Case BriefsSupreme Court

Supreme Court: Considering the seriousness and urgency of the matter wherein it was alleged that attempts were made to bribe some Supreme Court judges in the matters relating to Medical admission scam, the bench of J Chelameswar and S. Abdul Nazeer, JJ said that the matter be heard by the Constitution Bench of the first five Judges and listed the matter on November 13, 2017.

The petition filed by advocate Kamini Jaiswal highlighted that a case was registered by the Central Bureau of Investigation against Retired Orissa High Court Judge, Justice IM Quddusi containing serious allegations implicating the said Judge under Section 8 and Section 120 B of the Prevention of Corruption Act, 1988. The Court, hence, agreed to hear the matter and said:

“The FIR contained certain allegations which are disturbing. The allegations pertain to the functioning of this Court. On perusal of the FIR which was placed before us in the morning, we thought it necessary and proper to take up the matter immediately.”

As an interim measure, the Court directed that the case diary and all the related materials be kept in a sealed cover and produce the same before the Constitution Bench on Monday, the 13th November, 2017.

The controversy relates to de-registration of 46 medical colleges by Central Government for substandard facilities. In September, 2017, CBI arrested the former High Court judge on allegations of hatching a conspiracy to bribe public officials, including Supreme Court judges after Supreme debarred the colleges from admitting students for academic years 2017-18 and 2018-19. [Kamini Jaiswal v. Union of India, Writ Petition(s)(Criminal) No(s). 176/2017, order dated 09.11.2017]

Case BriefsForeign Courts

Constitutional Court of South Africa: A Constitutional Bench comprising of Nkabinde, ADCJ, Cameron, Froneman, Jafta, Khampepe, Madlanga, Mhlantla, Zondo, JJ along with Mojapelo and Pretorius AJJ, refused to grant leave to appeal against the order of the Supreme Court of Appeal.

The applicant was an aspiring doctor seeking admission to the respondent university (hereinafter ‘the University’). In 2015 the applicant applied for admission at the University to study for an MBChB degree, as she aspires to be a medical doctor. However her application was unsuccessful. In order to improve her prospects for admission the following year, the applicant registered for the degree of Bachelor of Medical Science (Anatomy) in 2015. When applications for the 2016 intake were open, she applied again under the policy described as ‘mature students’. The applicant fell within category (a) of the larger group of ‘mature students’, meaning that she had done an year or more of a degree course at a recognized university in South Africa and had achieved outstanding results. A total of 10 students were to be taken from category (a) out of 40 “mature students” for admission. The applicant failed to get admission against category (a).

Aggrieved by this decision, the applicant launched a review application in the KwaZulu-Natal Division of the High Court, arguing that the University had failed to consider and apply it’s own admission policy. The University contended that the applicant was competing for 10 seats against 160 other applicants and the allotments were merited according to academic qualifications of each applicant, meaning that the aspirants having completed their courses were given preference over those who had not. The High Court dismissed the application with costs as the applicant failed to show that the relevant policy was not applied in determining her application for admission. The Appeal also failed with costs.

The applicant then filed this application for leave to appeal before the Constitutional Court. The parties were called to put forward written submissions on whether in determining the cost orders, the High Court and the Supreme Court of Appeal should have followed the principle laid down in Trustees for the Time Being of the Biowatch Trust v. Registrar, Genetic Resources, 2009 SCC OnLine ZACC 13 : [2009] ZACC 14. The Court was satisfied that the application must fail as far as merits are concerned as it bears no prospects of success. However, the Court was not satisfied that the subordinate courts were correct in not applying the Biowatch principle. The principle states that in constitutional matters against the state or organs of the state, the litigant, subject to exceptions, should not be made to pay costs of the state. This principle is in place to avoid adverse cost orders against litigants seeking to assert constitutional rights. The Court categorically stated that administrative issues are constitutional in nature and that it could not be denied that the University exercised public power and hence, was state. The Court was also of the opinion that in seeking litigation for admission to further her aspirations, the litigant was not a frivolous litigant. Hence, the subordinate courts should have applied the Biowatch principle. The Court granted leave to appeal in respect to cost orders only while refusing leave to appeal against merits. [Niekara Harrielall v. University of KwaZulu-Natal, Case CCT 100 of 2017, decided on 31.10.2017]

Case BriefsSupreme Court

Supreme Court: In the case where the Government of India order, by which the colleges/institutions have been directed not to admit students in the MBBS Course in the academic years 2017-18 and 2018-19, the 3-judge bench of Dipak Misra, Amitava Roy and A.M. Khanwilkar, JJ said that a reasonable opportunity of hearing contained in the proviso to Section 10A(4) of Medical Council Act, 1956 is an indispensable pre-condition for disapproval by the Central Government of any scheme for establishment of a medical college and hence the Central Government should consider afresh the materials on record pertaining to the issue of confirmation or otherwise of the letter of permission granted to the petitioner colleges/institutions.

