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Rajasthan High Court · body

2015 DIGILAW 1719 (RAJ)

Arundhati Sharma v. Coordinator, PCPMT, 2015

2015-09-29

M.N.BHANDARI

body2015
JUDGMENT : By this petition, a direction is sought on the Coordinator, Private College Pre-Medical Entrance Test (in short “PCPMT”), 2015 to hold fresh counselling for admission in MBBS/BDS courses and petitioners be called against the vacant seats. It is further prayed that if seats remained vacant out of All India quota then also petitioners may be given admission against those seats. In the alternatively, the process of admission adopted by PCPMT, 2015 including examination, counselling and the admission in the private medical colleges may be cancelled. It is looking to the forgery committed therein and to appoint a high level committee to investigate it. Learned counsel submits that to fill the seats in MBBS/BDS courses, PCMPT was conducted by the Federation of Private Medical and Dental Colleges of Rajasthan (in short “Federation”) The petitioners appeared in the entrance test along with others. As per the Instruction Booklet, the general caste candidate was required to secure minimum 50th of percentile to qualify in the entrance test and those who belong to SC, ST, OBC and SBC, minimum 40th percentile. After the entrance test, result was declared but the petitioners were shocked to notice that for admission in MBBS/BDS courses, criteria was changed. The Federation evolved different mechanism where a student was required to possess minimum 50% or 40% marks instead of percentile. It is also stated that entrance test was conducted without information about negative marking. The petitioners attempted the questions without knowing that for incorrect answer, marks would be deducted in view of adoption of negative marking system. As an outcome of the procedure adopted by the Federation, the petitioners could not obtain qualifying marks even though their correct answers alone are taken into consideration. It comes to be more than 50% in the three relevant subjects, thus negative marking system may be removed. It is moreso when other agencies conducted similar common entrance test, system of negative marking was not adopted and thereby the result remained favourable on the basis of correct answers attempted by those candidates. In the alternative, the respondents may be directed to make admission based on percentile system instead of going to the percentage system. It is moreso when other agencies conducted similar common entrance test, system of negative marking was not adopted and thereby the result remained favourable on the basis of correct answers attempted by those candidates. In the alternative, the respondents may be directed to make admission based on percentile system instead of going to the percentage system. It is moreso when Regulations on Graduate Medical Education, 1997 (in short “Regulations of 1997”) have not been further amended and as per the unamended provisions, a candidate needs to obtain minimum 50th or 40th percentile, as the case may be, to become eligible for admission. It is also stated that Federation has allowed admission by substitution of the candidates. Say for merit No.1, Arpita Shringi has been substituted by Pooja and in the same manner, Gaurav Gupta, stood at No.3, has been substituted by Pooja Paliwal. The way Federation has allowed counselling followed by admission speaks volume against it. The aforesaid aspect is also required to be considered by the court. It is lastly contended that during pendency of the writ petition, private medical collges/Universities issued an advertisement at their own calling for the applications from various sources, though not permissible as per Reguations of 1997 and in view of judgments of Hon'ble Apex Court in the case of PA Inamdar & Ors. Vs. State of Maharashtra & Ors., reported in (2005) 6 SCC 537 and Priya Gupta Vs. State of Chhattisgarh & Ors., reported in (2012) 7 SCC 433 . This court took cognizance of the aforesaid and issued notice for contempt to various private medical colleges/universities by its order dated 24th September, 2015. It is in the light of judgment of the Apex Court in the case of Priya Gupta (supra). It is also contended that in the reply submitted by the Federation, a refernce of a decision taken by the Regulatory Committee has been given. A copy of the said decision has also been placed on record. The committee has permitted the private medical colleges to make admission from other sources then common entrance test held by the Federation herein. The decision of Regulatory Committee is contrary to the Regulating of 1997 and otherwise the judgment of Apex Court in the case of PA Inamdar & Priya Gupta (supra). The committee has permitted the private medical colleges to make admission from other sources then common entrance test held by the Federation herein. The decision of Regulatory Committee is contrary to the Regulating of 1997 and otherwise the judgment of Apex Court in the case of PA Inamdar & Priya Gupta (supra). This court may take cognizance against the decision of the Regulatory Committee and being contrary to the dictum of the Hon'ble Supreme Court, the suo moto cognizance be taken for contempt proceedings with appropriate direction so that admission in MBBS/BDS courses may not be made in violation of the Regulations 5 of 1997 and judgment of the Hon'ble Supreme Court. If at all the Federation and the Regulatory Committee are concern about unfilled seats of MBBS/BDS courses, it could have given direction to re-assess the marks of all the candidates appeared in PCPMT by removing negative marking system. Any candidate qualifying thereupon should be called for counselling followed by admission. In that case, directions of the Hon'ble Supreme Court would not have been infringed so as the Reguations of 1997. The Regulatory Committee has taken a decision which is not in consonance to the Regulations of 1997 and judgments (supra). It has permitted admission from the entrance test conducted by other agencies though as per the judgments (supra), admission has to be made by a common entrance test. In the entrance test conducted by other bodies, like All India Institutes of Medical Sciences (“AIIMS”), etc., negative marking system was not adopted thus there exist different pattern of assessment of the marks thus not by common system and otherwise not from common candidates yet those appeared in the entrance test conducted by other agencies are made eligible. The prayer is accordingly to pass appropriate order in the facts and circumstances of the case. Shri A.K. Sharma, Sr. Adv. and Shri S.N. Kumawat submit that the Federation was assigned the work to hold common entrance test which is called “PCPMT”. To have transparency and fairness in the entrance test, it was assigned to the Government University namely; MDS University, Ajmer. The system of negative marking was adopted in the entrance test. After the test, result was declared wherein number of candidates qualified for the admission in MBBS/BDS courses are less than total seats allocated to the private medical colleges/universities. To have transparency and fairness in the entrance test, it was assigned to the Government University namely; MDS University, Ajmer. The system of negative marking was adopted in the entrance test. After the test, result was declared wherein number of candidates qualified for the admission in MBBS/BDS courses are less than total seats allocated to the private medical colleges/universities. In view of above, Admission Counselling could not get sufficient