Thursday, May 24, 2012

S.C. Observations of Admissions: A case from Chattisgarh, India


S.C. Observations of Admissions: A case from Chattisgarh, India

Dr.Mukesh Yadav

Prof. & HOD, Forensic Medicine & Toxicology

School of Medical Sciences & Research

Sharda University, Greater Noida, U.P.

Ph. No.08527063514



Introduction:

The admission to MBBS and BDS courses, whether at State level or All India level has ever been a matter of concern for the courts. Large number of writ petitions are filed challenging the admission process or admission of some particular candidates on varied grounds, like admission being contrary to Rules, the principle of merit being disturbed, admissions being arbitrary, etc. and there is still flagrant violation of the dicta of this Court, as issued in various judgments, as well as of the Rules and Regulations wherever framed by the State or Central Government [Page 15-16] or Medical or Dental Council of India. (1)

The present case is one example of violation of procedure and admissions being arbitrary. [PARA 19]

Background of Admissions in Medical Colleges:

Admissions to professional colleges are governed by the judgment of the Supreme Court (SC) in the case of TMA Pai Foundation & Ors. vs. State of Karnataka & Ors..(2) The framework of admissions to colleges was discussed in some detail by SC. However, even in the case of Dr.Pradeep Jain & Ors. v. Union of India & Ors.,(3) the concept of an All India quota came to be introduced while determining the validity of a domicile requirement in such admissions. Earlier, 30 percent of seats in the under-graduate courses were reserved for this purpose, which came to be modified to 15 per cent seats for All India quota in the case of Dr.Dinesh Kumar & Ors. vs. Moti Lal Nehru College, Allahabad & Ors.. (4)

In the case of Dr.Dinesh Kumar & Ors. vs. Moti Lal Nehru College, Allahabad & Ors.,(5) this Court also passed directions in [Page 16-17] relation to the manner of notification/announcement of details, results and counseling for admission, in that case, for post graduate admissions, which were to be published in two successive issues of newspapers, including one national paper in English and at least two local papers in the language of the State.

Declaration of results would be made four weeks after the examination and academic courses were to mandatorily begin on the 2nd of May every year. Again, in the case of Dr.Dinesh Kumar & Ors. vs. Moti Lal Nehru College, Allahabad & Ors.,(6) as some of the States were not adhering to the prescribed schedule, this Court took punitive action against the State of Uttar Pradesh and even contemplated action under the Contempt of Courts Act, 1971.

Right from Dr.Pradeep Jain's case,(3) this Court has always directed that merit alone must be the criteria for admission to MBBS courses. To make such admissions more subject-specific, transparent and systematic, certain further directions were issued by this Court in Shrawan Kumar & etc. etc. vs. Director General of Health Services & Anr. & etc..(7) This Court clarified that candidates who have been allotted a seat in the second round of counseling will have to join the college within 15 days from the date of their [Page 17- 18] personal appearance and the whole allotment and admission process to 15 per cent seats of All India quota will be over before the 30th September of each year, the remaining seats having been surrendered back to the college/State. Various judgments of this Court have sought to carry forward, with greater clarity, the fundamental requirement as stated in TMA Pai(2) that the admission process should be fair, transparent and nonexploitative. Every subsequent judgment of this Court has attempted to elucidate one or other aspect of this principle.

Having noticed that there have been irregularities in maintaining the prescribed schedule and that the last few days of the declared schedule are primarily being utilized in an exploitative manner, on account of charging higher fees for securing admission and thereby defeating the principle of admission on merit, a three Judge Bench of this Court in the case of Mridul Dhar (Minor) & Anr. vs. Union of India & Ors.(8) applied the schedule notified by the Medical Council of India (MCI) in Appendix ‘E’ of the Graduate Medical Education (Amendment) Regulations, 2004(9) and directed its strict adherence. [Para 20]

Academic Session from 1st August each year: 30th September date not for normal admissions

The Court noticed that the holding of 10+2 examination and declaration of results is also of importance for the entire admission process and, therefore, directed strict adherence to the Schedule in all respects and by all concerned. The date of 30th [Page 19-20] September was stated not to be the date of normal admission but is to give opportunity to grant admission against stray vacancies.

