M. S. SHAH, J. ( 1 ) JUSTICE R. J. Shah (Retd.) Fee/admission Committee (Medical), appointed pursuant to the directions of the Honble Supreme Court in Islamic Academy of Education v. State of Karnataka, 2003 (6) SCC 697 , has filed this application for certain directions on the basis that so-called admission procedure followed by the members of G. S. F. Medical and Para-medical association, either in number, was not fair and transparent, and therefore, the alleged admissions given by the said self-financed institutions as communicated vide their letters dated 2-9-2005 be quashed and set aside and to direct admissions to be granted to the said institutions on a centralised counselling basis strictly according to merit-cum-preference as held by the Apex Court in Islamic academys judgment and as reiterated in P. A. Inamdars case. The Committee has also prayed for taking action against office-bearers of the association and the members of the said association under Art. 215 of the Constitution. ( 2 ) THE facts giving rise to this application stated in two parts : (i) the sequence of events upto the order dated 22/8/2005 of the Honble supreme Court; (ii) events relevant to eligibility criteria and common counselling. ( 3 ) 1. After the judgment of the Apex Court in Islamic Academy of Education v. State of Karnataka, 2003 (6) SCC 697 , the association of self-financed medical and para-medical colleges in Gujarat (having eleven member-institutions, out of which three were not recognised or had not received renewal of recognition from the competent authorities) had requested Justice R. J. Shah (Retd.) Fee/admission committee ("the Committee" for brevity) to permit the association to take common Entrance Test ("c. E. T. " for brevity) for admissions to the colleges run by the member-institutions for the academic year 2004-2005. Such permission was not granted on the basis that permission could be granted only if the association had a majority of the self-financed medical/dental/physio-therapy colleges in the State as its members and that since the association did not have such majority of self-financed medical and para-medical colleges in the State, admissions were to be granted through joint committee for centralised admissions. The petition filed by the association against the said decision of the Committee came to be dismissed. The Letters Patent Appeal was admitted, but interim relief was not granted. The petition filed by the association against the said decision of the Committee came to be dismissed. The Letters Patent Appeal was admitted, but interim relief was not granted. The Honble Supreme Court by order dated 23-7-2004 permitted the association to conduct C. E. T. The C. E. T. was accordingly conducted by the association on 28-7-2004. However, in view of the complaints made before the Committee that the C. E. T. was not conducted by the association in a fair and transparent manner, after hearing the association, the Committee by their order dated 16-8-2004 unanimously decided that the C. E. T. carried out by the association on 28-7-2004 stood cancelled as it was not held in a fair and transparent manner. (For instance, for almost all the questions in the test which were objective questions, the correct option was "c", so that the candidates who had access to such information secured more marks and also that such students had left the examination hall within 45 minutes as against the stipulated time of two hours for answering 200 questions ). That order of the Committee came to be challenged by the association before the Honble Supreme Court on the date of hearing of the interlocutory applications challenging the said decision of the Committee (i. e. on 16-9-2004) the Apex Court observed that everybody was racing against time, because no admissions could be granted after 30th september, as per the Schedule fixed by the Medical Council of India in compliance with the directions of the Honble Supreme Court in Madhu Singhs case ( 2002 (7) SCC 258 ). Hence, the Apex Court held that it was not possible to disturb the results of the C. E. T. which was already conducted and on the basis of which admissions were already granted for the year 2004-2005. The apex Court accordingly stayed the order dated 16-8-2004 of the Committee and the question about the powers of the Committee to cancel the examination was referred to the Larger Bench of the Apex Court. 2 For the current academic year 2005-2006, the association again requested the Committee for permission to hold C. E. T. for granting admissions to the first M. B. B. S. /b. D. S. /b. Physio-therapy Courses in the colleges run by the members of the association. 