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Judgment
Anand Byrareddy, J.—These petitions are heard and disposed of by this common order as the issue that arises for consideration is the same. These petitions are brought by the managements and students of several dental colleges. The institution''s involved are recognized by the Dental Council of India (Hereinafter referred to as the ''DCI'', for brevity) and affiliated to the Rajiv Gandhi University of Health Sciences (Hereinafter referred to as the ''RGUHS'', for brevity). The said institutions conduct courses leading to a Bachelor of Dental Surgery degree.
These petitions seek to question the denial of approval of admissions of the several students, who are also petitioners herein, to the I year BDS Course for the academic year 2012-13.
It is stated that the following sequence of events are material in appreciating the present controversy. The eleven judge bench judgment in T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others, reiterated and recognized the fundamental right of private managements to impart education in professional courses. It was laid down that the right to establish and administer educational institutions of their choice would inhere the right to admit students, the right to frame a reasonable fee structure, the right to constitute its governing body and the right to appoint and exercise discipline and control over its staff.
While also addressing the possibility of exploitation of the situation by the private, institutions, where the demand far exceeded the supply of seats in the institutions, the Apex court also indicated the scope of regulation and control of the said institutions, by the government and other statutory authorities.
The TMA Pai case was followed by two other decisions of the Apex court in Islamic Academy of Education and Another Vs. State of Karnataka and Others, and P.A. Inamdar and Others Vs. State of Maharashtra and Others, , wherein the Apex Court has sought to clarify certain seemingly grey areas in TMA Pai. One significant clarification was that there could not be a "quota" of seats over which the Government could exercise its discretion in selection of candidates, and that all the seats in a private institution imparting education in professional courses were in the domain of the management. But in order to accommodate the reservation policy of the State in the matter of selection of students for admission, and in that regard, any seat sharing arrangement between the State government and the managements was to be by recourse to consensual agreements to be arrived at from time to time. It was declared that State could not impose its Reservation policy over the private institutions.
Article 15(5) was inserted by the Constitution 93rd Amendment Act, 2005, to enable the State legislatures to bring legislation providing for reservations in private colleges imparting professional courses. This was in the wake of the Apex Court enunciating the law in the above mould. The State of Karnataka has enacted legislation Act No. 8 of 2006, Act No. 13 of 2006 and Act No. 23 of 2011, by virtue of which there have been consensual arrangements between the State government and the private managements over the years in the matter of sharing of seats, which were all placed before the Apex Court from time to time for approval. For the academic year 2012-13 there was such a consensual arrangement. But the queer position was that most of the seats could not be filled up as the influx of students from the neighbouring States, as in the earlier years-prior to 2003, was no longer evident. In terms of the consensual arrangement the filling up of all vacant seats was based on academic eligibility and inter se merit. It was specifically agreed that admissions could not be made without exhausting the list of the selected candidates by the State Government under a Common Entrance Test (CET) and the management conducted COMED--K--entrance test. It was found that after filling up the government quota seats and the management seats pursuant to the entrance tests conducted, there were yet a large number of unfilled seats, as found at the re-conciliation made at which time, the Government "surrendered" the unfilled seats to the Managements. The petitioner-institutions had admitted students to the same on the basis of their eligibility without holding any test to ascertain their inter se merit as that was in the opinion of the managements a meaning less exercise as there were still vacant seats going a begging even after such further admissions. As there were no rank cards issued to such students under the secondary admissions, in the absence of any entrance test-their admissions have not been approved by the University. It is that which is under challenge in the present petitions.
The learned Senior Advocate, Shri Madhusudhan R. Naik, appearing on behalf of the counsel for the petitioners in WP 24702/2013, WP 26124/2013, WP 25867-914/2013, leading the arguments. would point out that while recording a consensus and terms of agreement a special mention has been made providing for grant of admissions after exhausting the list of candidates selected under the CET, COMED-K. The same as recorded is reproduced for ready reference :
Note : In so far as admissions to undergraduate Courses in Dental Sciences [BDS Course]; it has been the ''past experience'' of the State Government in Karnataka and; the private managements that, there are more number of seats available than, the applicants seeking admissions to these courses, through a Common Entrance Test, whether in the Government or the Private Managements'' colleges and; that for the said reason, years after year; for several years now.; the seats have remained un-filled and wasted in most of the colleges; including in Government Colleges. It has now been realized that, such non-filling of fairly large number of seats; and consequent shortfall in funding through tuition fees stipulated, results in disturbing and denying the calculated total required funding, to impart quality education, and in the process, the ''students community'' suffers. Therefore after exhausting all the merit lists-of KEA, COMED-K or any other recognized entrance tests for admission to Dental Courses; it would be permissible to grant ''admissions'' in the respective Institutions imparting BDS Courses; to '' any eligible candidate based only on their ''academic merit'' in the qualifying examination; not requiring appearance in an Entrance Test, for the purpose.
