Delhi High Court
Association Of National Board ... vs Union Of India & Anr on 23 March, 2011
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 23rd March, 2011
+ W.P.(C) 714/2011, CM No.1507/2011 (for stay), CM No.2245/2011
& CM No.3075/2011 (both u/O-I R-10 CPC) & CM No.3076/2011
(of the intervenors u/S 151 CPC)
ASSOCIATION OF NATIONAL BOARD ACCREDITED
INSTITUTIONS & ORS ..... Petitioners
Through: Mr. Neeraj Kishan Kaul, Sr. Advocate with
Mr. Sashikaran Shetty, Ms. Anuparna Bardoloi & Mr.
Prasanth P., Advocates.
Versus
UNION OF INDIA & ANR ..... Respondents
Through: Mr. Jatan Singh, CGSC with Mr. Ashish
Kumar Srivastava & Mr. Kunal Kohal, Advocates for
R-1 UOI.
Dr. Rakesh Gosain, Adv. for R-2.
Mr. Kailash Vasdev, Sr. Adv. with Mr. Siddharth Dias,
Adv. for applicant in CM No.2245/2011.
Mr. Sumit R. Sharma, Adv. for applicant
in CM No.3076/2011.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether the judgment should be reported
in the Digest? Yes.
RAJIV SAHAI ENDLAW, J.
1. The challenge in this petition is to the action of the
respondent No.2 National Board of Examinations (NBE) of
making certain changes in selection procedure for admission of the
"Broad Speciality Candidates" to the Diplomate of National Board
(DNB) Programme. Earlier, NBE held a Common Entrance Test
(CET), which was essentially an eligibility test and all those
passing / clearing the said test were eligible to selection by any of
the Institutes / Hospitals accredited with NBE with each Institute /
Hospital holding its own further test / interview for such selection.
Under the changed procedure, NBE is to, as per the position / rank
in the merit list of CET, hold centralized counselling and allocate
the applicants / students as per the choice of Institute / Hospital
filled by them and as per their rank, to its accredited Institutes /
Hospitals. The challenge is on the ground that the changed
procedure interferes with the rights of the accredited Institutes /
Hospitals to administer their own hospitals / educational
institutions and which right of administration includes a right to
select and choose students.
2. Since the counselling scheduled by the NBE for admissions
to the January, 2011 Session was held up, the hearing of the
petition was expedited.
3. The members of the petitioner no.1, and the petitioners no. 2
to 5 are private unaided Medical Institutions/Hospitals accredited
to NBE for imparting training / education for Diplomate in Post
Graduate medical education. Though the counsel for the NBE has
contended that the petitioner no.1 Association does not represent
the majority of Institutes/Hospitals accredited to it but the said
question has not been found relevant inasmuch as howsoever few
the members of the petitioner no.1 Association may be, they would
still be entitled to make the challenge as raised in the present
petition.
4. In or about the year 1975, upon de-recognition of the
Membership of the Royal Colleges of Physicians (MRCP) /
Fellowship of the Royal Colleges of Physicians (FRCP)
qualifications in the field of medicine, a scarcity was felt of
training opportunities for development of specialities in the field of
medicine. NBE was set up in the year 1975 (and which became an
independent autonomous organization in 1982) to evolve high and
uniform standard of Post Graduate and Post Doctoral Examination
in Medical Sciences and also to create additional specialities
without burdening the resources of the Central Government. DNB
Programme was accordingly conceived and was granted
recognition by the Medical Council of India. Under the said
programme, NBE accredits /recognizes specialities in Medical
Institutes/Hospitals having the requisite teaching/academic
programmes and such Institutes/Hospitals found suitable are then
accredited to NBE. Such accredited hospitals are then permitted to
enroll candidates in the particular speciality for DNB Programme.
5. It is the stand of NBE that admission to DNB Programme by
centralized counselling is intended to curb the corruption and all
other evil practices associated with DNB admissions. It is
contended that under the system hitherto prevalent, the candidates
were at the mercy of the accredited Institutes/Hospitals for
admission inspite of securing high rank in the CET ; that in such
decentralized admission, merit had become the casualty and
nepotism and favoritism and bias had taken the centre stage; that
the students were also not getting the single window access for
DNB admissions and the earlier selection process was tough and
expensive for the students.
