Miss Maithilee Tukaram Kadam vs The State Of Maharashtra And Ors
2017 Latest Caselaw 6579 Bom

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                      CIVIL  APPELLATE JURISDICTION

                  WRIT PETITION NO.   7238   OF    2017

 Miss Maithilee Tukaram Kadam
 Aged about 19 years, Occup.Student,
 R/at House No.41, Bhagyanagar,
 Nanded, District Nanded.                   ... Petitioner.

                   V/s.

 1.       The State of  Maharashtra 
          through : Its' Medical Education and
          Drugs Department Mantralaya, G.T.Hospital
          Campus, 9th Floor, L.T.Road,
          Mumbai - 01.

 2.    Commissionrate, 
       Common Entrance Test Cell,
       Mumbai CET Cell, (DMER) Govt.
       Dental College & Hospital Building,
       St.George's Hospital Compound,
       Near V.T. Mumbai 400 001.

 3.       The Director,
          Directorate of Medical Education and
          Research (DMER)
          Govt. Dental College & Hospital Building,
          St.George's Hospital Compound,
          Near V.T.  Mumbai 400 001. 

 4.       The Registrar,
          Maharashtra University Health Science
          (MUHS)
          Vani - Dindori Road, Nashik. 



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 5.    The Dean,
       Government Ayurvedic College (GAC)
       Vajirabad, Nanded, District Nanded.          ..Respondents. 
                                       ---
 Mr.   Atul   Damle,   Senior   Advocate   a/w.   Mr.   Ravindra   A. 
 Harpale, Ms.Pooja V. Thorat, Mr.Amol D. Wagh & Anukul Seth 
 i/by  Mr. Sagar V. Kasar, Advocate for the Petitioner.

 Mr. C. P. Yadav, AGP for the State. 
                                   ---

                               CORAM :  ANOOP V. MOHTA  AND
                                               SMT.BHARATI H. DANGRE,JJ.

                                  Reserved on       :  28th AUGUST, 2017.
                                  Pronounced on    :  29th AUGUST, 2017.


 JUDGMENT:  (Per Bharati H. Dangre, J.)



 1)         The   Petitioner   has   invoked     writ   jurisdiction   of   this 

 Court,   seeking   a   declaration     that   Clause   10.10.1   of 

Information Brochure of Preference System for admission to

Health Science Courses in the State Government/Corporation/

Private and Minority Colleges issued by the Government of

Maharashtra for NEET-UG 2017, published on 19.06.2017 is

ultra vires and unconstitutional. The Petitioner has also

sought direction to the Respondent Nos. 1, 2 and 3 to allow the

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Petitioner to take admission for M.B.B.S. or B.D.S Course on

the basis of her score in NEET-UG 2017.

2) The Petitioner has passed her SSC Board

Examination from Latur Divisional Board of Maharashtra by

securing 98.64% of marks. The Petitioner has cleared her HSC

examination in the year 2015 and thereafter appeared for

MH-CET Exam held in the year 2015, when her score was 147

out of 200 marks. She again appeared for MH-CET of 2016

and secured 168 out of 200 marks. On the basis of the said

examination, she secured admission for BAMS Course in the

Respondent No. 5- Government Ayurvedic College, Nanded for

the session of 2016-17 and was prosecuting her studies in the

said course.

3) In January, 2017 as per the directions of the

Hon'ble Supreme Court, the Medical Council of India and

Dental Council of India in consultation with CBSE published a

notification for conducting the NEET-UG 2017 examination on

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All India basis for MBBS and BDS courses. The said

notification prescribed the schedule of selection process for

said course. The said Notification also prescribed the eligibility

criteria for appearing in NEET-UG-2017.

4) The Petitioner appeared for the NEET-UG 2017

examination conducted on 7th May, 2017 of which the result

was declared on 23.06.2017. The petitioner obtained a

percentile score of 97.899522 which fetched her All India

Rank No. 22576. On the basis of the said score, the petitioner

intended to seek admission in the 85% percentage State quota

of the State Government either in MBBS or BDS course. The

Respondent Nos. 1, 2 and 3 had published a

notification/information Boucher on 19.06.2017 for admission

process of 85% State Government Quota for Government

colleges as well as private colleges for MBBS and BDS course

for the students appearing in NEET-UG -2017. Clause 10.10.1

of the said Information Boucher by which the petitioner is

aggrieved, instead created a disqualification for the petitioner

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since she had secured the seat of BAMS course in earlier year

and by the said clause she is not eligible for admission for the

next two years under the State quota.