The Court clarified that adherence to the time schedule by everyone was a paramount concern. In that case, the Court issued a specific direction to all the State functionaries, particularly the Chief Secretaries and heads of the concerned Ministries/Departments participating in the States/Union Territories, adopting the time schedule and holding the State examination, to ensure declaration of results on or before 15th June, 2005. They were also required to ensure the appropriate utilization of All India quota, to fullest extent, by timely reporting to the DGHS by the Deans of various colleges or any other State authority, informing the DGHS of the acceptance or rejection of seats by the students after the first counseling of All India/State Quota. [Para 21]

Further, this Court even took pains to declare the need for adherence to the schedule for receipt of applications for establishment of new medical colleges or seats and the process of the review and recommendation by the Central Government and the Medical Council of India in para 28 of the judgment, the Schedule under the 1999 Regulations [Page 20-21] [Para 22]

Role of MCI and Central Govt.:

Note: (1) The information given by the applicant in Part I of the application for setting up a medical college that is information regarding organisation, basic infrastructural facilities, managerial and financial capabilities of the applicant shall be scrutinised by the Medical Council of India through Page 21- 22] an inspection and thereafter the Council may recommend issue of letter of intent by the Central Government.

(2) Renewal of permission shall not be granted to a medical college if the above schedule for opening a medical college is not adhered to and admissions shall not be made without prior approval of the Central Government." [Para 22]

Lastly, in the case of Priyadarshini Dental College & Hospital vs. Union of India & Ors.,(10) this Court cautioned all concerned that the schedule specified in Mridul Dhar(8) should be maintained and regulations should be strictly followed. The Court suggested that the process of inspection of colleges, grant of permission or renewal of permission should also be done well in advance to allow time for setting right the deficiencies pointed out. [Para 23]

In the case of State of Bihar & Ors. vs. Dr.Sanjay Kumar Sinha & Ors.,(11) a Bench of this Court took exception to the non-adherence to the time schedules and reiterated that the admissions to medical colleges and postgraduate courses were governed by the orders of this Court and the regulations issued by the Medical Council of India, which must be strictly followed. This Court issued a warning, that if there was any violation in future, the same shall be treated as default and viewed very seriously. Further, in the case of Medical Council of India v. Madhu Singh & Ors.,(12) this Court declared two very important principles. Firstly, it declared that mid-stream admissions should not be permitted and secondly, noticing the practice of compassion in review of such admissions, this Court also held that late or mid-stream admission, even just four months after beginning of the classes, cannot be permitted. [Para 22, 23, 24]

Mandatory provisions:

A consistent and clear view held by SC is that the regulations framed by the MCI are binding and these standards cannot be deviated from. (13), (14), (15), (16)  [Para 25]

What is of greater significance is that this Court has not so far considered or stated as a principle, what consequences should follow where the Central Government, or the State Government or Medical Council of India or the College itself, with [Page 23- 24] impunity, violate the time schedule, regulations and order of merit to give admission to students in an arbitrary and nepotistic manner. [Page 23, 24](1)

Need for Preventive steps:

Also, we must consider what preventive steps can be taken to avoid such repetitive and intentional defaults, as well as undue exploitation of the class of students. Admissions based on favouritism necessarily breach the rule of merit on the one hand, while on the other, they create frustration in the minds of the students who have attained higher rank in the competitive entrance examinations, but have not been admitted.