6. The senior counsel for the petitioners has argued:
i. that the introduction of centralized counselling and
allocation by NBE of students to seats available in each
Institute/Hospital interferes with the fundamental right
of the accredited Institutes/Hospitals to administer their
Institutes/Hospitals and which right of administration,
in the Eleven Judge Bench judgment of the Supreme
Court in T.M.A. Pai Foundation Vs. State of
Karnataka AIR 2003 SC 355 has been held to include a
right to admit and select and choose students.
ii. though the Supreme Court earlier in Unni Krishnan,
J.P. Vs. State of Andhra Pradesh AIR 1993 SC 2178
had placed certain restrictions on such rights of
educational Institutions but in T.M.A. Pai (supra) the
same was described as nationalization of education and
which was held to be impermissible and contrary to
Article 19(6) of the Constitution of India.
iii. that NBE as an examining body has no right to admit
students in its accredited Institutes/Hospitals.
iv. NBE cannot take a stand that the accredited Institutes, if
not agreeable to the said condition, were free to give up
their accreditation.
v. On inquiry as to how the Institutes/Hospitals would
suffer upon being allotted (through centralized
counselling) the most meritorious students, it was
contended that the Institutes/Hospitals have to satisfy
themselves of the suitability of the candidate to the
Institutes/Hospitals and as to the skill of the student in
patient management; the Institutes/Hospitals may
choose to prefer a candidate who in the past has worked
with the Institution; that the Institute/Hospital in the
case of DNB Programmes are more than merely an
educational Institution; since the candidates are
qualified MBBS Doctors and during the course of the
Programme function in the hospital as doctors,
Institute/Hospital have to see as to what a particular
candidate can contribute to the Institute/Hospital.
vi. that the only role of NBE is to ensure that broad
parameters of transparency and fairness are followed by
the Institutes/Hospitals in admitting the students and to
ensure maintenance of standards and which was
successfully being done in the past by holding the CET
as an eligibility test with the accredited hospitals being
entitled to select any of the candidates found eligible in
the said test.
vii. that though the accredited hospitals are strictly speaking
not educational institutions but in the context of the
DNB programmes are akin to educational Institutions.
viii. that under the system hitherto in vogue also, 50% of the
members on the interview panel of each accredited
hospitals were approved by NBE.
ix. that though the fee of the NBE course was
approximately only Rs.50,000/- per annum but the
hospitals were required to pay emoluments/salaries to
the DNB trainees ranging from Rs.20,000/- to Rs.
40,000/- per month and thus the relationship between
the hospital and the student was not merely of a
teacher-student but also of an employer-employee.
x. it was contended that the question involved is of taking
away the right to choose of the hospitals and NBE
cannot appropriate to itself the admission process.
xi. that as per the judgment in T.M.A. Pai, as further
clarified in Islamic Academy of Education Vs. State of
Karnataka AIR 2003 SC 3724 (Five Judge Bench)
and in P.A. Inamdar Vs. State of Maharashtra AIR
2005 SC 3226 (Seven Judge Bench), the State i.e. the
NBE can take over/ appropriate to itself the admission
process only if find malpractices; NBE had not given
any notice to any of the accredited Institutes of any
malpractice and merely giving that as a reason is not
sufficient.
xii. that if this petition was to be dismissed, it would be
tantamounting to rendering para 65 read with paras 40
and 53 of the judgment in T.M.A. Pai meaningless.
xiii. It was emphasized that notwithstanding Islamic
Academy (supra) and P.A. Inamdar (supra), T.M.A.
Pai reigns supreme.
xiv. Upon it being enquired from the senior counsel as to
how the prospective candidates were to be expected to
apply to over 700 accredited Institutes and to appear in
interviews to be separately held by each and the
decentralized system appeared to be bad for this reason
alone, after taking instruction it was stated that all the
Institutes/Hospitals in a State are willing to join
together for holding their own centralized State wise
counselling. Upon being further asked as to how that
would be different from the centralized counselling by
NBE, it is stated that such State wise centralized
counselling would be by the Association of hospitals
themselves and thus their rights to admit students
would be preserved and which would otherwise be
infringed if NBE were to hold centralized counselling.
7. The counsel for NBE has contended:
a. that the petitioner no.1 Association has no privity
with NBE.
b. that in response to the public notices issued by the
NBE inviting hospitals for inclusion in centralized
counselling, a large number of Institutes/Hospitals
had so applied for inclusion even prior to the filing
of the present petition and which shows that the
petitioner no.1 Association does not represent the
interest of all. It is further contended that some of
the petitioners have so applied even after filing of
the present petition.
c. that the relationship of NBE with its accredited
Institution is contractual and none of the judgments
aforesaid dealt with the case of a contract as in the
present case; here the Hospitals have contracted to
abide by the terms of admission laid down by NBE
and cannot resile from the same.
d. that DNB Programmes give an opportunity to the
Hospitals to evolve into an educational Institute;
that none of the accredited Hospitals have more
than three seats in any speciality/department; that
most of the accredited Hospitals were otherwise not
educational Institutions and will continue to run
even if opt out of the DNB Programme; that T.M.A.
