Bombay High Court
Ajit Murur And 5 Ors vs The Commissioner And 2 Ors on 19 July, 2016
Bench: S.C. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 1602 OF 2016
1. Mr. Ajit Murur }
residing at 13, Sanman CHS }
#93, Model Town, Andheri }
(W), Mumbai - 400 053. }
}
2. Mrs. Dr. Anupam A. }
Dudani }
residing at 801, Coste Belle, }
Opp. Brahmakumari Garden, }
Perry Cross Road, Bandra }
(West), Mumbai - 400 050 ig }
}
3. Mr. Avinash K. Patil }
residing at A-1504, Twins }
CHS, Plot No. 57, Sector 20, }
Kharghar, Navi Mumbai - }
410 210 }
}
4. Dr. Sadhana A. Vaidya }
residing at 601/602, Om }
Shiv CHS, Mogal Lane, }
Opp. Bafna Soc., Mahim (W), }
Mumbai - 400 016 }
}
5. Mr. Vishavdeep Gautam }
residing at 1201, Blooming }
Dale, Hiranandani Estate, }
Thane (W) - 400 607 } Petitioners
versus
1. The Commissioner }
State Common Entrance Test }
Cell, 305, Government }
Polytechnic Building, 49, }
Kherwadi, Ali Yawar Jung }
Marg, Bandra (E), }
Mumbai - 400 051. }
2. Directorate of Medical }
Page 1 of 38
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Education and Research }
Govt. Dental College and }
Hospital Building, }
St. George's Hospital }
Compound, Near CST, }
Mumbai 400 001. }
}
3. State of Maharashtra }
through the Secretary, }
Medical Education Ministry, }
Mumbai. }
}
4. Union of India }
through the Government of }
India, 276, Income Tax }
Officer Building M. K. Road, }
Mumbai. ig }
}
5. Medical Council of India }
having its address at }
Pocket-14,Sector 8, Dwarka }
Phase-1, New Delhi - }
110 077, India. } Respondents
Mr. Mihir Desai - Senior Advocate with
Mr. Dehlvi, Mr. Amrut Joshi, Ms. Anisha
Nair and Ms. Nishitha Nambiar i/b.
M/s.India Law for the petitioners.
Mr. Rohit Deo - Acting Advocate General
with Mr. L. M. Acharya - Special Counsel,
Ms. Purnima Kantharia - Government
Pleader, Mr. H. S. Venegaonkar -
Additional Government Pleader and Ms.
Deepali Patankar for the State.
Mr. Aniruddha A. Garge - for respondent
no. 4 Union of India.
Mr. Ganesh K. Gole for respondent no. 5.
Page 2 of 38
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CORAM :- S. C. DHARMADHIKARI &
DR. SHALINI PHANSALKAR-JOSHI, JJ.
DATED :- JULY 19, 2016
ORAL JUDGMENT :-
1) By this petition under Article 226 of the Constitution of
India, the petitioners are seeking the following reliefs:-
"a. That this Hon'ble Court be pleased to issue a Writ of
Certiorari or any other order or direction in the nature of a
Writ of Certiorari and call for all the records and
documents in relation to the Impugned Communication
dated 10th June, 2016 ("Exhibit C") hereto from the
Respondents and upon perusal thereof, be pleased to quash
and set aside the Impugned Communication dated 10 th
June, 2016 to the extent of Deviation Nos. 1 and 2 as
stated in paragraphs 10(a) and 10(b) hereinabove;
b. That this Hon'ble Court be pleased to issue a Writ of
Mandamus or any other order or direction in the nature of
a Writ of Mandamus directing the Respondents to stay the
operation and execution of the Impugned Communication
dated 10th June, 2016 ("Exhibit C") and to desist from
taking any action in furtherance thereof;
c. That this Hon'ble Court be pleased to issue a Writ of
Mandamus or any other order or direction in the nature of
a Writ of Mandamus directing the Respondents to give
effect to the Impugned Communication dated 10th June,
2016 being (Exhibit C") hereto, in so far as it is
consistent with the Communication of February, 2016
being (Exhibit A") hereto i.e. without the Deviation No. 1
and Deviation No. 2 contained in the Impugned
Communication dated 10th June, 2016;"
2) The petitioners before us are parents. They state that their
children/sons and daughters are aspiring to join the courses in
medicine. They have appeared at what is known as Maharashtra
Common Entrance Test (MHT-CET 2016) held on 5 th May, 2016.
That was held pursuant to a scheme and which was propounded
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by the Directorate of Medical Education and Research,
Government of Maharashtra and the Department of Medical
Education. The information for such examination is compiled in
what is called as "brochure". Copy of this is at Annexure 'A'.
3) Now, the petitioners are challenging what is known as the
impugned communication. That is dated 10 th June, 2016,
whereby, the respondents, according to the petitioners,
introduced certain new stipulations. These were not included in
the information brochure, which was issued earlier.
4) That is how the challenge to the impugned communication.
5) Very brief facts need to be referred to appreciate the
contentions raised before us. The admission to the private
unaided medical institutes/colleges was through the exams
conducted by the respective associations of private medical
colleges. Now, the Maharashtra State has enacted the
Maharashtra Unaided Private Professional Educational
Institutions (Regulation of Admissions and Fees) Act, 2015,
whereby, the respondents have been conferred with a power to
conduct Common Entrance Test every year for the admissions to
the institutions styled as medical colleges/institutes and
mentioned in the petition, particularly in para 5(b). It is stated
that the constitutional validity of this Act is challenged. Writ
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Petition No. 2511 of 2015 involving that challenge is admitted.
However, this court was not inclined to grant any interim relief.
