Delhi High Court
Gaby Lalmuanpuii & Ors vs University Of Delhi, Faculty Of ... on 29 September, 2014
Author: Manmohan
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6251/2014 & CM APPLs. 15101-15102/2014, 15744/2014
GABY LALMUANPUII & ORS ..... Petitioners
Through Ms. Indu Malhotra, Senior Advocate
with Mr. Vikram Mehta, Ms. Suman
Yadav and Mr. Gaurang Panandiker,
Advocates
versus
UNIVERSITY OF DELHI, FACULTY OF
MEDICAL SCIENCES & ORS ..... Respondents
Through Mr. Mohinder J.S. Rupal with
Ms. Yanmi Phazang, Advocates for
R-1/DU.
Ms. Zubeda Begum, Standing
Counsel (GNCTD) for R-3/MAMC.
Mr. Manish Mohan, CGSC with
Ms. Puja Sarkar, Advocate for R-
4/UOI.
Mr. T. Singhdev with Ms. Manpreet
Kaur and Mr. Manan Khera,
Advocates for R-5/MCI.
WITH
+ W.P.(C) 6257/2014 & CM APPLs. 15125-15126/2014, 15717/2014
SHERRY ARBELL D MARAK & ANR ..... Petitioners
Through Mr. Nidhesh Gupta, Senior Advocate
with Ms. R.S. Bobde and
Ms. Mrinalini Sen Gupta, Advocates
versus
UNIVERSITY OF DELHI & ORS ..... Respondents
Through Mr. Mohinder J.S. Rupal with
Ms. Yanmi Phazang, Advocates for
R-1/DU.
W.P.(C) 6257/2014 & 6251/2014 Page 1 of 14
Mr. Anil Soni, CGSC with
Ms. Saakshi Agarwal, Advocate for
R-3/UOI.
Mr. T. Singhdev with Ms. Manpreet
Kaur and Mr. Manan Khera,
Advocates for R-4/MCI.
% Date of Decision : 29th September, 2014
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
1. Present writ petitions have been filed challenging the condition
imposed by respondent no. 1-Delhi University that students in the Nominee
of Government of India (for short "NGOI") quota must also qualify in the
All India Pre-Medical Entrance Test, 2014 (for short "AIPMT, 2014") to be
eligible for admission to the MBBS Course in the Lady Hardinge Medical
College (LHMC) and Maulana Azad Medical College (MAMC). Petitioners
also seek a direction to respondent-Ministry to admit the petitioners to
MBBS course under NGOI quota in LHMC/MAMC for Academic Year
2014-2015.
2. This Court on 17th September, 2014 had issued notices to respondents
and had permitted them to file their counter-affidavits within a week.
However, no counter-affidavit has been filed till date. As the last date for
admission is 30th September, 2014, this Court has no other option but to
proceed ahead with the hearing.
3. The relevant facts of the present cases are that petitioners are girl
students belonging to the North-Eastern States of Mizoram, Nagaland,
Meghalaya and Sikkim, who have been allotted seats in the aforesaid two
Colleges under NGOI quota. It is stated that petitioners are toppers in the
entrance examination conducted by the respective State Governments.
4. In the writ petitions, it is averred that as a policy decision, the Central
Government reserves certain number of seats in Government colleges all
over the country, which is referred to as the „Central Pool Scheme‟ for
NGOI in order to meet the requirement of States/Union Territories which do
not have medical/dental colleges of their own, most of which are in the
North-Eastern Region as well as for some Central Government
ministries/agencies and to fulfil some national and international obligations.
5. Learned senior counsel for petitioners state that in accordance with
the Office Memorandum dated 27th February, 2014 issued by the Central
Government, it was specifically stipulated that for the Academic Year 2014-
15 the students would be recommended by the beneficiary States/Union
Territories on the basis of the marks obtained by the students in the entrance
test conducted by the beneficiary States. They point out that the aforesaid
Memorandum was reiterated by a further Office Memorandum dated 2nd
September, 2014. The relevant portion of the aforesaid Memorandums are
reproduced hereinbelow:-
A) Office Memorandum dated 27th February, 2014:-
"2. The matter has been considered in this Ministry in light of
judgment/directions passed by Apex Court in various cases, it has
been decided with the approval of competent authority that for
this academic year i.e. 2014-15, the selection of students will be
made by the beneficiary State/UTs/Govt. Departments on the
basis of marks obtained by the students in the Entrance Tests
conducted by the beneficiary State/UT/Govt. Department. If the
beneficiary State/UT/Govt. Department is not conducting any
examination, the selection will be made on the basis of marks,
obtained by the students in All India Pre-Medical Entrance Test
(AIPMT) conducted by CBSE. In any circumstances, the selection
of students will not be made merely on academic merit of 10+2
marks."
