Rajasthan High Court
Madhu Saini D/O B.S. Saini vs Rajasthan University Of Health ... on 25 November, 2022
Bench: Pankaj Mithal, Anoop Kumar Dhand
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No. 1046/2022
In
S.B. Civil Writ Petition No. 6207/2020
1. Madhu Saini D/o B.S. Saini, Aged 33 Years, R/o 6-G10
Mahaveer Nagar Extension, Kota.
2. Kavad Ishwar S/o Jashu Bhai, Aged 29 Years, R/o A-25
Ganesh Nagar Society, Amroli, Surat Gujarat.
3. Vinod Kumar Pal S/o Raj Narayan Pal, Aged 33 Years, R/o
M-19 Plot No. 304, Global City, Palghar, Maharashtra.
4. Richa Tripathi D/o Rejeshwar Tripathi, Aged 43 Years, R/o
365, Civil Lines, Narayan Nagar, Etah, UP.
5. Taak Amrit Kaur S/o Manjit Singh Taak, Aged 29 Years,
R/o 4, Mahesh Naresh Co-Operative Society, Ghodasar,
Ahemdabad, Gujarat.
6. Rahul Vaid S/o Surinder Kumar Vaid, Aged 43 Years, R/o
B-61A, Defence Colony, Meerut, UP.
7. Umang Kanwar D/o Kuldeep Singh, Aged 39 Years, R/o
72, Sector No. 1, Trikola Nagar, J & K.
8. Chowdhary Humatalat D/o Munir Azhar, Aged 30 Years,
R/o Near Old Tidke, Nagpur.
9. Rahul Mehta S/o Amrik Singh Mehta, Aged 24 Years, R/o
Duplex Banglow, Bhopal M.P.
10. Raj Kamal Grewal S/o Randhir Singh Grewal, Aged 34
Years, R/o 260/11 Shastri Nagar, Ambala City, Haryana.
11. G. Dessai Sidhee Ramesh D/o Ramesh Gauns Dessai,
Aged 36 Years, R/o Flat-Fo/1, A Building, Kurtarkar
Excellency, Gogal Margo, Goa.
12. Rajat Kumar S/o Chandra Bhan, Aged 43 Years, R/o
1/101 Ashok Vihar, Phase-I, Delhi.
13. Kunal Vuthoo S/o R.K. Vuthoo, R/o 675/A, Sector-3,
Bhagwati Nagar, Canal Road, Jammu, J & K.
14. Chauhan Bhumit Kumar S/o Iswar Lal, Aged 30 Years,
R/o Jalaram Society, Taluka Gandevi, Navsari, Gujarat.
15. Vishal Vuthoo S/o R.K. Vuthoo, Aged 39 Years, R/o
675/A, Sector-3, Bhagwati Nagar, Canal Road, Jammu, J
& K.
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16. Lalit Chopra S/o Shanti Swaroop Chopra, Aged 30 Years,
Housing Colony, Nai Abadi, Gali No. 1, Bhind, M.P.
----Appellants/Petitioners
Versus
1. Rajasthan University of Health Sciences, Through its
Registrar, Sector-18, Kumbha Marg, Pratap Nagar, Jaipur.
2. Daswani Dental College, Kota, Through its Principal ITB-
19, RIICO Industrial Area, Ranpur, Kota.
3. Dental Council of India, Through its Secretary, Awan-E-
Galib Marg, Kotla Road, New Delhi - 110002.
4. P.G. Medical/Dental Admission Board 2017, Through its
Chairman, Admission Board and Principal and Controller,
SMS Medical College, Jaipur.
----Respondents
Connected With
D.B. Special Appeal Writ No. 1047/2022
In
S.B. Civil Writ Petition No. 6233/2021
1. Madhu Saini D/o B.S. Saini, Aged 35 Years, R/o 6-G10
Mahaveer Nagar Extension, Kota.
2. Kavad Ishwar S/o Jashu Bhai, Aged 29 Years, R/o A-25
Ganesh Nagar Society Amroli, Surat, Gujarat.
3. Vinod Kumar Pal S/o Raj Narayan Pal, Aged 33 Years,
R/o M-19 Plot No. 304, Global City, Palghar,
Maharashtra.
4. Richa Tripathi D/o Rejeshwar Tripathi, Aged 43 Years,
R/o 365, Civil Lines, Narayan Nagar, Etah, Up.
5. Taak Amrit Kaur S/o Manjit Singh Taak, Aged 29 Years,
R/o 4, Mahesh Naresh Cooperative Society, Ghodasar,
Ahemedabad, Gujarat.
6. Rahul Vaid S/o Surinder Kumar Vaid, Aged 43 Years,
R/o B-61A, Defence Colony, Meerut, UP.
7. Umang Kanwar D/o Kuldeep Singh, Aged 39 Years, R/o
72, Sector No. 1, Trikola Nagar, J & K.
8. Chowdhary Humatalat D/o Munir Azhar, Aged 30 Years,
R/o Near Old Tidke, Nagpur.
9. Rahul Mehta S/o Amrik Singh Mehta, Aged 24 Years,
R/o Duplex Banglow, Bhopal M.P.
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10. Raj Kamal Grewal S/o Randhir Singh Grewal, Aged 34
Years, R/o 260/11, Shastri Nagar, Ambala City,
Haryana.
11. G. Dessai Sidhee Ramesh D/o Ramesh Gauns Dessai,
Aged 36 Years, R/o Flat - Fo/1, A Building, Kurtakar
Excellency, Gogal Margo, Goa.
12. Rajat Kumar S/o Chandra Bhan, Aged 43 Years, R/o
1/101 Ashok Vihar, Phase-I, Delhi.
13. Kunal Vuthoo S/o R.K. Vuthoo, R/o 675/A, Sector-3,
Bhagwati Nagar, Canal Road, Jammu J & K.
14. Chauhan Bhumit Kumar S/o Iswar Lal, Aged 30 Years,
R/o Jalaram Society, Taluka Gandevi, Navsari, Gujarat.