Mandatory Requirements:

SC observed that “We propose to specifically address this concern in this judgment. From the above discussion and reference to various judgments of this Court, it is clear that adherence to the principle of merit, compliance with the prescribed schedule, refraining from midstream admissions and adoption of an admission process that is transparent, non-exploitative and fair are mandatory requirements of the entire scheme.” [Para 26]

Adverse Consequences of Non-adherence to the prescribed schedules:

Now, let us examine the adverse consequences of non-adherence to the prescribed schedules. The schedules prescribed have the force of law, in as much as they form part of the judgments of this Court, which are the declared law of the land in terms of Article 141 of the Constitution of India and form part [Page 24-25] of the regulations of the Medical Council of India, which also have the force of law and are binding on all concerned. [page 24, 25]

India already facing shortage of doctors, further delay in getting new comer (MBBS Students) two months late due to late start of academic session that to without any logic and rationale.

No authority has Discretion:

It is difficult to comprehend that any authority can have the discretion to alter these schedules to suit a given situation, whether such authority is the Medical Council of India, the Government of India, State Government, University or the selection bodies constituted at the college level for allotment of seats by way of counseling.

We have no hesitation in clearly declaring that none of these authorities are vested with the power of relaxing, varying or disturbing the time schedule, or the procedures of admission, as provided in the judgments of this Court and the Medical Council of India Regulations.(1)

What are Disadvantages?

(1)   Delay and unauthorized extension of schedules defeat the principle of admission on merit, especially in relation to preferential choice of colleges and courses. Magnanimity in this respect, by condoning delayed admission, need not be shown by the Courts as it would clearly be at the cost of more meritorious students. The principle of merit cannot be so blatantly compromised. This was also affirmed by this Court in the case of Muskan Dogra & Ors. v. State of Punjab & Ors.(17) [Page 25-26]

(2)   Mid-stream admissions are being permitted under the garb of extended counseling or by extension of periods for admission which, again, is impermissible.

(3)   The delay in adherence to the schedule, delay in the commencement of courses etc., encourage lowering of the standards of education in the Medical/Dental Colleges by shortening the duration of the academic courses and promoting the chances of arbitrary and less meritorious admissions.

(4)   Inequities are created which are prejudicial to the interests of the students and the colleges and more importantly, affect the maintenance of prescribed standard of education. These inequities arise because the candidates secure admission, with or without active connivance, by the manipulation and arbitrary handling of the prescribed schedules, at the cost of more meritorious candidates. When admissions are challenged, these students would run the risk of losing their seats though they may have completed their course while litigation was pending in the court of competent jurisdiction. [Page 26, 27]

(5)   The highly competitive standards for admission to such colleges stand frustrated because of non-adherence to the prescribed time schedules. The admissions are stretched to the last date and then admissions are arbitrarily given by adopting impermissible practices.

(6)   Timely non-inclusion of the recognised/approved colleges and seats deprives the students of their right of fair choice of college/course, on the strength of their merit.

(7)   Preference should be to fill up all vacant seats, but under the garb that seats should not go waste, it would be impermissible to give admissions in an arbitrary manner and without recourse to the prescribed rule of merit. [Para 27]

(8)   Country will not have enough doctors well three months before if timely sessions are started.

Need for coordination among authorities:

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. [Page 27, 28]

In the case of Arvind Kumar Kankane vs. State of U.P. & Ors.,(18) the Court observed that the process of counseling 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.

Contempt Proceedings:

There should be exceptional and fortuitous circumstances to justify late admission. In the case of Chhavi Mehrotra (Miss) vs. DGHS,(19) 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 [Page 28-29] of the concerned authorities, but there 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. [Para 28]

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. [Para 29]

Court prescribed binding Dicta:

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 manner that is bound to result in compromise of the above-stated principles. [Page 29-30]

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.

Directions of SC:

(i)                 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.

(ii)               The Medical Council of India shall, immediately thereafter, issue appropriate directions and ensure the implementation and commencement of admission process within one week thereafter.

(iii)             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 [Page 30-31] 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.

(iv)             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.