Pai dealt with the statutory obligation and not with
a contractual relationship as is the case here; that
none of the Hospitals were/are competent to
conduct their own exams.
e. On inquiry as to what were the qualifying marks for
CET hitherto before held by NBE, it was informed
that anyone securing more than 50% marks was
declared qualified. It was yet further informed that
earlier, the marks secured by the qualifying
candidates were not even disclosed though for the
last three years the same were being disclosed.
f. On further inquiry as to whether the accredited
Hospitals were in the admission process hitherto
before in vogue, required to give any weightage to
the marks secured in the CET, the answer is in the
negative.
g. that centralized counselling was intended to provide
uniformity.
h. T.M.A. Pai nowhere requires merit to be ignored.
i. that the accredited Institutions had not challenged
the contract with the NBE and without challenging
the contract are not entitled to maintain the petition.
j. that the petition suffers from laches and
acquiescence inasmuch as the change was notified
in the Bulletin brought out on 7th September, 2010
only while the petition was filed only in February,
2011 just before the central counselling was to
commence. Reliance was placed on paras 22 and
23 of Dr. Preeti Srivastava Vs. State of M.P (1999)
7 SCC 120 to contend that there can be no dilution
of merit at the super-specialization stage.
k. that since the seats are very few and limited,
separate counselling by each Institute or by group
of Institutes or even State-wise counselling was
inconvenient and not feasible.
l. that T.M.A. Pai as interpreted in P.A. Inamdar has
to be understood as the law today.
m. that NBE by introducing centralized counselling
was not taking away any right of the Hospitals.
n. that there can be no estoppel against reforms. The
earlier system was arbitrary and disregarded merit.
The aptitude test held by the individual Hospital
was opaque and not transparent.
o. that students are most important stakeholders in the
controversy; centralized counselling is admittedly
in the interest of the students; that even Article 51-
A(j) of the Constitution provides for striving
towards excellence.
p. there is no employer/employee relationship
between DNB students/trainees and the Hospitals
and the DNB students never attend to the patient on
their own and are always accompanied by their
guide.
q. reliance is placed on Ahmedabad St. Xavier's
College Society Vs. State of Gujarat (1974) 1 SCC
717 emphasising the importance of merit and
excellence in paras 46 to 48 and 77, 90 - 92, 94, 98,
145, 176, 206, 209 and 225.
8. The senior counsel for the petitioners in rejoinder has
contended:
i. that the judgment in T.M.A. Pai has to be read fully
and not in the light of P.A. Inamdar.
ii. that the parameters evolved with respect to the
educational Institutions apply to Hospitals accredited
to NBE also. Copy of the catalogue of the NBE
describing the DNB Programme as an educational /
academic programme was cited. It is contended that
practical training is also education.
iii. NBE gives a Degree on the basis of that education.
iv. that the standard form of contract for accreditation of
NBE is contrary to T.M.A. Pai. Again paragraphs
from T.M.A. Pai, Islamic Academy and P.A. Inamdar
were read to emphasize that the Supreme Court has
recognized the right of the educational Institutions to
admit students.
v. that the petitioners cannot be asked to give up their
such rights merely because no prejudice would be
caused to them.
vi. in reply to the query of the Court as to how the two
streams appearing to be flowing from T.M.A. Pai i.e.,
the right of the Institutions to select students on the one
hand and merit being required to be followed on the
other hand were to be reconciled, the senior counsel
contends that if merit only were to be the criteria, the
Institution would be left with no choice and thus the
system hitherto being followed of holding the
qualifying examination with the choice being left to
the individual Institutes/Hospitals to select from
amongst those who have qualified, is in accordance
with the judgment in T.M.A. Pai.
vii. Attention is invited to para 35 of T.M.A. Pai to
contend that it is not open to NBE to contend that
Hospitals are bound by the contract or if they do not
agree they are free to opt out.
viii. that if any of the accredited Institution defaults in
following the criteria of merit while making their own
choice of students, the same will always be subject to
judicial review.
ix. that in the procedure now introduced of centralized
counselling, no discretion or choice is left with the
Hospitals.