students to fill all the seats of MBBS/BDS courses. Coming to the change of criteria from percentile to percentage, it is submitted that system of percentile was evolved when National Eligibility Entrance Test (in short “NEET”) was to be conducted. The regulation was amended by the MCI for that purposes but now NEET has been struck down by the Hon'ble Apex Court thus the entrance test needs to be conducted as per the old pattern as was informed by MCI vide letter dated 11.08.2015 at Annexure-11. Therein, mechanism of percentile does not exist. The Federation committed mistake while referring selection based on percentile. They realized the mistake and accordingly system of percentage was adopted to have result of entrance test as per Regulations of 1997. Therein one is required to obtain total 50% or 40% marks in three subjects namely; Physics, Chemistry and Biology/Bio-Technology. As per Regulations of 1997, result has been declared. The petitioners are those who could not secure total 50% marks in the three subjects named above. They have no right to challenge the method of selection and now the admission to the medical courses. It is further stated that when common entrance test could not fetch required number of students for admission in MBBS/BDS courses, the Regulatory Committee was approached. After hearing the Federation, a detailed order was passed by the Regulatory Committee to fill vacant seats. It is by taking students from entrance test conducted by other agencies. It is without sacrifycing the merit and the transparency, which is said to be main object for making admission in the medical courses. The Regulatory Committee has thus evolved mechanism keeping in mind the object of fairness and transparency for making admission. The direction of the Regulatory Committee is to fill the vacant seats of private medical colleges/universities by issuing advertisement at their own from the sources given in the order. The Regulatory Committee has thus evolved mechanism keeping in mind the object of fairness and transparency for making admission. The direction of the Regulatory Committee is to fill the vacant seats of private medical colleges/universities by issuing advertisement at their own from the sources given in the order. It is true that by adopting said mechanism, one window system directed by the Apex Court in the case of PA Inamdar (supra) would be violated. It can be cured if the Federation is permitted to have counselling of the students who have secured required marks in the entrance test conducted by other agencies thus with the aforesaid modification, decision of the Regulatory Committee be maintained. For illustration, All India Pre-Medical Test or entrance test conducted by AIIMS or by different State Governments, etc. The Federation would hold counselling from and amongst those students who could secure qualifying marks in the entrance test as per the Regulations of 1997. If the aforesaid is permitted, private medical colleges/universities would be in a position to fill vacant seats. It is also submitted that there is no substitution of candidates. The admissions have been made strictly as per merit. In the counselling, candidate or his/her relative had signed on the register which is taken to be a substitution. Learned Advocate General Shri N.M. Lodha submits that subject matter pertains to private medical colleges/universities where the State has no direct role. They filed reply mainly in refernce to the decision taken by the Regulatory Committee. The State Government supported the decision taken by the said committee and reply for it has been filed. The Regulatory Committee has taken decision to meet with the situation so exist and otherwise not dealt with by the Hon'ble Apex Court in any judgment on the subject. It was never thought that after holding entrance test by one source, if seats remain vacant then how to fill up. It was never the issue before the Apex Court so as to decide it with specific directions by evolving the method. Looking to the aforesaid, this court may not interfere in the decision taken by the Regulatory Committee. Shri Angad Mirdha, learned counsel appearing for the Medical Council of India (in short “MCI”) submitted that the Reguations of 1997 so amended in the year 2012 to provide percentile system was only for the NEET. Looking to the aforesaid, this court may not interfere in the decision taken by the Regulatory Committee. Shri Angad Mirdha, learned counsel appearing for the Medical Council of India (in short “MCI”) submitted that the Reguations of 1997 so amended in the year 2012 to provide percentile system was only for the NEET. The said system has not been accepted by the Hon'ble Apex Court in the subsequent judgment and therefore, now candidate needs to obtain total 50% or 40% marks in three subjects namely, Physics, Chemistry and Biology/Bio-Technology. The Federation committed illegality while issuing brochure with the information to obtain 50th or 40th percentile in the competitive entrance test. They have however corrected the mistake while declaring the result in consonance to the letter of MCI dated 11.08.2015 thus may not be interfered. It is further submitted that in view of judgment of Hon'ble Apex Court (supra), the private medical college/university has to opt for admission through one source out of two given therein. It is either through entrance test conducted by the State or by the Federation of the private medical colleges. Each private medical college needs to give such option on or before 30th April of each year. Once option is given by a particular medical college/university, it cannot be changed thereafter. In the aforesaid circumstances, Federation had conducted common entrance test for admission as per the option given by few private medical colleges. The seats cannot now be filed from other entrance test, moreso when it is not common. I have considered the rival submissions made by the parties and scanned the mater carefully. The controversy before the court is regarding admsision to the MBBS/BDS courses in the private medical colleges/universities. Certain private medical colleges/universities opted for admission through PCPMT to be conducted by the Federation of private medical and Dental Colleges. To have transparency, entrance test was assigned to MDS University, Ajmer. In the brochure published by the MDS University, number of seats of different medical colleges have been indicated. The Information Brochure shows that one need to obtain 50th percentile if belongs to general caste and 40th percentile, if belongs to reserve caste. While result was declared, it was not based on percentile but was on percentage basis. The aforesaid issue has been raised by the petitioners alleging change in the system without information to the students. The Information Brochure shows that one need to obtain 50th percentile if belongs to general caste and 40th percentile, if belongs to reserve caste. While result was declared, it was not based on percentile but was on percentage basis. The aforesaid issue has been raised by the petitioners alleging change in the system without information to the students. The reference of Regulations of 1997 has been given to show that result need be declared on percentile basis. The Regulations 3 & 4 as amended by the MCI in the year 2012 are quoted hereunder for ready reference: “4. In Chapter II, clause 5, sub-clause II, under the heading “Procedure for selection to MBBS course shall be as follows”, as amended vide notification No.MCI-31(1)/2010-Med/49068, dated 21st December, 2010, shall be substituted