Shariq Rehman vs Jamia Hamdard (Hamdard ...
2013 Latest Caselaw 625 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment reserved on   : 28.01.2013
                                    Judgment pronounced on : 08.02.2013
+      LPA 740/2012
       SHARIQ REHMAN                                  ..... Appellant
                    Through: Mr M.N. Kirishinamani, Sr. Adv with
                    M. Tarique Siddiqui and Mohd. Usman
                    Siddiqui, Advs.
                    versus
       JAMIA HAMDARD (HAMDARD UNIVERSITY) & ORS
                                                   ..... Respondents
                    Through: Mr V.K. Rao, Sr Adv with Mr Saket
                    Sikri and Ms Ekta K. Sikri, Advs for
                    Respondents 1 &2
                    Mr Dhruv Mehta, Sr Adv with Mr Aanchal
                    Mullick, Adv for Respondents 4 to 13.
                    Mr Ashish Kumar and Mr Abhijit Tripathi,
                    Advs for Medical Council of India.

                                       And
+      W.P.(C) 5986/2012

       SHARIQ REHMAN
                                                              ..... Petitioner
                              Through: Mr M.N. Kirishinamani, Sr. Adv with
                              M. Tarique Siddiqui and Mohd. Usman
                              Siddiqui, Advs.

                              versus

       JAMIA HAMDARD (HAMDARD UNIVERSITY) & ORS
                                                  ..... Respondents
                   Through: Mr V.K. Rao, Sr Adv with Mr Saket
                   Sikri and Ms Ekta K. Sikri, Advs for
                   Respondents 1 &2
                   Mr Dhruv Mehta, Sr Adv with Mr Aanchal
                   Mullick, Adv for Respondents 4 to 13.




LPA 740/2012 and WP(C) 5986/2012                                    Page 1 of 12
                                Mr Ashish Kumar and Mr Abhijit Tripathi,
                               Advs for Medical Council of India.
       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE V.K. JAIN

V.K. JAIN, J.

1. Pursuant to the permission granted to it by the Medical Council of

India (MCI), the respondent Jamia Hamdard (Hamdard University)

invited online applications for admissions to its MBBS Programme, under

general category as well as in management quota. The

petitioner/appellant Shariq Rehman applied on 27.06.2012, for admission

to the aforesaid programme, in management quota as well as in general

category. The petitioner/appellant appeared in the entrance examination

conducted by the said university and his name appeared in the fifth

selection list, under the management quota. On 11th August, 2012 the

appellant appeared for counseling and the original certificates along with

demand draft of Rs.15 lacs for admission in the management quota were

deposited by him on 13th September, 2012. However, the

petitioner/appellant was not permitted to attend the classes apparently on

the ground that he was not eligible for being considered for admission on

the date of application form was filled up by him. This is also the case of

the respondent that the petitioner/appellant had submitted a false

declaration in the application form, which would disentitle him from

admission to the said course. According to the respondent, the minimum

marks required for admission to the aforesaid course were 50%, the

appellant had failed in Chemistry in the first attempt, but while

submitting the application form he concealed this fact and claimed that

the result of the qualifying examination was awaited. This is also the case

of the respondent that even after re-evaluation, the petitioner/appellant

having secured less than 50% marks, he is not entitled for admission to

the aforesaid course. The case of the petitioner/appellant in this regard is

that he belongs to OBC category and the minimum marks required for

admission in the said category being 40%, he was eligible for admission

to the MBBS course.

2. The learned Single Judge who heard the writ petition, declined to

grant any interim relief to him observing that having secured only 26%

marks in Chemistry the petitioner was ineligible for admission. He further

observed that the petitioner/appellant had made a false declaration in the

application form when he claimed that his result was still awaited.

3. LPA 740/2012 was filed by the appellant challenging the order

dated 15th October, 2012 whereby the learned Single Judge had declined

to grant any interim relief to him. During the pendency of the writ

petition, some of the successful candidates in the management quota were

impleaded as respondents No.4 to 13 in the writ petition.

Vide order dated 8th November, 2012, we directed that the writ

petition be also listed along with LPA 740/2012. With the consent of the

parties, we heard arguments in the main petition on 28 th January, 2013.

