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Madhya Pradesh High Court · body

2008 DIGILAW 546 (MP)

ANSHUL TOMAR v. STATE OF M. P.

2008-04-08

DIPAK MISRA, R.S.JHA

body2008
Judgment ( 1. ) IN this batch of writ petitions the petitioners have called in question the substantiality of the decision taken by the Committee for admission Procedures for Professional Institutions (hereinafter referred to as the committee) whereby the Committee has called the admissions of the petitioners to the respondent No. 3, R. D. Gardi Medical College, Ujjain (for short the college) on the ground that they were not entitled to be admitted under the Non resident Indian (NRI) quota. That being the centripodal issue in all the writ petitions they were heard analogously and are disposed of by a singular order. For the sake of clarity and convenience the facts of Writ Petition 13500/2007 are adumbrated herein. ( 2. ) THE petitioners have taken admission in the respondent-College in respect of 15% NRI quota on the foundation that they have been sponsored by the NRI. It is contended that the College was satisfied with regard to the status of nri sponsorship of the students/candidates but the Committee took up the matter and cancelled the admission on the ground that they are neither the children of nris nor the wards. It is averred in the petition that the petitioners come within the concept of students sponsored by NRIs and meet the requirement in that regard and hence, the finding of the Committee is totally illegal, unjust and improper. ( 3. ) BE it noted that in pursuance of the order dated 7-2-2008 written notes of submissions have been filed by the Committee as well as by the College. The committee in its written note of submissions has filed the result sheet of DMAT, 2006 and the records relating to various students. The basic stand of the committee is that the students are not the children of NRIs and there is no material NRIs have supported or looked after them except that they have paid their fees. ( 4. ) THE respondent-College in its written note of submissions has stated that the bona fides of the petitioners were scrutinized and they have been treated as the wards of NRIs and on that basis they were granted admissions. It is also highlighted by the respondent-College that most of the students have secured first Division in the qualifying examination i. e. (10 + 2) and a chart in that regard has also been filed. It is also highlighted by the respondent-College that most of the students have secured first Division in the qualifying examination i. e. (10 + 2) and a chart in that regard has also been filed. It is contended that the merit has not been completely given a go-bye. It is putforth that for taking admission under the NRIs quota, appearing in the Common Entrance Test is not necessary. It is also putforth that institution has not mis-utilized the NRI quota. Reliance has been placed upon the case of Ruchin Bharat Patel vs. Parents Association for M. D. Students and others, Civil Appeal No. 4480/2006 decided on 13-11-2006 wherein certain directions were issued for admission of students under NRI quota. Additionally specific submissions have been made how the students have been sponsored and fulfil the requisite criteria. ( 5. ) WE have heard Mr. B. Vede, Mr. Mohd. Ali and Mr. Sheel Nagu, learned counsel for the petitioners, Mr. Samdarshi Tiwari, learned Government advocate for the State, Mr. P. K. Kaurav, learned counsel for the respondent-Committee and Mr. Ashok Lalwani, learned counsel for the respondent-College. ( 6. ) AT the outset we must state that there is no cavil over the fact that the petitioners have been sponsored by the Non Indian Residents (NRIs), but the controversy relates to their relationship with the students. Thus, two questions which emerge for consideration are whether the petitioners could have been admitted without appearing in the Common Entrance Test and whether they can be regarded as the wards of the NRIs. In this context, we may refer with profit to paragraph 131 of the decision rendered in the case of P. A. Inamdar vs. State of maharashtra, (2005)6 SCC 537 . In the said paragraph it has been held as under:- "131. Here itself we are inclined to deal with the question as to seats allocated for Non-Resident Indians ("nri" for short) for NRI seats. It is common knowledge that some of the institutions grant admissions to a certain number of students under such quota by charging a higher amount of fee. In fact, the term "nri" in relation to admissions is a misnomer. By and large, we have noticed in cases after cases coming to this Court neither the students who get admissions under this category nor their parents are NRIs. In fact, the term "nri" in relation to admissions is a misnomer. By and large, we have noticed in cases after cases coming to this Court neither the students who get admissions under this category nor their parents are NRIs. In effect and reality, under this category, less meritorious