5) The petitioner being apprehensive that her

candidature may not be considered for admission of MBBS/

BDS course on the basis of her score in NEET-UG 2017,

approached this Court by filing the present writ petition in

which she prayed for the reliefs mentioned above.

This Court on 11.07.2017 was pleased to issue

Rule and rejected the interim relief, allowing the petitioner to

be considered during the process of selection on the basis of

her merit. Being aggrieved by the said rejection of the interim

relief, the petitioner approached the Hon'ble Supreme Court by

filing SLP No. 17931 of 2017 and the Hon'ble Apex Court by

order dated 17.07.2017 directed this Court to decide the

petition on its own merit as expeditiously as possible,

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preferably not later than one month from the date of the

order.

The petitioner approached this Court by filing civil

application no. 1861 of 2017, seeking direction to the

respondent no.5-College to cancel her admission and return

her documents and this court by order dated 14.08.2017

granted the relief in favour of the petitioner.

6) Considering the urgency in the matter and in the

light of the directions issued by the Hon'ble Supreme Court,

we directed the matter to be listed before us for disposal on

18th August, 2017. On the said date, the Assistant Government

Pleader appearing for the Respondent- State sought time to

file reply and considering the fact that the admission process

was at advanced stage i.e. at the stage of closing of the

preference forms, we directed the petitioner to give

preference and also observed that the petitioner will not claim

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any equity if, final order is passed against her. We directed the

respondent no. 2 to accept preference forms of the petitioner.

Yesterday the matter was heard by us finally. We

have considered the arguments advanced on behalf of the

petitioner by Mr. Atul Damle, Senior Advocate and C. P. Yadav,

AGP appearing on behalf of the State Government, who has

also filed an affidavit. The Counsel for the petitioner argued

that Rule/Clause 10.10.1 is arbitrary and is violative of the

fundamental right of the petitioner. The Counsel for the

petitioner contended that by virtue of the said Rule, criterion

of merit for selection has been side tracked and since the

petitioner has now competed on the basis her merit, the said

clause cannot deprive her of admission on the basis of her

score to MBBS course. It is also argued by the learned senior

counsel that MH-CET and NEET-UG are to two different

examinations and in the present NEET-UG-2017 limited

number of attempts put and upper age limit is the only

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embargo imposed on a student and there is no rule like

10.10.1.

The State Government has filed an affidavit-in-

reply sworn by the Director of the Medical Education and

Research. The stand of the State government is that while

taking admission for BAMS course, the petitioner was aware

that if she is selected for the course, she will have to complete

the course and if she leaves it midway, she will not eligible for

admission in the next two years. The State also has justified

the existence of Rule 10.10.1 by elaborating as follows in the

affidavit.

1. If candidate pursuing health science course of

BAMS appears next years "NEET examination and

gets admission to MBBS course, wants to leave

the BAMS seat. This will cause wastage of last

years' BAMS seat. It is a national wastage. One

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doctor will be produced less, who would have

treated lacks of patients for next 50 years.

2. If this channel is made open, the BDS student

will also appear for NEET examination next year

and if he gets MBBS seat, then he will waste BDS

seat of last year.

3. The candidate from Private Medical College will

also appear for NEET examination next year

and if gets admission to Government Medical

College, will waste last year MBBS seat of Private

Medical College.

7) We have perused the information brochure

published by the Central Board of Secondary Education (CBSE)

for NEET-UG 2017-18 and also the NEET-UG-2017 brochure

for preference system for admission to Health Science Course

issued by the Commissioner Common Entrance Cells Test,

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Mumbai. The information bulletin published by the CBSE is in

consonance with the regulation framed under the Indian

Medical Council Act, 1956, as Amended in 2016, and the

Dentists Act, 1948, as Amended in 2016, which provide for a

single eligible entrance examination namely, "National

Eligibility - Entrance Test (NEET) for admission to MBBS/BDS

Courses. The CBSE was authorised to conduct the said test

and to declare the results and provide All India Ranking to the

Director General of Health Services, New Delhi for filling of

15% All India Quota Seats and providing the results to the

State Council Authority and admitting institution. The

counselling for the seats under the control of

States/Universities is to be conducted by the respective

Authorities. The brochure published by the CBSE prescribe the

pattern for test and also prescribe the eligibility to appear in

NEET-UG which was as follows:-

1. Eligibility to appear in NEET-UG

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(a) He/she has completed age of 17

years at the time of admission or will

complete the age on or before 31 st December

of the year of his/her admission to the 1st

Year MBBS/BDS Course;