Since there was no interim order, the petitioners were aware that
the Regulations on Graduate Medical Education came to be
modified by the Government of India. The modified regulations
were published in the Central Government Gazette. This
proposed a National Eligibility cum Entrance Test (NEET) for
admission to MBBS course in each academic year. We are not
concerned with these regulations or modifications, simply
because the Hon'ble Supreme Court of India was concerned with
the larger challenge involving the validity and legality of these
regulations and the NEET examinations. It is stated that
recently, in April, 2016, the Hon'ble Supreme Court of India
clarified that this examination would be the only source for
admitting students. In other words, a single examination at the
national level would be held for admitting students and in the
order of merit. It is common ground that it is inconvenient to
parents and children. We find that the petition is based on their
reluctance to appear for the national level examination. That is
how at the instance of interested parties including State
Governments, a constitutionally permissible exercise of issuing
an ordinance was resorted to by the Central Government. The
ordinance promulgated on 24th May, 2016 reads thus:-
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"MINISTRY OF LAW AND JUSTICE
(Legislative Department)
New Delhi, the 24th May, 2016/Jyaistha 3, 1938 (Saka)
THE INDIAN MEDICAL COUNCIL (AMENDMENT)
ORDINANCE, 2016
No. 4 OF 2016
Promulgated by the President in the Sixty-seventh
Year of the Republic of India.
An Ordinance further to amend the Indian Medical
Council Act, 1956.
WHEREAS Parliament is not in session and the
President is satisfied that circumstances exist which
render it necessary for him to take immediate action;
NOW, THEREFORE, in exercise of the powers
conferred by clause (1) of article 123 of the Constitution,
the President is pleased to promulgate the following
Ordinance:-
1. (1) This Ordinance may be called the Indian
Medical Council (Amendment) Ordinance, 2016.
(2) It shall come into force at once.
2. In the Indian medical Council Act, 1956 (hereinafter
referred to as the principal Act), after section 10C, the
following section shall be inserted, namely:-
"10D. There shall be conducted a uniform entrance
examination to all medical educational institutions at
the undergraduate level and post-graduate level
through such designated authority in Hindi, English
and such other languages and in such manner as may
be prescribed and the designated authority shall
ensure the conduct of uniform entrance examination
in the aforesaid manner:
Provided that notwithstanding any judgment or order
of any court, the provisions of this section shall not
apply in relation to the uniform entrance examination
at the undergraduate level for the academic year
2016-17 conducted in accordance with any
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regulations made under this Act in respect of State
Government seats (whether in Government medical
college or in a private medical college) where such
State has not opted for such examination."
3. In section 33 of the principal Act, after clause (ma),
the following clause shall be inserted, namely:-
"(mb) the designated authority, other languages and
the manner of conducting of uniform entrance
examination to all medical educational institutions at
the undergraduate level and post-graduate level""
6) In the light of the same the petitioners urge that there was
a choice available and the State Governments could have held
their own examinations to fill up the seats. That is how the State
Government and the respondents before us decided in the month
of February, 2016 to go ahead and hold the test, which is called as
Common Entrance Test. The petitioners' apprehensions are that
in the light of the new stipulations and the impugned
communication what would happen is that the results declared of
the State test on 1st June, 2016 would be modified and to their
detriment. It is in these circumstances that twin challenge is
raised before us.
7) Mr. Mihir Desai learned Senior Counsel appearing for the
petitioners would submit that the State Government having
declared the test at the State level, it should have held it for filling
up the seats in all medical colleges across the State. There was no
warrant in then excluding from the purview of the State Entrance
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Examination the admissions to the private institutions. The State
is reading the ordinance and interpreting it to mean that it is
obliged to exclude these colleges from the purview of the said test.
There is no such mandate flowing from the ordinance and far
from the amendments that the ordinance makes to the Indian
Medical Council Act, 1956.
8) Secondly, it is urged that by the impugned communication,
the State is now seeking to award marks and for the so called
success in the field of sports and other achievements. As far as
these activities are concerned, this was not what was originally
proposed and therefore, by the impugned communication, the
State Government would be altering the basis and the standards
of the results and consequently the merit in terms of the State
examination. This would, apart from being ultra vires, will also
be unconstitutional. The students, who have been declared
successful and placed at a particular serial number in the order of
merit would lose some marks or percentage because of the
impugned stipulations. In these circumstances, this court should,
therefore interfere in writ jurisdiction. Mr. Desai invites our
attention to paras 10(a) and (b) of the petition. These paras read
as under:-
"10(a) The impugned communication provided that
the procedure set out therein will only to selection of
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candidates to be admitted at All State Government
Colleges, all Municipal Corporation Colleges, all State
Government Aided Colleges and all Health Sciences
Unaided Private Professional Institutions in the State of
Maharashtra except in so far as courses of MBBS and
BDS are concerned ['Deviation No. 1 ']
(b) The Impugned Communication also provided that
there shall be an additional weightage claim that can be
availed of by the medical aspirants on the basis of their
achievements in sports and/or NCC or on the basis of
having a parent who was involved in Hyderabad/Goa
liberation or was a freedom fighter ['Deviation No. 2']"
9) An affidavit in reply has been filed by respondent nos. 2 and
3 to the writ petition. The affidavit proceeds on the footing that
the principal challenge is to the exclusion of MBBS and BDS seats
in private unaided institutes from the purview of Common
Entrance Test conducted by respondent no. 1 for academic year
2016-17. This would essentially depend upon the interpretation
of the proviso to newly amended section 10D of the Indian
Medical Council Act. It is submitted that the State Government
has never changed its stand, but pursuant to the option granted
by the proviso to section 10D, the State Government has opted
not to go with the uniform entrance examination conducted at the
undergraduate level by the Medical Council of India, namely,
NEET for the academic year 2016-17. This stand of the State
Government is in consonance with the applications moved before
the Hon'ble Supreme Court and representations made by the
State Government to the Union Government for exempting the
State of Maharashtra from the purview of uniform entrance
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examination (NEET) conducted by Medical Council of India for
the current academic year 2016-17. It is based on the
representations made by several State Governments and at the
instance of the Central Government, the President of India
promulgated the Indian Medical Council (Amendment)
Ordinance, 2016 and on 24th May, 2016. However, according to
the State and with greatest respect, there is ambiguity in the
language of the proviso. As regards the reference in the proviso
to the private medical colleges is concerned, it is only to State
Government seats. As a matter of fact, there are no State
Government seats in any of the private colleges. Therefore, the
State Government took a decision to exclude MBBS and BDS
courses from the purview of MHT-CET and common admission
process conducted by respondent no. 1 for the current academic
year. This is purely based on the interpretation of the proviso
and there is nothing arbitrary and illegal about it. It is a possible
and plausible interpretation and the court, therefore, should
uphold it.
