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Sunday, May 19, 2013
Possible Illegalities Post NEET Interim Order of SC dated 13th May 2013
Possible Illegalities Post NEET Interim Order of SC dated 13th May 2013
Background on the Issue of Admission: Framework of Admission, Concept of All India quotas, punitive action, contempt of court
Admission to professional colleges are governed by the judgment of this Court in the case of TMA Pai Foundation & Ors. vs. State of Karnataka & Ors.[i].  The framework of admissions to colleges was discussed in some detail by this Court. However, even in the case of Dr.Pradeep Jain & Ors. vs. Union of India & Ors.[ii],  the concept of an All India quota came to be introduced while determining the validity of a domicile requirement in such admissions. Earlier, 30 per cent 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.[iii].  In the case of Dr.Dinesh Kumar & Ors. vs. Moti Lal Nehru College, Allahabad & Ors.[iv],  this Court also passed directions in relation to the manner of notification/announcement of details, results and counselling 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. v. Moti Lal Nehru College, Allahabad & Ors.[v],  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.[vi] [6, 20] [Para 20]
Merit alone must be the criteria for Admission: transparent and systematic process of admission
Right from Dr.Pradeep Jain’s case[ii], 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.[vii] [7, 20] [Para 20]
This Court clarified that candidates who have been allotted a seat in the second round of counselling will have to join the college within 15 days from the date of their 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 (supra)  that the admission process should be fair, transparent and non-exploitative. Every subsequent judgment of this Court has attempted to elucidate one or other aspect of this principle.  [Para 20]
Issue of irregularities in maintaining the prescribed schedule
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.[viii]  applied the schedule notified by the Medical Council of India (MCI) in Appendix ‘E’ of the Graduate Medical Education (Amendment) Regulations, 2004 and directed its strict adherence.  [Para 20]
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 September was stated not to be the date of normal admission but is to give opportunity to grant admission against stray vacancies.  [Para 21]
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 counselling of All India/State Quota.  [Para 21]
Need for timely LOP:
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.  [Para 22]
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 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.[ix],  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.[x],  a Bench of this Court took exception to the non- adherence to the time schedules and reiterated that the admissions to medical colleges and post-graduate 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 vs. Madhu Singh & Ors.[xi],  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 24]
Regulations of MCI are binding:
A consistent and clear view held by this Court is that the regulations framed by the MCI are binding and these standards cannot be deviated from. Reference can be made to State of M.P. & Ors. vs. Gopal D. Tirthani & Ors.[xii];  Bharati Vidyapeeth (Deemed University) & Ors. vs. State of Maharashtra & Anr.[xiii];  Chowdhury Navin Hemabhai & Ors. vs. State of Gujarat & Ors.[xiv]  and Harish Verma & Ors. vs. Ajay Srivastava & Ors. [Para 25][xv] [15, 20]
What consequences should follow where the concerned authorities, with impunity, violate the time schedule, regulations and order of merit to give admission to students in an arbitrary and nepotistic manner?
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 impunity, violate the time schedule, regulations and order of merit to give admission to students in an arbitrary and nepotistic manner. 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.  [Para 26]
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. We propose to specifically address this concern in this judgment.  [Para 26]
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 mid-stream 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 of the regulations of the Medical Council of India, which also have the force of law and are binding on all concerned. 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 counselling. 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.  [Para 27]
Inter alia, the disadvantages are:
Disadvantages of non-adherence to schedule:
Inter alia, the disadvantages are:
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. vs. State of Punjab & Ors.[xvi]
2) Mid-stream admissions are being permitted under the garb of extended counselling 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.
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]
Expectations from MCI/DCI, Govt. and Universities:
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.  [Para 28]
In the case of Arvind Kumar Kankane v. State of U.P. & Ors.[xvii], 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. There should be exceptional and fortuitous circumstances to justify late admission.  [Para 28]
In the case of Chhavi Mehrotra (Miss) v. DGHS[xviii], 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 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]
Obligations of the Court:
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]
Need of the hour:
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.  [Para 30]
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.  [Para 30]
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. 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.  [Para 30]
Directions of the Supreme Court:
Thus, we issue the following directions in rem for their strict compliance, without demur and default, by all concerned:
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 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.
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 counselling 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.
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 counselling should be the final counselling, as this Court has already held in the case of Ms.Neelu Arora & Anr. v. UOI & Ors.[xix]  and third counselling 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 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.
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 also be given by the colleges which are anticipating grant of recognition, in compliance with the date specified in these directions.  [Para 30]
Directions of SC for Authorities and other stakeholders for Admission
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.  [Para 31]
Warning for consequences and penal action:
Any default in compliance with these conditions or attempt to overreach these directions shall, without fail, invite the following consequences and penal actions:  [Para 31]
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 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 admission or who are wrongfully given admission in the college.
f. 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.