The Court further said that the Supreme Court Mandated Oversight Committee is empowered to oversee all statutory functions under the Act, and further all policy decisions of the MCI would require its approval and that its recommendations, to state the least, on the issue of establishment of a medical college, can by no means be disregarded or left out of consideration. The Court clarified that the Oversight Committee is also empowered the Oversight Committee to issue appropriate remedial directions.

The order that was challenged was the order dated 31.05.2017 of the Government of India, Ministry of Health and Family Welfare (Department of Health and Family Welfare) whereby the conditional permission for the establishment of the medical colleges for the academic year 2016-17, granted on the basis of the approval of the Supreme Court Mandated Oversight Committee had been cancelled and the colleges have been debarred from admitting students in the next two academic years i.e. 2017-18 and 2018-19.

Asking the Central Government to re-evaluate the recommendations/views of the MCI, Hearing Committee, DGHS and the Oversight Committee, as available on records, the Court directed that the process of hearing and final reasoned decision should be completed within 10 days. The matter will next be taken up on 24.08.2017. [Glocal Medical College and Super Speciality Hospital & Research Centre v. UOI, 2017 SCC OnLine SC 846, order dated 01.08.2017]

 

Case BriefsSupreme Court

Supreme Court: In the petition seeking quashing of admission notice issued by CBSE dated 31.1.2017 that stipulates the maximum age of 25 years as eligible candidates to undergo the NEET examination, the bench of Dipak Misra and A.M. Khanwilkar, JJ said that, prima facie, such an age limit could not have been determined by way of a notice on the basis of the instructions issued by the Medical Council of India and that it is appropriate to direct that all the desirous candidates will be allowed to fill up the forms on the online portal of the CBSE on or before 5.4.2017.

It was contended by the petitioners that in the absence of Regulations framed by the Medical Council of India with regard to the age limit, by issuance of a notice, the age limit could not have been determined and that there are students who, after graduation, are also desirous of taking NEET examination to become doctors.

Directing that the online portal shall be opened from today evening, the Court said that if the competent authority of the CBSE seeks any logistic support from the agencies for having additional centres in the District, the Collector of the concerned District or the Commissioner of the City whoever is the authority will extend all the support so that the forms are accepted and the examinations are held on the date fixed by making different centres available.

The Court further clarified that if any High Court has passed any order contrary to the present order, the CBSE shall be bound by the order passed by this Court as far as the cut-off date is concerned. However, no High Court in the country shall interfere with regard to any litigation pertaining to choosing/allocation of centres.

The matter will be taken up in the second week of July, 2017 for final hearing. [Rai Sabyasachi v. Union of India, 2017 SCC OnLine SC 303, order dated 31.03.2017]

 

Case BriefsSupreme Court

Supreme Court: Showing concern over the fate of the student who has been deprived of admission to the MBBS course, despite he or she being meritorious, vigilant and diligent and thereby abandoning the path of recalcitrance and eventually being found flawless, is forced to suffer non-admission to the course for which he had aspired for and found suitable because of lapses committed either by the counselling authority or the administrating authority intrinsically connected with the process of admission; the bench of Dipak Misra and R.F. Nariman, JJ said that when the courts have gone to the extent of saying that for the fault of the court, the litigant should not suffer, it is unimaginable that for the fault of the administrators or the counselling body or for some kind of evil designer, grant of compensation should be regarded as the lone remedy.