4. In its counter-affidavit filed in the writ petition, respondent no.3,

MCI has stated that as per its regulations, the minimum marks required in

the qualifying examination are 50% for the general category candidates,

45% for physically disabled candidates and 40% for SC/ST/OBC

candidates. This is the case of the MCI that the admission has to be made

strictly on the basis of merit and there can be no deviation from the

regulations made in this regard. It is also stated in the reply filed by the

MCI that all admissions in medical colleges have to be made strictly in

accordance with time schedule prescribed by the MCI and the

admissions, in violation of the regulations framed by the said Council are

not permissible. It is also stated that Graduate Medical Education

Regulation, require 75% attendance from each student of MBBS course

before he/she appears in the examination, the deadline for admission in

MBBS course had been fixed as 30th September and it is not possible to

complete the syllabus even by holding extra classes considering rigorous

teaching and training schedule of MBBS course.

5. As per Regulation 4(3) of Regulations framed by the Medical

Council of India in the matter of admission and selection to medical

courses, the admission in MBBS courses cannot, in any case, be made

after 30th September of the year in which the academic session

commences. The deadline for the admissions fixed in the aforesaid

regulations being sacrosanct, it is not open to the Court to direct

admission on expiry of the aforesaid deadline.

In State of Bihar & Ors. v. Dr. Sanjay Kumar Sinha & Ors.

(1990) 4 SCC 624, Supreme Court took exception to the non-adherence to

the time schedules and reiterated that the admissions to medical colleges

and post-graduate courses are governed by the orders of the Apex Court

and the Regulations made by the Medical Council of India, which must

be strictly followed.

In Medical Council of India v. Madhu Singh & Ors. (2002) 7

SCC 258, Supreme Court declared that mid-stream admissions should not

be permitted. Noticing the practice of compassion in review of such

admissions, the Court also held that late or mid-stream admission, even

just four months after beginning of the classes, cannot be permitted.

In Mridul Dhar (Minor) & Anr. v. Union of India & Ors (2005) 2

SCC 65, Supreme Court applied the schedule notified by the Medical

Council of India (MCI) in Appendix 'E' of the Graduate Medical

Education (Amendment) Regulations, 2004 and directed its strict

adherence and clarified that adherence to the time schedule by everyone

was a paramount consideration. The Court issued a specific direction to

all the State functionaries to adopt the said time schedule.

In Priya Gupta vs State Of Chhattisgarh & Ors. 2011 (4) SCC

623, Supreme Court again cautioned all concerned that the schedule

specified in Mridul Dhar (supra) should be maintained and Regulations

should be strictly followed.

In view of the mandate of Regulations framed by MCI and

authoritative pronouncements of Supreme Court, no directions for

admissions of the appellant to the MBBS course of respondent No. 1 can

be passed at this stage.

6. Yet another requirement of MCI Regulations is that the person

taking admission in such a course must have at least 75% attendance in

the academic year. Since we are already in the month of February, it will

not be possible for the appellant to achieve the required percentage of

attendance even if he is forthwith given admission to MBBS course. This

is yet another reason why we cannot direct admission of the appellant at

this stage.

7. We cannot direct admission of the appellant to the next academic

year since he will be required to compete with other candidates who

appear in the entrance examination to be conducted for the next academic

year.

8. The learned senior counsel appearing for respondent No.1

submitted that the appellant made a misrepresentation to the University

when he stated in the application form, seeking admission to MBBS

course, that his result was still awaited though, as a matter of fact, the

result had already been declared by that time and he had failed in the

paper of Chemistry, having obtained 26% marks. The learned senior

counsel appearing for the appellant submitted that such a declaration was

made since the appellant had applied for revaluation of his marks in the

paper of Chemistry and the result of revaluation was still awaited. This

was countered by the learned senior counsel for the University, who

submitted that while filling up the application form, the appellant was

duty bound to declare the marks which had been awarded to him in

qualifying examination and there was a positive misrepresentation by the

appellant when he claimed that his result was still awaited. It was also

contended by the learned senior counsel for the University that the relief

in exercise of writ jurisdiction being a discretionary relief, should not be

exercised in favour of a person who concealed material facts and made a

positive representation to the University at the time of seeking admission

to the course.