10) As far as the additional weightage and marks given to
eligible candidate in Health Schence courses are concerned, they
are given for the categories, namely, Sports, NCC, Hyderabad Goa
Liberation Movement Participants and Freedom Fighters. This
additional weightage marks are granted to the candidates in
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MHT-CET examinations since last more than 15 years. The
Government is seeking to support this by relying on MHT-CET
brochure of last three years. For current academic year, the
MHT-CET was conducted in May, 2016. The information
brochure was published in last week of February, 2016 by
respondent no. 1. The information brochure contained that
information which concerns conduct of examination only.
Therefore, no detailed information pertaining to eligibility and
additional weightage marks was included in the said information
brochure. Though the provisional results were declared on 1 st
June, 2016, additional weightage marks were not included, since
the application or request in that behalf was called for from the
students/candidates by way of separate notice issued on 1st June,
2016. Exhibit - III to the affidavit in reply is relied upon to
submit that it is self explanatory. The annexure to the notice sets
out the eligibility criteria for the students seeking additional
weightage marks in each of the above categories. A total of 919
candidates applied on-line. The mark-sheets of the students were
made available on 10th June, 2016 after adding additional
weightage marks in the original Physics, Chemistry and Biology
marks of the candidates. It is in these circumstances that the
State justifies that the schedule for preference form filing is
ongoing from 14th June, 2016 till 2 nd July, 2016. There would be
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no prejudice because the additional weightage would be
admissible only to those genuine and bonafide students who
support their claim with documents. If the documents are
deficient in any manner, the students would not obtain any
benefit. Therefore, out of 919 students, who had applied for
entrance exam, only 102 students (within the rank of 1 to 8600)
have applied for additional weightage marks. Out of 102
students, after scrutiny and document verification, only 41 have
been found to be valid from amongst 88 students who appeared at
the centre. A chart Annexure IV is relied upon and that is stated
to be center wise.
11) It is stated that recently, the Hon'ble Supreme Court of
India, in the case of Ashish Ranjan and Ors. vs. Union of India 1,
prescribed a new time schedule for the authorities to comply with
in the matter of grant of permissions for opening new
college/course and/or increase of intake capacity etc. Based on
the schedule approved by the Hon'ble Supreme Court of India, the
State has also prepared the schedule for conduct of common
admission process in the State of Maharashtra. In such
circumstances, it is submitted that there is no merit in the writ
petition and it should be dismissed.
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12) Mr. Rohit Deo appearing for the respondents, in consonance
with this affidavit, submitted that the petitioners suffer no
prejudice by the interpretation of the ordinance by the State. The
interpretation is bonafide and given the peculiar language of the
proviso, it is permissible. Once it is a possible and probable
interpretation of a legal provision and that too bonafide, then, the
students and the parents suffer no prejudice. Pertinently, there
is no right established much less a fundamental or legal one to
admission and unconditional one to professional course. If the
State could have prescribed an entrance test and that step is
taken for the benefit of the students in the State of Maharashtra,
then, merely because the State Government decides to exclude
from the process certain institutions and does not include them
will not violate any of the fundamental freedoms or legal
provisions. Secondly, there is an Act of 2015 in place and thirdly,
it is not as if the private educational institutions would exclude
merit and fill up the seats in ignorance of the claim of meritorious
students. There is a national entrance test and from the results of
which the students would be admitted to these colleges.
Therefore, their exclusion from the State admission process is
justified.
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13) Secondly, the State is going by a consistent practice adopted
from the past on the additional weightage marks to be allotted.
There is nothing arbitrary or irrational about it. There is no
substance in the argument that the rules of admission have been
changed midway. Merit is not sacrifised and the criteria of
admission on merit is neither given a go bye nor surrendered. In
these circumstances, there is no substance in the challenge and
the petition must fail.
14)
With the assistance of learned counsel appearing for both
sides, we have perused the petition, the annexures thereto and
the affidavits placed on record. We have also perused the detailed
compilation tendered by Mr. Desai.
15) The petition annexes the copy of what is styled as
information brochure. Page 24 Annexure 'A' is the brochure,
which has been issued by the Commissionerate, Common
Entrance Test Cell, Mumbai. The Government of Maharashtra
has issued this information brochure for Common Entrance Test
2016 for Health Science Courses. That reads thus:-
"Government of Maharashtra
STATE COMMON ENTRANCE TEST CELL, MUMBAI
INFORMATION BROCHURE
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COMMON ENTRANCE TEST 2016 OF HEALTH SCIENCE COURSES
(MBBS/BDS/BAMS/BHMS/BPTh/BOTh/BASLP/BP&O/
B.Sc.[Nursing])/BVSc&AH
MHT-CET-2016
COMMISSIONERATE, COMMON ENTRANCE TEST
CELL, MUMBAI
305, Government Polytechnic Building, 49, Kherwadi, Ali
Yawar Jung Marg, Bandra (E), Mumbai 400 051. (M.S.)
TEL NO. +91-22-26476034 Fax No. +91-22-26476034/37
EMAIL ID : [email protected]
WEBSITE: http://www.sssamiti.org"
16) The index contains examination schedule, introduction,
definitions, scheme of examination, eligibility, application form
and informations brochures, preparation of merit list and
declaration of result, revaluation of HSC marks, measures for
prohibition of ragging and measures for prevention of ragging at
the institution level.
17) The annexures contain the information about divisional
authorities and notified colleges, Higher and Technical Education
Department and such other agencies and persons, whose role is
prominent in the conduct of this examination.
18) The schedule for the MHT-CET 2016 is indicated at page 26
of the paper book and with the cut off dates. The examination and
bell schedule is also set out.
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19) Page 27 contains the introductory clauses and the first
introduction clause is that the Government has established
Admissions Regulating Authority and State Common Entrance
Test Cell as per the provisions of Maharashtra Unaided Private
Professional Educational Institutes (Regulation of Admission and
Fees) Act, 2015. The Commissioner has been designated as
competent authority and clause 1.2 reads thus:-
"1.2 The Commissioner of State CET Cell, has been
designated as Competent Authority for conducting MHT-
CET 2016 and selection of candidates for admission to
MBBS, BDS, BAMS, BUMS, BPTh, BOTh, BASLP, BP&O,
B.Sc.[Nursing] and B.vSc & AH courses various Health
Science courses for the academic year 2016-17.