9. During the pendency of this writ petition, the following
applications for impleadment have been filed.
i. CM.2245/2011 by an Association of 20 unaided
Christian Minority Educational Institutions
accredited to NBE.
ii. CM.No.3076/2011 by two doctors who took the
DNB Examination in December, 2010 and were
declared successful.
iii. CM.No.3075/2011 of another doctor who has also
cleared the entrance test.
The counsels for all the applicants were also allowed to intervene
and heard on the writ petition.
10. The senior counsel for the applicant in CM No.2245/2011
(Minority Institutions) contended:
(a) that the hospitals would be liable for negligence / faults
of the students admitted for the DNB programmes and
working as Doctors in such hospitals and thus ought to
be left with choice of selecting most suitable candidate.
(b) Reliance is placed on Lila Dhar v. State of Rajasthan
AIR 1981 SC 1777 on the right of the employer to
choose an employee.
(c) CET held by NBE is a test of theoretical knowledge and
does not give any indication of the aptitude.
(d) reliance is placed on paras 62 - 66 of St. Stephen's
College Vs. The University of Delhi AIR 1992 SC 1630
on the purpose of the interview and providing for the
rights of Minority Institutions.
(e) Preeti Srivastava (supra) was concerned with
reservation and is thus not relevant for adjudicating the
controversy as has here arisen.
(f) that the Christian Institutes/Hospitals are generally in
rural areas and a student admitted thereto merely on
merit without wanting to work in or taking aptitude for
rural areas is not likely to contribute to the hospital and
is likely to leave causing loss to the hospital.
(g) Reliance is made to paras 62-65 and 67 of Sindhi
Education Society Vs. The Chief Secretary, Govt. of
NCT of Delhi (2010) 8 SCC 49 also summarizing
T.M.A. Pai.
(h) Reference is made to para 35 of Inder Parkash Gupta
Vs. State of Jammu and Kashmir (2004) 6 SCC 786 to
contend that for a few cases of bad selection having
been made by the accredited institutions in the past, the
practice hitherto prevalent cannot be blamed.
(i) Attention is invited to paras 90 - 93 of P.A. Inamdar to
contend that the rights of minority institutes cannot be
interfered with.
11. The counsel for NBE in response to the aforesaid contentions
has urged:
(A) that the past record shows that only 16% of the
candidates selected by the minority institutions belonged
to the minority community.
(B) attention is invited to the admission of the petitioner in
rejoinder that seats remained vacant under the old
system also.
(C) that training is the dominant part of the DNB
Programme and employment is only penumbral. The
DNB trainees are attached to specialists who look after
non-critical patients and thus the occasion for the DNB
admittees to deal with the patient independently does not
arise.
(D) With respect to the payment of salary, reference is made
to Dr. Vishal Sehgal Vs. Secretary (Health) 116 (2005)
DLT 493 where direction was issued for payment of
stipends to DNB students.
(E) that the accredited Hospitals if at all taking work from
the DNB admittees are doing so of their own accord and
NBE has no objection if they do not take work from the
students/DNB trainees.
(F) that the judgment in St. Stephen's case (supra) was on
the premise of the applicants belonging to different
boards of examinations; here in view of the CET no
question of disparity arises.
(G) Reliance was placed on A.P. Christians Medical
Educational Society v. Government of Andhra Pradesh
(1986) 2 SCC 667 on it being not permissible to raise
the bogey of minority.
(H) it is reiterated that it is only a handful of institutions
which are opposing the change.
12. While the counsel for the applicant in CM No.3076/2011 has
supported the petitioners, the counsel for the applicant in CM
No.3075/2011 has supported NBE. Counter allegations have been made
of the said applications having been filed at the instance of the respective
parties.
13. As would be apparent from the above, the entire case of the
petitioners rests only on T.M.A. Pai. It is thus deemed expedient to
first examine whether T.M.A. Pai bestows any such right on the
members of the petitioner as claimed by them and which will be
violated by centralized counselling and allocation of students by NBE.
14. The opinion of B.N. Kirpal, C.J. for himself and G.B. Pattanaik,
S. Rajendra Babu, K.G. Balakrishnan, P.V. Reddi, and Arijit Pasayat,
J.J. in the said judgment, after holding the right to establish and run
educational institutions to be a right to carry on any activity/occupation
within the meaning of Article 19(1)(g) and Article 26(a) of the
Constitution of India and further holding that the decision in
Unni Krishnan (supra) case insofar as it framed the scheme relating to
grant of admission and fixing of the fee to be not correct and overruling
the directions given to UGC, AICTE, Medical Council of India and
Central and State Governments in that case, proceeded to consider as to
whether there could be Government Regulations in case of private
institutions and if so to what extent. The said discussion commencing
from para 46 of the judgment was done under the heads of:-
(a) Private Unaided Non-Minority Educational Institutions.
