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2000 DIGILAW 365 (KAR)

KUNAF DUTTA MATHUR v. STATE OF KARNATAKA

2000-06-01

V.P.MOHAN KUMAR

body2000
MOHAN KUMAR, J. ( 1 ) THE prayer in these Writ petitions is with respect to the allotment of unfilled Karnataka Category Dental Seats exclusively to payment non-Karnataka Category and permit them including the petitioners to participate in the counselling to be held to the said seats. The dispute as now appears from the pleadings has arisen consequent on the availability of unfilled seats in the Karnataka Category Dental seats for the year 2000-2001. Though various facts are alleged and pleaded, the material facts relevant for the issue would be that for effecting allotment of the seats to the various Dental College under the Karnataka Selection of candidates for Admission to Engineering, medical and Dental Courses Rules, 1997 there are no candidates to be selected against what is described as the payment Karnataka seats. The Rules have been framed in the light terms of the observations made by the Supreme Court in UNNIKRISHNAN J. P. vs STATE OF ANDHRA PRADESH The. rules framed may hereinafter be referred to as the CET Rules for brevity and convenience. Various allocations are made and seats have been demarcated with respect to Karnataka students and Non-Karnataka students. There is further classification of payment and free seats. The share of the Non-Karnataka seats has been carved out of payment seats. Free seats are exclusively reserved for Karnataka students. Though I am informed that there are 51 seats unfilled with respect to free seats, in view of specific provisions in the CET Rules, the claim is confined to payment seats, as admittedly Non-Karnataka students cannot claim any seat in the category of Free Seats. As such the issue arise only with respect to payment seats. ( 2 ) EARLIER, the matter was heard by me at length and as the Counsel wanted an interim order on the distribution of the available surplus seats at the stage of Counselling, I made an order on 19. 09. 2000. The sum and substance of my order is in the following manner:"8. I am of the view that the following direction can be issued in this behalf. Originally when the entire block of 2417 seats were being distributed at various proportions, of the total number of seats available only 15% were earmarked for the allotment to non-Karnataka Students and that proportion has to be maintained. 9. An incidental argument was raised by learned Counsel ms. Nagarathna and Mr. Originally when the entire block of 2417 seats were being distributed at various proportions, of the total number of seats available only 15% were earmarked for the allotment to non-Karnataka Students and that proportion has to be maintained. 9. An incidental argument was raised by learned Counsel ms. Nagarathna and Mr. Umesh R. Malimath appearing in the connected case that originally the second round of counselling was scheduled to be held on 8. 9. 2000 and with out proper notice it was preponed to 24. 8. 2000. According to them by virtue of this, several Non-Karnataka Students could not participate and appear and the 154 seats now referred to above may take in some of the 15% originally earmarked for Non-Karnataka students. I am of the view such of those seats, should be identified and if as a matter of fact any seats originally earmarked, 15% Non-Karnataka Students is also included in the block of 154 seats and those seats should be separated from being put across for distribution afresh, and only the remaining seats be characterised as "left over seats". Those seats thus separated be made available for being filled up from among Non-Karnataka students in the same manner as was being done hitherto. 10. As regards the filling up of seats remaining thereafter a fresh admission process has to be made with respect to those seats. It is to be treated as if these are the seats that are made available for distribution for the first time. If that is so, rules that are framed for filling up the seats by the Government namely the karnataka Selection of candidates for admission to Engineering, medical and Dental Courses 1997 shall be followed earmarking only 15% thereof to the Non-Karnataka students. This direction is suffice to meet the ends of justice. " ( 3 ) NOW the matter has been finally heard. It is also brought to my notice by the learned Counsel for the petitioner that Writ Appeal has been filed against the said interim order before the Division bench and the matter is pending. This direction is suffice to meet the ends of justice. " ( 3 ) NOW the matter has been finally heard. It is also brought to my notice by the learned Counsel for the petitioner that Writ Appeal has been filed against the said interim order before the Division bench and the matter is pending. Prima facie, I feel that in view of the pendency of the Writ Appeal, it may also be convenient for this court to adjourn the matter till the disposal of the Appeal, however, as the Counsels were insisting that a finality be given to this case at this stage I heard the matter and posted the same to 23. 10. 