15. Vishal Vuthoo S/o R.K. Vuthoo, Aged 39 Years, R/o
675/A, Sector-3, Bhagwati Nagar, Canal Road, Jammu J
& K.
16. Lalit Chopra S/o Shanti Swaroop Chopra, Aged 30
Years, Housing Colony, Nai Abadi, Gali No. 1, Bhind,
M.P.
----Appellants/Petitioners
Versus
1. Dental Council of India, Through its Secretary, Awan-E-
Galib Marg, Kotla Road, New Delhi-110002.
2. The National Board of Examination, NEET MDS 2017,
Medicare Enclave, Ansari Nagar Ring Road, New Delhi-
110029 Through its Chairman.
3. Rajasthan University of Health Sciences, Through its
Registrar, Sector-18, Kumbha Marg, Pratap Nagar,
Jaipur.
4. Daswani Dental College, kota, Through its Principal ITB-
19, RIICO Industrial Area, Ranpur, Kota.
5. P.G. Medical/Dental Admission Board 2017, Through its
Chairman, Admission Board and Principal and Controller,
SMS Medical College, Jaipur.
----Respondents
For Appellant(s) : Mr. K.K. Sharma, Sr. Advocate
assisted by Mr. Yash Sharma,
Mr. Ashish Sharma, Mr. Daksh
Gautam and Mr. Aman Lodha
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For Respondent(s) : Mr. Virendra Lodha, Sr. Advocate
assisted by Mr. Raunak Singhvi,
Mr. Rachit Sharma
Mr. Harshal Tholia on behalf of
Dr. V.B. Sharma, AAG
Ms. Manorma Sharma,
Mr. Arvind Sharma and Mr. Angad
Mirdha
HON'BLE THE CHIEF JUSTICE MR. PANKAJ MITHAL
THROUGH VC AT JODHPUR
HON'BLE MR. JUSTICE ANOOP KUMAR DHAND
Judgment
Reportable:
Reserved on :: November 07, 2022
Pronounced on :: November 25, 2022
By the Court: (Per ANOOP KUMAR DHAND, J.)
1. The issue involved in these special appeals is that 'whether
the appellants can be given admission by the Dental College in
Master in Dental Surgery (for short 'MDS Course') contrary to the
decisions of the Hon'ble Supreme Court in the cases of Modern
Dental Medical College & Research Centre & Ors., Vs State
of Madhya Pradesh & Ors., (2016) 7 SCC 353 and State of
Madhya Pradesh Vs Jainarayan Chouksey and Ors., (2016)
9 SCC 412, without participation of the appellants in the
centralized NEET P.G. Counselling?'
2. Both these appeals arise out of the impugned judgment
dated 03.08.2022 passed by the learned Single Judge by which
the writ petitions submitted by the appellants have been
dismissed and the respondent- Daswani Dental College (for short
'respondent-College) has been directed to pay a sum of Rs.
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10,00,000/- to each of the appellants as compensation and the
Vice Chancellor of the respondent-Rajasthan University of Health
Sciences (for short 'the University') has been directed to initiate
disciplinary proceedings against the erring officers who have
admitted the appellants in MDS Course, 2017 in contravention of
the order passed by this Court.
3. In exercising the powers conferred by Section 20 of the
Dentists Act, 1948 (for short 'Act of 1948'), the Dental Council of
India (for short ' the DCI') with the previous sanction of the
Central Government, enacted Dental Council of India Revised MDS
Course Regulations, 2007 (for short 'the Regulation, 2007') vide
Notification dated 31.05.2012 for selection and admission of the
candidates for Post Graduate Courses. As per Clause 3 (1) of this
Regulation, there shall be single eligibility-cum-entrance
examination namely; National Eligibility-cum-Entrance Test for
admission to Post Graduate Medical Courses (for short 'NEET PG')
in each academic year.
4. In pursuance of the Regulation, 2007, the NEET PG
Examination-2017 was conducted for selection and admission of
the candidates in MDS Course. The appellants/petitioners No. 2,
5, 7, 12 to 15 appeared in the said NEET PG test and only
appellants/petitioners No.5 and 15 qualified but did not participate
in the centralized counselling and the rest did not qualify. The
appellants-petitioners No.1, 3, 4, 6, 8 to 11 and 16 have not even
appeared in the said test, even then all the appellants got
admission in MDS Course in the respondent-College in
contravention of the Regulations, 2007 after the cut off date i.e
31.05.2017.
(6 of 28) [SAW-1046/2022]
5. Vide letter dated 17.05.2017, the DCI directed all the Dental
Colleges to upload the details of the students admitted in MDS
Course for the academic session 2017-18. In pursuance of the
said letter, the respondent-College uploaded details of 20
candidates admitted in MDS Course. On verification from
Chairman, NEET PG (Medical/Dental) Admission Board, 2017, it
was found that none of the appellants/petitioners was admitted by
the NEET PG Board. Thereafter, the Executive Committee of the
DCI took a decision in its meeting dated 23.08.2018 to discharge
all the appellants because the counselling authority had not
verified/confirmed the admission of these appellants in MDS
Course at Daswani Dental College for the academic session 2017-
18. The said decision was communicated by the DCI to the
respondent-College vide letter dated 12.09.2018 followed by its
reminder letters dated 31.10.2018 and 08.02.2019.
6. In-spite of receipt of these letters dated 12.09.2018,
31.10.2018 and 08.02.2019, the respondent-College did not
discharge the appellants and cancel their admissions for the
reasons best known to the College.
7. At this juncture, the appellants submitted S.B. Civil Writ
Petition No. 6207/2020 before the learned Single Bench seeking
directions against the respondent-University to permit them to fill
online examination forms and to participate in MDS Final Year
(Main) Examination to be held in June 2020, without disclosing
the complete facts. The learned Single Judge vide interim order
dated 15.06.2020 allowed the appellants to provisionally fill the
examination forms to participate in MDS Final Year Examination.