(b) The upper age limit for NEET is 25

years as on the date of examination with

relaxation of 5 years for candidates

belonging to OBC/SC/ST category. (As per

letter no. U.12.023/16/2010-ME-II dated

17.1.2017 received from MoH&FW);

(c) The number of attempts which a

candidate can avail at NEET-UG examination

shall be limited to 3 (three) uniformly to all

the candidates. The candidates who have

already appeared in AIPMT/NEET on three

occasions are not allowed to take this

examination. The candidates will be required

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to give an undertaking in this regard and

submitting false undertaking may result in

cancellation of the candidature and action in

accordance with norms for handing UFM

cases. (As per letter no. U.12023/16/2010-

ME-II dated 17.1.2017 received from

MoH&FW);

(d) The previous attempts in AIPMT/NEET

will be counted against these 3 permissible

attempts. The candidates who have already

exhausted their allowed 3 attempts are not

eligible to apply for NEET(UG), 2017.

(e) Indian Nationals, Non Resident Indians

(NRIs), Overseas Citizen of India (OCIs),

Persons of Indian Origin (PIOS) & Foreign

Nationals are eligible to appear in

NEET(UG)2017. (As per letter No.

U.12023/16/2010-ME-II dated 13.1.2016

received from MoH&FW).

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8) For the purposes of allotment of 85% of seats in the

State Colleges, after exclusion of 15% All India Quota, the

State has published its own information brochure of preference

system for admission to Health Science Courses in State

Government/ Corporation/Private and Minority Colleges.

According to the said brochure, the Commissioner State, CET

Cell, Mumbai is to conduct the admission process for all the

Health Science Courses in State of Maharashtra which was to

be based on the marks obtained in the NEET Test. The said

brochure also prescribes the eligibility which is related to

residence, domicile, age, medical fitness and passing of

qualifying examination with the Minimum number of marks

prescribed. In the said brochure, Clause 10.10 provides for

"disqualification for admission". Clause 10.10 reads as

follows :-

10.10.1 :- The candidate who was allotted a seat in any course under MUHS Nashik in previous year (s) and who vacates/ abandons it after availing the said seat, has completed such a period of course which would result into lapse of the said

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seat, will not be eligible for admission for the next two years under State quota.

It is further relevant to note that Clause 11.2 of the

said brochure contains a provision for refund of fees on

change of college/course or cancellation of admission which

reads as follows:-

:- Refund of Fees by the College after change of college/course or cancellation of admission :-

The candidate who has been admitted and desire to cancel admission he/she should submit an application. The refund of fees to candidate admitted in the college shall be made after deduction as under :-

1. Before cutoff date as declared by the respective Council - Rs.1500/-(Rs. One thousand five hundred only) to be deducted and rest of the fees to be refunded (Exception for MBBS/BDS as per clause

12).

2. On or after cutoff date as declared by the respective council -No refund of fees.

Further Rule 14 also contains a provision which reads as

follows :-

14. Service Bond & Penalty :-

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14.1 :- As per Government Resolution (G.R.No.MED 1007/CR-490/07/Ed-2 dated 8th February, 2008 and any G.R. issued in this regard from time to time), candidates joined against the seats of Government Municipal Corporation colleges for admission to MBBS/BDS Courses either through GOI nominee, All India quota or through NEET UG 2017 will be required to sign a bond to serve the Government of Maharashtra or local self government or Defence services for a period of one year, after the completion of internship, failing which he/she will be required to pay Rs.10,00,000/-(Rupees ten lacs only) for the default as penalty.

14.2 Additionally, he/she will be required to sign an undertaking to the effect that he/she will not leave India within a period of five years from the date of obtaining the degree, otherwise he/she will have to pay Rs.10,00,000/-(Rs. Ten lacs only) as penalty.