2000 to ascertain the fate of the appeal. On the said date Mrs. Nagarathna, the Counsel for the petitioner who filed the appeal as well stated at the Bar that the appellants are with drawing the appeal. I am hence disposing of the same finally. ( 4 ) MR. M. R. Naik and Mr. B. Veerabhadrappa, Counsels for the petitioners in I. A-I and I. A-II respectively had filed the said applications on behalf of the managements, to CET themselves impleaded. Though they may not be strictly necessary parties to the present disputes in view of the controversies generated, I have heard them as well as interveners. ( 5 ) THE allotment of seats, as stated, is governed by the CET Rules referred to earlier. At the outset, it is to be borne in mind that there is no right to a Non-Karnataka candidate to seek admission in any of the professional colleges in Karnataka State with respect to seats described as Free seats except those that are recognised by the observations of the Supreme Court in Unnikrishnan's case (AIR 1993 SC 2378 ). Now the material paragraphs in the said decision in this behalf are as follows:"170. xxx xxx xxx (7) Any candidate who fulfills the eligibility conditions would be entitled to apply for admission. After the free seats in ' professional colleges are filled up, at least 10 days' time will be given to the candidates (Students) to opt to be admitted against payment seats. The candidates shall be entitled to indicate their choice for any three colleges (if available ). After the free seats in ' professional colleges are filled up, at least 10 days' time will be given to the candidates (Students) to opt to be admitted against payment seats. The candidates shall be entitled to indicate their choice for any three colleges (if available ). In such a case , he shall comply with the deposit and cash security/bank guarantee - taking the institutions charging the highest fees as the basis - within the said period of ten days. If he is admitted in an institution charging less fee, the difference amount shall be refunded to him. (The cash security or Bank guarantee shall be in favour of the competent authority who shall transfer the same in favour of the appropriate college if that students is admitted ). (8) The results of the entrance examination, if any, held should be published at least in two leading newspapers, one in english and the other in vernacular. The payment candidates shall be allotted to different professional colleges on the basis of meritcum-choice. The allotment shall be made by the competent authority. A professional shall be bound to admit the students so allotted. The casual vacancies or unfilled vacancies, if any, shall also be filled in the same manner. The management of a professional college shall not be permitted to admit any student other than the one allotted by the competent authority - whether against free seat or payment seat, as the case may be. It is made clear that even in the matter of reserved categories, if any, the principle of inter se merit shall be followed. All allotments made shall be published in two leading news papers as aforesaid and on the notice boards of the respective colleges and at such other places as the competent authority may direct, along with the marks obtained by each candidate in the relevant entrance test or qualifying examination, as the case may be. No professional college shall be entitled as for any other or further payment or amount, under whatever name it may be called, from any student allotted to it whether against the free seat or payment seat. (9) After making the allotments, the competent authority shall also prepare and publish a waiting list of the candidates along with the marks obtained by them in the relevant test/examination. (9) After making the allotments, the competent authority shall also prepare and publish a waiting list of the candidates along with the marks obtained by them in the relevant test/examination. The said list shall be followed for filling up any casual vacancies or 'drop-out' vacancies arising after the admissions are finalised. These vacancies shall be filled until such date as may be prescribed by the competent authority. Any vacancies still remaining after such date shall be filled by the management. ( 6 ) THE judgment recognised in principle that a share of seats be made available to the Non-Karnataka students as well, in the matter of admission to the professional colleges. Taking cue of the in the observations in the judgment the CET Rules which has been framed provided Rule 6. "6. ALLOCATION OF PAYMENTS SEATS FALLING TO THE share OF THE STATE GOVERNMENT: (a) Forty Five percent of Engineering seats falling under payment category are available in private Unaided Institutions, other than minority institutions, shall be allocated to Karnataka quota. Seals remaining unfilled after admissions to Karnataka quota shall be allocated to Non-Karnataka quota, subject to a maximum of Fifteen percent of the payment seats. (b) Twenty Five percent of Engineering seats falling under payment category and available in Minority institutions shall be allocated to Karnataka quota. (c) Thirty Five percent of Medical and Dental seats falling under payment category and available in private Institutions, other than Minority Institutions, shall be allocated to Karnataka qutoa. Seats remaining unfilled after admissions to Karnataka quota shall be allocated to Non-Karnataka quota, subject to a Maximum