Against the said order dated 15.06.2020, the University submitted
D.B. Special Appeal (Writ) No.394/2020 before this Court and the
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same was dismissed vide order dated 24.06.2020 with a direction
that the result of the appellants shall not be declared by the
University without direction of the learned Single Judge and their
examination shall be subject to decision of the writ petition.
8. Thereafter, the appellants submitted another S.B. Writ
Petition No. 6233/2021 seeking prospective application of the
Notifications dated 01.09.2017 and 05.11.2017. The appellants
prayed that their admission in MDS Course, 2017 was valid
without requirement of being taken through NEET PG. They also
prayed for quashing the DCI orders/letters dated 12.09.2018 and
08.02.2019 with the declaration that they were validly admitted in
respondent-College, Kota and they are not liable to be discharged
from the MDS Course. After hearing arguments, the learned
Single Judge dismissed both these petitions vide judgment dated
03.08.2022.
9. Feeling aggrieved and dissatisfied by the impugned
judgment dated 03.08.2022, the appellants have submitted these
two special appeals before this Court.
10. Learned counsel for the appellants submits that the
appellants got admission in MDS Course in the respondent-College
in May, 2017 while the Notification for NEET PG requirement was
issued in November, 2017. Counsel submits that the appellants
were having a valid degree of BDS Course and they were having
eligibility to get admission in MDS Course. Counsel submits that
several seats of MDS Course remained vacant due to the
prescribed cut off of 50 percentile, hence a decision was taken by
the PG Medical/ Dental Admission Board, 2017 to allow these
candidates in mop up counselling round, who were not registered
with the State NEET PG Medical and Dental Admission and
(8 of 28) [SAW-1046/2022]
Counselling Board, 2017. Counsel submits that only four students
got admission through NEET PG and rest of the seats remained
vacant. Hence, the appellants got admission in the respondent-
College. Counsel submits that for the Batches of years 2014, 2015
and 2016, direct admission was given to the students by the
private dental Colleges without any examination and counselling.
11. Counsel submits that the appellants have completed their
MDS Course and cancellation of their admission at this stage
would not serve any useful purpose and no prejudice would be
caused to any other students. In support of his contentions,
learned counsel has relied upon the following judgments:-
1. Ashok Chand Singhvi Vs. University of Jodhpur & Ors.,
AIR 1989 SC 823
2. A. Sudha Vs. University of Mysore & Ors., AIR 1987 SC
3. Rajendra Prasad Mathur Vs. Karnataka University & Ors.,
AIR 1986 SC 1448
4. Priya Gupta Vs. State of Chattisgarh & Ors., AIR 2012 SC
5. Saraswati Educational Chartiable Trust & Anr. Vs. Union
of India & Ors., 2021 SCC Online SC 137
6. Rajan Purohit & Ors. Vs. Rajasthan University of Health
Science, (2012) 10 SCC 770
7. Union of India Vs. Federation of Self Financed Ayurvedic
Colleges, Punjab & Ors., (2020) 12 SCC 115
8. Deepa Thomas & Ors. Vs. Medical Council of India and
Ors., (2012) 3 SCC 430
9. Monika Ranka & Ors. Vs. Medical Council of India, (2010)
10 SCC 233
12. Learned counsel for the respondent-College submits that no
illegality has been committed by the respondent-College while
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admitting the appellants in MDS Course from open quota after
mop up round. Counsel submits that NEET Notification, 2017 was
issued in November 2017, while the admissions were given in May
2017, as per the previous prevailing norms.
13. Per contra, counsel for the respondents-University, DCI and
PG Medical/Dental Admission Board, opposed the arguments
raised by the counsel for appellants/petitioners and the
respondent-College and submitted that the admissions were given
to the appellants by the respondent-College in utter violation of
the Regulations of 2007 & 2017. Counsel submits that for getting
admissions in MDS Course, the candidates were required to pass
National Eligibility-cum-Entrance Test (for short 'the NEET') and
participate in the counselling after following the statutory
provisions. The appellants, however, got admissions straight away
in the respondent-College. Counsel submitted that the appellants
were admitted by the respondent-College through backdoor entry.
It is submitted that their admissions are the result of collusion
between the respondent-College and the appellants. It is further
submitted that the respondent-College and the appellants were
well aware about the Regulations of 2007, which clearly provides
for admission through NEET PG only, even then, the appellants
were given admission by the respondent-College by conducting
private counselling, which is not permissible in law and as such,
the appellants who entered through backdoor entry are not
entitled to any equitable relief.
14. Counsel for the respondent-University and the DCI submits
that despite order for discharge of the appellants by the DCI as
early as on 12.09.2018, the same was not acted upon by the
respondent-College and the appellants were allowed to continue
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in-spite of repeated communications dated 31.10.2018 and
08.02.2019. Counsel submits that the admitted position is that
the appellants did not undergo the centralised counselling and
they were well aware from day one that their admission in the
respondent-College was irregular and illegal. Despite this, they
continued at their own peril. Hence, they cannot claim equity in
their favour. In support of their contentions, they have relied upon
the judgments of Hon'ble Apex Court in the case of Abdul Ahad
& Ors. Vs. Union of India & Ors., reported in 2021 SCC
Online SC 627. They have also relied upon a judgment of Delhi
High Court in the case of Deepanshu Bhadoriya & Ors., Vs.
Medical Council of India & Ors. (LPA No.581/2019) decided
on 09.09.2021, upheld by the Hon'ble Apex Court on 17.10.2022
in Special Leave to Appeal (Civil) No.20300/2021 titled as
Rahul Soni & Ors. Vs. Medical Council of India & Ors., and
the judgment of Karnataka High Court in the case of Sri
Venkateshwara Dental College & Hospital Vs. The State of
Karnataka & Ors. in WP No.12902/2022 dated 07.09.2022.