B) Office Memorandum dated 2nd September, 2014:-
"2. The admission of candidates to various medical/dental
colleges will depend on their fulfilling the eligibility criteria and
other conditions of admission as laid down by the concerned State
Govt. which may be ascertained from the concerned colleges.
3. The selection of eligible candidates will be made as per
clarification conveyed vide this Ministry's O.M. of even number
dated 27.2.2014 (copy enclosed). The copy of the merit list
together with copies of allotment letters may be sent to this
Ministry."
6. Learned senior counsel for petitioners further state that 15% of the
MBBS/BDS seats of the country are reserved for the All India Category
students, whereas 85% seats are filled under the State quota. They contend
that AIPMT examination is for filling up of All India quota seats, and the
State quota seats are filled in accordance with the State entrance
examinations conducted by the respective States.
7. According to them, petitioners-students who are permanent residents
of the North-Eastern States claiming under the NGOI quota, were never
informed that they were also required to qualify the AIPMT examination.
They point out that Delhi University had issued its Information Bulletin on
2nd June, 2014 wherein a condition was stipulated for the first time that in
order to be eligible for admission to MBBS/BDS course under NGOI quota,
it shall be necessary for a General candidate to obtain a minimum of 50%
marks in AIPMT, 2014. The relevant portion of the Bulletin of Information
is reproduced hereinbelow:-
"D. Govt. of India Nomination (Central Pool Scheme):
(a) In order to be eligible for admission to MBBS/BDS Course
for a particular academic year, it shall be necessary for a
candidate to obtain minimum of 50% marks in AIPMT-2014 held
for the said academic year. However, in respect of candidates
belonging to Scheduled Caste, Scheduled Tribe, Other Backward
Classes, the minimum marks shall be at 40%."
8. Learned senior counsel for petitioners state that as AIPMT, 2014 had
already been conducted on 4th May, 2014, it was impossible for the
petitioners to fulfil the said condition.
9. On the other hand, Mr. Mohinder J.S. Rupal, learned counsel for
respondent no.1-Delhi University submits that petitioners cannot be
admitted under NGOI quota in MBBS courses in LHMC and MAMC as
they have not secured minimum stipulated marks in AIPMT examination
which had been adopted by the Delhi University for admissions to seats in
State quota. In support of his submission, he relies upon a judgment of
Supreme Court in Bhawna Garg & Anr. Vs. University of Delhi & Ors.,
Civil Appeal Nos. 6304-6305/2012, decided on 5th September, 2012 and of
this Court in Bhawana Kumari Mallick & Anr. Vs. Union of India & Ors.,
W.P.(C) 6278/2013 decided on 30th September, 2013. The relevant
observations of the Supreme Court in Bhawna Garg & Anr. (supra) are
reproduced hereinbelow:-
"15. The appellants, however, have contended that 4 candidates,
who have been given admission in the seats reserved for NGOI in
LHMC and MAMC during the academic year 2011-2012, have
been failed in the DUMET and to grant admission to such failed
candidates is making a mockery of the entire system of medical
admissions. As we have already held, the candidates who have
applied for the quota for the seats reserved for NGOI constitute
separate sources from which admissions are to be made and the
selection on the basis of merit is to be confined to each separate
source from which the admissions are to be made and they are
not required to take the DUMET. Hence, even if they have failed
in DUMET, they are still entitled to be admitted to the seats
reserved for NGOI, if they are selected on the basis of merit from
amongst all the candidates who have applied from the aforesaid
separate sources for admission. Nonetheless, if the candidates
who have failed in the DUMET are admitted through a separate
source of admission, as in the present case, this may result in lot
of heart burn amongst the students who have cleared the
DUMET but have not got the admission to a seat in the MBBS
course on account of their lower rank in the merit list. Hence, in
future the Delhi University must stipulate in the Bulletin and the
Government of India must issue instructions that candidates who
opt to take the DUMET but do not qualify will not be eligible for
admission to the quota reserved for NGOI. This anomaly,
however, has been addressed by the MCI by making amendments
to the MCI Regulations and by providing therein that from the
academic year 2013-2014 every candidate seeking admission to
the MBBS course must obtain a minimum marks of 50% in the
National Eligibility-cum-Entrance Test in the MBBS course if he
is a general category candidate and must secure a minimum
marks of 40% in the National Eligibility-cum-Entrance Test if he
is a candidate belonging to Scheduled Castes, Scheduled Tribes
or Other Backward Classes. From the academic year 2013-
2014, therefore, NGOI applying for the reserved seats will have
to secure the aforesaid minimum marks in the National
Eligibility-cum-Entrance Test for MBBS course."