of fiteen percent of the payment seats. (d) Twenty Five percent of Medical and Dental seats falling under payment category and available in Minority Institutions shall be allocated to Karnataka quota. "at the threshold of examining the issue we are concerned with the construction of Rule 6. The Rule 6, contemplates the distribution of payment seats. We are mainly concerned at this stage with clause (c) alone. Under clause (c) it is stated that out of the seats set apart as Medical and the Dental Seats falling in the payment Category and available in private Institutions, other than minority institutions the same shall be allocated to as Karnataka quota. Seats still remaining after earmarking the Karnataka quota shall be allocated to Non-Karnataka quota. Under clause (c) it is stated that out of the seats set apart as Medical and the Dental Seats falling in the payment Category and available in private Institutions, other than minority institutions the same shall be allocated to as Karnataka quota. Seats still remaining after earmarking the Karnataka quota shall be allocated to Non-Karnataka quota. It is subject to a Maximum of 15% of the total number of payment seats. In other words a fair share as assessed by the Rule makers has been set apart to the Non-Karnataka candidate, in that they are eligible to claim a seat out of the 15% of the total number of payment seats. It is important to note that the CET Rules restrict it as the maximum. These seats have to be carved out from only from out of the payment category of seats available in private institutions. Payment seat has been defined at Rule 2 (m) to mean the seat remaining after determination of the Free Seats. Free seats, is defined under the Rules as under:"2 (H) FREE SEATS" means: (i) All seats in the institutions established and/or administered by the State Government or the University. (ii) Seats in the institutions where the State Government has been allotted such number of seats. (iii) Ninety Five percent of seats in aided courses in aided institutions: provided that where there are courses in such aided institutions which are not covered under Grant-in-Aid, fifty percent of the seats in such courses shall be 'free Seats'; (iv) Fifty percent of the seats in all courses in the unaided institutions; other than the "minority Institutions. " (v) Fifty percent of the seats in ail courses in the unaided minority institutions. "therefore it is only the seats that are carved out of the payment sets that is made available for the division among the Karnataka and Non-Karnataka candidates. The question now that arises is whether the Non-Karnataka candidates can claim any portion of the seats earmarked as Karnataka seats. Mrs. Nagarathna, learned counsel for the petitioners was at pains to bring'to my notice, directions issued by the Supreme Court and this Court during the previous years to indicate that Courts have taken a view that whenever any seat remain unfilled after the filling up of the payment seats by the Karnataka candidate the seats thus remaining, be made available to the Non-Karnataka candidates. Though there is some force in her submissions, prima facie I feel that it will not be consistent with the CET Rules. I take this view in view of the circumstance that, as cited by the learned Counsel Mr. M. R. Naik, counsel appearing for management, directions issued that the allotment be made keeping in mind the principle laid down in Unnikrishnan's case. In an interim direction dated 6. 1. 98 made by the Supreme Court in w. P. 291/97, it has stated as under:"we have heard learned Counsel for the parties in the aforesaid I. As. The applications are allowed and the applicants are impleaded as party respondents in Writ Petition No. 291/ 1997. Index be corrected accordingly. The applicants seek modification/variation/vacation of the interim order made by this Court on 28th Juiy 1997. After hearing learned Counsel for the parties, we modify the interim order and direct:- the interim directions given by the Court on 29th July 1997 to the effect that the state shall reserve 15% of the payment seats for all India candidates is made absolute. In so far as the vacant seats are concerned, the same shall be filled strictly in accordance with the scheme laid down in Unni Krishnan. J. P and others vs State of A. P and others: (1993)1 645. The disposal of the Writ Petition shall await the decision of the constitution Bench. "it is brought to my notice that the Supreme Court has reiterated the direction in its subsequent interim order dated 18. 11. 