(b) Private Unaided Professional Colleges.
(c) Private Aided Professional Institutions (Non-Minority).
(d) Other Aided Institutions.
15. Insofar as the members of petitioner are concerned, there is no
dispute that they would fall in the category (b) above i.e. Private
Unaided Professional Colleges. The same have been dealt with in
paragraphs 67 to 70 of the judgment. With respect thereto it was held
in para 68 that though they are entitled to autonomy in their
administration but at the same time, they can not forgo or discard the
principle of merit. It was thus held permissible for the University or
the Government at the time of granting recognition, to require a Private
Unaided Institution to provide for merit based selection while at the
same time giving the management sufficient discretion for admitting
the students. One of the methods suggested was of some percentage of
seats being reserved for admission by the management out of those
students who have passed the Common Entrance Test held by itself or
by the State/University and have applied to the College concerned for
admission, while the rest of the seat may be filled up on the basis of the
counselling by the State Agency. In paragraph 70, it was reiterated that
Professional Educational Institutions have to get recognition from the
concerned University which normally require certain conditions to be
fulfilled before recognition; conditions of affiliation or recognition
which pertain to the academic and educational character of the
Institution and ensure uniformity, efficiency and excellency in
educational courses required to be followed were held to be not
violating even the provisions of Article 30 of the Constitution of India.
The only rider was that such conditions should not be such as may lead
to governmental control or administration of Private Educational
Institutions.
16. The very fact that the Bench deemed it appropriate to deal
separately with Professional Colleges/Institutions and segregated them
from Schools/Colleges (i.e. Non-Professional), in my view, prohibits
that what has been expressly laid down in the paragraphs of the
judgment relating to Professional Colleges/Institutions from being
coloured by what has been held/laid down with respect to other Non-
Professional Colleges/Institutions. Thus paras 49, 50, 53 to 55, 58, 59,
65 & 66 on which strong reliance has been placed by the senior counsel
for the petitioners and which have been read repeatedly, but fall under
the category of Non-Professional Colleges/Institutions cannot be said
to be applicable to the present case concerning professional
institutions.
17. V.N. Khare, J., S.S. Mohammed Quadri, J. and Ruma Pal, J.
while delivering their separate opinion did not deal with the said aspect
and concurred with the opinion aforesaid of B.N. Kirpal, J.
18. S.N. Variava, J. speaking for himself and Ashok Bhan, J. though
dissenting on some aspects with other nine Judges, but in para 394 of
the judgment held that an educational institution must grant admission
on some identifiable and acceptable manner and is entitled to refuse
only in exceptional cases. With respect to the Professional
Colleges/Institutions they also reiterated that the same has to be
governed by merit alone.
19. It would thus be seen that as far as the Professional
Colleges/Institutions are concerned, all the eleven Judges comprising
the Bench in T.M.A. Pai spoke in one voice only, that it is the merit
alone which is to govern the admission process and the recognizing
Body as NBE is, is entitled to impose restrictions in this regard.
B.N. Kirpal, C.J. speaking for the majority went to the extent of
holding that such restrictions would be reasonable within the meaning
of Article 30 i.e. vis-à-vis Minority Institutions also.
20. The emphasis by the senior counsel for the petitioners on paras
2, 3, 28, 29, 35 to 38, 40 & 43 of the judgment in T.M.A. Pai is also
not found apposite. The said observations in criticism of the view in
Unni Krishnan have to be read in the context of the argument raised
before the Bench. The criticism of Unni Krishnan judgment was that
the low fee seats were found to be filled by affluent but more
meritorious students who had the facilities of better School and
coaching available to them. It was thus found that the economically
weaker students were ultimately falling in the category from which
Unni Krishnan permitted higher fee to be charged and were thus found
to be subsidizing the education of the affluent students. It was
primarily for this reason that the scheme framed in Unni Krishnan was
set aside by the Supreme Court.
21. Pursuant to the observations (supra) in para 68 of the judgment that
the management of Professional Colleges/Institutions can be permitted to
admit students qua certain percentage of seats, the Government fixed the
said percentage. The same was challenged on the ground that the same
did not give full freedom to the Private Unaided Institutions and which led
to the judgment in Islamic Academy. The contention of the students as
noted in para 4 of the judgment was that separate examination by each
Institution was proving costly and harassing to the students. It was the
contention of the Government also as recorded in para 10 of the judgment
that separate criteria had been laid down in T.M.A. Pai for Professional
Colleges/Institutions. V.N. Khare, C.J. speaking for himself and S.N.
