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Fate of the students already admitted in Medical college after quashing of NEET notification = Apex court held that before quashing NEET Notifications, it saved the admission already made and as such they should not be asked to leave the course= whether the petitioners have any right to continue or the respondents who have been admitted under the Rules have the right of admission.= After the judgment was pronounced, some kind of infantile wisdom which may, in different terminology, be called depraved sense of egocentric knowledge, the Additional Secretary (Health) had conveyed the Government’s decision dated 25.7.2013 which is as under: – “The Dean Goa Medical College, Bambolim-Goa Sub: Decision of the Government regarding Admission to Post Graduate Degree/Diploma Cources at GMC. I am directed to refer to your letter No. Acad/175/G.M.C./2013/441 dt. 23.7.2013 on the subject cited above and to convey the decision of the Government to admit the students for Post Graduate Degree/Diploma based on aggregate MBBS marks, as per existing rules as notified in the Official Gazette Series I No. 50 and Series I No. 51, Notification No. I/B/2033-II/PHD. Provisional admissions given on the basis of the NEET merit earlier thus stands cancelled.”- The candidates, who had qualified in the NEET examination and had been admitted, were compelled to leave the college and the students who had qualified under the Rules were admitted. – This Court in the final judgment had not invalidated the actions taken under the amended regulations and it included the admissions already given on the basis of the NEET conducted by the Medical Council of India. Therefore, there could not have been any scintilla of doubt in any one’s mind that the admissions given on the basis of NEET examination had been protected by this Court and hence, their admissions could not have been cancelled by the State Government.- But, unfortunately, here the authorities of the State Government have felt courageous enough to play possum and proceeded to crucify the fate of the candidates who had been protected by the verdict of this Court. Such an action is absolutely impermissible. Thus analysed the letter dated 25.7.2013 deserves to be lancinated and we so do. The writ petitioners, who have been admitted on the basis of the NEET examination, shall be allowed to prosecute their studies.=We are absolutely conscious of the said position. However, regard being had to the special features of the case and the litigations that have cropped up and the mistake that the State Government has committed, we are inclined to direct that 21 seats transferred to the State quota shall be filled up from among the students who had taken admissions under the 2004 Rules. It needs no special emphasis to state that the admissions and the allocations of the stream shall be on their inter se merit as per the Rules. We may hasten to clarify that none of these candidates shall be allowed to encroach upon the streams that have already been allotted to the petitioners who were admitted having been qualified in the NEET examination. We have been further apprised at the Bar that there are some unfilled seats as some students have left the College. If the vacancies have occurred, the same can also be filled up regard being had to the merit as stipulated under the Rules.- the effect that there should be increase of the seats for the academic year 2013-14 and the students should be adjusted. = Be it noted, an application was filed by the College for enhancement of seats for 2014-15 and during the pendency of this petition there has been a request to the Medical Council of India to prepone it for the year 2013-14. Enhancement of seats requires inspection and is controlled by a set of Regulations and, in any case, the application for 2014-15 cannot be directed to be processed in the current year.; whether the students who cannot be adjusted in the seats of All India quota that have been transferred to the State quota of this year can be adjusted next year. = We are bound by the said precedents. In certain individual cases where there is defective counselling and merit has become a casualty, this Court has directed for adjustment in the next academic session but in the case at hand, it is not exactly so. Though we are at pains, yet we must express that it will not be appropriate to issue directions to adjust them in respect of the subsequent academic year, for taking recourse to the same would affect the other meritorious candidates who would be aspirant to get admissions next year. For doing equity to some in presenti we cannot afford to do injustice to others in future. Therefore, the submission stands repelled.

 published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40709 

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 598 OF 2013

 
Aneesh D. Lawande & others … Petitioners
Versus
The State of Goa and others … Respondents

 

 

 

 

 

 

 

 
J U D G M E N T

 
Dipak Misra, J.

 

The present litigation exposits a sad sad scenario. It is sad
because a chaos has crept in in the lives of some students and it is
further sad as the State of Goa and its functionaries have allowed
ingress of systemic anarchy throwing propriety to the winds possibly
harbouring the attitude of utter indifference and nurturing an
incurable propensity to pave the path of deviancy. The context is
admission to Post Graduate courses in a single Government medical
college at Goa. The insensitivity of the authorities administering
medical college admissions was seriously decried by a three-Judge
Bench in Convenor, MBBS/BDS Selection Board and others v. Chandan
Mishra and others[1] and further echoed in Medical Council of India v.
Madhu Singh and others[2]. The Court in Chandan Mishra (supra) had
approvingly reproduced a sentence from the decision of the High Court
that proclaimed in sheer anguish: “Shakespeare in Othello has written
“Chaos is come again”.