(v)               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. [Page 31-32]

(vi)             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 & Anr. v. UOI & Ors.(20) and third counseling is not contemplated or permitted under the entire process of selection/grant of admission to these professional courses.

(vii)           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 [Page 32-33] surrender of seats. All candidates should join the academic courses by 30th September of the academic year.

(viii)         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.

(ix)             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 [Page 33-34] also be given by the colleges which are anticipating grant of recognition, in compliance with the date specified in these directions. [PARA 30]

Thus, we issue the following directions in rem for their strict compliance, without demur and default, by all concerned.

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:

a)      Everybody, 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.

b)      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 [Page 34-35] violation of these directions or overreaching them by any process shall tantamount to indiscipline, insubordination, misconduct and being unworthy of becoming a public servant.

c)      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.

d)     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.

e)      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 [Page 35-36] admission or who are wrongfully given admission in the college.

f)       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.

g)      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.

h)      No college shall fill up its seats in any other manner.

SC concluded:

Having dealt with, in general, the directions that this Court would issue to prevent the evils of arbitrariness and discrimination from creeping into these selection/admission processes, which are required to be transparent, fair and non-exploitatory. [Para 32]

Examination of the intricacies of procedural irregularities in the present case and the arbitrary admission:

The present case is a glaring example of calculated tampering with the schedule specified under the regulations and the judgments of this Court, with a clear intent to grant admission to less meritorious candidates over and above the candidates of higher merit. To put it simply, it is a case of favouritism and arbitrariness. This also chronicles how, either way, the careers of the students are jeopardised. The High Court had cancelled the admission of the appellants by a detailed and well-reasoned judgment. However, as a result of interim orders granted by the Court, both the appellants had already completed four years of the studies at the time of the High Court decision.

They are stated to have completed their final exam now. Despite having lost their case before the High Court, the appellants continued to pursue their professional courses because of the interim orders of the Court. Now, the plea of inequities is being raised. [PARA 33]

The methodology adopted and the manner in which admissions were given to the present appellants leaves no doubt in the mind of the Court that this process was neither fair nor transparent. In fact, within a few hours, the entire process of admission was completed, indicating that the whole exercise was undertaken only with the object of granting admission to the appellants, that too, as if no other candidates of merit were [Page 41-42] available for these two seats. This view is entirely substantiated by the records produced before us. The prescribed procedure for grant of admission was given a go by and the rule of admission on merit stood frustrated as a consequence of such admission process. One fails to understand why no preventive steps or efforts to fill the vacant seats were taken by any of the competent authorities involved in the entire process of selection and admission to MBBS courses.

From whatever angle this case is examined, only one conclusion is possible and that is, that the allocation of seats was totally arbitrary and contrary to the procedure laid down. We also would like to make a clear mention of the displeasure of this Court to the three members of the Selection Committee who found only these two candidates eligible and fit to be granted admission to the MBBS courses on the last day for admissions.

To say the least, this Committee acted in undue haste, in violation of the prescribed procedure of admission and certainly contrary to the judgments of this Court. We direct the Dean of the Jagdalpur College to convey the displeasure of this Court to the members of the Selection Committee and the same be placed on their respective service records. [PARA 38]

This cancellation was challenged by the appellants before the High Court, which allowed continuation of study under interim orders, though finally it dismissed the writ petitions filed by these appellants. At that time, they had already completed more than four years of the MBBS course to which they were admitted. Today, they have already appeared for their final examination. [PARA 42]

SC Observed that "We are also in agreement with the findings recorded by the High Court that the Jagdalpur College ought to have declared these two seats as being available for admission when the [Page 47-48] counseling was held on 22nd – 23rd August, 2006 and that there was violation of the basic principles of equality of opportunity and of equal consideration for allotment of seats. Candidates of higher merit stand excluded. Another challenge which has been raised on behalf of the appellants before us is that the order of cancellation dated 10th  September, 2010 was passed without affording any opportunity of hearing to these two appellants and, therefore, the order is liable to be set aside, being violative of principles of natural justice. It is, in fact, not in dispute before us that no specific notice had been given to the appellants before the impugned order was passed. We are of the considered view that it is not necessary for this Court to examine this submission in any greater detail because the appellants have now had two occasions to put forward their claim before the Court."