We take note of the fact that the learned Single Judge refused

interim relief to the appellant only on account of the false declaration

made by him in the application form by withholding the marks obtained

by him in each subject and claiming that the result was still awaited.

However, considering the fact that, in our opinion, since no admission

can be directed to an MBBS course, after 30th September and the

appellant will not be in a position to achieve the required percentage of

attendance in the said course, we need not take a view on this aspect of

the matter.

9. It transpired during the course of hearing before us that two

students, who were granted admission in management quota, did not meet

the eligibility requirement of 50% marks in the admission test and two

candidates did not appear at all in the entrance examination. These

students have been impleaded as respondents No. 10 to 13 in the writ

petition. A perusal of the list of students admitted in management quota

would show respondent Zara Khan and Sama Rizvi obtained less than

50% marks in the admission test. It appears that the respondents Mohd.

Aamir Hussain and Omer Ali Mohammed Alshear did not even appear in

the admission test. No marks have been disclosed in the admission test

against their names.

10. As per Regulation 5(5) of the Regulations framed by the Medical

Council of India for admission to the medical courses, the minimum

marks required in admission test are 50% in case of General Category

candidates and a person belonging to General Category and securing less

than 50% marks is not eligible for admission to the said course.

It has been held by the Apex Court in various decisions, including

the Constitution Bench decision in Preeti Srivastava & Anr. vs. State of

M.P. & Ors. 1999 (7) SCC 120, that to obtain admission in MBBS course

not only has the candidate to appear in the entrance examination, he/she

also required to obtain the minimum marks, prescribed in MCI

Regulations.

In Chowdhury Navin Hemabhai and Ors. v. State of Gujarat and

Ors (2011) 3 SCC 617, Supreme Court noticing clause 5.5(ii) of MCI

Regulations, held that the candidate must secure the marks prescribed in

the said Regulation and even the State cannot prescribe qualifications

lower than those prescribed by the MCI.

In T.M.A. Pai Foundation And Others Vs State Of Karnataka

And Others, (1995) 5 SCC 220, Supreme Court held that even the

admission in NRI quota are required to be made in the order of merit.

Obviously, in terms of the Regulations framed by MCI, the merit in such

a case can be decided only on the basis of the admission test.

11. MCI has taken a categorical stand before us that it is not open and

permissible for any private medical college/institution to give admission

to such candidates, who do not hold merit positions in Common Entrance

Test. Therefore, the admission of the above-referred four students, two of

whom did not appear at all in the Entrance Examination and the

remaining two did not obtain the requisite minimum marks, appears to be

in contravention of MCI Regulations.

12. Regulation 5 of MCI Regulations provides the method of selection

of students to Medical Colleges on the basis of merits of the candidates

and as held by the Supreme Court in Rajan Purohit and Ors.

v. Rajasthan University of Health Science and Ors. 2012 (8) SCALE 71,

the said regulation does not deal with eligibility of students for admission

to MBBS course. It is Regulation 4 which lays down the eligibility

criteria for admission to the medical course. This is not the case of the

petitioner/appellant that the aforesaid respondents do not fulfil the

eligibility criteria as laid down in Regulation 4. Supreme Court observed

in Rajan Purohit (supra) that there is a distinction between a candidate

not fulfilling the eligibility criteria for admission to the MBBS course and

the candidates who fulfil the eligibility criteria, but have not been

admitted in accordance with the procedure for selection on the basis of

merit. In the aforesaid case, the Apex Court did not cancel the admissions

which had been made in violation of Regulation 5, but, confirmed to the

eligibility criteria laid down in Regulation 4, though penalty was imposed

by the Court on the college concerned in the form of directions for

surrender of certain seats and financial penalty was imposed on the

students who were admitted in violation of Regulation 5 of MCI

Regulations.

13. Considering the fact that there is no prayer in the writ petition for

quashing appointment of these four persons or directing any other action

against them, we refrain from passing any order with respect to their

admission and leave the matter to MCI, which shall be competent to take

such action as is open to it, in law, in this regard.

14. For the reasons stated hereinabove, we find no merit in the appeal

as well as in the writ petition and the both are hereby dismissed.

V.K.JAIN, J

CHIEF JUSTICE FEBRUARY 8, 2013 'raj'/BG