2. The saga of anguish continues with constant consistency. In
Asha v. Pt. B.D. Sharma University of Health Sciences and others[3] a
two-Judge Bench commenced the judgment thus: –
“Admission to the medical courses (MBBS and BDS) has
consistently been a subject of judicial scrutiny and review for
more than three decades. While this Court has enunciated the law
and put to rest the controversy arising in relation to one facet
of the admission and selection process to the medical courses,
because of the ingenuity of the authorities involved in this
process, even more complex and sophisticated sets of questions
have come up for consideration of the Court with the passage of
time. One can hardly find any infirmities, inaccuracies or
impracticalities in the prescribed scheme and notifications in
regard to the process of selection and grant of admission. It is
the arbitrary and colourable use of power and manipulation in
implementation of the schedule as well as the apparently
perverse handling of the process by the persons concerned or the
authorities involved, in collusion with the students or
otherwise, that have rendered the entire admission process
faulty and questionable before the courts. It is the admissions
granted arbitrarily, discriminately or in a manner repugnant to
the regulations dealing with the subject that have invited
judicial catechism. With the passage of time, the quantum of
this litigation has increased manifold.”

3. We have begun with such a prefatory note and referred to
the aforesaid pronouncements as the facts, as have been
uncurtained, would shock one’s conscience. A deliberate labyrinth
which not only assaults the majesty, sanctity and purity of law,
but also simultaneously creates a complex situation requiring this
Court to intervene in a different manner to redeem the situation as
far as possible so that there is some sanguine cathartic effect.
4. Presently to the facts. The State of Goa has framed a set
of Rules, namely, the Goa (Rules for admission to Postgraduate
degree and diploma courses of the Goa University at the Goa Medical
College) Rules, 2004 (for short “the Rules”). Rule 3 deals with
eligibility, preference and order of merit. Rule 3(1) deals with
eligibility criteria and Rule 3(2) with preference. Rule 3(3) of
the Rules deals with order of merit. The relevant part of the said
Rule is reproduced below:-
“(3) Order of Merit – (i) The order of merit shall be
determined by the percentage of aggregate marks.

(ii) Aggregate Marks – The percentage of aggregate marks shall
be arrived at by totaling the marks obtained in all the subjects
of the 1st, 2nd and 3rd MBBS Examinations and reducing it to a
percentage after the following deductions: –

a) 5 per cent of marks shall be deducted for every
failure from the marks of the subject failed

b) 5 per cent of marks shall also be deducted as
above, if the student takes a drop in the subject.

(iii) If two or more candidates secure the same marks in the
merit list as drawn above, the marks obtained in the subject
shall decide the merit. In case the subject marks are also the
same, the total marks secured by the candidates in the Final
M.B.B.S. Examination, or total marks of IInd MBBS Examination or
total marks of the 1st M.B.B.S. Examination, depending on
whether the candidate is seeking registration in the clinical or
para-clinical or pre-clinical subjects respectively, shall
decide the merit.

(iv) A candidate, who has failed three times in a particular
subject, shall not be eligible for registration for the degree
or diplomas for which the marks of that subject are considered.

(v) For admission to the postgraduate degree and diploma
courses, the candidates belonging to the General Category will
be required to obtain minimum 50% and the candidates belonging
to the Scheduled Casts, Scheduled Tribes and Other Backward
Classes will be required to obtain minimum 40%, aggregate marks
as determined above.”
5. The said Rule governs the admission to the singular
medical college and the lone dental college, both Government
colleges affiliated to Goa University. On 9.8.2012 the Government
of Goa in the Department of Public Health, through its Under
Secretary (Health) communicated to the Dean, Goa Medical College,
as follows: –
“I am directed to refer to your letter No. Acad/141/
NEET/12/G.M.C./245 dated 27.6.2012 on the subject cited above
and to convey approval of the Government for implementation of
the Medical Council of India’s Notification on the National
Eligibility-cum-Entrance Test (NEET) for the Under Graduate and
Post Graduate students from the Academic Year 2013-14.”
6. In pursuance of the decision taken the students
appeared in the National Eligibility-cum-Entrance Test (NEET) held
in November-December, 2012 for the medical courses and in January,
2013 for the dental courses. It is worthy to note that
introduction of NEET was made by issue of a notification by the
Medical Council of India in exercise of power conferred on it by
Section 33 of the Indian Medical Council Act, 1956. The said
notification as well as the notification issued by the Dental
Council of India came to be challenged in Christian Medical College
Vellore and others v. Union of India and others[4].