SC further observed that "The High Court has considered various aspects of the case and has given a complete hearing to the appellants. We have also heard the appellants at great length and have examined their challenge to the order dated 10th September, 2010. No prejudice has been caused to them, inasmuch as they have pursued their studies despite cancellation of admission and have now been duly heard by the High Court, as well as this Court. Hence, this ground of [Page 48-49] challenge does not, in any case, survive, particularly in view of the fact that we have also held that the admission to these appellants was given in a completely arbitrary and unfair manner." [Para 46]

Students should not be made to suffer:

Even if the authorities have committed some irregularity, the appellants should not be made to suffer at the very end of their professional course. To substantiate this premise, they relied upon other judgments of SC. [Para 46](21), (22), (23), (21)

SC observed "We have perused the judgments of this Court relied upon by the petitioners. Firstly, they were delivered on their own facts and the Court has not stated any absolute principle of law, which would operate as a valid and binding precedent. Secondly, in all [Page 50-51] these cases, the Court had returned the finding that other authorities or rule-making bodies concerned were at fault and not the students.

In the case of Chowdhary Navin Hemabhai,(15) the Court had noticed that the fault was of the rule making authority in not formulating the State Rules, 2008 in conformity with the Medical Council of India Regulations, while in the case of A. Sudha,(21) the Court found that the Principal of the institute was at fault and he had made incorrect statements in writing, which were acted upon by the students bona fide. [Para 47]

Fault is attributed to Concerned Authorities:

In the present case, we have no doubt in our mind that the fault is attributed to all the stakeholders involved in the process of admission, i.e., the concerned Ministry of the Union of India, Directorate of Medical Education in the State of Chhattisgarh, the Dean of the Jagdalpur College and all the three Members of the Committee which granted admission to both the appellants on 30th September, 2006.

Influential Students taking advantage:

SC Observed: But the students are also not innocent. They have certainly taken advantage of being persons of influence. The father of the Appellant No. 2, Akansha Adile was the Director of Medical Education, State of Chhattisgarh at the relevant time and as noticed above, the entire process of [Page 51-52] admission was handled through the Directorate. The students well knew that the admissions can only be given on the basis of merit in the entrance test and they had not ranked so high that they were entitled to the admission on that basis alone. In fact, they were also aware of the fact that no other candidate had been informed and that no one was present due to non-intimation. Out of favouritism and arbitrariness, they had been given admission by completing the entire admission process within a few hours on 30th September, 2006. [Para 48](1)

Balancing of equities: Quality

Balancing of equities by the Court itself is inequitable. Some party or the other would suffer a set back or adverse consequence from the order of the Court. On the one hand, if admissions are cancelled, the students who have practically completed their MBBS course would lose their professional education as well as nearly five years of their life spent in such education.

If their admissions are protected, then the standard of education, the merit of the candidates and the desirability of the persons of higher merit becoming doctors is negated. The best solution to such problems is strict adherence to the time schedule, procedure for selection/admission and strict observance of the Medical Council of India Regulations, by all concerned. Once these factors are adhered to, not only would such situation not arise, but also it will prevent avoidable litigation before the Courts. [Page 52, 53]

The persons who violate the time schedule to grant admissions in an arbitrary manner and by colourable exercise of power, who are not adhering to Medical Council of India Regulations and the judgments of this Court, should be dealt with strictly by punishment in accordance with law, to prevent such mischief from repeating. In the present case, we are informed that the students have already sat for their final examination and are about to complete their courses. Even if we have to protect their admissions on the ground of equity, they cannot be granted such relief except on appropriate terms.