As per this act, MHT-CET 2016 is applicable for
admission to Government, Municipal Corporation and
Private aided, Unaided & Minority Health Science
Institution/Colleges.
The merit list of MHT-CET-2016 will be utilised for the
selection to Veterinary Colleges in Maharashtra. The
Registrar, Maharashtra Animal & Fishery Science
University (MAFSU), Nagpur, who is the Competent
Authority for selection to Veterinary colleges, will notify
the details of selection process separately."
20) Then follows the definitions and the scheme of examination,
which was to be conducted on 5 th May, 2016. Thereafter, what
follows is the eligibility for admission and clause 4 deals with that.
Important is the eligibility criteria notified at clause 4.4 and
Annexure 'B'. Relevant clauses 4.4 to 4.8 read thus:-
"4.4 Eligibility criteria for Qualifying
Examination for various courses : please refer
Annexure -
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4.5 CET-Marks Eligibility For Admission to
MBBS & BDS Courses:
A candidate belonging to open category must secure
not less than 50% marks in Physics, Chemistry &
Biology (PCB) taken together at Common Entrance
Test i.e. MHT-CET-2016. A candidate belonging to
constitutional reservation and constitutional
reservation with Person with Disability (PWD) must
secure not less than 40% marks in Physics, Chemistry
& Biology (PCB) taken together in the MHT-CET-2016.
Person with Disability in General category must
secure not less than 45% marks in Physics, Chemistry
& Biology (PCB) taken together in the MHT-CET-2016.
4.6 CET Marks for Admission to
BAMS/BHMS/BUMS/BPTh/BOTh/BASLP/BP&O and
B.Sc. Nursing:
A candidate will be selected on the basis of merit in
Common Entrance Test (MHT-CET-2016) to above stated
courses.
4.7 Additional Eligibility For BUMS:
Candidate should have passed SSC (or equivalent)
examination from the recognized board with Urdu or
Arabic or Persian Language as one of the subject.
4.8 Admission to Health Science Courses is subject to
the grant of eligibility by Maharashtra University of
Health Science, Nashik."
21) After setting out the complete procedure, then, there is a
flow chart indicated at page 32. Clause 7 deals with the
preparation of merit list and declaration of result. Clause 7 to the
extent relevant, reads thus:-
"7.1 After the examination question booklet of all
versions will be made available on website
"www.dmer.org" from 16/05/2016. Provisional Answer
key of each version will be made available on website
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"www.dmer.org" from 18/05/2016. The OMR answer
sheet of all the candidates will be made available on
"www.mhtcet2016.co.in" website from 24/05/2016. The
OMR Sheet will be available to each candidate after
entering Password and Registration ID as mentioned in
flow chart of registration process.
7.2 Preparation of Merit List for Selection to Health
Science Courses : The detailed procedure will be declared
later.
7.3 The downloadable marksheet will be made available
on website "www.mhtcet2016.co.in" from 14/06/2016 till
the last date of filling up of preference form.
7.4 Verification of Marks Obtained at MHT-CET
2016: If a candidate desires to get his/her Answer sheet
evaluation verified, an application in prescribed proforma
(Annexure 'L', along with self addressed unstamped
envelope (9"X4.5") should be submitted to any
Divisional Authority, within 4 days of declaration of
the result of MHT-CET-2016, along with Demand
Draft/Pay Order of Rs.1000/- (Rs. One Thousand only)
drawn on any scheduled commercial bank in favour of
"Commissionerate, State CET CELL, Mumbai",
payable at Mumbai.
7.5 The candidate will be sent photocopy of the Answer
sheet and model answer key, after due verification by the
Commissioner State CET CELL through registered post.
7.6 Representations received after the specified
period will not be entertained. The change if any,
shall be communicated to the candidate. The decision of
the Commissioner State CET CELL in this matter shall be
final and binding.
7.7 The Rules and Regulation/procedure in detail will be
notified in due course for MHT-CET 2016 examination and
selection process to Health Science Courses for the
academic year 2016-17. No promise is implied herein for
the subsequent years and no expectations should be based
on this for future."
22) We are not concerned with the rest of the provisions of this
brochure.
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23) It is common ground that there is in place, in the State of
Maharashtra, the Act 28 of 2015 and by that, it is permissible for
the State to hold Common Entrance Test. The Act need not be
referred in complete details; for its long title/heading itself
indicates that it deals with the unaided private professional
educational institutions and regulates admissions thereto and
fees.
24) What we then have, as an annexure to the writ petition, is
the notification of MHT-CET admission process. That is Annexure
'C' at page 70 of the paper book and at page 73 is the clarification
that the procedure which has been set out in the brochure for the
Common Entrance Test MHT-CET 2016 conducted by the
Government on 5th May, 2015 for the academic year 2016-17 will
exclude the MBBS and BDS courses from the purview of this test
and a reference has been made to the Act of 2015.
25) Before we proceed further, it would be necessary to refer to
the order passed by the Hon'ble Supreme Court of India on 11 th
April, 2016 in the case of Medical Council of India vs. Christian
Medical College Vellore and Ors.2 The Hon'ble Supreme Court
passed the following order:-
2 Review Petition (C) No. 2159-2268 of 2013
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" These review petitions have been filed against the
judgment of this court dated 18th July, 2013 passed in
Christian Medical College Vellore & Ors. vs. Union of India
and Ors. reported in (2014) 2 SCC 305. The review
petitions were placed before a Three-Judge Bench and
notices were issued on 23rd October, 2013 and thereafter,
it was brought to the notice of the Bench that Civil Appeal
No. 4060/2009 and connected matters involving an
identical issue, had been referred to a Five-Judge Bench.
Accordingly, on 21st January, 2016, these review
petitions were ordered to be heard by a Five-Judge Bench.
On 21st January, 2016, notice was ordered to be
served through substituted service and in pursuance of
the said order, necessary publication was made in two
newspapers and proof thereof was filed on 15 th February,
2016. Thereafter, we have heard the matters.
Civil Appeal No. 4060/2009 and its connected
matters have been heard and order has been reserved on
16th March, 2016.