2 For the current academic year 2005-2006, the association again requested the Committee for permission to hold C. E. T. for granting admissions to the first M. B. B. S. /b. D. S. /b. Physio-therapy Courses in the colleges run by the members of the association. It appears that in April-May, 2005 there were two associations of self-financed colleges and the Committee rejected the application of G. S. F. Medical and Para-medical Association for permission to conduct the c. E. T. The Committee also referred to the fact that all the 27 self-financed medical/dental/physio-therapy colleges in the State were not members of the said association, but only 8 were members of the said association and that the remaining 3 member-institutions had not yet received any recognition. When that decision dated 15-6-2005 of the Committee came to be challenged in Special civil Application No. 10583 of 2005 which ultimately came to be referred to this Bench, after considering the events in the academic year 2004-2005 and after considering that the admissions to medical and dental colleges in the open merit category had stopped at more than 88% and in the physio-therapy colleges at more than 73 %, by way of an interim order, and at the request of the State government and Justice R. J. Shah (Retd.) Committee, this Court by order dated 15-7-2005 permitted the C. E. T. to be conducted on 14-8-2005, inter alia, subject to the following conditions : (1) Only the students who have obtained at least aggregate 70% marks in the theory papers of Physics, Chemistry and Biology at the qualifying examination (e. g. H. S. C. (Science Stream) examination conducted by the Gujarat Higher secondary Education Board/central Board of Secondary Education or other equivalent examinations specified in the Admission Rules as contained in the Government Resolution dated 28/4/2005) shall be permitted to appear at the Common Entrance Test for the year 2005-2006. For this purpose, a student having obtained 69. 5% or higher marks shall be treated as having obtained 70 percent marks. (2) The Common Entrance Test shall be conducted on 14th August, 2005 as per the detailed program already worked out by the petitioner association in consultation with respondent No. 2 Committee (which is taken on record ). For this purpose, a student having obtained 69. 5% or higher marks shall be treated as having obtained 70 percent marks. (2) The Common Entrance Test shall be conducted on 14th August, 2005 as per the detailed program already worked out by the petitioner association in consultation with respondent No. 2 Committee (which is taken on record ). The petitioner association shall at its own expenses give public notice in a prominent manner in all the leading newspapers having wide circulation in the State of Gujarat (atleast 5 Gujarati and 2 English newspapers) announcing the detailed program of the Common Entrance Test and the admission procedure and also specifying that only the students referred to in condition (1) above shall be permitted to appear at the Common Entrance Test. (3) The Common Entrance Test shall be conducted in a fair and transparent manner as per the detailed procedure worked out by the association and respondent No. 2-Committee. The petitioner-association and all its members shall abide by the statements made before this Court on the basis of which this order is passed. Respondent No. 2-Committee shall have and exercise all the powers envisaged in the judgment of the Honble Supreme Court in the case of Islamic Academy of Education v. State of Karnataka, 2003 (6) scc 697 to ensure that the Common Entrance Test and the admission process are conducted in a fair and transparent manner. 3 Aforesaid direction No. 1 came to be challenged by some students and by order dated 22-8-2005, the Honble Supreme Court, while granting leave on the S. L. P. , passed the following interim order after hearing the parties : "insofar as the eligibility to participate in the Common entrance Test is concerned, the direction of the High Court in Paragraph 27 (1) is varied to the extent that instead of aggregate 70% mark, for the present Academic Year, it would be taken as "aggregate 50% marks. " ( 4 ) EVENTS relevant to common counselling. " ( 4 ) EVENTS relevant to common counselling. 1 The detailed program for the C. E. T. and the admission process as produced before this Court was as under : time Schedule : (A) Publication of Advertisement in prominent Gujarati and English newspapers 15th July, 2005 (B) Distribution of Forms from centres in Ahmedabad, Baroda, Rajkot, Surendranagar and Surat 25th July, to 2nd August, 2005 (C) Last Date of collection of Forms 3rd August, 2005 (D) Date of Examination 14th August, 2005 (Sunday) (E) Assessment of answer-books 16th August, 2005 onwards (F) 1st counselling (List to be submitted to University Committee (Hon. Justice R. J. Shah (Retd.)/centralised Medical Admission Committee) 20th August, 2005 Onwards (G) Commencement of Classes 22nd August, 2005 (H) All colleges to submit vacant position 10th Sept. , 2005 (I) 2nd counselling for re-shuffling (List to be submitted to University Committee (Hon. Justice R. J. Shah (Retd.)/centralised Medical Admission Committee) 15th Sept. , 20052 Pursuant to the above order dated 15/7/2005 of this Court, the association issued prospectus containing "rules for Admission to M. B. B. S. /b. D. S. /b. Physio-therapy Courses in Self-financed Institutes (For Management quota) in the State of Gujarat (2005-2006 ). Preamble of the said Rules reads as under : to provide single window admission arrangement for the aspirants to Medical and Indian System of Medicine course in the State of Gujarat by the Self-Financed institutes (for Management quota ). The rules are based on various policies and directions of Government of India, State Government and all the concerned Apex national Councils (like M. C. I. , D. C. I.) and latest ruling of the Honble Courts in this regards. The form attached to the rules envisage submission of only the relevant information and certificates which are normally needed to assign such priority or benefit to the applicant. These will facilitate smooth and transparent admission procedure in the Medical field in the State. " (Emphasis supplied) rule 2. 