as under: “II. In order to be eligible for admission to MBBS Course for a particular academic year, it shall be necessary for a candidate to obtain minimum of marks at 50th percentile in 'National Eligibility-cum-Entrance Test to MBBS course' held for the said academic year. However, in respect of candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, the minimum marks shall be at 40th percentile. In respect of candidates with locomotory disability of lower limbs terms of Clause 4(3) above, the minimum marks shall be at 45th percentile. The percentile shall be determined on the basis of higher marks secured in the All-India common merit list in 'National Eligibility-cum-Entrance Test for admission to MBBS course': Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility-cum-Entrance Test held for any academic year for admission to MBBS course, the Central Government in consultation with Medical Council of India may at its discretion lower the minimum marks required for admission to MBBS Course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the said academic year only.” The perusal of the amended regulations shows that a candidate is required to obtain minimum marks in percentile but then it is in National Eligibility cum Entrance Test. The said test has been struck down by the Hon'ble Apex Court. The said test has been struck down by the Hon'ble Apex Court. Now as per the old system, the entrance test is conducted at All India level to fill up seats meant for All India quota and at the same time, State can conduct separate entrance test for State quota. In the light of the aforesaid, if Federation/MDS University finally adopted the method different than of percentile, I do not find any illegality therein rather it is to make their entrance test and result in consonance to the Regulations of 1997. The aforesaid was clarified by the MCI in its letter dated 11.08.2015 which is quoted hereunder: Hkkjrh; vk;qfoZKku ifj”kn~ “MEDICAL COUNCIL OF INDIA” MCI-34(MC)/2015/126219 Dated:11/08/15 The Secretary Federation of Private Medical and Dental Colleges of Rajasthan 17-C, Old Fatehpura Udaipur-313001 Rajasthan Subject:Seeking guidelines regarding counselling of candidates for admission in MBBS course securing less than 50% and 40% marks in competitive examination. Madam/Sir, With reference to your letter no.FPMDCR/PCPMT2015/171, dated:05/08/2015 on the subject cited above, Your kind attention is invited to clause 5(2) of the Graduate Medical Education Regulations, 1997 lays down as under: 5. Selection to Students: The selection of students to medical college shall be based solely on merit of the candidate for determination of merit, the following criteria be adopted uniformly throughout the country: [...] (2) In states, having more than one university/board/examining body conducting the qualifying examination (or where there is more than one medical college under the administrative control of one authority) a competitive entrance examination should be held so as to achieve a uniform evaluation as there may be variation of standards at qualifying examinations conducted by different agencies. The Clause 5(5)(ii) has been substituted in terms of notification published on 03.11.2010 in Gazette of India and the same is as under:- (ii) In case of admission of the basis of Competitive entrance examination under clause (2) to (4) of this regulation, a candidate must have passed in the subjects of Physics, Chemistry, Biology/Bio-technology and English individually and must have obtained a minimum of 50% of marks taken together in Physics, Chemistry and Biology/Bio-technology at the qualifying examination as mentioned in clause (2) of regulation 4 and in addition must have come in the merit list prepared as a result of such competitive entrance examination by securing not less than 50% marks in Physics, Chemistry and Biology/Bio-technology taken together in the competitive examination. In respect of candidates belonging to Schedule Caste, Schedule Tribes or other Backward Class the marks obtained in Physics, Chemistry and Biology/Bio-technology taken together in qualifying examination and competitive entrance examination be 40% instead of 50% as stated above: Provided that a candidate who has appeared in the qualifying examination the result of which has not been declared, he may be provisionally permitted to take up the competitive entrance examination and in case of selection for admission to the MBBS course, he shall not be admitted to that course until he fulfils the eligibility criteria under regulation 4.” The aforesaid provision of the Graduate Medical Education Regulations, 1997 is mandatory for all the States to follow and has been upheld by the Hon'ble Supreme Court and various Hon'ble High Courts in a catena of judgment and is binding in nature. The consequence of any admission that is made contrary to the norms laid down by Graduate Medical Education Regulations, 1997 is that the qualification awarded to such person cannot be considered as a recognized medical qualification under the Indian Medical Council Act, 1956. Accordingly, such person is not entitled to be granted registration by any State Medical Council. This issues with the approval of President, MCI. Yours faithfully, Sd/- (S.Savitha) Assistant Secretary It provides that a candidate should obtain minimum 50% marks taken together in the subject of Physics, Chemistry, Biology/Bio-technology in the competitive entrance examination and 40% for those, who belong to reserve caste. To have result in consonance to the Regulations, the aforesaid method was adopted by the Federation while declaring result thus cannot be said to be illegal rather it is in consonance to the Regulation of 1997. Thus the action of the Federation cannot be said to be illegal so as to be interfered by the court on the aforesaid ground. The other question is about negative marking system adopted by the Federation in the entrance test. The challenge to the aforesaid has been made mainly on the ground that candidates were not initially made known about system of negative marking. In my opinion, it is upto the agency to select the procedure for entrance test. It can be interfered by the court if it is contrary to the statutory provision or judgments of the courts. The challenge to the aforesaid has been made mainly on the ground that candidates were not initially made known about system of negative marking. In my opinion, it is upto the agency to select the procedure for entrance test. It can be interfered by the court if it is contrary to the statutory provision or judgments of the courts. In the background aforesaid, I do not find any illegality if negative marking system was envolved and adopted in the PCPMT. It is moreso when Information Bulletin does not impose bar on negative marking. The petitioners and the respondents are alive of the situation wherein in absence of adequate number of eligible candidates, all the seats of MBBS/BDS courses may not be filled from the entrance test. The grievance of the petitioners is against negative marking system and it has been submitted that other agencies conducted entrance test have not adopted the negative marking system. The Federation and the MDS University, Ajmer can take decision to declare the result afresh after removing negative marks, if they so choose because procedure need to be decided by them. In doing so, the grievance by the petitioners would also be addressed. The brochure issued by the respondents is otherwise silent and if it is to be taken to the benefit of the students, the problem can be resolve to some extent