Relying upon the 2-judge bench decision in Chandigarh Administration v. Jasmine Kaur, (2014) 10 SCC 521, the Medical Council of India contended that grant of compensation is the only possible remedy. The Court hence said that the aforementioned decision requires re-consideration by a larger bench as the redressal of a fundamental right, if one deserves to have, cannot be weighed in terms of grant of compensation only. Grant of compensation may be an additional relief. Confining it to grant of compensation as the only measure would defeat the basic purpose of the fundamental rights which the Constitution has conferred so that the said rights are sustained. It would be inapposite to recognize the right, record a finding that there is a violation of the right and deny the requisite relief. A young student should not feel that his entire industry to get himself qualified in the examination becomes meaningless because of some fault or dramatic design of certain authorities and they can get away by giving some amount as compensation. It may not only be agonizing but may amount to grant of premium either to laxity or evil design or incurable greed of the authorities. [S. Krishna Sradha v. State of Andhra Pradesh, 2017 SCC OnLine SC 66, decided on 19.01.2017]

 

Case BriefsSupreme Court

Supreme Court: Setting aside the admission of the petitioner to the Christian Medical College in the State of Chhattisgarh, the bench of Madan B. Lokur and P.C. Pant, JJ said that the Court cannot go against the orders passed by this Court from time to time only for the benefit of the students.

The petitioner and some other students had obtained admission to the medical college after clearing the CGMAT-2016. However, on 21.12.2010 a gazette notification was issued by the Medical Council of India amending the “Regulations on Graduate Medical Education, 1997” to the effect, inter alia, that admissions to the MBBS course shall be based solely on marks obtained in the National Eligibility-cum-Entrance Test.

The petitioner had contended that he had already been granted admission by the College after the examination CGMAT-2016 was conducted by the College and supervised and monitored by the State of Chhattisgarh and in which there were no allegations of impropriety, his admission should not be disturbed. Rejecting the said contention, the Court said that the question is not of any impropriety in the conduct of the examination but the question is really one of adhering to a particular discipline laid down by the Medical Council of India and approved by this Court. The Court said the plight of the petitioner is unfortunate but it cannot be helped.

Considering the fact that some similarly placed students participated in NEET and qualified in the examination, the Court said that those students who did not participate in NEET and placed their trust only in the College and the State of Chhattisgarh took a gamble and that gamble have unfortunately not succeeded. [Rishabh Choudhary v. Union of India, 2017 SCC OnLine SC 53, decided on 23.01.2017]

Case BriefsSupreme Court

Supreme Court: In the issue pertaining to the admission of students in MBBS/BDS courses in the State of Maharashtra, the Court, exercising of powers under Article 142 of the Constitution, vacated the Bombay High Court’s order where the decision taken by the Central Government/State Government that the centralised counselling shall be conducted by the State Government, was stayed. However, it was clarified that the vacation of the stay will not disturb the admissions already made by the respondent universities keeping in view that respondents are deemed universities.

Taking into note the fact that the first counselling had already been completed, the bench of Dr. A.K. Sikri and L. Nageswara Rao, JJ said that insofar as second or third counselling is concerned, that shall be a joint exercise which means that it shall be done by the Committee of the State Government which shall include one representative each from these universities. It would be a centralised counselling for all the deemed universities and not university-wise counselling. In the second or third counselling, students will be taken by making a combined list of those who got themselves registered with the State Government as well as the respondent universities. This shall ensure admission of those who are more meritorious but left out but are interested in taking admission in the respondent universities. In this process, it will also be known as to which students are in fact interested in getting admission to the respondent universities.

It was further held that In order to undertake the counselling, all the admission records of the respondent universities shall be handed over to the State Government/Committee forthwith. Considering the fact that it may not be possible to complete the process of admission by September 30, 2016, the Court extended the time to complete the admission by October 7, 2016.

The decision of centralized counselling was taken vide Letter dated August 09, 2016 issued by the Government of India through the Ministry of Health and Family Welfare, the Government Resolution dated August 20, 2016 passed by the State of Maharashtra and the consequential Notice dated August 21, 2016 of the State of Maharashtra. [State of Maharashtra v. D.Y. Patil Education Society, CIVIL APPEAL NO. 9835 OF 2016, decided on 28.09.2016]

Case BriefsSupreme Court

Supreme Court: In order to make the admission process to the Medical Institutions a composite process, the Court directed that admission to all medical seats shall be conducted by centralised counselling only by the State Government of Madhya Pradesh and none else. The 5-judge bench of Anir R. Dave, Dr. A.K. Sikri, R.K. Agrawal, A.K. Goel and R. Banumathi, JJ said that 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.

