) deals with the reservation in Govt. Colleges, whereas clause 5 (B) deals with the reservation in private institutions in Govt. quota seats. Under this CWP. No. 9856 of 2009 -11- clause 25% seats in private institutions against Govt. quota seats is meant for Scheduled Castes, 5% for Backward Class, 3% for physically handicapped and 1% for migrants from Jammu & Kashmir due to terrorist violence. The explanation under clause 5 (C) relates to reservation in various categories and the mode for seeking reservation under such categories. Clause 5 (C) (ix), however provides reservation in BAMS/BHMS on all India basis after exhausting Punjab candidates, there is also reservation of 15% for Scheduled Castes, 7.5% for Scheduled Tribes and 3% for physically handicapped. Under clause 6, 15% seats are ear marked in all private institutions/university colleges and in Govt. institutions under two categories. Category (i) NRIs, who originally belong to the State of Punjab. Category (ii) NRIs who belong to states other than Punjab. Clause 7 deals with the eligibility and procedure for admission. Under clause 7.1 the minimum eligibility for MBBS/BDS course is 50% for General category candidates and 40% for SC/BC candidates in the PMET and for admission to BAMS/BHMS course 40% for General category and 33% for SC/BC categories in PMET and for BAMS/BHMS courses 33% in the PMET for all categories. Clause 7.2 provides the tie rule, where the candidates secured equal marks in PMET. Under clause 7.3 15% seats in MBBS/BDS/BAMS/BHMS courses are reserved for all India quota to be filled in by the Govt. of India through all India competitive test. Under clause 7.4, 50% of the seats in private institutions are to be filled up as Govt. quota seats through PMET, whereas 50% seats including 15% NRI quota seats are to be filled up by the Management/Minority quota by the Admission Committee comprising of CWP. No. 9856 of 2009 -12- the officers named in clause C thereof. Clause 7.5 deals with the declaration to be made by the candidates that they have not passed the qualifying examination from more than one board/university or any other examining body. Clause 7.6 imposes an embargo for seeking fresh admission by the candidates, who are already admitted in any of the course in the previous year, governed by the same notification, except where he surrenders the earlier seat subject to conditions stipulated therein. Clause 7.7 makes provisions for admission through PMET to the extent of 15% for the candidates who passed 10+2 examination or equivalent examination with PCB and English as subjects from the recognized institution all over the country. This clause further provides, if, requisite number of eligible qualified candidates are not available under 85% State quota, the vacant seats shall be transferred to 15% quota and vice-versa. The petitioners in the present writ petitions are seeking their admission under this clause. The respondent-university in clear and categorical terms has taken a stand that this 15% quota out of 85% State quota is meant only for the exemptees under clause 4 (D), who are entitled to exemption under various categories, where the candidates have not passed 10+2 examination from the recognized institution in the State of Punjab. Mr. Anupam Gupta, learned counsel appearing for the respondent-university has vehemently argued that this 15% quota out of the 85% State quota is meant to be utilized for admission to only BAMS and BHMS courses and not for MBBS/BDS courses. According to the learned counsel the Govt. notification is to be considered in its totality and various clauses of the Govt. notification have to be read harmoniously to arrive at CWP. No. 9856 of 2009 -13- the real intention of the Govt. for making admissions under clause 7.7 particularly when the clause itself creates doubt and ambiguity and is otherwise found inconsistent with the basic clause 4 (A) (vi) of the Govt. notification. Undisputedly, clause 4 (A) (vi) permits admission on the basis of the PMET only for such candidates who have passed 10+2 or equivalent qualifying examination from any of the recognized institutions within the State of Punjab. Under clause 7.3 15% of the Govt. seats in the State are earmarked for admission to MBBS/BDS and BAMS/BHMS courses on all India basis to be filled in by the Govt. of India through all India competitive entrance test. This is in consonance with the Govt. policy. Apart from the aforesaid exemption, where 15% seats are to be filled up on all India basis. Clause 4 (D) further grants exemption to the candidates for seeking admission through PMET, where any candidate falls under any of the exempted categories. Otherwise under clause 4 (A) (vi) all seats are to be filled up from the candidates, who have passed their 10+2 from the recognized institutions within the State of Punjab. It is further contended that if, clause 7.7 is to be interpreted to provide another 15% of the seats to non residents of the Punjab, the total quota for such non residents category will increase to 30%, which was never the intention of the Govt. while formulating the policy. In order to put forth his point of harmonious construction, Mr. Gupta has referred to clause 1.3 of the Govt. notification, wherein, admission to BDS/BAMS/BHMS courses can be made from the PMET appeared candidates from other States, if Punjab candidates are not available. Further reference is made to clause 4(C) (i) (ii). Under clause (i), CWP. No. 9856 of 2009 -14- admission to BAMS/BHMS course can also be made from the PMET appeared candidates on the basis of merit in 10+2 exam, if, PMET qualified candidates are not available. Similarly, under clause (ii), unfilled seats after 2nd counselling in private institutes both under Govt./Management quota are permitted to be filled up by Management out of the eligible candidates, who have qualified in PMET and for the courses like BDS, BAMS and BHMS, if , PMET qualified candidates are not available then the unfilled seats can also be filled up from the candidates, who appeared in PMET on the basis of their score in 10+2 examination. This clause further permits admissions of candidates who have not even appeared in PMET on the basis of their 10+2 qualification, if, PMET appeared candidates are not available. It also allows admission to the candidates who have passed their qualifying examination from the States other than Punjab, if, Punjab candidates are not available. Further reference is made to clause 4 (D) (vi) where admissions can be made to BAMS/BHMS courses on all India basis, if Punjab candidates are not available. On the basis of the aforesaid stipulations in the notification, it has been vehemently argued that the real intention under clause 7.7 is to permit the candidates who acquired 10+2 from the States other than Punjab only if the candidates, who acquired their qualification from Punjab are not available and that too such admission can only be confined to BAMS/BHMS course. I have carefully considered the aforesaid clause. Though, under clauses 4 (C) (i) and 4 (D) (vi) reference is made only to BAMS/BHMS courses, however, under clause 1.3 reference is made to BDS, BAMS, BHMS courses. Confronted with these discrepancies Mr. Gupta has CWP. No. 9856 of 2009 -15- submitted that there seems to be some error, which could be a clerical error, otherwise, BDS course cannot be included for such purpose. He has also relied upon Annexure 'V' appended to the prospectus, wherein the details of the distribution of the seats in Govt. medical institutions and private medical institution is given. Based upon the aforesaid chart of distribution of seats it is contended that there is no mention of 15% seats for category envisaged under clause 7.7. Mr. Gupta has also relied upon two judgements of Hon'ble Supreme Court reported as Deewan Singh and others Vs. Rajendra Pd. Ardevi and others (2007) 10 SCC 528, wherein following observations have been made:- “ It is also well settled that the entire statute must be first read as a whole then section by section, clause by clause, phrase by phrase and word by word. (See Reserve Bank of India V. Peerless General Finance and Investment Co. Ltd.). The relevant provisions of the statute must, thus, be read harmoniously. (See Bombay Dyeing and Secy., Deptt. Of Excise & Commercial Taxes Vs. Sun Bright Marketing (P) Ltd). It would, therefore, not be possible to give literal interpretation to Section 77 of the Act.” In another judgement reported as Sarabjit Rick Singh Vs. Union of India (2008) 2 SCC 417 the Hon'ble Supreme Court has held as under:- “ 56. In RBI v. Peerless General Finance and Investment Co. Ltd. This Court stated: (SCC p.450, para 33) “33....If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear CWP. No. 9856 of 2009 -16- different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and