15. Counsel submits that in-spite of specific restraint and
directions of this Court in DB SAW No.394/2020, the degrees of
MDS Course were distributed to the appellants in utter violation of
the order dated 24.06.2020. Counsel submits that while deciding
the above special appeal, the appellants were provisionally
allowed to participate in MDS Final Year Examination but a
direction was issued that the result of the appellants shall not be
declared by the respondent-University without directions of the
learned Single Judge and their examinations shall be subject to
the decision of the writ petition. Counsel for the DCI submits that
in-spite of issuing a notice/corrigendum, the appellants have not
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deposited their degrees. Counsel submits that the appellants may
misuse their degrees, hence appropriate order be passed.
16. Heard and considered the arguments of both sides.
17. The Constitutional Bench of the Hon'ble Supreme Court vide
its judgment dated 02.05.2016 in the case of Modern Dental
College and Research Centre (supra) has held that admissions
to all government and private medical colleges in the country
would be done through centralised counselling system on the
basis of NEET examination. It has been observed in Para Nos. 168
to 169 as under:-
"168. Having regard to the prevailing conditions
relating to admissions in private professional
educational institutions in the State of Madhya
Pradesh, the legislature in its wisdom has taken the
view that merit based admissions can be ensured
only through a common entrance test followed by
centralised counselling either by the State or by an
agency authorised by the State. In order to ensure
rights of the applicants aspiring for medical courses
under Articles 14, 15 and 16 of the Constitution of
India, legislature by the impugned legislation
introduced the system of common entrance test
(CET) to secure merit-based admission on a
transparent basis. If private unaided educational
institutions are given unfettered right to devise
their own admission procedure and fee structure, it
would lead to situation where it would impinge
upon the "right to equality" of the students who
aspire to take admissions in such educational
institutions. Common entrance test by State or its
agency will ensure equal opportunity to all
meritorious and suitable candidates and
meritorious candidates can be identified for being
allotted to different institutions depending on the
courses of study, the number of seats and other
relevant factors. This would ensure twin objects:
(i) fairness and transparency, and
(ii) merit apart from preventing
maladministration.
Thus, having regard to the larger interest and
welfare of the student community to promote merit
and achieve excellence and curb malpractices, it
(12 of 28) [SAW-1046/2022]
would be permissible for the State to regulate
admissions by providing a centralised and single-
window procedure. Holding such CET followed by
centralised counselling or single-window system
regulating admissions does not cause any dent on
the fundamental rights of the institutions in running
the institution. While private educational
institutions have a "right of occupation" in running
the educational institutions, equally they have the
responsibility of selecting meritorious and suitable
candidates, in order to bring out professionals with
excellence. Rights of private educational
institutions have to yield to the larger interest of
the community.
169. By holding common entrance test and
identifying meritorious candidates, the State is
merely providing the merit list of the candidates
prepared on the basis of a fair common entrance
test. If the screening test is conducted on merit
basis, no loss will be caused to the private
educational institutions. There is neither restriction
on the entry of the students in the sanctioned
intake of the institutions nor on their right to collect
fees from the students. The freedom of private
educational institutions to establish and run
institution, impart education, recruit staff, take
disciplinary action, admit students, participate in
fixation of fees is in no way being abridged by the
impugned legislation; it remains intact."
18. In spite of the above specific directions issued by the Hon'ble
Apex Court, some of the private colleges had conducted their own
counselling for admitting students in their respective colleges.
Hence, the State of Madhya Pradesh submitted a Contempt
Petition before the Hon'ble Apex Court and the same was decided
in State of Madhya Pradesh Vs Jainarayan Chouksey and
Ors., (2016) 9 SCC 412 and it was held in para Nos. 5 & 6 as
under:-
"5. We have heard the learned counsel for the
parties at length. We observe that mandate of our
judgment [Modern Dental College and
Research Centre v. State of M.P., (2016) 7
SCC 353] was to hold centralised entrance test
followed by centralised State counselling by the
State to make it a one composite process. We,
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therefore, direct that admission to all medical
seats shall be conducted by centralised counselling
only by the State Government and none else.
6. If any counselling has been done by any college
or university and any admission to any medical
seat has been given so far, such admission shall
stand cancelled forthwith and admission shall be
given only as per centralised counselling done by
the State Government."
19. This fact is not in dispute that the NEET was conducted by
the National Board of Examination (NBE) for admissions to the
MDS Course, 2017 and passing of this NEET-MDS was an eligibility
to get admission in Dental PG Course. No other criteria or test
was prescribed for getting admission in the government or private
dental colleges. As per the terms and conditions mentioned in the
information booklet, for admission in NEET-MDS, it was necessary
for a candidate to secure minimum 50 percentile in NEET and for
the candidates of reserved category, the minimum marks were 40
percentile. When suitable number of candidates were not
available, a decision was taken to reduce the percentile and a
chance was given to the candidates to participate in the mop up
round counselling. The Admission Board nowhere gave any
opportunity to any of the dental Colleges to admit the students on
their own after the mop up round.
20. The undisputed fact is that in September, 2016, NBE issued
an Information Booklet for NEET for admission to MDS Course,
2017. This Information Booklet clearly provides that each
candidate is required to obtain minimum qualifying score, as
provided in the NEET Entrance Examination.
21. The NEET-MDS, 2017 advertisement was issued and
Information Booklet for State Dental Post Graduate seats was also
issued by the Chairman, NEET PG Admission/Counselling Board.
(14 of 28) [SAW-1046/2022]
The appellants No.2, 7 and 12 to 14 appeared in the above tests
but could not qualify the same. The appellants No.5 and 15
appeared in the test and qualified the same but did not appear in
the counselling. The remaining appellants did not even appear in
the above NEET Examination.
22. From the facts narrated above, it is clear that the appellants
did not undergo the centralized counselling and they were well
aware from the day one that their admissions in the respondent-
College were irregular and illegal- being in the teeth of the
judgment of Hon'ble Apex Court in the case of Modern Dental
College and Research Centre (supra). The admission given by
the respondent-college to the appellants were contrary to the
Notification issued by the respondent authorities.