students, but who can afford to bring more money, get admission. During the course of hearing it was pointed out that a limited number of such seats should be made available as the money brought by such students admitted against NRI quota enables the educational institutions to strengthen their level of education and also to enlarge their education activities. It was also pointed out that people of Indian origin, who have migrated to other countries, have a desire to bring back their children to their own country as they not only get education but also get reunited with the Indian cultural ethos by virtue of being here. They also wish the money which they would be spending elsewhere on education of their children should rather reach their own motherland. A limited reservation of Such seats, not exceeding 15%, in our opinion, may be made available to NRIs depending on the discretion of the management subject to two conditions. First, such seats should be utilised bona fide by NRIs only and for their children or wards. Secondly, within this quota, merit should not be given a complete go-bye. The amount of money, in whatever form collected from such NRIs, should be utilised for benefiting students such as from economically weaker sections of the society whom, on well- defined criteria, the educational institution may admit on subsidised payment of their fee. To prevent misutilisation of such quota or any malpractice referable to NRI quota seats suitable legislation or regulation needs to be framed. So long as the state does not do it, it will be for the Committees constituted pursuant to the direction in Islamic Academy to regulate. " ( 7. ) PLACING reliance on the aforesaid paragraph it is submitted by the learned counsel for the petitioners that there is no warrant to appear in the Common entrance Test for giving admissions to the students under the NRI quota. At this juncture, we made a query from Mrs. " ( 7. ) PLACING reliance on the aforesaid paragraph it is submitted by the learned counsel for the petitioners that there is no warrant to appear in the Common entrance Test for giving admissions to the students under the NRI quota. At this juncture, we made a query from Mrs. Indira Nair, learned senior counsel appearing for Medical Council of India as to whether the Medical Council of india has issued any directions for insisting upon the students who are admitted under the NRI quota not to undergo the Common Entrance Test. Mrs. Indira nair, learned senior counsel fairly submitted that as far as students who take admission under NRI quota have to satisfy the eligibility criteria of 10 + 2 examination as provided under the Medical Council of India Admission undergraduate Regulations, 1997 and they are not required to undergo Common entrance Test examination. Learned senior counsel submitted that the decision of the M. C. I, in that regard is in consonance with Paragraph 131 of P. A. Inamdar (supra) ( 8. ) IN view of the aforesaid, we accept the submission of the learned counsel for the petitioners that they were not required to appear in the Common Entrance test examination and their admissions are justified as they have qualified in the 10 + 2 examination. ( 9. ) THE next aspect that requires to be adverted to is whether such seats filled under the NRI quota sponsorship have been utilized bona fidely by the NRI for their children or wards. In this context, we may refer with profit to the decision rendered in Ruchin Bharat Patel (supra ). True in it, their Lordships have delivered the decision while dealing interlocutory application. In the said decision it has been held as under :- "normally, the admissions to the medical colleges should have been finally concluded before 30th September. This years admission is long overdue and if this 15% if the students are not allowed to be admitted under NRI quota there may be financial loss to these colleges and the seats shall also go waste. This years admission is long overdue and if this 15% if the students are not allowed to be admitted under NRI quota there may be financial loss to these colleges and the seats shall also go waste. In view of the peculiar circumstances of the case, for this year we are taking a practical view of the situation and we feel that the students to these colleges may be admitted under the following directions and we make it clear that this is exclusively for this year only as a one time arrangement because of the peculiar circumstances of the case. 1) The students be admitted as NRIs in NRI quota as against 15%. At least one of the parents of such students should be an NRI and shall ordinarily be residing abroad as an NRI. 2) The person who sponsors the student for admission should be a first degree relation of the student and should be ordinarily residing abroad as an NRI. 3) If the student has no parents or near relatives or taken as a ward by some other nearest relative such students also may be considered for admission provided the guardian has bona fide treated the