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2017 DIGILAW 1536 (ALL)

Saraswati Medical College v. Union of India

2017-06-15

S.N.SHUKLA, SHEO KUMAR SINGH-I

body2017
JUDGMENT S.N. Shukla, J. 1. Heard Mr. Jaideep Narayan Mathur, learned Senior Counsel assisted by Mrs. Komal Jaiswal & Mr. Ambrish Singh Yadav, learned counsels for the petitioners, Mr. Asit Kumar Chaturvedi, learned Senor Counsel assisted by Mr. Anand Dwivedi, learned counsel for the respondent No. 1, Mr. Gyanendra Kumar Srivastava, learned counsel for the respondent No. 2, Mr. Savitra Vardhan Singh, learned counsel for the respondents No. 6 and Mr. Anurag Verma, learned Advocate as well as Mr. Sanjay Bhasin, learned Additional Chief Standing Counsel for respondents 3 and 4. 2. Since all the writ petitions are based on common facts and circumstances of the case, these writ petitions are being decided by following common order. 3. The petitioners have assailed the order dated 27 January 2017, issued by the Joint Secretary, Medical Council of India, whereby the students admitted by the petitioners have been discharged, since their names do not find place in the list provided by the Director General of Medical Education i.e. respondent No. 4. 4. The petitioners are imparting medical education under the guidelines framed by the Medical Council of India. The Hon’ble Supreme Court had issued certain guidelines from time to time in the matter of admission of students in Medical Colleges as well as Private Colleges. In Medical Council of India v. Christian Medical College, Vellore and others, (2016) 4 SCC 342 the Hon’ble Supreme Court provided that the admissions of the students in the Medical Colleges shall be taken through National Eligibility-cum-Entrance Test (NEET). These admissions were directed to be taken through Centralized Counselling carried out by the Director General, Medical Education and the last date for admission was fixed on 30.9.2016, which was subsequently extended by the Hon’ble Supreme Court on 7 October 2016. 5. Pursuant to the aforesaid decision the counsellings were organized by the respondent No. 4 at Tele Medicine Center, S.G.P.G.I., Lucknow. The students appeared in the Counselling on that date. It is stated that the students were present for Counselling, but admittedly some of them did not appear before the Counselling Board, rather they were admitted by the College concerned through Counselling conducted by the College itself on the same very date for the reason that the Counselling Board could not provide the students to full sanctioned strength. The merit list was prepared. The merit list was prepared. One list of the admitted students in the respective Colleges was sent to the respondent No. 4 by the Counselling Board and another list of the students admitted by the College through its own Counselling was also sent to the respondent No. 4 on the same very date. 6. The petitioners have brought on record a receipt provided from the office of the respondent No. 4, which establishes that the list provided by the College was received in the office of the respondent No. 4 on the same very date i.e. within time. The petitioners provided the said list to the respondent No. 4 as a provisional list, but it is not in dispute that the students admitted by the Colleges were in merit over and above to the candidates provided by the respondents. The last meritorious candidate admitted by the College had scored 119 marks in the NEET examination, whereas the respondents had admitted the students for the petitioners College even who had scored 118 marks. 7. Admittedly no students had been admitted who had secured less than 118 marks. It is also not in dispute that the respondents have failed to provide the students to its sanctioned strength. The sanctioned strength of the petitioner of Writ petition No. 10284 (MB) of 2017 is 150 in MBBS Course. The petitioner on 7 October 2016 itself submitted a request letter to the respondent No. 4 for recognizing the provisional admissions of the qualified students on the basis of merit of NEET 2016 for the academic Session 2016-17. The whole reason for discharge of petitioners’ students is that the names of these students do not figure in D.G.M.E. list. However all the 102 candidates given by the DGME have been admitted. The list of 38 candidates admitted by the petitioner of writ petition No. 10284 (MB) of 2016 was provided to the respondent No. 4 on the date of counselling itself and that was recognized. The receipt provided by the respondent No. 4 is not disputed. It is also not in dispute that the names of the students admitted by the College figure in the merit list prepared by the NEET-2016. The receipt provided by the respondent No. 4 is not disputed. It is also not in dispute that the names of the students admitted by the College figure in the merit list prepared by the NEET-2016. It is also not in dispute that the students admitted by the College had scored more marks in NEET-2016 than the students provided by the DGME and they have been admitted within the strength as sanctioned by the respondents. 8. In the College of petitioner of Writ Petition No. 10310 (MB) of 2017 also 150 seats had been sanctioned for admission in Medical Courses, but since the respondents could not provide the students to its full strength they admitted through Counselling conducted by the College itself 104 students, who are within the sanctioned strength. 