18. In the result, we :
xxxx xxxx xxxx xxxx
(ii) hold that the provisions of Regulation 5 of the MCI
Regulations for selection for admission to the MBBS course
solely on the basis of merit have to be followed by the
beneficiary States/Union Territories/ Ministries/Agencies
while selecting the students who apply for the seats
reserved or allocated for the concerned State/Union
Territory/Ministry/Agency.
xxxx xxxx xxxx xxxx
(iv) direct that with effect from the academic year 2012-13, no
admission will be made to any of the seats reserved for
NGOI in LHMC, MAMC and UCMS of any student who
has failed in the DUMET."
10. Mr. Rupal points out that direction no. (iv) was subsequently clarified
by the Supreme Court in Bhawna Garg & Anr. (supra) to refer to any other
competitive or entrance examination for admission in LHMC instead of
DUMET.
11. Mr. Rupal emphasizes that if the University had granted admission to
the petitioners, its officers could have been hauled up for contempt of
judgment of this Court in Bhawana Kumari Mallick (supra). The relevant
portion of Bhawana Kumari Mallick (supra) is reproduced hereinbelow:-
"5. It would thus be seen that only those who qualified in the
national entrance test such as DU-MET/NEET are eligible for
admission under NGOI Quota. The requirement to obtain
minimum 50% marks in case of a general category candidate and
40% in case of a SC/ST/OBC candidate was substituted by the
MCI by the requirement to obtain minimum 50 percentile and 40
percentile respectively. Thus, in view of the undertaking given to
the Apex Court and the directives given by the said Court while
disposing of the appeals, the respondent - University of Delhi
cannot make any admission to its MBBS course unless the person
nominated by NGOI Quota has appeared in All India Entrance
Test held for making admission to the MBBS course and duly
qualified in the said entrance test, which for the academic year
2013-2014 was NEET-UG-2013. The communication dated
18.9.2012 having been issued in violation of the specific
directions of the Apex Court cannot be given effect to and the
petitioners who admittedly did not appear in the said entrance
test have rightly been held to be ineligible for the said admission.
No exception, therefore, can be taken to the view taken by the
respondent- University of Delhi.
6. In Christian Medical College (supra), the Apex Court while
allowing the transfer cases and the writ petitions and quashing
the notification issued by the Medical Council of India on
21.12.2010 and the notification dated 31.5.2012 by Dental
Council of India, held that this would not affect the action so far
taken under the amended Regulation including admission already
given on the basis of NEET conducted by MCI, Dental Council of
India and other medical institutions and the same shall be valid
for other purposes. It is not in dispute that the admissions for the
MBBS Course for the academic session 2013-2014 have been
made on the basis of the rank obtained in NEET-UG, 2013. The
petitioners were, therefore, required to appear and qualify in
NEET-UG-2013 before they could be considered for admission
under NGOI Quota. In any case, no other All India Entrance Test
was held for admission to MBBS course. The respondents, in any
case, cannot make admission under NGOI Quota except from
amongst the candidates who appeared in one or the other All
India Entrance Test for making such admissions in terms of the
Regulations framed by Medical Council of India. For the reasons
stated hereinabove, I find no merit in the petition and the same is
hereby dismissed. There shall be no orders as to costs."
12. Mr. T. Singhdev, learned counsel for respondent-MCI clarifies that as
of today there is no All India Entrance test (NEET) for granting admission in
terms of Regulations framed by respondent-MCI in the present Academic
Year, since NEET was set aside in Christian Medical College, Vellore and
Others Vs. Union of India and Others, (2014) 2 SCC 305 and a review is
pending.
13. Mr. Anil Soni and Mr. Manish Mohan, learned standing counsel for
respondent-UOI state that respondent no.1-Delhi University has already
been communicated vide Ministry of Health & Family Welfare‟s letters
dated 11th September, 2014 and 16th September, 2014 that if the selection of
candidates has been made by concerned State/Union Territory as per
entrance examination conducted by it, they cannot be denied admission by
University. Consequently, according to them, the condition for appearing
and qualifying the AIPMT, 2014 is not applicable to the petitioners and they
should be given admission in the allotted colleges, if they fulfil the
eligibility criteria as per MCI Regulations and the fixed intake.