student as a ward and such guardian shall file an affidavit indicating the interest shown in the affairs of the student and also his relationship with the student and such person also should be an nri, and ordinarily residing abroad. Even if these parameters are applied and sufficient number of students are not available for this year as against admission to 15% quota, the colleges would be liberty to fill up the remaining seats from the State list and if the number of candidates admitted as against 15% quota is very much less and the colleges are unable to raise sufficient funds they would be at liberty to approach the Committee to restructure the fees. It is clarified that the students who will be admitted against the NRI quota should have the basic qualification fixed by the Medical Council of india/dental Council of India for admission in Medical/dental graduate courses. " ( 10. ) AT this juncture, it is worth noting that Pravesh Niyantran Samiti (Medical Education), Mumbai while dealing with the issue relating to admissions to be granted admissions in NRI seats dealt with the eligibility facets. " ( 10. ) AT this juncture, it is worth noting that Pravesh Niyantran Samiti (Medical Education), Mumbai while dealing with the issue relating to admissions to be granted admissions in NRI seats dealt with the eligibility facets. After reproducing the paragraph from Ruchin Bharat Patel (supra) the Committee opined thus :- "based upon the decision of Honble Supreme Court referred herein above dated 13th November, 2006 has laid down a criteria for admission in NRI quota, the Samiti decides and resolves the criteria for granting the admissions in NRI quota, as under : 1) If the mother or father of student is NRI and residing abroad ordinarily, then, either of the situations so held will be considered to be proper. 2) If the first degree relation of the student is NRI and residing abroad ordinarily, then in such circumstances also, qua this year, should be considered eligible. It is natural that such definition would include the real brother and sister over and above the mother-father of the first degree relation. 3) As per the definition revised by the Honble Apex Court, interpretation of clause 3 thereof as not made limited but if made in a broad perspective, then, it is clear that the person who wanted to consider such student as ward (Palya), then, he be considered to be proper subject to compliance of the following conditions : a) He should be the nearest relation. b) In the definition of the nearest relation, committee has considered following relative having blood relations. i) Real brother and sister of father i. e. real uncle and real aun. ii) Real brother and sister of mother i. e. real maternal uncle and maternal aunt, in) Father and mother of father i. e. grand father and grand mother, iv) Father and mother of mother i. e. maternal grand father and maternal grand mother. v) First degree - paternal and maternal cousins, vi) Such person should be NRI. c) Such person should ordinarily be residing abroad. d) Such person should have looked after such student as the guardian of the student and evidence to that effect must have been produced before the committee by such person. e) There should be affidavit with aforesaid fact. v) First degree - paternal and maternal cousins, vi) Such person should be NRI. c) Such person should ordinarily be residing abroad. d) Such person should have looked after such student as the guardian of the student and evidence to that effect must have been produced before the committee by such person. e) There should be affidavit with aforesaid fact. The Samiti directs the AMUPMDC and the Institutes/colleges to follow the above guidelines strictly while granting the admissions in NRI quota in respect of the First Year Health Science course for the academic year 2007-08 and onwards. " ( 11. ) IN view of the aforesaid, we are inclined to think that the term ward has been given a broader meaning in Ruchin Bharat Patel (supra ). We have reproduced the guidelines of Mumbai Committee to show that they are in consonance with the guidelines setforth by Ruchin Bharat Patel (supra ). Nothing has been placed on record to show that NRIs have acted in a mala fide manner. ( 12. ) REGARD being had to the amplified meaning of the term ward and in the absence of any mala fide and further on the foundation that the merit has not been completely given a go-bye, we are inclined to quash the decision of the committee and hold that the admission of the petitioners under the NRI quota are valid and the petitioners are entitled to prosecute their studies under the said college. If any examination has been held in the meantime wherein the petitioners could not appear the College shall conduct a separate examination for them and all concerned shall co-operate with the same. ( 13. ) THE writ petitions are allowed accordingly. In the peculiar facts and circumstances of the case, there shall be no order as to costs. Writ petitions allowed.