9. Similarly in the College of petitioner of Writ Petition No. 10319 (MB) of 2017 also 150 seats are sanctioned, but since the respondents could not provide the students to its full strength they admitted through Counselling conducted by the College itself 66 students, who are within the sanctioned strength. 10. Mr. Sanjai Bhasin, learned Additional Chief Standing Counsel has given much emphasis over the finding of the Coordinate Bench of this Court given in writ petition No. 20575 (MB) of 2016: U.P. Unaided Medical Colleges Welfare Association, Bareilly v. Union of India and other connected matters. In this case this court considered one of the issues (i) Whether this counselling should be centralized and should be held by the State or its agency or the association of private institutions is entitled to hold the same in view of their alleged rights under Article 19(1)(g) and/or Article 30(1) of the Constitution of India, is one of the question which falls for consideration in this case alongwith the validity of the impugned orders in this context. 11. This court held that the impugned orders prescribing the Centralized Counselling for all Institutions for admission to MBBS/BDS medical courses in the State based on NEET 2016, do not suffer from any error. 12. In view of the aforesaid finding the learned Additional Chief Standing Counsel has submitted that there may not be any second method of admission of the students for MBBS/BDS medical courses. 13. Mr. 12. In view of the aforesaid finding the learned Additional Chief Standing Counsel has submitted that there may not be any second method of admission of the students for MBBS/BDS medical courses. 13. Mr. Jaideep Narayan Mathur, learned Senior Counsel appearing for the petitioners submitted that since the respondents could not hold the counselling of the whole students available on spot and it was understood that the time was going to expire the Colleges did the counselling of the students available on spot, who were enlisted in the merit list prepared by the NEET 2016 and admitted them and further sent the list of those students to the respondent No. 4 on the same very date, which has not been denied. He further submitted that the petitioners have developed the infrastructure to the necessity of the Hospital and have spent huge amount in establishment of the College, therefore, they hope that they shall be provided the students to its full strength so that they can bear the expenses in running the College as well as the Hospitals as also to pay the salary to the teaching and non teaching staff. 14. The Supreme Court in the case of S. Krishna Sradha v. State of Andhra Pradesh and others (2017) 4 SCC 516 has considered the various judgments on the issue and found that in the said case the appellant was not extended the benefit of admission despite she being more meritorious than others on the basis of marks obtained, solely on the ground that time had expired. Therefore, the Supreme Court posed the pertinent question, is it just or fair to a student who has approached the Court under Article 226 of the Constitution in quite promptitude and there is no delay and laches on his part and further where he had not faulted in complying with any procedure prescribed under the rules or regulations meant for the process of admission, to mitigate his grievance by granting monetary compensation possibly perceiving the duty of the Court goes so far and no further. 15. Relevant paragraphs 27 and 28 are reproduced hereunder: - “27. As is seen, stress has always been laid on the merit in the matters of all admissions as meritorious students should not face any impediment to get admission for some fault on the part of the institution or the persons involved with it. 15. Relevant paragraphs 27 and 28 are reproduced hereunder: - “27. As is seen, stress has always been laid on the merit in the matters of all admissions as meritorious students should not face any impediment to get admission for some fault on the part of the institution or the persons involved with it. He/she has no other remedy but to approach the court for getting redressal of his/her grievances. It is a grievance that pertains to fundamental right. It has to be remembered that a right is conferred on a person by rule of law and if he seeks remedy through the process meant for establishing rule of law and it is denied to him, it would never subserve the cause of real justice. When a lis of this nature comes in a constitutional court, it becomes the duty of the court to address whether the authority had acted within the powers conferred on it or deviated from the same as a consequence of which injustice has been caused to the grieved person. The redressal of a fundamental right, if one deserves to have, cannot be weighed in terms of grant of compensation only. Grant of compensation may be an additional relief. Confining it to grant of compensation as the only measure would defeat the basic purpose of the fundamental rights which the Constitution has conferred so that the said rights are sustained. It would be inapposite to recognise the right, record a finding that there is a violation of the right and deny the requisite relief. 