by removing negative marks and declaration of result afresh. Learned counsel appearing for the MDS University submitted that result afresh would be declared today itself after removing the negative marks. They may do so and declare the result today after removing negative marks and as a consequence thereupon, the Federation has agreed to call the students who passed out PCPMT in the result declared by MDS University. It is by issuing an advertisement and filling seats from eligibile candidates. They can do so, if decided by them. At this stage, learned Advocate General Shri N.M. Lodha submits that on consultation with the Regulatory Committee, a concession has been arrived among the Chairman and the Members not to strict to Para Nos.3 and 4 of the decision taken by the committee on 18th September, 2015. This is to avoid any conflict in their decision with the judgments of the Apex Court in the case of PA Inamdar & Priya Gupta (supra). This is to avoid any conflict in their decision with the judgments of the Apex Court in the case of PA Inamdar & Priya Gupta (supra). It is even to avoid cognizance by this court for issuance of notice for contempt in the light of liberty given by Hon'ble Apex Court in the case of Priya Gupta (supra). The statement of Advocate General is therefore taken on record with the conclusion that Regulatory Committee and the private medical colleges/universities would not proceed in the light of the directions in Para Nos.3 & 4 of the decision of the committee dated 18th September, 2015. Infact, whatever seat is to be filled, it would be by the Federation who is holding counselling to fill up the left out vacant seats. It is even to adhere to the one window system. The issue pertaining to the decision taken by the Regulatory Committee has been considered with the consent of the parties as it is not a subject matter of writ petition rather is subsequent development. The Regulatory Committee has been constituted as per directions of the Hon'ble Supreme Court and Para 23 of the judgment in the case of PA Inamdar (supra) and has been referred by the Advocate General. It would be relevant to quote Para Nos.15, 16, 23 & 136 of the said judgment, which are quoted thus: “15. Pai Foundation Judgment was delivered on 31.10.2002. The Union of India, various State Governments and the Educational Institutions, each understood the majority judgment in its own way. The State Governments embarked upon enacting laws and framing the regulations, governing the educational institutions in consonance with their own understanding of Pai Foundation. This led to litigation in several Courts. Interim orders passed therein by High Courts came to be challenged before this Court. At the hearing, again the parties through their learned counsel tried to interpret the majority decision in Pai Foundation in different ways as it suited them. The parties agreed that there were certain anomalies and doubts, calling for clarification. The persons seeking such clarifications were unaided professional educational institutions, both minority and non-minority. At the hearing, again the parties through their learned counsel tried to interpret the majority decision in Pai Foundation in different ways as it suited them. The parties agreed that there were certain anomalies and doubts, calling for clarification. The persons seeking such clarifications were unaided professional educational institutions, both minority and non-minority. The Court formulated four questions as arising for consideration in view of the rival submissions made before the Court in Islamic Academy: "(1) whether the educational institutions are entitled to fix their own fee structure; (2) whether minority and non-minority educational institutions stand on the same footing and have the same rights; (3) whether private unaided professional colleges are entitled to fill in their seats, to the extent of 100%, and if not, to what extent; and (4) whether private unaided professional colleges are entitled to admit students by evolving their own method of admission." “16. We could attempt at formulating the gist of the answers given by the Constitution Bench of the Court as under: (1) Each minority institution is entitled to have its own fee structure subject to the condition that there can be no profiteering and capitation fees cannot be charged. A provision for reasonable surplus can be made to enable future expansion. The relevant factors which would go into determining the reasonability of a fee structure, in the opinion of majority, are: (i) the infrastructure and facilities available, (ii) the investments made, (iii) salaries paid to the teachers and staff, (iv) future plans for expansion and betterment of the institution etc. S.B. Sinha, J, defined what is 'capitation' and 'profiteering' and also said that reasonable surplus should ordinarily vary from 6 per cent to 15 per cent for utilization in expansion of the system and development of education. (2) In the opinion of the majority, minority institutions stand on a better footing than non-minority institutions. Minority educational institutions have a guarantee or assurance to establish and administer educational institutions of their choice. State Legislation, primary or delegated, cannot favour non-minority institution over minority institution. The difference arises because of Article 30, the protection whereunder is available to minority educational institutions only. The majority opinion called it a "special right" given under Article 30. In the opinion of S.B. Sinha, J, minority educational institutions do not have a higher right in terms of Article 30(1); the rights of minorities and non-minorities are equal. The difference arises because of Article 30, the protection whereunder is available to minority educational institutions only. The majority opinion called it a "special right" given under Article 30. In the opinion of S.B. Sinha, J, minority educational institutions do not have a higher right in terms of Article 30(1); the rights of minorities and non-minorities are equal. What is conferred by Article 30(1) of the Constitution is "certain additional protection" with the object of bringing the minorities on the same platform as that of non-minorities, so that the minorities are protected by establishing and administering educational institutions for the benefit of their own community, whether based on religion or language. It is clear that as between minority and non-minority educational institutions, the distinction made by Article 30(1) in the fundamental rights conferred by Article 19(1) (g) has been termed by the majority as "special right" while in the opinion of S.B.Sinha, J, it is not a right but an "additional protection". What difference it makes, we shall see a little later. (3) & (4). Questions 3 and 4 have been taken up for consideration together. A reading of the opinion recorded in Islamic Academy shows that paras 58, 59 and 68 of Pai Foundation were considered and sought to be explained. It was not very clear as to what types of institutions were being dealt with in the above referred to paragraphs by the majority in Pai Foundation. Certainly, distinction was being sought to be drawn between professional colleges and other educational institutions (both minority and unaided). Reference is also found to have been made to minority and non-minority institutions. At some places, observations have been made regarding institutions divided into groups only by reference to aid, that is whether they are aided or unaided educational institutions without regard to the fact whether they were