Penalty for lapse of Seat (MBBS/BDS Course): As per Government Resolution No.CET 3516/CR 169/Edu-2 dated 13/4/2017. Any candidate responsible for lapse of MBBS/BDS seat will have to pay a penalty of Rs.10,00,000/- (Rupees Ten Lacs only). This penalty is applicable to all those candidates who do not join during last round or cancel a seat after last round of admission. This penalty is also applicable to any candidate resigning a seat after cut off date for MBBS/BDS course or also fails

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to complete the course, irrespective of admission quota of the candidate.

9) The petitioner is aggrieved by clause 10.10.1. The

petitioner has canvassed that the said rule is arbitrary and

provides for harsh consequences. As against this, it is the

argument of State Government that if a student leaves the said

course, resulting into lapse of seat there is loss of the State

Government since it has resulted into wastage of the said seat

and it amounts to National Wastage. The petitioner has also

attempted to canvass that such Rule is not contained in any of

the admission process to the MBBS/BDS Courses in other

States and she has cited the example of State of Gujarat,

Tamilnadu, where the Rules provide "penalty / fine if a student

cancels his admission for taking admission to other course."

10) We have carefully perused said Rules. Conduct of

NEET examination was felt necessary as a common entrance

test with an objective that meritorious students be selected

which would result into production of better doctors, which

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could ultimately benefit the Nation and society at large in the

backdrop of the fact that State has constitutional obligation and

duty to provide good health/medical service. The Hon'ble

Apex Court in the case of Modern Dental College and

Research Vs. State of M.P. reported in 2016 (7) SCC 353

took overall view of the large scale malpractice, exploitation of

student, profiteering and commercialization qua the larger

public interest and recognized right of States to regulate

admissions and fees structure of the by virtue of entry 25 of list

3 of Schedule 7 read with Article 19 (6) of the Constitution of

India. In this background, the Hon'ble Apex Court held that

the CET conducted, both for Government and Private Colleges

is more advantageous, which would ensure efficacy, fairness

and public confidence. The Hon'ble Apex Court also expressed

that it would result in proper assessment of merit of the

candidates and it would not even cause any loss to the private

educational institutions who still would retain the freedom to

establish and run institution, impart education, prescribe fees

etc. In this background, in order to discharge the

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constitutional obligation and to have professional excellence

and commitment, the Apex Court expressed that the State can

discharge its constitutional obligation only when the aspiring

student enter into profession based on merit and for this idea

to be achieved, it was necessary to have good and committed

medical professionals.

In this background, the NEET-UG-2017

Examination came to be conducted in the month of May, 2017

for admission to MBBS and BDS Courses. The Notification to

conduct these Examinations came to be issued by the Central

Board of Secondary Education in 2017 which prescribe a

eligibility criteria. The eligibility criteria require a candidate to

have completed age of 17 years at the time of admission and

fixed the upper age limit for the candidates seeking admission

in MBBS/BDS course to be 25 years, with relaxation of the

reserved category candidate. The said notification also imposed

a cap of number of attempts which a candidate can avail at

NEET-UG uniformly to all the candidates. It is noteworthy to

mention that there was no restriction in regard to the

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admission to the said Course since the CBSE was a body

authorized to conduct the examinations and declare the results.

The State Government thereafter was to take over the scores

and admit the students in the State Quota Seats and for that

purpose, it published a brochure of preference system which is

applicable to MBBS, BAMS, BHMS, BUMS, BPTh,

BOTh/BASLP/BP&&O/B.Sc(Nursing). This brochure contains

the restriction clause 10.10.1.

11) It is undisputed that individuals possess basic

human rights independent of any constitution by reason of the

basic fact that they are members of human race. The

Constitution of India has recognized certain rights to be very

basic to the human existence which includes Article 14 and

Article 21 of the Constitution of India, which embodies several

aspects of life including "Right to education, future / higher

education and Right to opportunity". The human race is always

endeavouring and attempting to progress in life, overcoming

the hindrances and obstacles in the past.