7. During the pendency of the writ petitions as well as the
transferred cases which were transferred from various High Courts,
this Court on 13.12.2012 passed the following order:-
“Place these matters on 15th January, 2013.

In the meantime, the Medical Council of India, the Dental
Council of India, as well as the States and Universities and
other institutions, will be entitled to conduct their respective
examinations for the M.B.B.S., B.D.S. and Post-Graduate courses,
but shall not declare the results of the same, until further
orders of this Court.

Learned counsel for the respective parties are all directed to
make available their written submissions by 7th January, 2013.

Let copies of this Order be made available to the advocates-on-
record for the respective parties for communication to concerned
Authorities.

Wide publicity may also be given to this Order by the States,
Union of India, Medical Council of India and the Dental Council
of India so that the students, who are intending to sit for the
entrance examination, may have knowledge of the same.”

[Underlining is ours]
8. After the aforesaid order came to be passed the NEET
examination was conducted for the medical as well as dental
courses. On 13.5.2013 this Court referred to the challenge to the
notifications, order passed on 13.12.2012 and thereafter passed the
following order: –
“3. On 13th December, 2012, when the matters were taken up for
consideration, we decided to post the matters for final hearing
on 15th, 16th and 17th January, 2013, and allowed the respective
entrance examinations, which had already been notified, to be
held, while the hearing progressed. Such examinations included
the National Eligibility Entrance Test(NEET) for both MBBS and
PostGraduate courses in different disciplines, as also the BDS
and MDS examinations. Presuming that the hearing would be
completed on the dates indicated, we had directed that the
Medical Council of India, the Dental Council of India, as well
as the States and Universities and other institutions, would be
entitled to conduct their respective examinations for the MBBS,
BDS and Post-Graduate courses, but the results of the
examinations were not to be declared until further orders of the
Court. Consequently, although, the examinations have been held,
the results have been withheld and have not been declared, on
account of the interim order passed by us.

4. The hearing could not be concluded within 17th January, 2013,
as we had hoped, on account of the enlargement of the scope of
the hearing and the large number of parties who had to be heard
in the matter. In fact, the matters were last heard on 30th
April, 2013, and it has, therefore, not been possible to
pronounce judgment before the Supreme Court closed for the
summer vacations on 10th May, 2013.

5. While the matters were being heard, we had been informed by
the learned senior counsel appearing for the Christian Medical
College, Vellore, and the Karnataka Pvt. Medical & Dental
College, that a large number of students would be adversely
affected and would stand to lose a year, if the bar on the
declaration of their results was not lifted. Although,
initially, we had declined to entertain such prayer, on account
of the delay in completion of the hearing and the prospect of
the students losing a year on account thereof, we feel that
students hoping to gain admission in the MBBS as well as Post-
Graduate courses on the strength of the results of the
examinations, which have already been held and for which they
had appeared, should not be denied such opportunity, at least
for this year. We are also alive to the fact that it is the
Post-Graduate students in the medical colleges, who take charge
of the medical treatment of patients in the hospitals. Without
fresh entrants into the Post-Graduate courses, even for a year,
the hospitals are likely to be adversely affected on account of
lack of doctors to directly take care of the patients in the
hospitals.

6. Apart from the above, the students, who aspire to gain entry
into the medical colleges at the MBBS and BDS and the Post-
Graduate levels, have been caught in the legal tangle for no
fault of theirs and are the victims of policy decisions. In
order to safeguard their interests, as also the interest of the
hospitals, we consider it just and equitable to lift the bar
imposed by us on 13th December, 2012, for this year’s entrance
examinations and, to that extent, we modify our order of 13th
December, 2012, and allow the results of the examinations
already conducted to be declared to enable the students to take
advantage of the same for the current year.”