It is stated that though in the past, the University had approved admissions made by the institutions, without holding an entrance test to ascertain inter se merit, on payment of a penalty imposed.
It is contended that the RGUHS had notified the academic calendar under a notification dated 13.7.2012 setting out, inter-alia, the tentative last date for approval of admissions, as 31.12.2012 and the conduct of the I year examination as June 2013. The approval of admission of the several students has been sought well in time. A notification was issued indicating the commencement of examinations from 21.6.2013. It is just prior to the examinations that the petitioners were intimated that the secondary admissions made by the petitioner institutions could not be approved.
It is contended that it was expected of the university to be reasonable and communicate the denial of approval of admission of the students, if any, at the earliest point in time, so as not to jeopardize the career of several students, who have been admitted, but the University has on an erroneous reading of the judgment in Priya Gupta Vs. State of Chhatishgarh and Others, , has lead itself to believe that the admission made of the students, are impermissible and proceeded with such an extreme step, which is bound to affect nearly 1000 students from different colleges across the state.
That since several years, the Private Managements have been making the admissions on the basis of the eligibility of the students in the Board Exams, after the seats that were expected to be shared on the basis of the consensual arrangements between the State and the Colleges through their Association, had been filled to a limited extent and, large number of seats under both Government and Management categories, fell vacant after the counseling process and, seats could not be expected to be filled in any manner, expect as provided under the Note in the consensual arrangements, which ''Note'' took into account the special circumstances, that are germane in so far as Dental Education and admission process is concerned. That the university itself has been receiving a fee in the form of Fine, imposed on the colleges for making admissions in the unfilled category, only to the extent of the approved intake in the college and not beyond, whereby approval has been granted to the admission of the eligible students who are similar to the students, who are now sought to be denied of the their admissions.
That the judgment of the Supreme Court, in Priya Gupta''s Case has been clearly misread by the authorities who have taken a narrow view of the present matter; and also the context in which the judgment has been delivered has not been taken note of. The Supreme Court in the above judgment, which the University has used, more out of the fear of penal consequences to its officers on a ''purported illegality'', rather than on an appreciation of the judgment, delivered in the context of adherence to ''Time Schedule'' in making admissions, has issued certain directions concerning strict adherence to the ''Time schedule''. The Apex Court nevertheless made certain observations, which seems to have put the Statutory Authorities on high alert, as to non-adherence of the directions issued in the said judgment concerning strict implementation of time schedule, but in the present case, the authorities wishing to err on the safer side, have gravely erred by putting the academic careers of several students in jeopardy by playing it safe and not approving the admissions which has been done for the previous batches of BDS course.
That, under the consensual arrangement for 2012-2013, which has been worked out in accordance with the enabling statutes and which has been placed before the Supreme Court for its approval to work out the same, provides for filling up of all vacant seats by the Applicants to the Institution, based on academic eligibility. It is necessary to point out that it was on account of past experience; while recording consensus and terms of agreement a special mention was made providing for grant of admissions after exhausting the list of CET of the State and entrance test of college managements to the candidates based on their academic eligibility and inter-se merit. Thus, under authority of the State enactment-Act 23 of 2011, it was specifically provided for filling up seats based on academic eligibility prescribed; and as it transpired there were large number of vacancies; seats remaining vacant, whether under Government Quota or COMED K. Quota.
While the learned counsel Shri N.K. Ramesh seeks to justify the impugned action of the RGUHS.
The question that would arise for consideration in the light of the above facts and circumstances is, Whether the Institutions could, after a re-conciliation of the vacant seats that remained on exhaustion of the list of selected candidates under the several entrance tests conducted, admit students without an entrance test and without reference to their inter se merit. Before answering this point for consideration, it would be necessary to refer to the decision of the Apex Court in Priya Gupta''s case. That was a case where the two appellants therein had appeared in the pre-medical test conducted by the State of Chhattisgarh for the academic year 2006. The results were said to have been declared in July 2006. The appellants had been admitted to the course. However, the procedure followed in their admission came to be questioned, which lead to an enquiry and adverse finding and consequently their admissions were cancelled by the State Government. This having been questioned before the High court, the said court affirmed the fact that the appellants had been admitted overlooking other more meritorious candidates and dismissed the petitions, against which the appellants approached the apex court. The apex court held that though it did not any merit in the appeal, in the facts and circumstances of that it permitted the appellants to complete their course as general candidates subject to payment of Rs. 5 lakh each.
In the course of the judgment however, certain observations and directions were issued which are as follows :
The Medical and Dental Councils of India, the Governments and the universities are expected to act in tandem with each other and ensure that the recognition for starting of the medical courses and grant of admission are strictly within the time-frame declared by this Court and the Regulations. It has come to the notice of this Court that despite warnings having been issued by this Court and despite the observations made by this Court, that default and non-adherence to the time schedules shall be viewed very seriously, matters have not improved. Persistent defaults by different authorities and colleges and granting of admission arbitrarily and with favouritism have often invited criticism from this Court.