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12) We are confronted with the case of a student,

who aspired to be a doctor and fist attempted for the

competitive examination in the year 2015 but could not secure

her seat in MBBS and therefore, again participated in the MH-

CET of 2016 and secured a score which made her eligible for

a BAMS seat. However, with great zeal, the petitioner again

appeared for the NEET -UG 2017 since the notification was

published by the CBSE in January, 2017, which made her

eligible to appear for the said examination. She appeared for

the NEET UG-2017 examination and secured a score which

makes her eligible for a MBBS seat in government medical

college and on the basis of the percentile/score. The Petitioner

committed no wrong by making attempts to secure the seat

for MBBS which she was aspiring and the Rule of NEET-UG

2017 made her eligible since she had not crossed the upper

age limit of 25 years. The zeal of the petitioner to study and

secure a MBBS seat through a tough competitive examination

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required concerted attempts on her part while she was

prosecuting her studies in the first year BAMS.

13) We are of the opinion that existence of Rule

10.10.1 nullifies all the efforts of the petitioner for the last

three years and though she is being successful in clearing the

NEET-UG 2017 with flying colours so as to secure the

government seat for MBBS, the petitioner has been deprived of

the admission to the MBBS course in view of clause 10.10.1.

The said clause debars the petitioner from securing admission

in the MBBS course for a period of two years, resulting into a

situation that the petitioner would be left with no option than

to continue as an Ayurvedic doctor. We feel that the said

rule imposes unreasonable restrictions on the right of the

petitioner guaranteed under Article 21 of the Constitution of

India which also imbibes within its sweep the "Right to

opportunity of Higher Education and right to progress". The

aim of the Petitioner who possesses the potential to become a

MBBS doctor has been cut-short by the said rule. The

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justification of the State Government for the existence of the

said rule is that one seat of BAMS has gone waste and

according to the State it is a national wastage since one less

doctor would be available to serve the society. However, we

do not agree with the said submission of the State government

since the petitioner is securing admission in the MBBS seat and

would rather achieve the goal of the State in better manner

since it is well-known fact that the allopathy doctors are more

preferred one; and tomorrow she may specialize in a

field/area which is the need of the day.

14) It is not in dispute that once a seat of the

professional course is not permitted to be filled in before the

cut-off date, it lapses or when a student leaves that seat, after

cut-off date, the seat cannot be filled in and the State has to

share burden of the seat throughout the course. It is however,

pertinent to note that for wastage of the important seat in

the steam of MBBS or BDS, the State Government in its

wisdom had imposed a penalty/fine of Rs. 10 lakhs on such

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student who discontinues his education of MBBS/ BDS seat.

We find that the said action on the part of the State

Government is perfectly justified as the said amount would

compensate the burden which the State Government would

have to share throughout the curriculum. However, the State

Government consciously did not include any other course like

BAMS, BUHS, Nursing etc. in the penalty clause since it did

not feel that the said courses are of such nature where the

State Government has to spend on every seat. In case, if a

MBBS student leaves course, he is penalized and ask to

compensate the State government by paying an amount of

Rs.10 lakhs and that is how the State shoulders the financial

burden of unfilled seats. However, for BAMS course, the

State has not levied such a condition in its brochure. However,

there is clause in the said Boucher, which we had reproduced

above, which did not permit the students to claim refund of

fees if the admission is cancelled by the student. There are

two classes/streams of medical education in the form of

Ayurveda and Allopathy which is creation of State itself. The

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penalty is applicable only to MBBS students and not to BAMS.

The penalty or consequences of withdrawal of BAMS admission

cannot be extended to such MBBS course under the impugned

rule.

15) The learned counsel appearing for the Petitioner

has attempted to argue that the said Rule 10.10.1 creates two

classes and which violates Article 14. No doubt Article 14 in

its ambit and sweep involves two facets namely it permits

reasonable classification which is founded and an un-

intelligible differentiate and accommodates the practical need

of the society and that the differentiation must have a

rational nexus to the object sought to be achieved. However,

it does not allow any kind of arbitrariness and ensures

fairness and quality of treatment and opportunity. The

principle enshrined in Article 14 of the Constitution of India is

"fonus juris" of the Constitution.