[Emphasis supplied]
9. Pursuant to the aforesaid order, the results of NEET were
declared on 16.5.2013. The writ petitioners herein secured ranks
which entitled them to be admitted to the post graduate courses in
various streams in the State of Goa.

10. When the matter was sub-judice before this Court and this
Court has been passing interim orders regard being had to the
numerous fact situations, the High Court of Bombay at Goa
entertained Writ Petition No. 366 of 2013 by the students, who had
failed to qualify in the NEET examination but were eligible to get
admission on the basis of their aggregate marks as provided under
the Rules, and passed the following interim order: –
“Mr. Nadkarni submits that the applications for admission to
postgraduate courses in Goa Medical College have been invited
from the students, who fall in the category of M.B.B.S.
examination from Goa Medical College as well as those who have
passed National Eligibility-cum-Entrance Test (‘NEET’ for short)
and counselling and admission process are presently being
undertaken in terms of MCI Rules on the basis of the result of
the NEET.

Considering the equities in the matter, we direct the
respondents to hold counselling in respect of both the
categories of students and permit admission to the students, who
have passed NEET subject to further orders that may be passed by
this Court, depending upon the order passed by the Apex Court in
the matter pending before it. The selected candidates shall be
put on notice that the admissions are provisional in nature and
shall be subject to further orders that may be passed by this
Court.”
11. It is condign to note here that on the basis of the ranks
in NEET examination and the counselling the writ petitioners were
admitted in the Government Medical College at Goa.

12. At this juncture, we are obliged to state that the problem
to some extent has been created by the interim order passed by the
High Court. With all respect at our command, we may state that
when the matter was before this Court and interim orders were being
passed from time to time, the High Court should have been well
advised not to entertain the petition and pass any interim order.
Such a restraint was requisite and, more so, when number of writ
petitions had been transferred to this Court and the Court was
dealing with a batch of 115 matters.

13. The writ petitions filed before this Court and the
transferred cases were decided on 18.7.2013 whereby the majority
came to hold that the Medical Council of India is not empowered
under the Medical Council of India Act, 1956 to conduct the NEET.
After so holding the majority directed as follows: –
“163. The Transferred Cases and the Writ Petitions are,
therefore, allowed and the impugned Notifications Nos. MCI-
31(1)/2010-MED/49068, and MCI.18(1)/2010-MED/49070, both dated
21st December, 2010, published by the Medical Council of India
along with Notification Nos. DE-22-2012 dated 31st May, 2012,
published by the Dental Council of India and the amended
Regulations sought to be implemented thereunder along with
Notification Nos. DE-22-2012 dated 31st May, 2012, published by
the Dental Council of India, are hereby quashed. This will not,
however, invalidate actions so far as taken under the amended
Regulations, including the admissions already given on the basis
of the NEET conducted by the Medical Council of India, the
Dental Council of India and other private medical institutions,
and the same shall be valid for all purposes.”

[Emphasis added]

 

14. After the judgment was pronounced, some kind of infantile
wisdom which may, in different terminology, be called depraved
sense of egocentric knowledge, the Additional Secretary (Health)
had conveyed the Government’s decision dated 25.7.2013 which is as
under: –
“The Dean
Goa Medical College,
Bambolim-Goa
Sub: Decision of the Government regarding
Admission to Post Graduate Degree/Diploma
Cources at GMC.
I am directed to refer to your letter No.
Acad/175/G.M.C./2013/441 dt. 23.7.2013 on the subject cited
above and to convey the decision of the Government to admit the
students for Post Graduate Degree/Diploma based on aggregate
MBBS marks, as per existing rules as notified in the Official
Gazette Series I No. 50 and Series I No. 51, Notification No.
I/B/2033-II/PHD.

Provisional admissions given on the basis of the NEET merit
earlier thus stands cancelled.”

[Underlining is ours]
15. This wise act of the State Government can irrefragably be
compared with “absence of common sense in an uncommon degree”.

16. When the writ petitions came before the High Court on
25.7.2013, it passed the following order: –
“Mr. Nadkarni, learned Advocate General appearing on behalf of
respondents No. 1 to 5 states that in view of the decision of
the Supreme Court dated 18/07/2013 in T.C. (C) No. 98 of 2012
and allied matters, the State Government has decided to follow
its decision dated 15/06/2013 and grant admissions in terms of
the State Regulations.