1999 in CC 5995/1999 as well. Though this is in the nature of the interim order, nevertheless, the force behind the said direction cannot be ignored. It mandates that admission be made following the principle laid down in Unnikrishnan's case. In Unnikrishnan's case emphasis should be laid to sub paragraphs 7,8 and 9 extracted above, and that those rules framed in terms of the judgment alone recognizes the entitlement of Non-Karnataka candidate to claim any share of seats in the professional Colleges in Karnataka. ( 7 ) I have given serious consideration of argument of the respective learned Counsel Though one is tempted to take a view that those seats be made available to the Non-Karnataka candidate, but such allotment would not be in accordance with the CET Rules referred to above. Rule 6 has predicated the manner of distribution of the payment seats. ( 7 ) I have given serious consideration of argument of the respective learned Counsel Though one is tempted to take a view that those seats be made available to the Non-Karnataka candidate, but such allotment would not be in accordance with the CET Rules referred to above. Rule 6 has predicated the manner of distribution of the payment seats. With reference to the payment seats, Rule 2 (m) states that all seats other than "free Seats" are payment seats and there is no question of any seats therein being taken out of free seats and transferred to the category of payment seats. Now it is out of that payment Seats that various distribution takes place. Out of the payment seats, as stated, 35% therein would be set apart to karnataka students and remaining 15% therein would be Non- karnataka students. If we are to hold that out of the said 35% seats earmarked, the unutilized seats should be made available to Non-Karnataka candidates, that would mean that we would be enbloc increasing this ratio fixed by the CET Rules by considerable percentage. It is in this context, that the present claim of the management arises. ( 8 ) IN considering this claim we may refer to Rule 18 of the CET Rules. Sub-Rule 14 thereof is relevant in this behalf. The Sub-Rule provides as under:"18 (XIV) After the closing date for admission as fixed by the government is over a reconciliation meeting regarding the number of unfilled and unalloted seats shall be held between the CET cell, the Directorate of Technical Education, Directorate of Medical education and Respective Colleges and after identifying the vacant seats, issue notification regarding such seats by the concerned Directors. Such seats shall be filled by the Colleges. "sub-Rule 14 specifically indicates that any unfilled and unalloted seats remaining unfilled after the admission round and reconciliation round shall be filled by the colleges. If that is so the colleges have every right to claim these seats to be made available to them for being filled up. ( 9 ) IT is seen from the statement filed on behalf on the Counsel for the C. E. T. that as many as 262 seats are vacant after the admission round Counselling were over for the year 2000-2001. Of them, 51 seats are free seats. The payment category seats are 211. ( 9 ) IT is seen from the statement filed on behalf on the Counsel for the C. E. T. that as many as 262 seats are vacant after the admission round Counselling were over for the year 2000-2001. Of them, 51 seats are free seats. The payment category seats are 211. One do not know why there are no takers at all for these seats at the first round. Perhaps, the rule makers at the time of formulating the CET Rules did not envisage the situation that there may not be takers for the seats in these professional colleges. More realistic view ought to have been taken by the Rule maker while formulating the Rules. ( 10 ) WE have noticed above that large number of seats are now falling vacant out of the 35% seats of the payment category. These seats are being made available to the management for being filled up. As it is, choosing the candidate the stand of the Management is that none of rules relating to Entrance test etc. , provided in the CET rule will be a restraint on the management. This should be a matter of concern. I have been furnished with a copy of the statement disclosing the vacancy position. It is noticed that large number of seats are vacant in'particular colleges. It means that it is clear that students who are attending the Counseling obviously do not opt for these colleges. The only discernible reason for this could be that the infrastructure facilities available in these colleges may not at all be sufficient. Still it is brought to my notice by the Counsel that more number of Dental Colleges are being sanctioned this year. When there are no takers for existing seats itself, it is rather surprising and equally a matter of distress that more professional colleges imparting education in the discipline of Medicine and Dentistry are being established in the state. It is hightime for the authorities to take a serious look in the matter. As there are already vacant seats unfilled in the existing Dental Colleges, the respondents shall reconsider its decision to commence new Dental Colleges and take a decision thereon, after issuing notice to any of the beneficiary of the new college. The decision to establish new Dental colleges during the year 2000-2001 shall hence be reviewed. As there are already vacant seats unfilled in the existing Dental Colleges, the respondents shall reconsider its decision to commence new Dental Colleges and take a decision thereon, after issuing notice to any of the beneficiary of the new college. The decision to establish new Dental colleges during the year 2000-2001 shall hence be reviewed. ( 11 ) IT has to be stated that when the CET Rules ambiguously stated that the admission to the vacant seats be made by the College it would not be in their contemplation the damages it will befall, if the same is allowed indiscriminately, on the profession. What transpires is that after the Management admits the students adopting