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 counselling and they shall furnish the complete details, list of seats filled and vacant in the respective states, immediately after each counselling.
h. No college shall fill up its seats in any other manner.  [Para 31]
Triple Test i.e. transparent, fair and non-exploitatory selection/admission processes:
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, we shall now proceed to deal with the facts of the present case. [Para 32]
SC concluded that 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.  [Para 33][xx]
1. TMA Pai Foundation & Ors. vs. State of Karnataka & Ors. [(2002) 8 SCC 481]
2. Dr.Pradeep Jain & Ors. vs. Union of India & Ors. [(1984) 3 SCC 654]
3. Dr.Dinesh Kumar & Ors. vs. Moti Lal Nehru College, Allahabad & Ors. [(1985) 3 SCC 22]
4. Dr.Dinesh Kumar & Ors. vs. Moti Lal Nehru College, Allahabad & Ors. [(1987) 4 SCC 459]
5. Dr.Dinesh Kumar & Ors. vs. Moti Lal Nehru College, Allahabad & Ors. [(1990) 4 SCC 627]
6. The Contempt of Courts Act, 1971.
7. Shrawan Kumar & etc. etc. vs. Director General of Health Services & Anr. & etc. [(1993) 3 SCC 332]
8. Mridul Dhar (Minor) & Anr. vs. Union of India & Ors. [(2005) 2 SCC 65]
9. Priyadarshini Dental College & Hospital vs. Union of India & Ors. [(2011) 4 SCC 623]
10. State of Bihar & Ors. vs. Dr. Sanjay Kumar Sinha & Ors. [(1990) 4 SCC 624]
11. Medical Council of India vs. Madhu Singh & Ors. [(2002) 7 SCC 258]
12. State of M.P. & Ors. vs. Gopal D. Tirthani & Ors. [(2003) 7 SCC 83 – paras 24 and 26]
13. Bharati Vidyapeeth (Deemed University) & Ors. v. State of Maharashtra & Anr. [(2004) 11 SCC 755 – para 20]
14. Muskan Dogra & Ors. vs. State of Punjab & Ors. [(2005) 9 SCC 186].
15. Chowdhury Navin Hemabhai & Ors. vs. State of Gujarat & Ors. [(2011) 3 SCC 617 – paras 7, 11, 12, 14 and 18]
16. Harish Verma & Ors. vs. Ajay Srivastava & Ors. [(2003) 8 SCC 69 – paras 14 to 21]. [Para 25]
17. Arvind Kumar Kankane v. State of U.P. & Ors. (2001) 8 SCC 355]
18. Chhavi Mehrotra (Miss) v. DGHS [(1994) 2 SCC 370]
19. Ms.Neelu Arora & Anr. v. UOI & Ors. [(2003) 3 SCC 366]
20. Swatanter Kumar, J. Priya Gupta vs. State of Chhatishgarh & Ors., Civil Appeal No. 4318 of 2012, (Arising out of SLP (C) No.27089 of 2011), with Civil Appeal No. 4319 of 2012 (Arising out of SLP (C) No. 29306 of 2011), Date of Judgment: 08.05.2012
[i] TMA Pai Foundation & Ors. vs. State of Karnataka & Ors. [(2002) 8 SCC 481]
[ii] Dr.Pradeep Jain & Ors. vs. Union of India & Ors. [(1984) 3 SCC 654]
[iii] Dr.Dinesh Kumar & Ors. vs. Moti Lal Nehru College, Allahabad & Ors. [(1985) 3 SCC 22]
[iv] Dr.Dinesh Kumar & Ors. vs. Moti Lal Nehru College, Allahabad & Ors. [(1987) 4 SCC 459]
[v] Dr.Dinesh Kumar & Ors. v. Moti Lal Nehru College, Allahabad & Ors. [(1990) 4 SCC 627]
[vi] The Contempt of Courts Act, 1971
[vii] Shrawan Kumar & etc. etc. v. Director General of Health Services & Anr. & etc. [(1993) 3 SCC 332]
[viii] Mridul Dhar (Minor) & Anr. vs. Union of India & Ors. [(2005) 2 SCC 65]
[ix] Priyadarshini Dental College & Hospital v. Union of India & Ors. [(2011) 4 SCC 623]
[x] State of Bihar & Ors. v. Dr. Sanjay Kumar Sinha & Ors. [(1990) 4 SCC 624]
[xi] Medical Council of India vs. Madhu Singh & Ors. [(2002) 7 SCC 258]
[xii] State of M.P. & Ors. v. Gopal D. Tirthani & Ors. [(2003) 7 SCC 83 – paras 24 and 26]
[xiii] Bharati Vidyapeeth (Deemed University) & Ors. v. State of Maharashtra & Anr. [(2004) 11 SCC 755 – para 20]
[xiv] Chowdhury Navin Hemabhai & Ors. vs. State of Gujarat & Ors. [(2011) 3 SCC 617 – paras 7, 11, 12, 14 and 18]
[xv] Harish Verma & Ors. vs. Ajay Srivastava & Ors. [(2003) 8 SCC 69 – paras 14 to 21]. [Para 25]
[xvi] Muskan Dogra & Ors. vs. State of Punjab & Ors. [(2005) 9 SCC 186].
[xvii] Arvind Kumar Kankane v. State of U.P. & Ors. (2001) 8 SCC 355]
[xviii] Chhavi Mehrotra (Miss) v. DGHS [(1994) 2 SCC 370]
[xix] Ms.Neelu Arora & Anr. v. UOI & Ors. [(2003) 3 SCC 366]
[xx] Swatanter Kumar, J. Priya Gupta vs. State of Chhatishgarh & Ors., Civil Appeal No. 4318 of 2012, (Arising out of SLP (C) No.27089 of 2011), with Civil Appeal No. 4319 of 2012 (Arising out of SLP (C) No. 29306 of 2011), Date of Judgment: 08.05.2012
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