In view of the statement made by the learned Advocate
General, Mr. Lotlikar, learned Senior Counsel seeks leave to
withdraw the petition, which is objected to by the learned
counsel appearing on behalf of the private respondents. Before
granting leave to withdraw the petition, we deem it appropriate
to hear the respondents.

We also direct the State Government to place on record the
decision taken by it to go by the said regulations by filing an
Affidavit of a responsible officer. The Affidavit to be filed
by 29/07/2013 with advance copies to the learned counsel
appearing for the petitioners as well as the respondents.”
17. After the aforesaid event, chaos ruled. The candidates,
who had qualified in the NEET examination and had been admitted,
were compelled to leave the college and the students who had
qualified under the Rules were admitted. The dissatisfaction
impelled the grieved students to approach this Court under Article
32 of the Constitution and the Court on 30.7.2013 stayed the order
of the State Government and thereafter on 7.8.2013 passed a
mandatory order to the effect that the petitioners shall be
permitted to continue their studies.

18. The thrust of the matter is whether the petitioners have
any right to continue or the respondents who have been admitted
under the Rules have the right of admission.

19. Mr. R.F. Nariman, learned senior counsel appearing for the
petitioners, would urge with immense vehemence that the State of
Goa had consciously accepted the NEET examination for the purpose
of admission to post graduate courses and, hence, it cannot be
permitted to take a somersault. That apart, submits the learned
senior counsel, in view of the protection granted by this Court in
its final judgment, which protects their admissions, their rights
could not have been demolished in such an irrational manner.

20. Mr. Singh, learned senior counsel appearing for the State
of Goa, would submit that NEET having been declared ultra vires,
the acceptance or non-acceptance by the State Government has to
pale into insignificance. He would further submit that the State
Government, keeping the High Court order in view wherein it was
mentioned that admission should be provisional, had issued the
order of cancellation of the admissions given to the successful
NEET candidates.

21. We have already reproduced paragraph 163 of the judgment
pronounced by this Court in Christian Medical College, Vellore
(supra) on 18.7.2013. The majority has unequivocally stated that
the quashment of the notifications shall not invalidate the action
already taken under the amended regulations including the
admissions already given on the basis of NEET conducted by the
Medical Council of India and the Dental Council of India. There is
no cavil over the fact that the petitioners had qualified and taken
admissions. The High Court by its order dated 20.6.2013 directed
to hold counselling in respect of both the categories of students
and permit admissions to the students who have passed NEET subject
to further orders that may be passed by it depending upon the order
passed by the Apex Court in the matter pending before it. As per
the direction of the High Court the selected candidates are to be
put on notice that the admissions are provisional in nature and
shall be subject to further orders that may be passed by the High
Court. The High Court should not have entertained the writ
petition on three counts, namely, (i) all the writ petitions
challenging the notification from all the High Courts had been
transferred to this Court; (ii) that the Court had been passing
interim orders from time to time; and (iii) that any order passed
by it had the potentiality to usher in some kind of anomaly. What
the High Court would have done while finally adjudicating the
matter is another issue but on the basis of the decision taken by
the State Government on 25.7.2013, possibly the learned Advocate
General made a statement before the Court on 25.7.2013.

22. Mr. Singh, learned senior counsel, would submit that all
admissions being provisional, as stated by the High Court, the
State Government after interpreting the orders thought it apposite
that the admissions given on the base of ranks in NEET should be
cancelled and the admissions given under the Rules should be
sustained. We have already stated how the Government has taken the
decision. Though we have stated that the High Court should not
have entertained and passed any order, yet we are obliged to state
that the order of the High Court is also quite clear to the effect
that interim order was subject to further orders that may be passed
by it depending upon the order passed by this Court. Thus, the
order passed by the High Court was a guarded one. This Court in
the final judgment had not invalidated the actions taken under the
amended regulations and it included the admissions already given on
the basis of the NEET conducted by the Medical Council of India.
Therefore, there could not have been any scintilla of doubt in any
one’s mind that the admissions given on the basis of NEET
examination had been protected by this Court and hence, their
admissions could not have been cancelled by the State Government.