We have heard the counsel on either side at great
length and also considered the various judgments cited by
them, which include judgments cited by the no-applicants
on the scope of review in Kamlesh Verma vs. Mayawati
and Ors (2013) 8 SCC 320, Union of India vs. Namit
Sharma (2013) 10 SCC 359 and Sheonandan Paswan vs.
State of Bihar and others (1987) 1 SCC 288.
After giving our thoughtful and due consideration,
we are of the view that the judgment delivered in
Christian Medical College (supra) needs reconsideration.
We do not propose to state reasons in detail at this stage
so as to see that it may not prejudicially affect the hearing
of the matters. For this purpose we have kept in mind the
following observations appearing in the Constitution
Bench judgment of this Court in Sheonandan Paswan
(supra) as under:
"..... If the Review Bench of the apex court were
required to give reasons, the Review Bench
would have to discuss the case fully and
elaborately and expose what according to it
constitutes an error in the reasoning of the
Original Bench and this would inevitably result
in pre-judgment of the case and prejudice its re-
hearing. A reasoned order allowing a review
petition and setting aside the order sought to be
reviewed would, even before the re-hearing of
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the case, dictate the direction of the re-hearing
and such direction, whether of binding or of
persuasive value, would conceivably in most
cases adversely affect the losing party at the re-
hearing of the case. We are therefore of the
view that the Review Bench in the present case
could not be faulted for not giving reasons for
allowing the Review Petition and directing re-
hearing of the appeal. It is signif8icant to note
that all the three Judges of the Review Bench
were unanimous in taking the view that "any
decision of the facts and circumstances which ...
constitutes errors apparent on the face of
record and my reasons for the findings that
these facts and circumstances constitute errors
apparent on the face of record resulting in the
success of the review petition, may have the
possibility of prejudicing the appeal which as a
result of my decision has to be re-heard. ....."
Suffice it is to mention that the majority view has
not taken into consideration some binding precedents and
more particularly, we find that there was no discussion
among the members of the Bench before pronouncement
of the judgment.
We, therefore, allow these review petitions and
recall the judgment dated 18th July, 2013 and direct that
the matters be heard afresh. The review petitions stand
disposed of as allowed."
26) A perusal of this order would indicate as to how the Hon'ble
Supreme Court came to the conclusion that its judgment in the
case of Christian Medical College needs reconsideration. The
review petitions, therefore, were allowed.
27) Then, the Hon'ble Supreme Court of India passed a further
order on 27th April, 2016, copy of which is at page 213 of the
compilation handed in by Mr. Desai. There is an assurance given
to the Hon'ble Supreme Court that the Central Board of Secondary
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Education, Union of India is ready and willing to hold NEET
examination for admission to MBBS and BDS courses for the
academic year 2016-17. Then, the Hon'ble Supreme Court of
India passed a further order directing holding of the Common
Entrance Test styled as NEET. That order was passed on 28 th
April, 2016. It is thereafter that the interim applications were
made and which are huge in number. These sought modification
of the order passed on 28th April, 2016. The applications were
made by private medical colleges and some State Governments.
The Hon'ble Supreme Court of India clarified that there is no
infirmity prima facie in the NEET Regulations. The Hon'ble
Supreme Court concluded that it does not affect the right of the
State or the private institutions. All the apprehensions were
taken care of and the applications and writ petitions seeking
modification to the order passed on 11th April, 2016 were
disposed of by a detailed order on 9th May, 2016. It is then, the
Indian Medical Council (Amendment) Ordinance, 2016 being
Ordinance No. 4 of 2016 was promulgated, which we have
reproduced hereinabove.
28) A bare perusal of the Indian Medical Council Act, 1956
would indicate that section 10-A deals with the permission for
establishment of new medical college, new course of study etc.
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Following it is section 10B, which deals with non-recognition of
medical qualifications in certain cases. Then comes section 10-C,
which provides for time for seeking permission for certain
existing medical colleges etc. It is then section 10-D follows,
which deals with invocation of a uniform entrance examination to
all medical educational institutions at the undergraduate level
and post-graduate level.
29) By the substantive provision, a uniform entrance
examination to all medical educational institutions at the
undergraduate and post-graduate level through such designated
authority is mandated. It must be held in such manner as may be
prescribed and the designated authority shall ensure that the
conduct of uniform entrance examination is in the aforesaid
manner. Provided that notwithstanding any judgment or order of
any court, the provisions of this section shall not apply in relation
to the uniform entrance examination at the undergraduate level
for the academic year 2016-17 conducted in accordance with any
regulations made under this Act in respect of State Government
seats, whether in Government medical college or in a private
medical college, where such State has not opted for such
examination. Thus, if the State Government has not opted for
examination contemplated by section 10-D, then, the uniform
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entrance examination at the undergraduate level for academic
year 2016-17 in respect of State Government seats, whether in
Government medical college or private medical college are out of
the purview of this substantive stipulation. The State
Government, in this case, has understood this to mean that there
is an option to conduct a State level examination which could be a
common one for admissions to undergraduate medical courses for
the academic year 2016-17. Initially, it included all the seats and
in all institutions across the State within the purview of the said
examination. Later on and in the light of this ordinance and
amendment, the State deleted and excluded these private medical
institutions from the purview of this examination, namely MBBS
and BDS seats therein. That is because there is a substantive
enactment i.e. Act 10 of 2015 and there was a national entrance
test already prescribed for the same. These private institutions
applied to the Hon'ble Supreme Court of India to exclude
themselves from the purview of national test, but that application
having been dismissed, the State Government thought that there
is no need to include these institutions in the process initiated by
it.