By their admissions, firstly, other candidates of higher merit have been denied admission in the MBBS course. Secondly, they have taken advantage of a very low professional college fee, as in private or colleges other than the government colleges, the fee payable would be Rs.195000/- per year for general admission and for management quota, the fee payable would be Rs.400000/- per year, but in government colleges, it is Rs.4000/- per year. So, they have taken a double advantage.

As per their merit, they obviously would not have got admission Page 53-54] into the Jagdalpur College and would have been given admission in private colleges. The ranks that they obtained in the competitive examination clearly depict this possibility, because there were only 50 seats in the Jagdalpur College and there are hundreds of candidates above the appellants in the order of merit. They have also, arbitrarily and unfairly, benefitted from lower fees charged in the Jagdalpur College. [Para 49]

On the peculiar facts and circumstances of the case, though we find no legal or other infirmity in the judgment under appeal, but to do complete justice between the parties within the ambit of Article 142 of the Constitution of India, we would permit the appellants to complete their professional courses, subject to the condition that each one of them pay a sum of Rs.5 lakhs to the Jagdalpur College, which amount shall be utilized for developing the infrastructure in the Jagdalpur College. [Para 50]

No precedent:

SC Observed: We have not and should not be even understood to have stated any precedent for the cases like grant of admission and leave to complete the course like the appellants in the present case. [Page 54-55]

Heavy cost imposed:

We are imposing heavy costs upon these appellants to ensure that such admissions are neither accepted nor granted leave to complete their medical courses in future. [Para 52]

We would, thus, hereby issue directions on the one hand and order initiation of contempt proceedings against all the defaulting parties under the provisions of Contempt of Courts Act, 1971 read with Article 129 of the Constitution of India. [Para 53](1)

ORDER:

Accordingly, we order as follows:

1.      Though, we find no merit in the appeal preferred by the appellants and the judgment of the High Court does not suffer from any infirmity, still, in the peculiar facts and circumstances of the case, we permit the appellants to complete their MBBS course as general candidates in the Government Medical College, Jagdalpur, subject to their paying a sum of Rs.5 lakhs each, within one week from today. [Page 55-56]

2.      In the event of default of payment or failure to file proof of payment in the Registry of this Court, not only will the present appeal stand dismissed on merits, but we also direct that the exam results of the defaulting appellant will not be declared, they will not be conferred with the degree of MBBS by the Jagdalpur College and the Medical Council of India shall not register their names on the rolls maintained by it or the State Council, as the case may be.

3.      For the reasons afore-stated, if their admissions are cancelled, there being no claimants for these seats, the seats will go waste and the entire expenditure incurred by the State would also be wasted. After so many years, it would be an exercise in futility to cancel their admissions, which, but for the interim orders, could be avoided. An undue advantage from the interim orders has accrued in favour of the appellants.

4.      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. [Page 56-57] 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 convenience of the Court. We may refer the dictum of this Court in the case of Medical Council of India v. Rajiv Gandhi University of Health Sciences [(2004) 6 SCC 76, para 14] in this regard.

5.      We have categorically returned a finding that all the relevant stakeholders have failed to perform their duty/obligation in accordance with law. Where the time schedules have not been complied with, and rule of merit has been defeated, there nepotism and manipulation have prevailed. The stands of various authorities are at variance with each other and none admits to fault. Thus, it is imperative for this Court to ensure proper implementation of judgments of this Court and the regulations of the Medical Council of India as well as not to overlook the arbitrary and colourable exercise of power by the concerned authorities/colleges.