The Additional Solicitor General had submitted that the State Government is ready to undertake the entire process afresh and assures that it would be completed by 30th September, 2016 which is the last date for admission. The Court, hence, said that it is a proper course of action inasmuch as it will enable the private institutions to send their representatives at the place of counselling as per the information which may be displayed by the counselling authority forthwith at its website. The Additional Solicitor General had assured the Court that all seats, whether of Government Colleges or the private institutions, shall be filled up and no seat shall remain vacant. [State of Madhya Pradesh v. Jainarayan Chouksey, 2016 SCC Online SC 974,  decided on 22.09.2016]

Case BriefsHigh Courts

Rajasthan High Court: While disposing off a public interest litigation filed by Abhyutthanam Society for ensuring effective implementation of the Right of Children to Free and Compulsory Education Act, 2009 the court said that the State Government is not competent & holding any authority to re-write the definition of Sec.2 (d) of the Right to Education Act, 2009, the Court also directed the State government to include children belonging to OBC & SBC categories whose parents’ annual income not exceeding Rs.2.50 lakhs as part of the notification on March 28 this year for “child belonging to disadvantaged group”, as contemplated under section 2(d) of the Right to Free and Compulsory Education Act, 2009. Children whose parents or guardians annual income do not exceed Rs.2.50 lakhs be considered as “child belonging to weaker section”, as per section 2(e) of the Act, 2009 and both the substitution be made part of the present notifications issued by the State Government on 28 March this year.

The petitioner argued that the Parliament intended to achieve the constitutional goal of equality of opportunity through inclusive elementary education to all by enacting the Act of 2009, which can be traced from paragraphs 4 & 5 of the Statement of Objects and Reasons of the Bill and the State Government under its impugned Notifications debars the major segment of children who are eligible to be considered for admission under the Act of 2009 and debarring members of OBC & SBC, according to the petitioner, is violative of Art.14 of the Constitution.

The division bench comprising of Ajay Rastogi C.J. and D C Somani J.  gave these two substitutions: Let the child belonging to OBC & SBC whose parents’ annual income does not exceed Rs.2.50 Lacs be also included as part of the Notification dt.28.03.2016 of the appropriate Government for “child belonging to disadvantaged group”, as contemplated u/Sec.2(d) of the Act, 2009; and The children whose parents/guardians annual income does not exceed Rs.2.50 lakhs be considered as “child belonging to weaker section”, as contemplated u/Sec.2(e) of the Act, 2009 and both the substitution be made part of the present Notifications dt.28.03.2016 issued by the State Government in exercise of powers conferred by Cl.(d) & (e) of Sec.2 of the Act, 2009. The Bench further said that with these two modifications, the writ petition stands disposed of and the respondents are directed to consider the categories which are now being included under the present order and initiate the process for inviting applications and admission to various schools without any further loss of time so that students to be admitted may not suffer their studies for the present academic session.

The Court further said “Since the applications for admission in terms of the new notifications have been received, we have the option either to quash and set aside both the notifications issued by the state government or fill the gap which according to us may be in fulfilment of provisions of Sec.2(d) & 2(e) of the Act 2009, and add the section of the ‘disadvantaged group’ and ‘weaker section’ which are missing and deprived from being considered under the two separate heads covered. [Abhyutthanam Society. v. State of Rajasthan, 2016 SCC OnLine Raj 1947, Decided on 13.05.2016]

Case BriefsSupreme Court

Supreme Court: The bench comprising of Madan B. Lokur and N.V. Ramana JJ came down heavily on Kalinga Institute of Medical Sciences (KIMS) for venturing adventurist litigation has directed the Medical Council of India to restrain it from increasing the intake of students from 100 students to 150 students for the course for the academic year 2016-17 and 2017-2018.

The Court while imposing costs of Rs. 5 crores on KIMS for playing with the future of its students said that there is something rotten in the state of medical colleges unless the concerned Ministries in the Government of India take a far more proactive role in ensuring that medical colleges have all the necessary facilities. The Court also quoted that “Quality in medical education is equally important, if not more, than quantity.”

The Court further observed that the High Court should have been more circumspect in passing interim orders directing the admission of students by its order directing Central Government to grant provisional permission to KIMS to conduct the course for the additional 50 students in the academic year 2015-16. The Supreme Court quashing the order of High Court said that under no circumstance High Court should examine the report as an appellate body. In the present case there was no ground made out at law for setting aside the report of the Inspection Team.