In Arvind Kumar Kankane. Vs. State of U.P. and Others, , the Court observed that the process of counselling cannot go on continuously for a long period and the resultant chain reaction should be checked. Some seats may have to be left vacant per compulsion, but, the process of admission should stand the test of rationality. There should be exceptional and fortuitous circumstances to justify late admission. In Chhavi Mehrotra (Miss) Vs. Director General Health Services, the Court was even compelled to issue notice of contempt to the Director General of Health Services as to why proceedings under the Contempt of Courts Act, 1971 be not taken for non-compliance with the scheme framed by the Court for consideration of applications for transfer of students between colleges and they be not punished accordingly.
The consistent effort of this Court to direct corrective measures and adherence to law is not only being thwarted by motivated action on the part of the authorities concerned, but mere has also been a manifold increase in arbitrary admissions. Repeated defaults have resulted in generating more and more litigation with the passage of time. This Court, thus, now views this matter with greater emphasis on directions that should be made to curb incidents of disobedience.
The maxim boni judicis est causas litium dirimere places an obligation upon the Court to ensure that it resolves the causes of litigation in the country. Thus, the need of the hour is that binding dicta be prescribed and statutory regulations be enforced, so that all concerned are mandatorily required to implement the time schedule in its true spirit and substance. It is difficult and not even advisable to keep some windows open to meet a particular situation of exception, as it may pose impediments to the smooth implementation of laws and defeat the very object of the scheme. These schedules have been prescribed upon serious consideration by all concerned. They are to be applied stricto sensu and cannot be moulded to suit the convenience of some economic or other interest of any institution, especially in a matter that is bound to result in compromise of the abovestated principles.
Keeping in view the contemptuous conduct of the relevant stakeholders, their cannonade on the rule of merit compels us to state, with precision and esemplastically, 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 operate 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 counselling, 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 counselling to be conducted by the authority concerned 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. 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 counselling should be the final counselling, as this Court has already held in Ms. Neelu Arora and Another Vs. Union of India (UOI) and Others, and third counselling 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 counselling. 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, et. 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.
All these directions shall be complied with by all concerned, including the 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. 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 harmonization 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 counselling, 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 counselling and they shall furnish the complete details, list of seats filled and vacant in the respective States, immediately after each counselling.
47.8. No college shall fill up its seats in any other manner.
And in the operative portion of the judgment it is, inter-alia, stated thus:
With all the humility at our command, we request the High Courts to ensure strict adherence to the prescribed time schedule, process of selection and to the rule of merit. We reiterate what has been stated by this Court earlier, that except in very exceptional cases, the High Court may consider it appropriate to decline interim orders and hear the main petitions finally, subject to the convenience of the Court. We may refer to the dictum of this Court in Medical Council of India Vs. Rajiv Gandhi University of Health Sciences and Others, .
The indignation of the Apex Court that is reflected in the above categorical directions issued is apparent. The facts and circumstances of the present case would have to be kept in view, in reconciling the above directions of the Apex Court which are generally issued, in dealing with the present petitions.
The grim situation faced by the Dental Colleges in the State of Karnataka, that mushroomed in the early 2000''s, from the year 2007 is graphically depicted in the following table, as regards the vacancy position.
Details of Vacant seats of BDS course
Admittedly, the situation for the year 2012-13 was no different, except that it may be slightly better than the previous years. If upon reconciliation of the vacant seats remaining after admissions are made against the select list of candidates under the entrance tests conducted by the State Government and the Managements, respectively, If the seats available are lesser in number than the aspirants seeking admission against those vacant seats-there can be no doubt that without an entrance test being conducted to gauge the inter-se merit, no admissions can be made. However, if the available seats are more than the candidates, who are otherwise eligible for admission, the holding of a entrance test to address their inter se merit would be unnecessary and meaningless. In that view of the matter the RGUHS having denied approval of the admission of the several student petitioners at a belated point of time of the academic year, only on the ground that such admissions were made without any ranking being assigned to the students, in the absence of an entrance test, does appear to be a ''knee-jerk'' reaction by RGUHS, as contended by the petitioners, given the ominous words of caution issued to all concerned, in the matter of adhering to admission procedures to professional colleges, by the Apex Court in Priya Gupta''s case. However, it would be necessary for managements to fill up the vacant seats that are available, after re-conciliation with the select lists at the entrance tests, to maintain complete transparency in the entire process in the event that an entrance test becomes necessary to weigh the inter-se merit of the candidates in the event that there are more eligible candidates than seats. The test to be conducted would necessarily be in accordance with the appropriate guidelines that may be issued by the State Government.
Accordingly, the petitions are allowed. The impugned Annexures are quashed. The admissions granted to the several students in these petitions are declared as being valid and that they are entitled to continue their studies on the approval of their admissions, which the RGUHS shall grant forthwith.