their own undisclosed parameters, the students pursue their studies in the ill equipped Colleges for the semester-or two and later, scout to ascertain whether there are vacant seats in better equipped colleges and seek transfer. The transfers are granted largely to avoid catastrophe to the Medical/dental profession, that would otherwise result. Thus these students who donot even appear for the entrance test gain admission to the Regular professional Course without any let or hindrance. ( 12 ) NOW if the 262 seats fallen vacant is directed to be filled up by the College itself under the Control of an official body, the situation apprehended by the Supreme Court of "production of half baked doctors" could be prevented. Certainly it is not in the hand of this court to lay down any Rules in these matters. One remedy, ms. Nagarathna, learned Counsel points out would be to follow, the direction of Courts issued namely directing the restoration of these seats to the Non-Karnataka students. That procedurej I do not think can be followed after the order of the Supreme Court. However, according to me Rule 18 (xiv) furnishes a die as to how the remaining seats have to be filled up. To repeat, the Sub Rule states thus:"18 ADMISSION ROUND: xxx XXX XXX (xiv) After the closing date for admission as fixed by the government is over a reconciliation meeting regarding the number of unfilled and unalloted seats shall be held between the CET cell, the Directorate of Technical Education, Directorate of Medical education and the Respective Colleges and after identifying the vacant seats, issue notification regarding such seats by the concerned Directors. Such seats shall be filled by the colleges". According to me, the words". . Such seats shall be filled by the colleges". According to me, the words". . . . after identifying the vacant seats, issue notification regarding such seats by the concerned Directors. Such seats shall be filled by the Colleges" indicates the modus in this behalf. In other words, it contemplates the respective Directors to prepare a list of the vacant seats after identifying the same. It cannot at all be the intention of the Rule makers after the principle laid down in Unnikrishnan's case, and as directed by the Supreme court that such vacant seats may be made available in open market and be filled up by the concerned colleges in a free for all manner. Hence filling up of these seats notified, should also be regulated. Such an interpretation has to be placed on the Rule as otherwise, the whole exercise of framing the CET Rules is rendered otiose. It is not to be inferred that after the drawing up of the list of vacancies and notifying the same, as directed in the sub Rule the matter has to be left at that. Some purpose has to be attributed for drawing up such a list. The list is being drawn up and notified with the object of arranging the selection of candidates. Then what is the object of such a notification and whom does it intent to notify? It would be intended to notify intending candidates seeking admission to these colleges. If the candidates is to be selected by the College themselves exclusively, then why should the Director undertake the exercise of preparing the list? The respective College knows the vacancy position and the Director need not act as an "census" collector. The answer to these questions can be had if we remember that the whole object of framing the CET Rules is to achieve fair selection of appropriate candidate for the professional Colleges. If, after all the elaborate process of selection of candidate by entrance test etc. , is completed, to leave the choice of selection of the candidate to be admitted to the will of the person who was making the Selections hitherto, then the earlier exercise is rendered a waste of money and a mock drill. If, after all the elaborate process of selection of candidate by entrance test etc. , is completed, to leave the choice of selection of the candidate to be admitted to the will of the person who was making the Selections hitherto, then the earlier exercise is rendered a waste of money and a mock drill. We have therefore to read into the rule the incidental power with the Director to give effect to the intention of the Rule makers to guide this selection as well which can be achieved by inferring power with the Director to draw up a second list of Candidates from out of the Candidates who succeeded at the entrance examination. Such power should be held to vest with the director. Invoking the Doctrine of penumbra it has to be held that when the power to identify the vacant seat and notifying the same is conferred on the Director it should be hald to include the incidental power to prepare the list of Candidates who should be admitted against such vacant seats as well. If a power be given to an authority (o discharge the more important act, such other subordinate powers bo conceded in him to take up ail consequential steps to complete the discharge of the powers. It would in this case include preparing of a supplemental merit list from whom the management may fill up the Candidates against the vacant seats notified by him. The said list should be treated as the supplementary second merit list and the further filling up of the notified seats shall be