30) We are of the opinion that bearing in mind the larger
challenge pending in the Hon'ble Supreme Court of India, the writ
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petitions challenging the legality and validity of the ordinance
though admitted but no interim stay was granted by the Hon'ble
Supreme Court, the State Government could have gone with the
process and held examination at the State level. It could also
have, based on the interpretation noted by us, excluded certain
seats and institutions from the purview of this examination. We
do not think that in the absence of any malafides being alleged,
this decision can be termed in any way arbitrary or irrational, as
it is on a possible and plausible interpretation of the ordinance
and the amended provision. We are in agreement with Mr. Deo
that as far as this aspect of the matter, the State has based its
interpretation on the ordinance, with which the petitioners may
not necessarily agree. However, they must demonstrate an
underlying right which they claim to be violated on account of
this interpretation or the decision following it. We have no
material in that behalf before us. The petitioners have not argued
that it is their fundamental right to professional education much
less higher education. There is no prejudice that the petitioners
could establish by this decision of the State. The first contention
of Mr. Desai, therefore, must fail.
31) The second aspect and which is final, as far as this matter,
is with regard to the additional weightage marks. We have
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extensively referred to the process and which was initiated by the
information brochure, copy of which is at Annexure 'A'. By the
information brochure at page 70 of the paper book, what the State
has now done is that it has taken a decision based on the
interpretation of the ordinance, which we have referred already.
The second decision that has been indicated in this brochure is
with regard to additional weightage marks. The Government has
also indicated that the candidates, who have applied for MHT-CET
2016 examination for MKB Quota and not appeared for MHT-CET
2016 examination held on 5th May, 2016, should attend
counselling, which will be notified at a later stage. During this
counselling process, request for conversion in open to reserve
category, claim of specified reservation, claim of additional
weightage etc. will be considered. The claim of additional
weightage marks will be verified at the time of counselling. The
stipulation with regard to distribution of seats and eligibility is
contained in the earlier clauses. The selection of candidates is
also set out. Thereafter, the eligibility for the constitutional
reservations is set out. Then, what follows and importantly is the
procedure for additional weightage claim. That is to be found at
page 115 of the paper book. To the extent it is relevant, it reads
thus:-
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"Benefit of additional marks is restricted to 1% of
maximum obtainable marks in Physics, Chemistry and
Biology at the MH-CET-2014 i.e. 2 marks per category
and/or 2marks per sports/game as stated below, subject to
the condition that the total number of additional marks
under all the headings together, for consideration of
weightage shall be limit to a maximum of 4% of maximum
obtainable marks at the MH-CET-2014 i.e. 8 marks.
The certificate/s required for additional weightage
claim must reach to the competent Authority at Mumbai
on or before the notified date, failing which the claim will
not be granted.
1. SPORTS
A candidate claiming the benefit of representing
his/her Institution and actually participating in an
inter-Institutional tournament/competition
organized at State/national level between the
period of his/her passing of SSC (or
equivalent) examination and HSC (or
equivalent) examination , in any of the following
games will be given additional marks (2 marks per
sports/ame as listed below as specified, provided
he/she is,
a) Member of the team that participated in
the tournament and won the finals.
(b) Winner of the Championship in games
where there is individual participation.
For the claim of above weightage, a certificate from the
organizers and from the Director of Sports, Pune or an
Officer not below the rank of Under Secretary to
Government of India who is authorized to issue such a
certificate, should be submitted. Compulsorily during
preference from process . (See the format on ext page)
Enumeration of games for the purpose of above
weightage is as follows:
Participation as a member of team/individual, who
won the final in the games/sports listed below (as per
Govt. Letter No. MED-1003/2108/CR-300/03/Edu-2,
dated 6th June, 2003):-
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1) Athletics 2) Aquatic 3) Archery 4) Atyapatya 5) Badminton
8) Ball-
6) Basketball 7) Billiards 9) Bridge 10) Boxing
Badminton
11) Body
12) Cricket 13) Cycling 14) Carrom 15) Chess
Building
18)
16) Football 17) Fencing 19) Handball 20) Hockey
Gymnastics
25) Kenoying-
21) Judo 22) Karate 23) Sailing 24) Kho-Kho
Kayaking
26) 27) 28) Rifle 29) Ring
30) Soft Ball
Mallakhamb Powerlifting shooting Tennis
31) Shooting 32) Table 34) Volley
33) Tennis 35) Wrestling
Ball Tennis Ball
36) Weight 38) Roller 40) Hand
37) Yatching 39) Rowing
Lifting Skating Gliding
43) 44) Tennis 45) Contract
41) Cycle Polo 42) Squash
Taiquondo Ball Cricket Bridge
50)
46) 48) Water 49) Water
47) Teniquite
ig Kabaddi/Hu-
Swimming Polo Diving
Tu-Tu
53) Tug-of- 55) Cross
51) Baseball 52) Net Ball 54) Yoga
war Country
56) Kick 57) Throw
58) Wushu
Boxing ball
Separate certificate for each event is
necessary.
2. HYDERABAD/GOA LIBERATION MOVEMENT
PARTICIPANTS (HGS) CATEGORY: 1% i.e. 2
addition of marks will be considered if the candidate is a
son/daughter of a participant or the child of the deceased
son/daughter of the participant in Hyderabad/GOA
Liberation Movement. The candidate must submit
certificate from the Commissioner of Police/District
Magistrate/Jail Authority, stating therein that the parent
had participated in Hyderabad/Goa Liberation Movement
and was imprisoned for six months or more.
3. FREEDOM FIGHTER (FF) CATEGORY: 1% i.e.
2 Addition Marks will be considered if the candidate is a
son/daughter of a Freedom fighter or the child of
deceased son/daughter of the freedom fighter.
The candidate must submit certificate from the District
Magistrate of the District in which the Fireedom Fighter
was sentenced to jail or has suffered in any other manner
as mentioned in paragraph 4, Appendix (A) accompanying
government Resolution, Education and Social Welfare
Department, No MIS-1465/R dated 23 rd November 1965.
The Certificate must specify that the period of
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imprisonment was not less than one month; or fine of not
less than Rs.100/- or death in action; or award of Sanman-
patra.
4. NATIONAL CADET CORPS (NCC) CATEGORY:
1% i.e. 2 Addition of marks will be considered, if a
candidate has been a member of the NCC during the
period between his passing SSC (or equivalent)
and HSC (or equivalent) examination ; and is in
possession of 'B' Certificate subject to the candidate
having either represented the State at All India Level or
put in two years in NCC with at least 70% attendance.