minority or non-minority institutions. It appears that there are a few passages/sentences wherein it is not clear which type of institutions the majority opinion in Pai Foundation was referring to thereat. However, the majority opinion in Islamic Academy has by explaining Pai Foundation held as under: (1) In professional institutions, as they are unaided, there will be full autonomy in their administration, but the principle of merit cannot be sacrificed, as excellence in profession is in national interest. However, the majority opinion in Islamic Academy has by explaining Pai Foundation held as under: (1) In professional institutions, as they are unaided, there will be full autonomy in their administration, but the principle of merit cannot be sacrificed, as excellence in profession is in national interest. (2) Without interfering with the autonomy of unaided institutions, the object of merit based admissions can be secured by insisting on it as a condition to the grant of recognition and subject to the recognition of merit, the management can be given certain discretion in admitting students. (3) The management can have quota for admitting students at its discretion but subject to satisfying the test of merit based admissions, which can be achieved by allowing management to pick up students of their own choice from out of those who have passed the common entrance test conducted by a centralized mechanism. Such common entrance test can be conducted by the State or by an association of similarly placed institutions in the State. (4) The State can provide for reservation in favour of financially or socially backward sections of the society. (5) The prescription for percentage of seats, that is allotment of different quotas such as management seats, State's quota, appropriated by the State for allotment to reserved categories etc., has to be done by the State in accordance with the "local needs" and the interests/needs of that minority community in the State, both deserving paramount consideration. The exact concept of "local needs" is not clarified. The plea that each minority unaided educational institution can hold its own admission test was expressly overruled. The principal consideration which prevailed with the majority in Islamic Academy for holding in favour of common entrance test was to avoid great hardship and incurring of huge cost by the hapless students in appearing for individual tests of various colleges.” 23. The plea that each minority unaided educational institution can hold its own admission test was expressly overruled. The principal consideration which prevailed with the majority in Islamic Academy for holding in favour of common entrance test was to avoid great hardship and incurring of huge cost by the hapless students in appearing for individual tests of various colleges.” 23. Since the direction made in Islamic Academy for appointment of the Committees has been vehemently assailed during the course of hearing before us, we would extract from the judgment in Islamic Academy the following two passages wherein, in the words of Khare, CJ, the purpose and the constitution of the Committees, the powers conferred on and the functions enjoined upon them are given: "We direct that in order to give effect to the judgment in T.M.A. Pai case the respective State Governments/concerned authority shall set up, in each State, a committee headed by a retired High Court Judge who shall be nominated by the Chief Justice of that State. The other member, who shall be nominated by the Judge, should be a Chartered Accountant of repute. A representative of the Medical Council of India (in short "MCI") or the All India Council for Technical Education (in short "AICTE"), depending on the type of institution, shall also be a member. The Secretary of the State Government in charge of Medical Education or Technical Education, as the case may be, shall be a member and Secretary of the Committee. The Committee should be free to nominate/co-opt another independent person of repute, so that the total number of members of the Committee shall not exceed five. Each educational institute must place before this Committee, well in advance of the academic year, its proposed fee structure. Along with the proposed fee structure all relevant documents and books of accounts must also be produced before the Committee for their scrutiny. The Committee shall then decide whether the fees proposed by that institute are justified and are not profiteering or charging capitation fee. The Committee will be at liberty to approve the fee structure or to propose some other fee which can be charged by the institute. The fee fixed by the Committee shall be binding for a period of three years, at the end of which period the institute would be at liberty to apply for revision. The Committee will be at liberty to approve the fee structure or to propose some other fee which can be charged by the institute. The fee fixed by the Committee shall be binding for a period of three years, at the end of which period the institute would be at liberty to apply for revision. Once fees are fixed by the Committee, the institute cannot charge either directly or indirectly any other amount over and above the amount fixed as fees. If any other amount is charged, under any other head or guise e.g. donations, the same would amount to charging of capitation fee. The Governments/appropriate authorities should consider framing appropriate regulations, if not already framed, whereunder if it is found that an institution is charging capitation fees or profiteering that institution can be appropriately penalised and also face the prospect of losing its recognition/affiliation. (para 7) We now direct that the respective State Governments do appoint a permanent Committee which will ensure that the tests conducted by the association of colleges is fair and transparent. For each State a separate Committee shall be formed. The Committee would be headed by a retired Judge of the High Court. The Judge is to be nominated by the Chief Justice of that State. The other member, to be nominated by the Judge, would be a doctor or an engineer of eminence (depending on whether the institution is medical or engineering/technical). The Secretary of the State in charge of Medical or Technical Education, as the case may be, shall also be a member and act as the Secretary of the Committee. The Committee will be free to nominate/co-opt an independent person of repute in the field of education as well as one of the Vice-Chancellors of the University in that State so that the total number of persons on the Committee do not exceed five. The Committee shall have powers to oversee the tests to be conducted by the association. This would include the power to call for the proposed question paper(s), to know the names of the paper-setters and examiners and to check the method adopted to ensure papers are not leaked. The Committee shall supervise and ensure that the test is conducted in a fair and transparent manner. This would include the power to call for the proposed question paper(s), to know the names of the paper-setters and examiners and to check the method adopted to ensure papers are not leaked. The Committee shall supervise and ensure that the test is conducted in a fair and transparent manner. The Committee shall have the powers to permit an institution, which has been established and which has been permitted to adopt its own admission procedure for the last, at least, 25 years, to adopt its own admission procedure and if the Committee feels that the needs of such an institute are