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The action of the State Government suffers from

vide of arbitrariness and imposes a reasonable restriction on

the fundamental right of the petitioner to pursue her goal of

becoming a doctor and a failure on one or two occasions

would not deter her from living up to the goal in her life. By

now it is settled position of law that the word "life"

encompasses "life of choice" and in this background, we find

that Rule 10.10.1 curbs the said right of the petitioner and do

not have any nexus with the policy of the State to ensure

medical care and health to the citizens of its country. The

Petitioner would be of more help to the society as a MBBS

doctor and merely that she could not secure admission to a

medical seat in the past two years, it should not debar her from

taking of the seat in the next two years. By that time, she

would loose the zeal to progress in life.

16) The State Government has taken a stand in the

affidavit that such a rule is in existence since 2010 and the

MHCET brochure contained this Rule for a long time. We have

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carefully perused the Rule in existence which created a

disqualification for a candidates who cancel their admission

after the cutoff date. The said rule finds place in the

information brochure of the Government of Maharashtra

MHCET consistently for the years 2010, 2011, 2012, 2014,

2015 and 2016. However, by virtue of the said rule the

candidate for admission is not permitted to appear in the

MHCET examination for subsequent two years if the admission

is cancelled after cutoff date. However, the NEET-UG-2017 do

not impose any embargo on the candidate appearing for the

NEET-UG-2017 examination except there is a cap on number of

attempts in the NEET-UG-2017 and the upper age limit for the

candidate for admission. In the present case, the petitioner

was not disqualified by virtue of NEET-UG-2017 Rules to

appear for the examination but she has been refused an

admission by virtue of disqualification clause by the State

Government. According to us, it has resulted into situation

when the petitioner has already left her BAMS Seat, obtained

documents from the College with the approval of this Court

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and clear the NEET examination securing an admission in a

Government Medical College in MBBS and at this stage if the

petitioner is refused the said admission, she is back to the

position of 2015 and three years of her life after passing H.Sc

in 2015 would be a mere wastage.

17) The NEET-UG, 2017 Notification was issued by

CBSE in January, 2017. The petitioner appeared for the

examination in May, 2017 and the brochure by the State

Government prescribing the eligibility criteria for the State

College seats is published on 19th June, 2017 by which the

petitioner was held to be eligible for MBBS Seat.

Since admission process to the MBBS/BDS case was

at an advanced stage, we had permitted the petitioner to fill up

her preference form by our order dated 18 th August, 2017 since

the Counsel for the State Government made a statement

before us that after the cutoff date 18.8.2017 preference would

not be accepted. We therefore permitted the petitioner to give

her preference and accordingly she had given her preference

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within the prescribed time schedule and she secured the seat at

Government Medical College, Nanded/Kolhapur. When the

matter was listed before us on 28 th August, 2017, we enquired

from the State Government about the status of the petitioner

and it was informed that her preference is treated as valid. In

such circumstances, it would be necessary to direct the

respondent authorities to allot the seat as per her preference

and impart to the exclusion of Rule 10.10.1.

18) In the aforesaid facts and circumstances, we are of

the firm opinion that Rule 10.10.1 creates a unreasonable

restriction on the fundamental right of the petitioner

guaranteed under Article 19 (1) (g) and Article 21 of the

Constitution of India which includes right of opportunity and

the petitioner has availed opportunity in terms of the Rules

framed by the CBSE for conducting of NEET-UG-2017

examination and in the light of the said Rules the condition

imposed by the State Government in 10.10.1 is not applicable

to the petitioner and to be read down to give effect to the

eligibility criteria for appearance in the examination of NEET-

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UG-2017 and accordingly we read down the said provision

10.10.1 to pave way to the petitioner who is found to be

eligible as per the NEET-UG-2017 and is qualified on the basis

of score of the said examination to secure a seat according to

her preference form for MBBS Course. Hence, we allow the

writ petition and direct respondent Nos. 1, 2 and 3 to allot

M.B.B.S. Seat as per her preference form submitted on

18.8.2017 and permit the petitioner to prosecute her studies in

the first year MBBS Course.

Hence, we pass the following order :-

:ORDER:

             (1)               Writ Petition is allowed;
             (2)               Respondent Nos. 1, 2 and 3 are directed 

to allot the M.B.B.S. Seat to the petitioner as per her preference form submitted by her on 18th August, 2017 and permit the petitioner to prosecute her studies in the First Year of M.B.B.S. Course.

(3) No order as to costs.

(SMT. BHARATI H. DANGRE,J.) (ANOOP V. MOHTA,J.)