Variava, K.G. Balakrishnan and Arijit Pasayat, JJ. in para 12 held that
distinction had been made between Professional and Other Educational
Institutions as it is in the national interest to have good and efficient
professionals and national interest would prevail even over minority
rights; it was for this reason that in Professional Colleges, both minority
and non-minority, merit had been made the criteria for admission. Para 68
of T.M.A. Pai was held to be laying down that in non-minority
Professional Colleges, admission to students, other than the percentage
given to the management, can only be on the basis of merit as per the
Common Entrance Test conducted by Government Agencies.
22. S.B. Sinha, J. in his separate opinion in Islamic Academy also in
paras 67, 77, 117, 162 & 165 of the judgment held that insofar as
Professional Colleges/Institutions are concerned, merit alone would be
the criteria for admission.
23. P.A. Inamdar in which all the seven Judges constituting the
Bench spoke through the opinion of R.C. Lahoti, C.J. also in para 97 of
the judgment held that Regulations could be imposed in national
interest. In para 107 and 110 of the judgment, it was held that
Professional Colleges/Institutions constitute a class by themselves and
merit and excellence assumes special significance therein. It was also
reiterated that the same was in national interest. In para 108 of the
judgment, it was said that the right to administer does not include a
right to maladminister. Para 113 clarified that the second part of para
68 of T.M.A. Pai regarding seat sharing was only a suggestion and not
binding. Paras 124 and 126 of P.A. Inamdar, emphasized by the
senior counsel for the petitioners are in the context of Reservation
Policy of the State and not in the context of admission; what they lay
down is that the State cannot enforce its Reservation Policy on the
Unaided Private Professional Educational Institutions. The same
cannot be read as laying down, as was sought to be urged, that the State
or the affiliating or the recognizing Body cannot provide for merit
based admission. Rather, discussion with respect to "admissions"
commences from para 130 of the judgment and in para 131, it has been
reiterated that different considerations apply to
Professional/Educational Institutions - such education cannot be
imparted by any Institution unless recognized by or affiliated with any
competent authority created by law - excellence in education and
maintenance of high standards at this level are a must - to fulfill these
objectives the State can and rather must in national interest step in.It
was further held that education, knowledge and learning at this level
possessed by individuals collectively constitutes national wealth. Any
ambiguity is removed from the discussion in paras 133 to 135 and 143
of the judgment providing for professional education to be made
accessible on the criteria of merit and non-exploitative terms to all
eligible students on uniform basis.
24. I therefore find that insofar as the Non-Minority Private
Professional Colleges/Institutions are concerned, in all the three
judgments and by all the Hon'ble Judges who have rendered their
opinions, it has been held that they constitute a class by themselves and
admission thereto is in national interest required to be merit based and
Regulations can be framed for merit based uniform admission process
thereto.
25. Insofar as making admission on merit based uniform admission
process is concerned, there can be no better system for admission than
through the CET and counselling. It has been so held in :-
a. Rajiv Mittal Vs. Maharshi Dayanand University
(1998) 2 SCC 402 where it was held that the system
of counselling for the purpose of granting admission
to the various Medical Colleges in the State is the
most equitable one where options are given of
various seats to the students in accordance with
their overall merit position in the combined
entrance examination, which examination is
competitive in character.
b. Anand S. Biji v. State of Kerala (1993) 3 SCC 80
wherein infact the system of counselling, for allotment
of the candidates declared successful in All India
Post Graduate Entrance Examination was first
devised to eliminate unequal results and the delays.
c. The Full Bench of this Court in V.K. Shukla Vs.
Union of India 1993 III AD (Delhi) 1073 also
recognized that the best and the most equitable
manner of filling the Post Graduate seats is by
holding counselling.
d. Archit Vashisht Vs. Guru Gobind Singh
Indraprastha University MANU/DE/8569/2007
also recognized the methodology of counselling as a
universally accepted procedure conforming to
fairness and affording maximum opportunity in a
symmetrical manner to the candidates as per their
merit.
e. Sunint Kaur Vs. Guru Gobind Singh Indraprastha
University ILR (2005) 1 Del 215 also recognized
counselling as effective in ensuring that the most
meritorious candidate is offered the first option for
a chosen course and that almost all seats are filled
up at the earliest.