28. A young student should not feel that his entire industry to get himself qualified in the examination becomes meaningless because of some fault or dramatic design of certain authorities and they can get away by giving some amount as compensation. It may not only be agonising but may amount to grant of premium either to laxity or evil design or incurable greed of the authorities. We are disposed to think, in such a situation, justice may be farther away and the knocking at the doors of a constitutional court, a Sisyphean endeavour, an exercise in futility. It is well known that the law intends not anything impossible; lex non intendit aliquid impossible. But when it is in the realm of possibility; and denial of relief hurts the “majesty of justice”, it should not be denied. It is well known that the law intends not anything impossible; lex non intendit aliquid impossible. But when it is in the realm of possibility; and denial of relief hurts the “majesty of justice”, it should not be denied. On the contrary, every effort has to be made to grant the relief. Needless to say, to get the relief, conditions precedent are to be satisfied; and that is what has precisely been stated in Asha v. Pt. B.D. Sharma University of Health Sciences (2012) 7 SCC 389 and Harshali v. State of Maharashtra, (2005) 13 SCC 464 .” 16. In this case the Hon’ble Supreme court in conclusion, held as under: - “32. The three words that have been proclaimed in the said judgment, namely, nunc pro tunc, is basically in the realm of doctrine of relation back and it is applied because of the fault of the court, the litigant should not suffer. At this juncture, we are obliged to say that when the courts have gone to the extent of saying that for the fault of the court, the litigant should not suffer, it is unimaginable that for the fault of the administrators or the counselling body or for some kind of evil designer, grant of compensation should be regarded as the lone remedy. We think not; as we are reminded of what Justinian had said “Justice is the constant and perpetual wish to render to everyone, his due”. Needless, “his due” only can mean “due in law in praesenti”. 17. With the aforesaid observations the Hon’ble Supreme Court referred to the decision of Chandigarh Admn. v. Jasmine Kaur (2014) 10 SCC 521 and sent the matter to the appropriate Larger Bench for its consideration. 18. In this case the Hon’ble Supreme Court held that there cannot be the adequate or sole remedy for the wrongful deprivation of admission, as it affects the academic career of a student. 19. In view of the aforesaid discussions it is obvious that the problems of the Medical Colleges as well as the students seeking admission in MBBS/BDS have been acknowledged by the Hon’ble Supreme Court and the Hon’ble Supreme Court held that the merit should weigh over the administrative problems and the meritorious students should not be put to find any impediment to get admission for some fault on the part of the Institutions or the persons involved with it. The Medical Council of India vide order dated 5.10.2016 had framed the criteria of admission. We quote relevant paragraph 3 as under: - “3. While granting admission in MBBS course the Medical Colleges are required to ensure that the admission is in terms of the following parameters, based upon the judicial decisions and MCI Regulations: - (i) No Admission is permissible beyond the sanctioned intake capacity [Medical Council of India (Criteria for Identification of students admitted in excess of admission capacity of medical colleges) Regulations, 1997]. (ii) Eligibility Criteria regarding age and Qualifying Marks for different categories as per Rule 4 of the Graduate Medical Education Regulations, 1997.” 20. The first criteria is that no admission would be permissible beyond the sanctioned intake capacity. It is not the case of the respondents that the petitioners have admitted the students beyond sanctioned intake capacity. Second criteria is regarding the age and qualifying marks for different categories. It is not the case of the respondents that the petitioners have admitted the students of less merit. It is also not the case of the respondents that the petitioners have violated any reservation Rule. The sole ground for discharge of the students admitted by the petitioners is that their names were not found in the list sent by the respondent No. 4. However, they could not succeed to rebut the facts that the petitioners had sent the list of admitted students to the respondent No. 4 on the same very date i.e. 7 October 2016. 21. Therefore, regard being had to the aforesaid submissions, we are of the view that the order impugned dated 27.1.2017, passed by the opposite party No. 2 i.e. Medical Council of India, New Delhi and approval of minutes of the Monitoring Sub-Committee dated 9.1.2017 & 20.1.2017 by the Executive Council on 13.1.2017 & 25.1.2017, so far as it relates to discharge of students admitted by the petitioners are unsustainable. 22. In the result the orders impugned dated 27.1.2017, passed by the opposite party No. 2 i.e. Medical Council of India, New Delhi and approval of minutes of the Monitoring Sub-Committee dated 9.1.2017 & 20.1.2017 by the Executive Council on 13.1.2017 & 25.1.2017, so far as it relates to discharge of students admitted by the petitioners mentioned in the impugned orders dated 27.1.2017 are hereby quashed. 23. 23. It is clarified that the petitioners are not permitted to admit the students beyond its sanctioned strength as well as beyond the merit list prepared in NEET 2016 and further not below the merit of last candidate allotted through Counselling Board. 24. The writ petitions are allowed. 25. This judgment is being delivered in terms of the provisions, as contained under Chapter VII Rule 1(2) of the Allahabad High Court Rules, 1952.