genuine, to admit, students of their community, in excess of the quota allotted to them by the State Government. Before exempting any institute or varying in percentage of quota fixed by the State, the State Government must be heard before the Committee. It is clarified that different percentage of quota for students to be admitted by the management in each minority or non-minority unaided professional colleges shall be separately fixed on the basis of their need by the respective State Governments and in case of any dispute as regards fixation of percentage of quota, it will be open to the management to approach the Committee. It is also clarified that no institute, which has not been established and which has not followed its own admission procedure for the last, at least, 25 years, shall be permitted to apply for or be granted exemption from admitting students in the manner set out hereinabove. (para 19)" 136. Whether minority or non-minority institutions, there may be more than one similarly situated institutions imparting education in any one discipline, in any State. The same aspirant seeking admission to take education in any one discipline of education shall have to purchase admission forms from several institutions and appear at several admission tests conducted at different places on same or different dates and there may be a clash of dates. If the same candidate is required to appear in several tests, he would be subjected to unnecessary and avoidable expenditure and inconvenience. There is nothing wrong in an entrance test being held for one group of institutions imparting same or similar education. If the same candidate is required to appear in several tests, he would be subjected to unnecessary and avoidable expenditure and inconvenience. There is nothing wrong in an entrance test being held for one group of institutions imparting same or similar education. Such institutions situated in one State or in more than one State may join together and hold a common entrance test or the State may itself or through an agency arrange for holding of such test. Out of such common merit list the successful candidates can be identified and chosen for being allotted to different institutions depending on the courses of study offered, the number of seats, the kind of minority to which the institution belongs and other relevant factors. Such an agency conducting Common Entrance Test (CET, for short) must be one enjoying utmost credibility and expertise in the matter. This would better ensure the fulfillment of twin objects of transparency and merit. CET is necessary in the interest of achieving the said objectives and also for saving the student community from harassment and exploitation. Holding of such common entrance test followed by centralized counseling or, in other words, single window system regulating admissions does not cause any dent in the right of minority unaided educational institutions to admit students of their choice. Such choice can be exercised from out of list of successful candidates prepared at the CET without altering the order of merit inter se of the students so chosen.” The perusal of paras quoted above reveals as to how many committees can be constituted along with the work assigned to those committees. It is not that Regulatory Committee can allow admission by the mechanism not provided either under the Regulations of 1997 or contrary to the directions of the Hon'ble Supreme Court. The committee is to supervise and ensure that entrance test is conducted in fair and transparent manner. The decision of the Regulatory Committee dated 18.09.2015 is not within the four corners of the powers and jurisidiction assigned to it. It has permitted admission by the private medical colleges/universities at their own and that too from different sources. The perusal of Para No.136 of the aforesaid judgment reveals as to how many sources can exist for the admission. The Hon'ble Apex Court allowed only two sources and thereupon to select one by the medical college and to adopt one window system. The perusal of Para No.136 of the aforesaid judgment reveals as to how many sources can exist for the admission. The Hon'ble Apex Court allowed only two sources and thereupon to select one by the medical college and to adopt one window system. The issue aforesaid was elaborately dealt with by the Hon'ble Apex Court in the subsequent judgment in the case of Priya Gupta (supra) also. Therein, Para Nos.46 and 47 contain elaborate direction for it, thus those paras are also quoted hereunder for ready reference: “46.Keeping in view the contemptuous conduct of the relevant stakeholders, their cannonade on the rule of merit compels us to state, with precision and simplistically , the action that is necessary to ameliorate the process of selection. Thus, we issue the following directions in rem for their strict compliance, without demur and default, by all concerned: 46.1. The commencement of new courses or increases in seats of existing courses of MBBS/BDS are to be approved/recognised by the Government of India by 15th July of each calendar year for the relevant academic sessions of that year. 46.2. The Medical Council of India shall, immediately thereafter, issue appropriate directions and ensure the implementation and commencement of admission process within one week thereafter. 46.3. After 15th July of each year, neither the Union of India nor the Medical or Dental Council of India shall issue any recognition or approval for the current academic year. If any such approval is granted after 15th July of any year, it shall only be operative for the next academic year and not in the current academic year. Once the sanction/approval is granted on or before 15th July of the relevant year, the name of that college and all seats shall be included in both the first and the second counseling, in accordance with the Rules. 46.4. Any medical or dental college, or seats thereof, to which the recognition/approval is issued subsequent to 15th July of the respective year shall not be included in the counseling to be conducted by the concerned authority and that college would have no right to make admissions in the current academic year against such seats. 46.5. The admission to the medical or dental colleges shall be granted only through the respective entrance tests conducted by the competitive authority in the State or the body of the private colleges. 46.5. The admission to the medical or dental colleges shall be granted only through the respective entrance tests conducted by the competitive authority in the State or the body of the private colleges. These two are the methods of selection and grant of admission to these courses. However, where there is a single Board conducting the state examination and there is a single medical college, then in terms of Clause 5.1 of the Medical Council of India Eligibility Certificate Regulations, 2002 the admission can be given on the basis of 10+2 exam marks, strictly in order of merit. 46.6. All admissions through any of the stated selection processes have to be effected only after due publicity and in consonance with the directions issued by this Court. We vehemently deprecate the practice of giving admissions on 30th September of the academic year. In fact, that is the date by which, in exceptional circumstances, a candidate duly selected as per the prescribed selection process is to join the academic course of MBBS/BDS. Under the directions of this Court, second counseling should be the final counseling, as this Court has already held in the case of Ms. Neelu Arora and Anr. v. UOI and Ors. (2003) 3 SCC 366 and third counseling is not contemplated or permitted under the entire process of selection/grant of admission to these professional courses. 