23. The admissions were given to the appellants outside the
centralized counselling conducted by the PG Medical/Dental
Admission Board. The admissions were granted to the appellants
by crossing and exceeding the jurisdiction by the respondent-
College which was not vested in it. Obviously, the admissions
were granted to the appellants collusively, as they were under the
teeth of the judgment of the Hon'ble Supreme Court in the case of
Modern Dental and Research College (supra).
24. We find no force in the arguments of the counsel for the
appellants and the respondent-College that when sufficient
number of seats remained vacant, the same were required to be
filled in as per the prevailing past practice because the appellants
were neither registered with the State NEET PG Dental
Admission/Counselling Board, nor they qualified the NEET
examination which was mandatory to get admission in MDS
Course.
(15 of 28) [SAW-1046/2022]
25. The similar controversy came before the Hon'ble Supreme
Court in the case of Abdul Ahad (supra) and the same was
decided observing in para Nos.25 to 40 as under:-
"25. It could thus clearly be seen that the private
counselling by local Medical College was conducted
contrary to the Notification issued by the State of
Uttar Pradesh, which Notification, in turn, was
based on the judgment of this Court in the case of
Modern Dental College and Research Centre
(supra), which was decided on 2.5.2016. Not only
that, but this Court by order dated 22.9.2016 had
further clarified the position.
26. It will further be pertinent to note that the
Division Bench of the Allahabad High Court vide
judgment dated 15.9.2016 had negated the
challenge to the Notification dated 22.8.2016.
27. In the light of this position, it was not at all
permissible for the Glocal Medical College to have
conducted private counselling. The admissions
which were conducted through the said private
counselling cannot be termed as anything else but
per se illegal.
28. Though we have all the sympathies with the
students, we will not be in a position to do anything
to protect the admissions, which were done in a
patently illegal manner.
29. It will be apposite to refer to the following
observations made by this Court in the case of
Guru Nanak Dev University v. Parminder Kr.
Bansal and others, reported in (1993) 4 SCC
401:-
"In the present case, the High Court
was apparently moved by sympathy
for the candidates than by an
accurate assessment of even the
prima facie legal position. Such
orders cannot be allowed to stand.
The courts should not embarrass
academic authorities by themselves
taking over their functions."
30. It will further be appropriate to refer to the
following observations of this Court in the case of
Gurdeep Singh v. State of J & K and Others,
1995 Supp (1) SCC 188-
(16 of 28) [SAW-1046/2022]
"12. What remains to be considered
is whether the selection of
Respondent 6 should be quashed.
We are afraid, unduly lenient view of
the courts on the basis of human
consideration in regard to such
excesses on the part of the
authorities, has served to create an
impression that even where an
advantage is secured by stratagem
and trickery, it could be rationalised
in courts of law. Courts do and
should take human and sympathetic
view of matters. That is the very
essence of justice. But
considerations of judicial policy also
dictate that a tendency of this kind
where advantage gained by illegal
means is permitted to be retained
will jeopardise the purity of selection
process itself; engender cynical
disrespect towards the judicial
process and in the last analysis
embolden errant authorities and
candidates into a sense of
complacency and impunity that
gains achieved by such wrongs
could be retained by an appeal to
the sympathy of the court. Such
instances reduce the jurisdiction and
discretion of courts into private
benevolence. This tendency should
be stopped. The selection of
Respondent 6 in the sports category
was, on the material placed before
us, thoroughly unjustified. He was
not eligible in the sports category.
He would not be entitled on the
basis of his marks, to a seat in
general merit category. Attribution
of eligibility long after the selection
process was over, in our opinion,
is misuse of power. While we have
sympathy for the predicament of
Respondent 6, it should not lose
sight of the fact that the situation is
the result of his own making. We
think in order to uphold the purity of
academic processes, we should
quash the selection and admission
of Respondent 6. We do so, though,
however, reluctantly."
(17 of 28) [SAW-1046/2022]
31. Similar observations have been made by this
Court in K.S. Bhoir v. State of Maharashtra and
others, (2001) 10 SCC 264.
32. The facts in the present case are somewhat
similar with the facts, which fell for consideration in
the case of Mahatma Gandhi University and
Another v. GIS Jose and Others, reported in
(2008) 17 SCC 611.
33. In the said case, the admissions were given for
M.Sc. Computer Science course in violation of
admission rules. The High Court had directed to
declare the withheld result of such students.
Reversing the judgment of the High Court, this
Court observed thus:-
"10. The misplaced sympathies should not
have been shown in total breach of the
rules. In our opinion, that is precisely what
has happened. Such a course was
disapproved by this Court in CBSE v.
Sheena Peethambaran [(2003) 7 SCC
719]. In para 6 of the judgment, this
Court observed as follows: (SCC p. 724).
"6. This Court has on several
occasions earlier deprecated the
practice of permitting the students
to pursue their studies and to
appear in the examination under the
interim orders passed in the
petitions. In most of such cases, it
is ultimately pleaded that since the
course was over or the result had
been declared, the matter deserves
to be considered sympathetically. It
results in very awkward and difficult
situations. Rules stare straight into
the face of the plea of sympathy and
concessions, against the legal
provisions.............."
11. In the present case, the college where
the student was admitted, in breach of all
possible rules allowed her not only to
complete the course but also to write the
examination which was totally illegal."
34. It will further be relevant to refer to the
following observations of this Court in the case of
National Council for Teacher Education and
another v. Venus Public Education Society and
others, reported in (2013) 1 SCC 223:-
(18 of 28) [SAW-1046/2022]
"3. It is to be clearly stated that an
institution that is engaged or interested in
getting involved in imparting a course for
training has to obey the command of law in
letter and spirit. There cannot be any
deviation. But, unfortunately, some of
the institutions flagrantly violate the norms
with adamantine audacity and seek
indulgence of the court either in the name of
mercy or sympathy for the students or
financial constraint of the institution or they
have been inappropriately treated by the
statutory regulatory bodies. None of these
grounds justify deviation. The case at hand
graphically depicts deviations but the High
Court, putting the blame on the statutory
authority has granted relief to the
respondent institution which is
impermissible."