26. The senior counsel for the petitioners could also not controvert
the same or show that it is not so.
27. The system of counselling through Single Window System is
found to be in consonance with what has been held by the Supreme
Court also as aforesaid that admission in Professional
Institutions/Colleges has to be purely on the basis of merit; admission
through counselling is more likely to effectuate the intention of the
Supreme Court.
28. As aforesaid, NBE has introduced centralized counselling and
allocation of seats, citing malpractices in the admission process
hitherto before followed. I also do not find any merit in the contention
of the senior counsel for the petitioners that such inferences could not
have been drawn without issuing notice to the Institutions indulging the
same or that the NBE could not appropriate the right unto itself only
after giving such notice and establishing the malpractice. I find that in
Islamic Academy also in para 15, judicial notice was taken of the
prevalent reality of the educational institutions profiteering and
demanding capitation fee and the resultant hardship to the students.
During the last over nine months on the Roster relating to educational
matters, some instances have come to my notice also of the parents or
other close relatives of the admitted students working as Senior
Consultants in the Hospitals or of the Hospitals being unable to explain
as to why admission was given to one student over other. In present
days, when Hospitals have to compete with each other for retaining the
best Consultants, judicial notice can be taken of the practice of the
Hospitals admitting the Wards and other close relatives of Senior
Consultants in an attempt to retain their services.
29. Even otherwise inspite of my repeated coaxing as to how the
Hospitals would suffer if allocated the most meritorious student who
has opted for them, no satisfactory answer save for assertion of the
right has been forthcoming. The reasons given of suitability,
employee-employer relationship etc. do not find any basis in the
pleadings and appear to have been taken as an afterthought. NBE has
already clarified that it does not insist upon the Hospital taking work
from the said students and the work if any so taken is in any case not
the dominant part of the DNB curriculum. Similarly, no force is found
in the argument of the allocated student leaving, causing a vacancy. A
student who has sought admission is unlikely to leave. The students
make choice of Institute/Hospital depending upon their convenience
and the argument raised is found to be divorced from reality.
30. The senior counsel for the petitioners has also repeatedly
contended that the practice hitherto before prevalent has been working
successfully and does not call for a change. However the said practice
is at least three decades old. There is a sea change since then. The
number of applicants and competition today cannot be compared to
what it was then. In today's competitive atmosphere where students
compete for fraction of a percentage, I do not find any justification in
all those who qualify the CET with 50% being considered alike. A
student who qualifies with 50% cannot be placed at par with the one
who qualifies with over 90%.
31. I also do not find any force in the proposal that the
Institutes/Hospitals be permitted to hold their own State-wise
counselling. The procedure suggested by the senior counsel for the
petitioners has several pitfalls and there is every possibility of a more
meritorious student being denied admission to an Institute/Hospital of
his choice, if such procedure is followed. The procedure suggested
would also be detrimental to the interest of the students as they would
be required to make several applications and appear for counselling in
several States. Infact the possibility of the available seats remaining
vacant would be much more in such a system. Moreover, I fail to see
any reason for the unaided professional Institutes/Hospitals to oppose
the centralized counselling when they also claim to be admitting the
most meritorious student. They have not been able to controvert that
through the process of centralized counselling, they will get the most
meritorious student. If that be so, the only reason for opposing the
centralized counselling has to be necessarily presumed to be, an intent
to admit less meritorious student for extraneous considerations. This
cannot be permitted.
32. I have during the course of hearing enquired from the senior
counsel for the petitioners that even if his contention of the right to
admit students having been conferred on the Professional
Colleges/Institutions were to be accepted, how it should be reconciled
with the right on the other hand of the students, of a fair, uniform, merit
based selection process with least inconvenience. The only reply
which was forthcoming was that the matter having been settled by
T.M.A. Pai, is not to be looked any further.
33. In this regard I may notice that even in T.M.A. Pai in para 64 it
was held that the Institutions are for the students and not vice versa.
The merit based admission/selection to Professional
Colleges/Institutions having been held to be in national interest, it
cannot but be held that the right of the most meritorious students
cannot be disregarded.
34. The Supreme Court in Dr. Pradeep Jain Vs. Union of India
(1984) 3 SCC 654 held that in view of considerable paucity of seats in
Medical Colleges to satisfy the increasing demand of students for
admission, some principle has to be evolved for making selection of
students for admission to Medical College and such principle has to be
in conformity with requirement of Article 14. It was further held that
the primary imperative of Article 14 is equal opportunity for all across
the nation for education and advancement. It was yet further held that
the effort must, therefore always be to select the best and most
meritorious students for admission to Technical Institutions and
Medical Colleges by providing equal opportunity to all. The Supreme
Court also held that it would be against national interest to admit in
Medical Colleges or other Institutions giving instruction in specialties,
less meritorious students when more meritorious students are available.