14. In rejoinder, learned senior counsel for petitioners state that the
judgment of a Coordinate Bench of this Court in Bhawana Kumari Mallick
(supra) has been set aside by the Supreme Court on 26th September, 2014.
15. Having heard learned counsel for parties, this Court is of the view that
petitioners are not seeking admission in the 15% All India Quota and
consequently, they do not have to appear in AIPMT. The petitioners are
seeking admission in their respective State quotas according to the rank
obtained by them in their respective State Entrance Examinations. As their
States do not have Medical Colleges, they are being accommodated in
Central Government Medical Colleges under NGOI quota. If the condition
incorporated in Bulletin of Information by Delhi University is upheld, it
would mean that General category students belonging to aforesaid North-
Eastern States would have to not only secure a high rank in their own State
examination, but would also have to pass the State examination of the State
in which Central Government would allocate them a seat. Since it would be
known only at the last stage which Medical college in which State had been
allocated by the Central Government to the North-Eastern students, they
could only comply with this requirement if they also appeared in all States
Entrance Exams where Central Government had a Medical College!
16. It is pertinent to mention that the Constitutional validity of NGOI
Quota was upheld by the Constitution Bench of the Supreme Court in the
case of Kumari Chitra Ghosh & Anr. vs. Union of India & Ors., (1969) 2
SCC 228. In this judgment, the Court held that as it is the Central
Government which bears the financial burden of running a Medical College,
it is for it to lay down the criteria for eligibility. It was further held that the
Government cannot be denied the right to decide from what sources the
admission would be made. The relevant portion of the aforesaid judgment is
reproduced hereinbelow:-
"9. It is the Central Government which bears the financial burden
of running the medical college. It is for it to lay down the criteria
for eligibility. From the very nature of things it is not possible to
throw the admission open to students from all over the country.
The Government cannot be denied the right to decide from what
sources the admission will be made. That essentially is a question
of policy and depends inter alia on an overall assessment and
survey of the requirements of residents of particular territories
and other categories of persons for whom it is essential to provide
facilities for medical education. If the sources are properly
classified whether on territorial, geographical or other
reasonable basis it is not for the courts to interfere with the
manner and method of making the classification."
17. The aforesaid judgment was followed in the case of Bhawna Garg
(supra). The Supreme Court held that the candidates who have applied for
seats reserved for the NGOI Quota, constitute a separate source from which
admissions are to be made and the selection on the basis of merit is to be
confined to each separate source from which admissions are to be made and
are not required to take the State exam. The Supreme Court in Para 12 of
the aforesaid judgment has held as follows:-
"Accordingly, the seats which are reserved for a particular source
i.e. the beneficiary State/UT/Ministry/Agency are to be filled up by
selection on the basis of merit of candidates who have applied as
candidates of that particular source i.e. the beneficiary
State/UT/Ministry/Agency. Thus, these candidates who constitute
separate sources from which admission are to be made to the
seats allocated to the sources are not required to take the
DUMET. They must go through the selection on the basis of merit
as laid down in T.M.A. Pai Foundation and as provided in
Regulation 5 of the MCI Regulations but such selection has to be
confined to the candidates of the respective sources."
18. In Bhawna Garg (supra), the Supreme Court directed that from the
Academic Year 2013-14 onwards, the candidates applying for the NGOI
Quota would have to obtain the minimum marks in NEET for admission to
the MBBS Course, as in 2012 the Medical Council of India had amended the
MCI Regulations on Graduate Medical Education 1997 whereby NEET was
introduced. NEET was to be a common All India Entrance Test for all
Medical/Dental colleges of the country including unaided non-minority as
well as minority colleges. As a result, the individual entrance examinations
to medical/Dental colleges conducted by various State Governments and
Private Medical Colleges were replaced by a common entrance test, i.e.,
NEET.