The Candidate must directly submit attested photocopies
of the certificate(s) from concerned authority, in support
of the claim, on or before the notified date, to the
Competent Authority, failing which, the claim for
additional weightage will not be granted ."
32) A perusal of this clause would indicate that this benefit of
additional marks is restricted to 1% of maximum obtainable
marks in Physics, Chemistry and Biology at the MH-CET-2014 i.e.
2 marks per category and/or 2 marks per sports/game. The
certificates required for additional weightage claim must reach
the competent authority at Mumbai on or before the notified date.
The categories for additional weightage and the claim based in
relation thereto is completely new stipulation and which does not
find place in the earlier information brochure. It is conceded
before us even by the State that this has come on 1 st/10th June,
2016. The stipulation was absent in the information brochure at
Annexure 'A'.
33) Mr. Deo would place reliance upon clause 7.2 of this
brochure at page 33 to urge that preparation of merit list and its
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procedure could have been notified later. It is not possible to
agree with him. The additional weightage cannot be equated with
constitutional reservations. The word is understood as attaching
importance or value to, plea or arrange so as to give someone or
something an advantage. Once the criteria is merit and the
marks obtained at CET alone are to determine the admissions so
also except the constitutional reservations no other reservation,
concession or relaxation is permissible, then, we do not find any
legal justification for this additional weightage. No advantage or
benefit compromising, interfering and diluting the merit can be
sustained in law. In the case of State of Andhra Pradesh vs. U. S.
V. Balaram3, the Hon'ble Supreme Court, in paras 23 to 25 and 38
and 51 held as under:-
"23. We have already referred to the fact that there is a
proviso that the candidates excepting those belonging to
the Scheduled Castes and Scheduled Tribes should have
obtained in their qualifying examination not less than 50%
of marks in Physical and Biological Sciences put together
in their qualifying examination. There is no distinction
made between a P. U. C. or Multipurpose candidate. Both
of them in order to become eligible to appear in the
entrance Test must have secured not less than 50% marks
in their qualifying examinations in the two Physical and
Biological Sciences put together. The only relaxation, or
exception, if it may be so called, is regarding the
candidates belonging to the Scheduled Castes and
Scheduled Tribes. These candidates should have secured
not less than 40% of the marks in those subjects in their
qualifying examination.
24. Rule 4 emphasises that all eligible candidates who
have applied for admission are, bound to take the
3 AIR 1972 SC 1375
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Entrance Test conducted by the Director of Medical and
Health Services. All the candidates, who take the
Entrance Test, must take all the four papers, referred to
therein. Here again, it will be seen that there is no
distinction made between a P. U. C. and a Multipurpose
candidate. Both of them must have obtained not less than
50% marks under rule 3 in Physical and Biological
Sciences in their qualifying examinations, and both of
them will have to appear for those subjects in the
Entrance Test, which is common to all the candidates.
25. Rule 6 specifically provides for the admission being
made on the basis of the results of the Entrance Test. Rule
7 regarding distribution of seats specifically refers to 552
seats being available to be filled up on the basis of merit in
the Entrance Test. But when we come to rules 8 and 9, it
is stated in the former that 40% each is to be allotted on
the basis of qualifying examination to Multipurpose and
P.U.C. students and the latter refers to distribution in the
same proportion to the two seats of candidates on the
basis of the result of the Entrance Test. This is so,
notwithstanding the fact that rule 10 provides even in
respect of candidates for whom reservation have been
made, their selection will be in the order of merit of marks
obtained in the Entrance Test. When the scheme of the
rules clearly shows that the basis of selection for the Ist
Year Integrated M.B.B.S. Course is according to the result
of the Entrance Test, the question is whether the
reservation of 40% of seats for the H.S.C. candidates under
R. 9 is valid? Under this rule though a P. U. C. candidate
may have got higher marks than a H.S.C. candidate, he
may not be able to get admission because 40% of the seats
allotted to the P. U. C. candidates would have been filled
up; whereas a H.S.C. candidate who may have got lesser
number of marks than a P.U.C. candidate may be eligible to
get a seat because of 40% quota allotted to H.S.C.
candidates has not yet been completed. Does this amount
to an arbitrary discrimination violative of Art. 14? Prima
facie having due regard to the scheme of the rules and the
object sought to be achieved, namely, of getting the best
students for the Medical Colleges, the provision is
discriminatory and it has no reasonable relation to the
object sought to be achieved.
.....
38. We have also pointed out that in respect of eligibility
for applying for admission to the 1st Year Integrated
M.B.B.S. Course, no distinction has been drawn between
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P.U.C. and H.S.C. candidates, both of whom have to get at
least 50% marks in Physical and Biological Sciences. So
that clearly shows that they have been put on a par so far
as eligibility is concerned. But the discrimination is made
only after the Entrance Test is over by denying admission
to the P.U.C. candidates who may have got higher marks
than some of the H.S.C. candidates who get admission
because of the 40% reservation.
.....
51. It is no doubt open to the State to prescribe the
sources from which the candidates are declared eligible
for applying for admission to the Medical College; but
when once a common Entrance Test has been prescribed
for all the candidates on the basis of which selection is to
be made, the rule providing further that 40% of the seats
will have to be reserved for the H.S.C. candidates is
arbitrary. In the first place, after a common test has been
prescribed, there cannot be a valid classification of the
P.U.C. and H.S.C. candidates. Even assuming that such a
classification is valid, the said classification has no
reasonable relation to the object sought to be achieved,
namely, selecting the best candidates for admission to the
Medical Colleges. The reservation of 40% to the H. S. C.
candidates has no reasonable relation or nexus to the said
object. Hence we agree with the High Court when it struck
down this reservation under Rule 9 contained in C.
No.1648 of 1970 as violative of Article 14."
34) To the same effect is the principle laid down in the case of
Kailash Chand Sharma vs. State of Rajasthan and Ors.4. In that
decision as well, the Hon'ble Supreme Court frowned upon the
award of bonus marks as that dilutes merit. The court held as
under:-
"33. The above discussion leads us to the conclusion that
the award of bonus marks to the residents of the district
and the residents of the rural areas of the district
amounts to impermissible discrimination. There is no
rational basis for such preferential treatment on the
material available before us. The ostensible reasons put
forward to distinguish the citizens residing in the State
4 (2002) 6 SCC 562
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are either non-existent or irrelevant and they have no
nexus with the object sought to be achieved, namely,
spread of education at primary level. The offending part
of the circular has the effect of diluting merit, without in
any way promoting the objective. The impugned circular
dated 10-06-1998 insofar as the award of bonus marks is
concerned, has been rightly declared to be illegal and
unconstitutional by the High Court."