6.      Therefore, we hereby direct initiation of proceedings against the following under the provisions of the Contempt of Courts [Page 57-58] Act, 1971. Let notice be issued to the following, to show-cause why they be not punished in accordance with law:

a.    Additional Secretary, Ministry of Health & Family Welfare, Union of India.

b.    Dr. S.L. Adile, Director, Medical Education.

c.    Dean of the Jagdalpur College.

d.    Dr. M.S. Banjan, Member of the Selection Committee.

e.    Dr. P.D. Agarwal, Member of the Selection Committee.

f.     Shri Padmakar Sasane, Member of the Selection Committee.

g.    Director General, Directorate of Health Services, Union of India.

5.    Notice be issued returnable in two weeks, on which day the matter shall be listed before this Court. Registry shall maintain separate file for that purpose.

6.    All concerned authorities are hereby directed to carry out the directions and orders contained in this judgment, particularly paragraphs 30 and 31 of the judgment forthwith. [Page 58-59] The directions shall be applicable for the academic year 2012-2013 itself. A copy of this judgment shall be sent to all concerned authorities, forthwith, for strict compliance and adherence, without demur and default. [PARA 54]



References:

1.         Swatanter Kumar , J ., A.K. Patnaik, (J). Priya Gupta vs. State of Chhatishgarh & Ors. with Akansha Adile vs.  State of Chhatishgarh & Ors. 2012.

2.         TMA Pai Foundation & Ors. v. State of Karnataka & Ors. [(2002) 8 SCC 481].

3.         Dr. Pradeep Jain & Ors. v. Union of India & Ors. [(1984) 3 SCC 654].

4.         Dr. Dinesh Kumar & Ors. v. Moti Lal Nehru College, Allahabad & Ors. [(1985) 3 SCC 22].

5.         Dr. Dinesh Kumar & Ors. v. Moti Lal Nehru College, Allahabad & Ors. [(1987) 4 SCC 459].

6.         Dr. Dinesh Kumar & Ors. v. Moti Lal Nehru College, Allahabad & Ors. [(1990) 4 SCC 627].

7.         Shrawan Kumar & etc. etc. v. Director General of Health Services & Anr. & etc. [(1993) 3 SCC 332].

8.         Mridul Dhar (Minor) & Anr. v. Union of India & Ors. [(2005) 2 SCC 65].

9.         The Graduate Medical Education (Amendment) Regulations, 2004.

10.       Priyadarshini Dental College & Hospital v. Union of India & Ors. [Internet]. [(2011) 4 SCC 623]. 2011. Available from: http://judis.nic.in/supremecourt/imgs.aspx

11.       State of Bihar & Ors. v. Dr. Sanjay Kumar Sinha & Ors. [(1990) 4 SCC 624].

12.       Medical Council of India v. Madhu Singh & Ors. [(2002) 7 SCC 258].

13.       State of M.P. & Ors. v. Gopal D. Tirthani & Ors. [(2003) 7 SCC 83 – paras 24 and 26].

14.       Bharati Vidyapeeth (Deemed University) & Ors. v. State of Maharashtra & Anr. [(2004) 11 SCC 755 – para 20].

15.       Chowdhary Navin Hemabhai & Ors. v. The State of Gujarat & Ors. (2011) 3 SCC 617.

16.       Harish Verma & Ors. v. Ajay Srivastava & Ors. [(2003) 8 SCC 69 – paras 14 to 21].

17.       Muskan Dogra & Ors. v. State of Punjab & Ors. [(2005) 9 SCC 186.

18.       Arvind Kumar Kankane vs. State of U.P. & Ors. (2001) 8 SCC 355].

19.       Chhavi Mehrotra (Miss) v. DGHS. [(1994) 2 SCC 370].

20.       Ms. Neelu Arora & Anr. v. UOI & Ors. [(2003) 3 SCC 366].

21.       A. Sudha v. University of Mysore & Anr. (1987) 4 SCC 537.

22.       Amandeep Jaswal v. State of Punjab. (2006) 9 SCC 597.

23.       R. Vishwanatha Pillai v. State of Kerala & Ors. R. Vishwanatha Pillai v. State of Kerala & Ors.

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