The primary consideration in selection of candidates for admission to
Medical Colleges was mandatorily held to be merit and it was further
laid down that the object of any rules which may be made for
regulating admissions to the Medical Colleges must be to secure the
best and most meritorious student. It was yet further held that if
equality of opportunity for every person in the country is the
Constitutional guarantee, a candidate who gets more marks than
another is entitled to preference for admission and this proposition has
greater importance when we reach higher levels of education. The
Supreme Court held that to devalue merit at the summit is to temporize
with the country's development in the vital areas of professional
expertise.
35. The judgment of the Apex Court in Dr. Pradeep Jain (supra)
was approved by the Constitution Bench in Saurabh Chaudri Vs. UOI
(2003) 11 SCC 146.
36. S.B. Sinha J., in the clarification reported in (2004) 5 SCC 618
of Saurabh Chaudri (supra) went to the extent of holding
" Right of a meritorious student to get admission in a
postgraduate course is a fundamental and human right,
which is required to be protected. Such a valuable right
cannot be permitted to be whittled down at the instance of
less meritorious students."
37. Swatanter Kumar, J. speaking for the Division Bench of the
Bombay High Court in Shri Francisco D. Luis Vs. The Director,
Board of Secondary and Higher Secondary Education (2008) 110
BomLR 2892 proceeded on the premise that such right of a student is a
Fundamental Right and any action of its infringement is liable to be set
aside.
38. It would thus be seen that the right of a student to a fair, uniform,
merit based selection process with least inconvenience and which is
undoubtedly secured through Central Counselling has been conferred
the status of a Fundamental Right. It is this Fundamental Right of the
student which is pitted against the right even if any (though none has
been found) of the members of the petitioner to make a choice of the
student to be admitted. In my mind there is no doubt whatsoever as to
in such a situation, whose right is to give way and whose right is to
prevail. While the right of the student, as aforesaid is in national
interest, the right claimed by the Institute/Hospital is a mere private
right, to serve no other purpose than to assuage the ego. The private
right even if any must give way to the right in national interest. If any
precedent is needed for the said purpose, reference may be made to
Ramniklal N. Bhutta Vs. State of Maharashtra AIR 1997 SC 1236
and Mahadeo Savlaram Shelke Vs. Pune Municipal Corporation
(1995) 3 SCC 33. Thus, the petitioner cannot claim any relief on this
ground also.
39. I may also notice that though holding right to establish an
Educational Institution to be an occupation within the meaning of
Article 19(1)(g) but the view of Jeevan Reddi, J. in Unni Krishnan
case that there has to be no business and profiteering in education has
been upheld in T.M.A. Pai as is evident from para 162-L of the
judgment.
40. Coming to the application of the Institutions accredited to the
NBE belonging to the Minority Community, neither in the application
nor in the arguments as aforesaid recorded, any case as a Minority
Institution has been urged. The change in procedure has been
challenged on the same grounds as urged by the petitioner and not on
the ground of Minority status. Need is therefore not felt to deal with the
said aspect. The arguments otherwise raised by the senior counsel for
the intervenor on behalf of Minority Institutions have been dealt with
in the discussion herein above.
41. Before parting with the matter, I may also record that the
Supreme Court vide order dated 7th March, 2011 in
WP(C) No. 380/2009 titled Simran Jain vs. Union of India has
approved the Regulations on Graduate Medical Education
(Amendment), 2010 (Part II) and the Postgraduate Medical Education
(Amendment) Regulations, 2010 (Part II) providing for a single
eligibility-cum-entrance examination for MBBS course known as
'National Eligibility-cum-Entrance Test for admission to MBBS
Course' and a single eligibility-cum-entrance Examination for
postgraduate courses known as 'National Eligibility-cum-Entrance Test
for admission to Postgraduate Medical Courses', to be held under the
overall superintendence, direction and control of the Medical Council
of India. The changed procedure of NBE impugned in this petition is
found to be in consonance with the changes approved by the Apex
Court.
42. The writ petition is therefore without any merit and is dismissed
with costs of Rs.1,00,000/- on the petitioner payable to NBE within
four weeks of today.
RAJIV SAHAI ENDLAW
(JUDGE)
23rd March , 2011
M/BS