35) To the same effect are the observations and conclusions in
the case of Dr. Preeti Srivastava and Anr. vs. State of M. P. and
Ors.5. (See paras 27 to 29 and 62).
36) Finally, the Hon'ble Supreme Court, in the case of
Satyabrata Sahoo and Ors. vs. State of Orissa and Ors. 6 upheld
merit at the CET to be the sole guiding criteria and factor. (See
paras 24 to 26).
37) There is no indication as to why it was introduced midway
and at a later stage. It may be that some changes or
modifications, which are ancilliary or incidental to the main
stipulations regarding marks and weightage could have been
issued. However, what has been done is to provide additional
weightage marks and we do not find there is any explanation for
the same in the affidavit. All that the affidavit says is that insofar
as these marks are concerned, they are given to eligible
candidates and in the categories mentioned. They are at par with
those for the last three years. Reliance is placed on the brochure
5 (1999) 7 SCC 120
6 (2012) 8 SCC 203
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of MH-CET-2014. However, in the initial brochure of February,
2016, there could have been any indication as observed above
with regard to these additional weightage marks. We do not find,
therefore, the reliance on the earlier brochures to be well placed.
The affidavit in reply indicates clearly that for the current
academic year, the examination was conducted on 5 th May, 2016.
It is conceded that the brochure was published in last week of
February, 2016, based on which, the examination was conducted.
That was the only information brochure available on record. That
concerns conduct of examination. Therefore, no information
about the additional weightage marks was included in the
brochure. This is factually incorrect statement; for we have
completely scanned the Annexure 'A' to the petition; that
brochure contains all the relevant information including the
above aspects. It is not proper to then contend that no detailed
information about the eligibility for additional weightage marks
was included in the brochure. If there was no information
included about the additional weightage marks, then, initially or
at the threshold, the intent to award them ought to have been
indicated. That was not indicated at any time from February,
2016 to March, 2016. The examinations were conducted,
provisional results were declared and then the attempt is made to
award additional weightage marks. This is vitally affecting the
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rights of the students insofar as the criteria for eligibility and the
marks which they are required to obtain. There is substance in
the argument of Mr. Desai that this conduct of the State has also
affected the results and the position of the candidates in the order
of merit. In the circumstances, we do not think that the State was
justified in introducing these additional weightage marks. The
justification now given that the State will delete these additional
weightage marks from the next academic year is no answer for
justifying the award of the same in the ongoing process. Once the
State is aware that these additional weightage marks and for
sports, NCC, Hyderabad Goa Liberation Movement Participants
and Freedom Fighters are not referable to any specific rules and
which are common to such tests throughout and for all faculties,
then, the State ought to have excluded these marks even for the
current year. If the marks obtained at such entrance test were
alone to judge and decide the merit and the position or merit list
accordingly, then, there is no reason why any additional
weightage marks have to be awarded. These marks have nothing
to do with the performance of the students at the examination. It
is not a reward which can be carved out for exam performance. If
these extra curriculum activities have been undertaken besides
the course, then, that is something very personal to the students
and at best such achievements would be beneficial and
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advantageous when they are successful in completing the courses
and seek jobs whether in Government or Semi Government.
There was no reason for this introduction midway. It is the
marks at such test which alone have to be the criteria for the
merit. In these circumstances we do not permit the State to
resort to the additional weightage marks and allot them to the
eligible candidates to the Health Science courses for the academic
year 2016-17. Having found no justification in allotting
additional weightage marks, we quash and set aside this exercise.
The State shall not allot any additional weightage marks over and
above the admission through CET scheme.
38) We have taken care of both aspects and having found
substance in the second challenge, we conclude that the writ
petition succeeds in part. To the extent indicated above, the
State's decision is set aside. Now, the respondents shall give
effect to this judgment and order and apply it to the ongoing
process. The ongoing process shall be concluded strictly in
accordance with the rules and without any additional weightage
marks to be awarded to the candidates under the aforesaid
categories.
39) In such circumstances, we do not award any costs. Before
parting, we would like to observe that enormous judicial time is
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consumed and every year such steps are challenged, either by
students or parents. Whether it be the Principal Seat or the
Benches of this court we are flooded with writ petitions involving
similar challenges. We have to, then, in the interest of students
and their academic pursuits, involve ourselves in these
challenges and questions. The legal contentions do not project
any fundamental right or freedom, but only center around some
expectations. Though the Hon'ble Supreme Court has time and
again observed that such expectations cannot be upheld, the
challenges never stop but continue year after year. Added to the
same is the confusion created by the State Government in trying
to please the students and parents by short cut methods. If real
talent is to be encouraged, merit has to be upheld or if the best
must come to the aid of the nation, then, it is but natural that a
single uniform test at national level is the only solution.
However, we find that just as the parents and children resist such
tests, surprisingly the State steps in to defeat the Hon'ble
Supreme Court's orders and directions. This defiance of the State
Government cannot be understood. It is but the duty of the State
to hold examinations as directed by the Hon'ble Supreme Court of
India. Yet, there is reluctance and at times there is a deliberate
effort to defeat the orders and directions of the Hon'ble Supreme
Court of India. We do not see what is achieved by the State when
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they resort to such tactics. Today also, during the course of
arguments, it is stated that the Gujarat Government follows a
particular pattern. We would have welcomed if all the States had
agreed to hold a national level test and facilitated it. However,
our State has spent considerable time in having another test. We
hope that the 2016-17 academic year brings an end to all this and
permanently. Hereafter, We hope that wiser counsel will prevail
and the State of Maharashtra would abide by the central pattern
for admission to undergraduate Health Science courses. We say
nothing more.
(DR. SHALINI PHANSALKAR-JOSHI, J.) (S.C.DHARMADHIKARI, J.)
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