35. In the backdrop of this legal position laid down
in various judgments of this Court, it will not be
possible to consider the cases of the review
petitioners sympathetically. The Notification issued
by the State of Uttar Pradesh on the basis of the
law laid down by this Court clearly provided that
the admissions were to be done only through the
centralized admission process. Glocal Medical
College in contravention of the said Notification
conducted private counselling, which was not at all
permissible in law. The students cannot be said
to be ignorant about the Notification issued by the
State of Uttar Pradesh.
36. In such a situation, no sympathies can be
shown to such students who have entered through
backdoor. Apart from that, MCI vide order dated
27.1.2017 had discharged the said students, who
were not admitted through centralized admission
process. It is pertinent to note that 25 students
admitted in the same college, who were admitted
through the centralized admission process, were
very much absorbed by the DGME in other
colleges. As such, the contention of the review
petitioners that they came to know about the
discharge order dated 27.1.2017 issued by MCI
only when they had filed a petition in the High
Court in 2019 does not stand to reason.
37. Insofar as the contention with regard to the
interim order passed by this Court dated
20.3.2017 is concerned, the same would clearly
show that though the students were permitted to
appear in the examination, their results were
(19 of 28) [SAW-1046/2022]
directed not to be published. There is no other
order modifying the said order.
38. It is difficult to appreciate as to how the
results of the students were declared for the 1st
year MBBS examination, how they were admitted
in the 2nd year MBBS course and how they cleared
the 2nd year MBBS examination, despite the fact
that MCI had discharged the students vide order
dated 27.1.2017.
39. Insofar as the observations of this Court in
order dated 18.9.2017 in the writ petition filed by
Glocal Medical College challenging the discharge
order is concerned, the observation could not be
construed to have vacated or modified the specific
directions issued by this Court on 20.3.2017.
40. In the result, the Review Petitions are without
merit and as such dismissed. Consequently, all
pending applications, including the application(s)
for intervention/ impleadment shall stand disposed
of."
26. Again the similar issue came before the Delhi High Court in
the case of Deepanshu Bhadoriya (supra) and the same was
decided in para Nos. 9, 17, 24 & 25, 36 to 38 observing as
under:-
"9. After the process of admission was closed, the
statement furnished by the respondent college, as
well as by the State of M.P. to the MCI was
reconciled, and it was found that the 5 petitioners
herein had been granted admission by the
respondent Medical College without their
undergoing the centralized counselling conducted
by the DME. Consequently, the MCI issued letters
of discharge in respect of the 5 petitioners, firstly,
on 26.04.2017. This communication was followed
by 7 subsequent communications issued on
19.07.2017, 23.08.2017, 06.09.2017, 30.12.2017,
13.02.2018, 25.08.2018 and 21.09.2018. Neither
the petitioners, nor the respondent Medical College,
apparently, paid any heed to these
communications. The respondent Medical College
continued to treat the petitioners as their students,
and allowed them to attend the course, appear in
the examinations: and; get promoted.
10..........
11..........
(20 of 28) [SAW-1046/2022]
12..........
13..........
14..........
15..........
16..........
17. Mr. Singhdev - learned counsel for the MCI,
submits that despite discharge of the petitioners by
the MCI - as early as on 26.04.2017, the same was
not acted upon - either by the respondent Medical
College, or by the petitioners, and they have
continued to ignore the same, even after repeated
communications taken note of hereinabove. He
submits that there was no interim order obtained
by the petitioners- either in their writ petition, or in
any other proceedings. Despite that, the petitioners
continued to take admissions in subsequent years
and undertake examinations at the respondent
College. He submits that this was done by them at
their own peril, and they cannot claim equity in
their favour. He submits that the admitted position
is that the petitioners did not undergo the
centralized counselling and they were well aware
from day one, that their admission in the
respondent college were irregular and illegal -
being in the teeth of the judgement of the Supreme
Court in Modern Dental College (supra).
18.........
19.........
20.........
21.........
22.........
23.........
24. Moreover, later a Three-Judge Bench decision of
the Supreme Court-which Bench was also headed
by the same learned Judge who headed the Bench
which decided Saraswati Educational Charitable
Trust (supra), has clearly held that in the case of
backdoor entries, i.e. grant of admissions in
Medical Colleges by bye-passing the central
counselling system, the Court would not allow the
students to continue their course on equitable
considerations.
25. In this regard, he has drawn our attention to
the judgment of the Supreme Court in Review
Petition (Civil) Nos. 1835-1836/2020 in I.A. No.
183249/2019 in Special Leave Petition (Civil) Nos.
31037-31038/2016, Abdul Ahad and Ors. Vs. Union
of India and Ors. alongwith other cases, decided on
17.08.2021. Mr. Singhdev submits that the facts of
(21 of 28) [SAW-1046/2022]
this case dealt with by the Supreme Court, were
much better for the petitioner before it inasmuch,
as, the students were permitted - under interim
orders, to continue with the course, which is not
the case in hand. He has specifically placed reliance
on the following passages of the said decision,
which was preceded by consideration of several
earlier decisions of the Supreme Court on the
aspect of grant of equitable/ sympathetic relief to
students/ candidates who took admissions to
academic institutions irregularly. The decisions
considered were: Guru Nanak Dev University v.