23. It is really perplexing that the State Government in spite
of the order of this Court took a decision on 25.7.2013 to cancel
the provisional admissions given to the students on the basis of
NEET merit examination. The act indubitably shows total lack of
prudence. The authorities in the Government are required to
understand that the basic governance consists in the act of taking
considered, well vigilant, appropriate and legal decisions. It is
the sacrosanct duty of the Government to follow the law and the
pronouncements of the court and not to take recourse to such
subterfuges. The Government should have reminded itself the
saying of Benjamin Disraeli:
“I repeat – that all power is a trust – that we are accountable
for its exercise – that, from the people and for the people, all
springs, and all must exist.”
24. It may not be out of place to state here that every public
authority has a duty coupled with power. Before exercising the
power one is required to understand the object of such power and
the conditions in which the same is to be exercised. Similarly,
when one performs public duty he has to remain alive to the legal
position and not be oblivious of it. In this context, we may refer
to the authority in Superintending Engineer, Public Health, U.T.
Chandigarh and others v. Kuldeep Singh and others[5] wherein the
Court has reproduced the observations of Farl Cairns L.C. in the
House of Lords in Julius v. Lord Bishop of Oxford[6] which was
quoted with approval by this Court in Commissioner of Police,
Bombay v. Gordhandas Bhanji[7]. The succinctly stated passage
reads thus: –
“There may be something in the nature of the thing
empowered to be done, something in the object for which it is to
be done, something in the conditions under which it is to be
done, something in the title of the person or persons for whose
benefit the power is to be exercised, which may couple the power
with a duty, and make it the duty of the person in whom the
power is reposed, to exercise that power when called upon to do
so.”
But, unfortunately, here the authorities of the State Government
have felt courageous enough to play possum and proceeded to crucify
the fate of the candidates who had been protected by the verdict of
this Court. Such an action is absolutely impermissible. Thus
analysed the letter dated 25.7.2013 deserves to be lancinated and we
so do. The writ petitioners, who have been admitted on the basis of
the NEET examination, shall be allowed to prosecute their studies.

25. The agony and woe do not end here. The anguish of the
students who were admitted on the basis of the Rules, in our
considered opinion, deserves to be addressed. True it is, they
instead of approaching this Court knocked at the doors of the High
Court, may be in anxiety, as the counselling for the candidates
qualified in the NEET examination had commenced. By virtue of the
order of the High Court they got provisional admissions. They have
prosecuted their studies for some time. Had the NEET not been
introduced, they would have been admitted under the Rules. But,
presently the situation is totally different. With the intention
to solve the problem we had directed issue of notice to the Medical
Council of India. Mr. Amit Kumar, learned counsel appearing for
the Medical Council of India, has invited our attention to the
pronouncements of this Court in K.S. Bhoir v. State of Maharashtra
and others[8], Faiza Choudhary v. State of Jammu and Kashmir and
another[9], Satyabrata Sahoo and others v. State of Orissa and
others[10] and Medical Council of India v. State of Karnataka and
others[11]. Learned counsel has drawn colossal inspiration from
the pronouncements in Satyabrata Sahoo and Faiza Choudhary (supra).

 

26. In Satyabrata Sahoo, a two-Judge Bench has stated thus: –
“This Court in State of Punjab v. Renuka Singla[12] held that
the High Court or the Supreme Court cannot be generous or
liberal in issuing such directions which in substance amount to
directing the authorities concerned to violate their own
statutory rules and regulations, in respect of admissions of
students. Technical education, including medical education,
requires infrastructure to cope with the requirement of giving
proper education to the students, who are admitted. Taking into
consideration the infrastructure, equipment and staff, the limit
of the number of admissions is fixed by the Medical Council of
India.
Thereafter, the learned Judges proceeded to state thus:-
“….in Medical Council of India v. State of Karnataka this Court
held that the number of students admitted cannot be over and
above that fixed by the Medical Council as per the Regulations
and that seats in medical colleges cannot be increased
indiscriminately without regard to proper infrastructure as per
the Regulations of the Medical Council.”
27. In Faiza Choudhary (supra) a two-Judge Bench has ruled
thus: –
“In Medical Council of India v. State of Karnataka this Court
held that the number of students admitted cannot be over and
above that fixed by the Medical Council as per the Regulations
and that seats in the medical colleges cannot be increased
indiscriminately without regard to proper infrastructure as per
the Regulations of the Medical Council. In Medical Council of
India v. Madhu Singh[13], this Court held that there cannot be
telescoping of unfilled seats of one year with permitted seats
of the subsequent year. Recently, this Court in Satyabrata Sahoo
v. State of Orissa has reiterated that it would not be possible
to increase seats at the expense of candidates waiting for
admission in the succeeding years.”
28. From the aforesaid decisions two principles emerge: (i)
that there cannot be direction for increase of seats and (ii) there
cannot be telescoping of unfilled seats of one year with permitted
seats of the subsequent years.