5 in the prospectus also contained the following Schedule :"2. 5 Calendar for the Academic Year 2005 and important dates : (a) Distribution of Prospectus and Application. . . . for C. E. T. 2005, 22nd July, 2005. (b) Last date of receiving application by Regd. /speed post/in person upto 3rd August, 2005. (c) Date of Entrance Examination Schedule on 14th August, 2005. (d) Date for First counselling 20th August 2005. "rule 4. . . . for C. E. T. 2005, 22nd July, 2005. (b) Last date of receiving application by Regd. /speed post/in person upto 3rd August, 2005. (c) Date of Entrance Examination Schedule on 14th August, 2005. (d) Date for First counselling 20th August 2005. "rule 4. 2 provided for the following eligibility criteria for admission :-"in case of admission on the basis of qualifying examination a candidate for admission to respective course must have passed in the theory subjects of Physics, chemistry, Biology individual and must have obtained a minimum of 69. 5% marks taken together in Physics, Chemistry and Biology at the qualifying examination as per High Court judgment and in addition must have come in the merit list prepared as a result of such competitive entrance examination. " (the minimum percentage was modified to 50% as indicated in Para 2. 3 hereinabove ). The form which was prescribed by the association along with the Rules provided for options to be exercised as under :-SELECTION OF CATEGORY m. B. B. S. AND PREFERENCE THEREOF b. D. S. B. Physio preference OF THE COLLEGE 1. (from the list of colleges) 2. 3. N. B. : Preference of the branch and Name of the Institution will not be eligible to change in any circumstances i. e. if any one opted for any branch with specific college will not be permitted to change later on before or after the declaration of the results and counselling. The candidate who left the preference at the time of first counselling and the candidate who remained absent at the time of first counselling will not be entertained at the time of re-shuffling procedure. "3 After the aforesaid prospectus and blank forms were issued, the committee addressed a letter dated 5-8-2005 calling upon the association to delete the instructions for giving "preference of college" in the C. E. T. form at the time of applying for the C. E. T. and also calling upon the association to remove the entire instructions contained in the N. B. and also to give wide publicity about deletion of the above instructions. The Committee specifically directed the association through the aforesaid letter that all the students be allowed to give their preference/to change the preference of institution/college at the time of counselling as well as at the time of re-shuffling without any restriction and directed that the choice of college/institution has to be open till the students come for final counselling. (The Committee gave the above directions on the ground that the students cannot be expected to indicate their preference without appearing at the C. E. T. and knowing their merit position and also because out of the 11 colleges, 3 Dental colleges and 1 Medical college had yet not received recognition from the competent authority like the dental Council of India/medical Council of India ). The association did not raise any objection to the aforesaid letter dated 5-8-2005 nor did the association challenge the aforesaid directions of the Committee by filing any application before this Court or any other Court. 4 After the C. E. T. was conducted on 14/8/2005, the Committee addressed letter dated 17/8/2005 informing the Chairman of the association that the committee had called for the details about the marks at the H. S. C. (Science) examination of all the candidates whose names were included in the merit list prepared on the basis of the results of the C. E. T. , but such particulars were not received till 17/8/2005. The Committee also referred to the decision of the committee taken on 16/8/2005 for giving the following instructions to the association :- (1) Wide publicity be given to the merit list. (2) Wide publicity be given in two Gujarati newspapers and 2 English newspapers regarding the counselling program. (3) Individual call letters be sent to the candidates and sufficient time be given to them. (4) The names of 3 members of the Committee were intimated who were going to remain present at the time of counselling. The association was to give advance intimation of one week. (5) Common counselling of all the self-financed institutions was to be done at the place where the C. E. T. was held i. e. at the Faculty of Technology, m. S. University at Baroda. (6) Students would be free to give preference of college/course at the place of counselling and admissions will be given on the basis of merit-cum-preference. (5) Common counselling of all the self-financed institutions was to be done at the place where the C. E. T. was held i. e. at the Faculty of Technology, m. S. University at Baroda. (6) Students would be free to give preference of college/course at the place of counselling and admissions will be given on the basis of merit-cum-preference. 