Parminder Kr. Bansal, (1993) 4 SCC 401;
Gurdeep Singh Vs. State of J&K, 1995 Supp
(1) SCC 188; K.S. Bhoir v. State of
Maharashtra, (2001) 10 SCC 264; Mahatma
Gandhi University v. GIS Jose, (2008) 17 SCC
611; and National Council for Teacher
Education v. Venus Public Education Society,
(2013) 1 SCC 223. The conclusion drawn by the
Supreme Court after discussing the aforesaid
decisions, reads as follows:-
"35. In the backdrop of this legal position
laid down in various judgments of this
Court, it will not be possible to consider the
cases of the review petitioners
sympathetically. The Notification issued by
the State of Uttar Pradesh on the basis of
the law laid down by this Court clearly
provided that the admissions were to be
done only through the centralized
admission process. Glocal Medical College
in contravention of the said Notification
conducted private counselling, which was
not at all permissible in law. The students
cannot be said to be ignorant about the
Notification issued by the State of Uttar
Pradesh.
36. In such a situation, no sympathies can
be shown to such students who have
entered through backdoor. Apart from that,
MCI vide order dated 27.1.2017 had
discharged the said students, who were not
admitted through centralized admission
process. It is pertinent to note that 25
students admitted in the same college, who
were admitted through the centralized
admission process, were very much
absorbed by the DGME in other colleges.
As such, the contention of the review
petitioners that they came to know about
the discharge order dated 27.1.2017
issued by MCI only when they had filed a
(22 of 28) [SAW-1046/2022]
petition in the High Court in 2019 does not
stand to reason.
37. Insofar as the contention with regard
to the interim order passed by this Court
dated 20.3.2017 is concerned. The same
would clearly show that though the
students were permitted to appear in the
examination, their results were directed
not to be published. There is no other
order modifying the said order.
38. It is difficult to appreciate as to how
the results of the students were declared
for the 1st year MBBS examination, how
they were admitted in the 2nd year MBBS
course and how they cleared the 2nd year
MBBS examination, despite the fact that
MCI had discharged the students vide
order dated 27.1.2017.
39. Insofar as the observations of this
Court in order dated 18.9.2017 in the writ
petition filed by Glocal Medical College
challenging the discharge order is
concerned. The observation could not be
construed to have vacated or modified the
specific directions issued by this Court on
20.3.2017.
40. In the result, the Review Petitions are
without merit and as such dismissed.
Consequently, all pending applications
including the application(s) for
intervention/impleadment shall stand
disposed of."
26 ............
27 ............
28 ............
29 ............
30 ............
31 ............
32 ............
33 ............
34 ............
35 ............
36. In any event of the matter, the admissions
granted to the petitioners were, admittedly, outside
the centralised counselling conducted by the DME
of the State of Madhya Pradesh. If the vacancies
position had been communicated to the DME by the
respondent Medical College on, or before
07.10.2016, the DME could have sent the names of
(23 of 28) [SAW-1046/2022]
candidates post counselling. However, it appears
that was not done by the respondent Medical
College, which proceeded to grant admission to the
five petitioners much earlier, i.e. between
04.09.2016 and 28.09.2016. Obviously, these
admissions were granted to the petitioners
collusively. They are in the teeth of the judgment of
the Supreme Court in Modern Dental College &
Research Centre (supra). Pertinently, even after
the Supreme Court passed the order dated
22.09.2016 in Jainarayan Chaouksey (supra),
the respondent Medical College appears to have
brazenly gone ahead to grant admission to
petitioners No.1, 2, 3 & 5 between 24.09.2016 and
28.09.2016. The conduct of the petitioners and the
respondent Medical College is, in fact, in gross
contempt of not only the judgment in Modern
Dental College & Research Centre (supra), but
also the order dated 22.09.2016 in Jainarayan
Chaouksey (supra).
37. The distinction sought to be drawn by Mr.
Gupta in the case of the petitioners by contending
that they ranked higher in the NEET examination
than even those who were granted admission
through the central counselling conducted by the
DME in relation to the respondent Medical College,
and therefore, they should be shown leniency as in
the case of Saraswati Educational Charitable Trust
(supra), and the decision in Abdul Ahad (supra)
should not be invoked in their case, also has no
merit. This is for the reason that, if the respondent
Medical College had informed the vacancy position
to the DME on time, the DME would have
conducted further counselling and sent names on
merit on the basis of the NEET examination
conducted in 2016. It is quite possible that the
names of other candidates, more meritorious then
the five petitioners, may have been sent. Since the
respondent Medical College does not appear to
have informed the DME of the vacancy position,
and they proceeded to grant admissions to the five
petitioners much before the close of the date of
admission on 07.10.2016, the other meritorious
students, obviously, remained unaware that they
could stake a claim against a seat in the
respondent Medical College on the basis of their
merit. Thus, to say that no other meritorious
candidate has showed up, is neither here nor there.
38. It is high time that such backdoor entries in
educational institutions, including Medical Colleges,
should stop. Lakhs of students all over the country
work hard and toil to secure admissions to
educational institutions on the basis of their merit.
(24 of 28) [SAW-1046/2022]
To permit any backdoor entry to any educational
institution would be grossly unfair to those who are
denied admission, despite being more meritorious,
on account of the seats being taken and blocked by
such backdoor entrants. The petitioners have only
themselves to blame for the mess that they find
themselves in. Had they acted in terms of the
discharge letter dated 26.04.2017, they would have
saved four years of their lives. But they did not,
and acted recklessly. Despite not having any
interim orders in their favour in their writ petition,
they continued to attend the course - obviously, at
their own peril."
27. The above judgment of Delhi High Court in the case of
Deepanshu Bhadoriya (supra) was challenged before the
Hon'ble Supreme Court in Rahul Soni & Ors. (supra) and the
same was upheld.
28. The judgments cited by the counsel for the appellants,
particularly the case of Saraswati Educational Charitable
Trust (supra) does not give any benefit to the appellants
because the said judgment was passed by the Hon'ble Apex Court
in the peculiar circumstances of that case and it was observed by
the Hon'ble Apex Court that this judgment shall not be treated as
precedent.