29. At this juncture, we may refer with profit to Priya Gupta
v. State of Chhattisgarh and others[14], wherein the Court had
issued directions under Article 142 of the Constitution permitting
the appellants therein to complete the course.

30. The factual matrix of the present case, being totally
exceptional, compels us to exercise our jurisdiction under Article
142 of the Constitution to issue a direction so that it can act as
a palliative at least for some of the students who had been given
admissions under the Rules. We have been apprised by Mr. Singh,
learned senior counsel for the State and Ms. Indu Malhotra, learned
senior counsel for the private respondents, that 21 seats of All
India quota in postgraduate medical course and 7 seats in dental
course have been transferred to the State quota. Mr. Amit Kumar,
learned counsel for the Medical Council of India, while not
disputing the numbers, would submit that they are to be filled up
on different parameters. We are absolutely conscious of the said
position. However, regard being had to the special features of the
case and the litigations that have cropped up and the mistake that
the State Government has committed, we are inclined to direct that
21 seats transferred to the State quota shall be filled up from
among the students who had taken admissions under the 2004 Rules.
It needs no special emphasis to state that the admissions and the
allocations of the stream shall be on their inter se merit as per
the Rules. We may hasten to clarify that none of these candidates
shall be allowed to encroach upon the streams that have already
been allotted to the petitioners who were admitted having been
qualified in the NEET examination. We have been further apprised
at the Bar that there are some unfilled seats as some students have
left the College. If the vacancies have occurred, the same can
also be filled up regard being had to the merit as stipulated under
the Rules.

31. We will be failing in our duty if we do not take note of
two submissions put forth by the learned counsel for the State as
well as by Ms. Indu Malhotra, learned senior counsel for the
private respondents. The first one is to the effect that there
should be increase of the seats for the academic year 2013-14 and
the students should be adjusted. Be it noted, an application was
filed by the College for enhancement of seats for 2014-15 and
during the pendency of this petition there has been a request to
the Medical Council of India to prepone it for the year 2013-14.
Enhancement of seats requires inspection and is controlled by a set
of Regulations and, in any case, the application for 2014-15 cannot
be directed to be processed in the current year.

32. The next submission relates to the issue whether the
students who cannot be adjusted in the seats of All India quota
that have been transferred to the State quota of this year can be
adjusted next year. During the course of hearing though there was
some debate with regard to giving of admissions to such students in
the academic year 2014-15, Mr. Amit Kumar, learned counsel for the
Medical Council of India, has seriously opposed the same and,
thereafter, has cited the authorities which we have referred to
hereinbefore. We are bound by the said precedents. In certain
individual cases where there is defective counselling and merit has
become a casualty, this Court has directed for adjustment in the
next academic session but in the case at hand, it is not exactly
so. Though we are at pains, yet we must express that it will not
be appropriate to issue directions to adjust them in respect of the
subsequent academic year, for taking recourse to the same would
affect the other meritorious candidates who would be aspirant to
get admissions next year. For doing equity to some in presenti we
cannot afford to do injustice to others in future. Therefore, the
submission stands repelled.

33. The writ petition is accordingly disposed of with no order
as to costs.
………………..……………J.
[Anil R. Dave]

 
………………..……………J.
[Dipak Misra]
New Delhi;
August 30, 2013.
———————–
[1]

[2] 1995 Supp (3) SCC 77
[3]

[4] (2002) 7 SCC 258
[5]

[6] (2012) 7 SCC 389
[7]

[8] 2013 (9) SCALE 226
[9]

[10] (1997) 9 SCC 199
[11]

[12] (1880) 5 A.C. 214
[13]

[14] AIR 1952 SC 16
[15]

[16] (2001) 10 SCC 264
[17]

[18] (2012) 10 SCC 149
[19]

[20] (2012) 8 SCC 203
[21]

[22] (1998) 6 SCC 131
[23]

[24] (1994) 1 SCC 175
[25]

[26] (2002) 7 SCC 258
[27]

[28] (2012) 7 SCC 433

 

 

 

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