46.7. If any seats remain vacant or are surrendered from All India Quota, they should positively be allotted and admission granted strictly as per the merit by 15th September of the relevant year and not by holding an extended counseling. The remaining time will be limited to the filling up of the vacant seats resulting from exceptional circumstances or surrender of seats. All candidates should join the academic courses by 30th September of the academic year. 46.8. No college may grant admissions without duly advertising the vacancies available and by publicizing the same through the internet, newspaper, on the notice board of the respective feeder schools and colleges, etc. Every effort has to be made by all concerned to ensure that the admissions are given on merit and after due publicity and not in a manner which is ex-facie arbitrary and casts the shadow of favouritism. 46.9. Every effort has to be made by all concerned to ensure that the admissions are given on merit and after due publicity and not in a manner which is ex-facie arbitrary and casts the shadow of favouritism. 46.9. The admissions to all government colleges have to be on merit obtained in the entrance examination conducted by the nominated authority, while in the case of private colleges, the colleges should choose their option by 30th April of the relevant year, as to whether they wish to grant admission on the basis of the merit obtained in the test conducted by the nominated State authority or they wish to follow the merit list/rank obtained by the candidates in the competitive examination collectively held by the nominated agency for the private colleges. The option exercised by 30th April shall not be subject to change. This choice should also be given by the colleges which are anticipating grant of recognition, in compliance with the date specified in these directions. 47. All these directions shall be complied with by all concerned, including Union of India, Medical Council of India, Dental Council of India, State Governments, Universities and medical and dental colleges and the management of the respective universities or dental and medical colleges. Any default in compliance with these conditions or attempt to overreach these directions shall, without fail, invite the following consequences and penal actions: 47.1. Every body, officer or authority who disobeys or avoids or fails to strictly comply with these directions stricto sensu shall be liable for action under the provisions of the Contempt of Courts Act. Liberty is granted to any interested party to take out the contempt proceedings before the High Court having jurisdiction over such Institution/State, etc. 47.2. The person, member or authority found responsible for any violation shall be departmentally proceeded against and punished in accordance with the Rules. We make it clear that violation of these directions or overreaching them by any process shall tantamount to indiscipline, insubordination, misconduct and being unworthy of becoming a public servant. 47.3. Such defaulting authority, member or body shall also be liable for action by and personal liability to third parties who might have suffered losses as a result of such default. 47.4. 47.3. Such defaulting authority, member or body shall also be liable for action by and personal liability to third parties who might have suffered losses as a result of such default. 47.4. There shall be due channelization of selection and admission process with full cooperation and coordination between the Government of India, State Government, Universities, Medical Council of India or Dental Council of India and the colleges concerned. They shall act in tandem and strictly as per the prescribed schedule. In other words, there should be complete harmonisation with a view to form a uniform pattern for concerted action, according to the framed scheme, schedule for admission and Regulations framed in this behalf. 47.5. The college which grants admission for the current academic year, where its recognition/approval is granted subsequent to 15th July of the current academic year, shall be liable for withdrawal of recognition/approval on this ground, in addition to being liable to indemnify such students who are denied admission or who are wrongfully given admission in the college. 47.6. Upon the expiry of one week after holding of the second counseling, the unfilled seats from all quotas shall be deemed to have been surrendered in favour of the respective States and shall be filled thereafter strictly on the basis of merit obtained in the competitive entrance test. 47.7. It shall be mandatory on the part of each college and University to inform the State and the Central Government/competent authority of the seats which are lying vacant after each counseling and they shall furnish the complete details, list of seats filled and vacant in the respective states, immediately after each counseling. 47.8. No college shall fill up its seats in any other manner.” As per Para No.46.5 quoted above, the admission to the medical and dental colleges can be granted through respective entrance tests conducted by the competent authority in the State or the body of the private colleges. These are the only mode of selection for grant of admission, if a State has more than one Board or University. Para 46.7 talks about adherence of time schedule. Para 46.9 is again relevant. Therein, private medical colleges/universities need to opt for either of the mode/source for admission by 30th April. That is the crucial date for the aforesaid with the rider that it cannot be changed subsequently. Para 46.7 talks about adherence of time schedule. Para 46.9 is again relevant. Therein, private medical colleges/universities need to opt for either of the mode/source for admission by 30th April. That is the crucial date for the aforesaid with the rider that it cannot be changed subsequently. In view of above, once private medical colleges/universities had opted for PCPMT, they cannot subsequently be allowed to shift to other entrance test conducted by a different agency and is not common to create source for admission. If aforesaid mechanism is allowed, it would be in violation of judgment (supra) and more specifically Paras 46.5 and 46.9. Para 47 reiterate the directions for its strict compliance. Para 47.8 imposes condition that no college shall fill up the seats in any other manner. Thereby the judgment in the case of Priya Gupta (supra) elaborately laid down the procedure for admission. The Regulatory Committee has taken a decision in violation of the directions given by the Hon'ble Apex Court. This court was intend to take suo moto cognizance for contempt but on the instructions of Regulatory Committee, the learned Advocate General made statement that directions given by the Committee in its order dated 18.09.2015 at Para Nos.3 & 4 would not be adhered to rather no college/university covered by PCPMT would be allowed to make admission from the sources and the manner given in Para Nos.3 & 4 of the decision of the Regulatory Committee. The other sources have been given in Para Nos.1 & 2 but the colleges/universities adopted one source for admission cannot be permitted to make admission from other sources. It is not only for the reason that judgments in the case of PA Inamdar & Priya Gupta (supra) make a clear that whenever aspirants are asked to compete, it should be by one mechanism and common for all the