5 By letter dated 24/8/2005, the Committee reiterated that common counselling be done at the aforesaid place on 3rd/4th September, 2005. On 29-8-2005, the Committee addressed individual letters to each of the 8 self- financed colleges, who are members of the association, to send their representative at the time of counselling at the Faculty of Technology, M. S. University, baroda on 3rd/4th September, 2005 and also enclosed a copy of the letter dated 24/8/2005 of the Committee send to the association. Neither the association nor its members ever objected to the aforesaid directions of the Committee to arrange common counselling. Again on 31/8/2005, the Committee informed the association and its members that the procedure for admissions was being carried out in defiance of the Schedule which was placed before the Full Bench of the High Court. 6 By another letter dated 31/8/2005, the Committee also informed the association and its members that inspite of repeated reminders, the association and its members were not sending breakup of the marks of the students at the h. S. C. examination, and therefore, the said requisition be immediately complied with. In the said letter, the Committee also noted that the list sent by the association along with the preference given by the students at the time of issuance of forms for C. E. T. was not acceptable to the Committee as the preference was required to be permitted to be given by the students at the time of counselling in presence of members of the Committee and that the arrangement was also accepted by the learned Advocate for the association. The Committee also informed the association that the Committee would be constrained to approach the High Court. The Committee also informed the association that the Committee would be constrained to approach the High Court. 7 Suddenly, on 2/9/2005, all the eight members of the association sent their separate individual letters dated 2/9/2005 informing the Committee that the respective institutions had completed the admission procedure for the management quota in their institutions for the Academic Year 2005-2006 by operating the merit list which was prepared and signed by a member of the committee and which list was forwarded by the association to the concerned institutions. The letters sent by all the institutions were identically worded. The committee immediately informed all the eight institutions that the action on the part of the concerned institutions was in breach of the orders of the Full Bench of the High Court and that the self-financed institutions were acting with mala fide intention of collecting capitation fees; that the actions of the institutions were also in breach of the commitments given by the Counsel for the institutions before the High Court. The Committee stated that the institutions had acted in a unilateral, sham and fraudulent manner and that the institutions were also acting in breach of the commitments made before the High Court and also in clear breach of essence of the judgments of the Honble Supreme Court in Islamic academys case (supra) and in P. A. Inamdars case (supra ). The Committee further informed the institutions that all Vice-Chancellors are advised not to recognize any admissions given by the association as they are, per se, illegal and fraudulent. The Committee, thereafter moved this application on Monday, 5th September, 2005 with the prayers summarized in the first Paragraph of this judgment. The Committee further informed the institutions that all Vice-Chancellors are advised not to recognize any admissions given by the association as they are, per se, illegal and fraudulent. The Committee, thereafter moved this application on Monday, 5th September, 2005 with the prayers summarized in the first Paragraph of this judgment. ( 5 ) WHEN the application came up for first hearing on 6/9/2005, we passed an ad-interim order restraining the association and its members from taking any further steps in the matter of granting admissions to the 1st year M. B. B. S. /1st year b. D. S. /1st year Physio-therapy courses in the colleges run by the members of the association (who were also permitted to be joined as party opponents) and directed those institutions to place on the notice board of the respective colleges notices indicating pendency of the present proceedings and also calling upon the members of the association to place on record the particulars about the serial number in the merit list as per C. E. T. and percentages of marks at the C. E. T. examination, and also the percentage of marks at the H. S. C. (Science) examination and the amount of fees accepted so far. ( 6 ) AT the hearing of this application on 9-9-2005, Mr. Bhaskar Tanna, learned Counsel for the applicant Committee placed the following details :1 The admissions in the Management quota in the Self-financed Medical colleges had stopped at C. E. T. merit No. 220. In self-financed Dental colleges (Management quota) admissions stopped at C. E. T. merit No. 347 and in self-financed physio-therapy college (Management quota) admissions stopped at c. E. T. merit No. 495. However, from the particulars given by the colleges to the Committee, the following picture emerges : (i) 4 students having their C. E. T. merit rank between Sr. Nos. 1 to 220, are not given admission to any college. (ii) 74 students having their C. E. T. merit rank between Sr. Nos. 221 to 347, are not given admission to any college. (iii) 141 students between Sr. Nos. 348 and 495 are not given admissions to any college.