in terms of Rule 6 and other Rules, material to reservation etc. In the CET Rules. It is highly desirable that the Government should be" alive to the situation and make appropriate amendments to the CET Rule itself incorporating the directions issued by this Court in this behalf and to restore such" vacant seats to be filled up by declaring the list prepared under Rule 18 (xiv) read above as the second merit list. Otherwise, great mishap will befall on the profession in that ill qualified and unsuitable candidates would find their way to fill up these vacant seats who would in course of time behalf qualified doctors and Dentists posing menace to the society as a whole. Otherwise, great mishap will befall on the profession in that ill qualified and unsuitable candidates would find their way to fill up these vacant seats who would in course of time behalf qualified doctors and Dentists posing menace to the society as a whole. ( 13 ) FROM the breakup made available to the Court by the learned Government Advocate, it is seen that in certain colleges large number of Dental seats are vacant. For instance in Rajiv Gandhi Dental college, Bangalore there are as many as 12 seats vacant. In farooquia Dental College, Mysore, 10 seats are vacant. In P. M. Nadagowda Memorial Dental College and Hospital Bagalkot, 19 seats are vacant. In Sri Dharmastala Manjunatheswara Dental college, Dharwad, 11 seats are vacant. In Rural Albadar Charitable trust Dental College, Gulbarga, 10 seats are vacant. Alarming figures furnished are with respect to the Yenapoya Dental College, mangalore, where 25 seats are vacant and K. Venkataramana Gowda dental College, Hospital and Research where 36 seats are vacant. Likewise, 20 seats are vacant in college of Dental Sciences, davanagere and 12 seats are vacant in Sri Jagadguru Murugharajendra dental College and Hospital. One do not know the reason why the students are not choosing these colleges at the time of cet admission rounds and these seats consequently fall vacant. It is hightime that the Government takes a serious look in these matters and decide to reduce the strength of the colleges where there are decreased student intake, for the year. The Government should improve the standard of education in such colleges or else innocent students may be misguided to these colleges. The Government should decide as to what would be the financially viable strength in a College and if the admission fall short of the same, take such appropriate regulatory steps including derecognition. The Government should improve the standard of education in such colleges or else innocent students may be misguided to these colleges. The Government should decide as to what would be the financially viable strength in a College and if the admission fall short of the same, take such appropriate regulatory steps including derecognition. ( 14 ) THE Writ petitions are disposed of as above and in particular with the following direction: (I) A revised list of candidates who appeared at the respective entrance examination shall be prepared by the officer designated in Rule 18 (xiv) of the CET Rule and the Colleges may fill up the remaining seats vacant in their colleges treating the same as second merit lists and in terms of the other provisions of the rules and also keeping in mind the directions in Unnikrishnan's case (AIR 1993 S. C. 2378) (II) The Government shall take appropriate steps to clarify the rules so that the list prepared in terms of what is directed above interpreting Rule 18 (xiv) shall have the validity as that of a second merit list and indicating that the Colleges may themselves fill up the Candidates from out of the said list following the other Rules in CET Rules more particularly applying Rule 6 (c) in the matter of apportionment. (III) These directions, with appropriate variations, can be applied "mutatis mutandis" in the matter of filling up of existing free seats as well. (IV) vacant payment seats as it exists now shall not be made over to the Colleges to make admissions unless the lists referred to above are drawn up and notified. (V) The Government shall examine the Education standards of such of those institution which registers large number of vacant seats which render the institution financially unviable. (VI) The Government shall take steps to derecognize, such of those institutions in which there are large number of vacant seats rendering it unviable. (VII) The Government shall ascertain the number of students to be filled in each College, to render it financially viable and exclude such of those Colleges falling below the said number in any year from being included in the seat matrix of the succeeding year. (VIII) The Government shall re-examine its decision taken with respect to starting of fresh Dental Colleges in the State for the academic years 2000-2001 and thereafter. With These directions, these Writ petitions are disposed of. (VIII) The Government shall re-examine its decision taken with respect to starting of fresh Dental Colleges in the State for the academic years 2000-2001 and thereafter. With These directions, these Writ petitions are disposed of. Issue copy of the order to the Counsel for the petitioner, to the government Advocate and to the Counsel for the interveners. --- *** --- .