students. In the instant case, the PCPMT was conducted by the MDS University, Ajmer with whatever procedure set for entrance test. A candidate appearing therein with negative marking system may not have secured minimum eligibility marks. For illustration, a candidate may have correctly attempted 65% questions but other 30 answers are incorrect resulting in negative marking. His score may thus come to be less than 50% required for eligibility. At the same time, in other institution, the entrance test is conducted without negative marking. For illustration, a candidate may have correctly attempted 65% questions but other 30 answers are incorrect resulting in negative marking. His score may thus come to be less than 50% required for eligibility. At the same time, in other institution, the entrance test is conducted without negative marking. A candidate correctly giving 50 answers of one mark each for a paper of 100 marks would get required eligibility even if other 50 answers are incorrect. In view of aforesaid only, the Hon'ble Apex Court emphasized for common entrance test for the admission. If the decision taken by the Regulatory Committee is allowed to be implemented, it would not be admission through common entrance test but different entrance test conducted by different agencies and is not common for admission in private colleges in State of Rajasthan. The aforesaid is never accepted or allowed by the Hon'ble Apex Court. The issue aforesaid has not been raised in the petition but came during pendency of the writ petition. The issue is related to admission in MBBS/BDS courses thus, this court took suo moto cognizance when advertisement was issued by the private medical colleges/universities despite directions given by the Hon'ble Apex Court to make admission from common entrance test and by one window. The elaborate arguments were made by the parties in reference to the decision of the Regulatory Committee, thus the order of the said committee has been taken up by this court for discussion and direction thereupon with the consent of all the parties rather reply by the State Government is on that issue only. It is also stated that this court was intend to take suo moto cognizance for proceedings as per liberty given by Hon'ble Apex Court in the case of Priya Gupta (supra) but on the request of the learned Advocate General Shri N.M. Lodha and in view of subsequent decision by the Regulatory Committee, this court has not taken cognizance on the aforesaid presently. In the background aforesaid, discussion in regard to decision of the Regulatory Committee has been made. The reference of the judgment of Hon'ble Apex Court has been given for its adherence. The Regulatory Committee has even permitted the private medical colleges/universities to issue advertisement at their own to fill up the seats by going against the directions of the Hon'ble Apex Court in the case of PA Inamdar (supra). The reference of the judgment of Hon'ble Apex Court has been given for its adherence. The Regulatory Committee has even permitted the private medical colleges/universities to issue advertisement at their own to fill up the seats by going against the directions of the Hon'ble Apex Court in the case of PA Inamdar (supra). Therein, admsision has been permitted through one window system only. Para 136 of the judgment is relevant and has already been quoted above. The State of Rajasthan, Regulatory Committee, Agencies conducting entrance test, private medical colleges/universities are under an obligation to act strictly in compliance to the directions given by the Hon'ble Supreme Court in various judgments. Para 137 of the judgment in the case of PA Inamdar (supra) is also quoted for ready reference: “137. Pai Foundation has held that minority unaided institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admissions and the procedure therefore subject to its being fair, transparent and non-exploitative. The same principle applies to non-minority unaided institutions. There may be a single institution imparting a particular type of education which is not being imparted by any other institution and having its own admission procedure fulfilling the test of being fair, transparent and non-exploitative. All institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the abovesaid triple tests. The State can also provide a procedure of holding a common entrance test in the interest of securing fair and merit-based admissions and preventing mal-administration. The admission procedure so adopted by private institution or group of institutions, if it fails to satisfy all or any of the triple tests, indicated hereinabove, can be taken over by the State substituting its own procedure. The second question is answered accordingly. “ Therein, again State has been directed to provide procedure of holding entrance test. It is in the interest of securing fair merit based admission. The object no doubt is to have fair and merit based admissions, that too, with transparent procedure but therein also no private medical college or university can be permitted to fill vacant seats at their own but by the procedure given by Hon'ble Apex Court in the case of PA Inamdar and Priya Gupta (supra). Accordingly, this court is not inclined to interfere in the entrance test conducted by the Federation. Accordingly, this court is not inclined to interfere in the entrance test conducted by the Federation. The argument about substitution of candidates while giving admission through counselling has also been raised but clarified by the Federation. It is stated that no meritorious candidate has been substituted by other candidate. In view of the above, the allegation of substitution of candidates cannot be accepted. The Federation has agreed to undertake the counselling from and amongst the candidates who would pass out the entrance test i.e. PCPMT with the result now to be declared by the MDS University, Ajmer again after removing the negative marks. It should be done before the last date given by Hon'ble Apex Court for making admission. It is made clear that no admission would be made by the private medical colleges/universities from and amongst those who have not secured the required qualifying marks in PCPMT. It would not be from the students appeared in other entrance test than PCPMT conducted by MDS University. If any such admission is made then it would be nothing but contrary to the directions of the Hon'ble Supreme Court and a contempt. The Federation is conducting counselling thus it would be expected to see that no admission is made in the private medical colleges/universities by the candidates other than who has undergone the process of entrance test conducted by them. I am not giving specific directions for the consequences rather issue aforesaid has been kept open. If it is brought to the notice of the court that any of the private medical colleges/universities have given admission in violation of the directions of the Hon'ble Supreme Court in the case of PA Inamdar & Priya Gupta (supra) or in violation of Regulations of 1997, the appropriate proceedings would be initiated as has been directed by the Hon'ble Apex Court in the case of Priya Gupta (supra). Since a detailed judgment has been given in the writ petition bearing No.13552/2015, Arundhati Sharma & Ors. Vs. Coordinator, PCPMT, 2015 & Ors., there would be no purpose to issue notices in the Writ Petition Nos.14267/2015, 13918/2015, 14010/2015 rather they are ordered to be covered by the judgment in the case of Arundhati Sharma (supra). With the aforesaid, all the writ petitions are disposed of.