29. At this stage, it is needed to be mentioned that an identical
issue has arisen before the Hon'ble Supreme Court in Rishabh
Choudhary Vs. Union of India & Ors. reported in (2017) 3
SCC 652, where the question for consideration was the validity of
admission granted to the petitioner by Respondent C.M. Medical
College & Hospital to the MBBS course. A plea was advanced that
since the petitioner was already granted admission by the college
after the examination CGMAT-2016 was conducted by the college
and supervised and monitored by the State Government and in
(25 of 28) [SAW-1046/2022]
which there was no allegation of impropriety, his admission should
not be disturbed. It was also pleaded that the petitioner was
certainly not at fault and he should not be rendered victim of an
apparent wrong committed by the college as also by the State
Government. In the said case, examination was conducted by the
college contrary to the Gazette Notification issued by the Medical
Council of India amending the regulations on Graduate Medical
Education, 1997 to the effect, inter alia, that admissions to MBBS
Course shall be based solely on marks obtained in NEET. After
considering the submissions advanced on behalf of the petitioner
and the college supporting him, the Supreme Court dismissed the
writ petition filed under Article 32 of the Constitution of India
observing as under:--
"15. The question before this Court is not
who is to be blamed for the present State
of affairs-whether it is the students or the
College or the State of Chhattisgarh. The
question is really whether the rule of law
should prevail or not. In our opinion, the
answer is unambiguously in the
affirmative. The College and the State of
Chhattisgarh have not adhered to the law
with the result that the petitioner became a
victim of circumstances giving him a cause
of action to proceed against the College
and the State of Chhattisgarh being a
victim of their maladministration. The
plight of the petitioner is unfortunate but it
cannot be helped."
(emphasis supplied)
30. The Supreme Court further held that the question is not of
any impropriety in conducting of the examination but the question
is really one of adhering to a particular discipline laid down by the
Medical Council of India which has been approved by the Court.
The Supreme Court said that the plight of petitioner is unfortunate
but it cannot be helped.
(26 of 28) [SAW-1046/2022]
31. In Guru Nanak Dev University v. Parminder Kumar
Bansal, reported in (1993) 4 SCC 401 relating to admission in
disregard to the eligibility of the candidates in academic matters,
the Supreme Court said as follows:--
"7..... We are afraid that this kind of
administration of interlocutory remedies,
more guided by sympathy quite often
wholly misplaced, does no service to
anyone. From the series of orders that keep
coming before us in academic matters, we
find that loose, ill-conceived sympathy
masquerades as interlocutory justice
uhexposing judicial discretion to the
criticism of degenerating into private
benevolence. This is subversive of
academic discipline, or whatever is left of
it, leading to serious impasse in academic
life. Admissions cannot be ordered without
regard to the eligibility of the candidates.
Decisions cannot be deferred or decided
later when serious complications might
ensue from the interim order itself. In the
present case, the High Court was
apparently moved by sympathy for the
candidates than by an accurate assessment
of even the prima facie legal position. Such
order cannot be allowed to stand. The
courts should not embarrass academic
authorities by themselves taking over their
functions."
(emphasis supplied)
32. In CBSE v. P. Sunil Kumar, reported in (1998) 5 SCC
377, the institution whose students were permitted to undertake
the examination of the CBSE were not entitled to appear in the
examination. They were, however, allowed to appear in the
examination under the interim order granted by the High Court.
In that context, the Supreme Court observed as under:--
"4........But to permit students of an unaffiliated
institution to appear at the examination
conducted by the Board under orders of the
Court and then to compel the Board to issue
certificates in favour of those who have
undertaken examination would tantamount to
(27 of 28) [SAW-1046/2022]
subversion of law and this Court will not be
justified to sustain the orders issued by the High
Court on misplaced sympathy in favour of the
students....."
33. In view of the discussions made here-in-above, we find that
the appellants did not undergo the centralized counselling and
they were well aware from the day one that their admission in the
respondent-college was irregular and illegal- being in the teeth of
the judgments of the Hon'ble Apex Court in the cases of Modern
Dental Medical College (supra) & Jainarayan Chouksey
(supra). The appellants are not entitled to get any equitable
relief in view of the judgment of the Hon'ble Apex Court in the
case of Abdul Ahad (supra).
34. Under these circumstances, we find that no ground has been
made out for granting relief to the appellants. There is no merit in
these appeals and the same are accordingly dismissed. However,
we make it clear that the appellants would be at liberty to proceed
against the respondent-College to get the amount of
compensation of Rs.10,00,000/- (each) in pursuance of the
directions issued by the learned Single Judge in accordance with
law.
35. Before parting with the judgment, we would like to observe
that the time has come where such backdoor entries in
educational institutions should be stopped and discouraged. To
permit any backdoor entry to any educational institution would be
de hors the Rules and Regulations. The respondent-College was
well aware of the fact that admissions cannot be granted to the
appellants contrary to the regulations, even then, the College
permitted the appellants to continue their studies in-spite of the
(28 of 28) [SAW-1046/2022]
directions by the Dental Medical Council to discharge the
appellants. Such an intentional and deliberate violation of the
Regulations by the respondent-College while granting admissions
to the appellants in the academic year-2017 cannot be condoned.
Hence, for the above unauthorized act, the respondent-College is
liable to pay and deposit the costs of Rs. 25,00,000/- with the
Rajasthan State Legal Services Authority (RSLSA) within a period
of three months from today. RSLSA shall recover the same from
the respondent-College in accordance with law.
36. The respondent-University and the College have distributed
the degrees of MDS Course to the appellants in violation of the
orders passed by this Court and the appellants, despite being
well aware of the order dated 24.06.2020, have received the
degrees and not deposited the same with the University, the
appellants are hereby directed to deposit the degrees with the
University within one month from today, failing which the
respondent-University would be at liberty to initiate contempt
proceedings against the appellants.
37. All pending application(s), if any, stand(s) disposed of.
38. The Registry is directed to place a copy of this judgment in
the connected case file.
39. Registry is directed to forward a copy of this judgment to
RSLSA for necessary compliance.
(ANOOP KUMAR DHAND),J (PANKAJ MITHAL),CJ
PRAVESH/6-7
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