19. However, subsequently the aforesaid procedure of conducting one
single Examination, i.e., NEET was held unconstitutional by the Supreme
Court in the case of Christian Medical College, Vellor & Ors. (supra). The
relevant portion of said judgment is reproduced hereinbelow:-
"177. In the light of our aforesaid discussions and the views
expressed in the various decisions cited, we have no hesitation in
holding that the Regulations on Graduate Medical Education
(Amendment), 2010 (Part II) and the Postgraduate Medical
Education (Amendment) Regulation, 2010 (Part II), whereby the
Medical Council of India introduced the single National
Eligibility-cum-Entrance Test and the corresponding
amendments in the Dentists Act, 1948, are ultra vires the
provisions of Articles 19(1)(g), 25, 26(a), 29(1) and 30(1) of the
Constitution, since they have the effect of denuding the States,
State-run universities and all medical colleges and institutions,
including those enjoying the protection of the above provisions,
from admitting students to their MBBS, BDS and postgraduate
courses, according to their own procedures, beliefs and
dispensations, which has been found by this Court in T.M.A.Pai
Foundation case [T.M.A. Pai Foundation v. State of Karnataka,
(2002) 8 SCC 481] , to be an integral facet of the right to
administer. In our view, the role attributed to and the powers
conferred on MCI and DCI under the provisions of the Indian
Medical Council Act, 1956, and the Dentists Act, 1948, do not
contemplate anything different and are restricted to laying down
standards which are uniformly applicable to all medical colleges
and institutions in India to ensure the excellence of medical
education in India. The role assigned to MCI under Sections 10-
A and 19-A(1) of the 1956 Act vindicates such a conclusion."
20. Consequently, once NEET was struck off, the regime of State
examinations has been reverted to.
21. This Court is further of the view that merely because Delhi University
in 2014 chose to adopt AIPMT as its state exam, it cannot prejudice the
rights of the petitioners. The students claiming under the NGOI quota were
never informed that they were required to also qualify in the AIPMT, 2014
examination to secure admission in the medical colleges of the Delhi
University. It is to be noted that the AIPMT, 2014 was held on 4th May,
2014, whereas the Delhi University‟s bulletin which specified for the first
time AIPMT as a pre-condition for NGOI quota was issued only on 2nd June,
2014. Thus, it was impossible for the petitioners to have complied with the
pre-condition in the Delhi University‟s Bulletin.
22. It is also pertinent to mention that students who had secured lesser
marks than the petitioners in their respective State entrance examinations
have been allotted colleges in different states and have already been granted
admission in the Academic Year 2014-15 as the respective Universities of
those colleges have not raised any such objection and required the NGOI
students to take any further examination.
23. For the present Academic Year 2014-15 even the Union of India vide
Office Memorandums dated 27th February, 2014 and 02nd September, 2014
as well as letters dated 11th September, 2014 and 16th September, 2014 has
stipulated that selection of students will be made by the beneficiary
States/UTs/Government Departments on the basis of marks obtained by the
students in the entrance tests conducted by the Beneficiary States/UTs/
Government Departments and only if the beneficiary State did not conduct a
State entrance examination, then the selection will be made on the basis of
marks obtained by the students in AIPMT.
24. Also there is no question of any Delhi University officials being
hauled up for contempt of judgment of Bhawana Kumari Mallick (supra) as
the said judgment has been set aside by the Supreme Court in Civil Appeal
Nos. 9268-9269/2014 on 26th September, 2014. The relevant portion of the
Supreme Court‟s order dated 26th September, 2014 is reproduced
hereinbelow:-
"Subsequent to the three-Judge Bench decision of this
Court, in Christian Medical College (supra) the Government of
India came forward with an Office Memo dated 19.9.2013 to the
effect that the provision of appearing in NEET UG/PG is not
applicable for a Nominee made by the Government of India. The
said Office Memorandum continue to remain in force even as on
date.
In the light of the said development of law, which is
prevalent even as on date, we are of the view that impugned
judgment cannot be sustained. These appeals are, therefore,
allowed. The appellant-Bhawana Kumari Mallick and respondent
No.6, namely, Anshika Dwivedi, in C.A. No.9272/2014 who are
also respondent Nos.1 and 2 in C.A. No.9268-9269/2014 as well
as now impleaded Respondent Nos.7 & 8, namely, Nagina
Wardak and Madhiha respectively shall be admitted as Nominees
of the Government of India in the MBBS Course for the Academic
Year 2014-15 before the last date for admission i.e. 30.9.2014."
25. Consequently, present writ petitions and applications are allowed, but
with no orders as to costs. Delhi University is directed to forthwith
implement the order passed by this Court and grant admission to petitioners
as 30th September, 2014 is the last date for admissions.
Order dasti under the signature of Court Master.
MANMOHAN, J
SEPTEMBER 29, 2014
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