While disposing off the appeal, the Court issued certain directions for KIMS on observation that for the fault of the KIMS, students should not suffer but KIMS should not get away Scot Free.

  • The admission granted to the 50 students pursuant to the order of the High Court and the provisional permission granted by the Central Government shall not be disturbed.
  • The MCI or the Central Government will proceed to take action against KIMS under Clause 8(3) of the Medical Council of India Establishment of Medical College Regulations, 1999 (as amended).

Observing that there is no fixed procedure prepared by the MCI for conducting an inspection, the Court further directed MCI and Central Government as follows:

  • MCI should in consultation with the Central Government prepare a Standard Operating Procedure for conducting an inspection.
  • To introduce transparency and accountability in the medical colleges, the report of the Inspection Team should be put up on the website of the concerned medical college as also on the website of the MCI. [Medical Council of India vs Kalinga Institute of Medical Sciences (KIMS) 2016 SCC OnLine SC 439, decided on 06-5-2016]
Case BriefsSupreme Court

Supreme Court: Clearing the confusion over holding the National Eligibility cum Entrance Test (NEET) in pursuance of Notifications dated 21.12.2010 issued by the Medical Council of India and the Dental Council of India, the Court held that NEET should be held and notwithstanding any order passed by any Court earlier with regard to not holding NEET, this order shall operate.

It was contended that in view of the judgment passed in Christian Medical College, Vellore Vs. Union of India, (2014) 2 SCC 305, it would not be proper to hold NEET and this order should not affect pending matters. The 3 judge bench of A.R. Dave, Shiva Kirti Singh and Adarsh K. Goel, JJ rejected the said contention and said that the said judgment has already been recalled in Medical Council of India v. Christian Medical College, Vellore, (2016) 4 SCC 342 and therefore, the Notifications dated 21.12.2010 are in operation as on today. [Sankalp Charitable Trust v. Union of India, 2016 SCC OnLine SC 366decided on 28.04.2016]

Case BriefsSupreme Court

Supreme Court: The Court allowed the petition filed by Centre & Medical Council of India (MCI) seeking review of its judgement scrapping the single common entrance test for medical courses. NEET is conducted for admission in MBBS, BDS and postgraduate courses in all medical colleges. The 3-judge bench headed by the then CJI Altamas Kabir along with A.R. Dave and Vikramajit Sen, JJ had scrapped the common entrance test in Christian Medical College, Vellore v. Union of India, (2013) 14 SCC 539. On 21st January, 2016, it was ordered that the review petition be heard by a 5-judge bench which led to the constitution of a bench comprising of A.R. Dave, Dr. A.K. Sikri, R.K. Agrawal, Adarsh K. Goel and R. Banumathi.
The Court was of the opinion that the aforesaid judgment needed reconsideration as the majority view had not taken into consideration some binding precedents and more particularly, there was no discussion among the members of the Bench before pronouncement of the judgment. [Medical Council of India v. Christian Medical College Vellore, 2016 SCC OnLine SC 305, decided on 11.04.2016]

High Courts

Karnataka High Court: Showing surprise on noticing how admissions in Kempegowda Institute of Medical Sciences (KIMS) against management quota are reduced to business transactions, the High Court directed Medical Council of India and the Central Government to take corrective measures to make the admission process transparent at all stages including applying for admission against management quota with the help of technology.


In the present case, four students applied for admission in KIMS against management quota for I year MBBS course for the academic year 2014-2015 along with fees and donations amounting to approximately eighty lakhs. The father of one of the student was also made to sign an undertaking that he understands that the admission given to his son was only provisional and subject to approval by RGUHS/MCI and in excess of the stipulated management seats. In case of non approval, the management and the college will not be responsible. Later, three of the students were discharged from the college on the ground that their admission to the course was in excess of the admission capacity fixed for the college. The college discharged them only after the expiry of the last date of taking admission in colleges for that academic year.

The Court found the conduct of the college of taking such an undertaking from the parents of the student along with huge amounts of donation disturbing and ordered the MCI and Central Government to take serious note of the matter and take measures to ensure transparency in the admission process even against management quota, especially by making it more technology based. The High Court also found the college’s act of not discharging the students with illegal admission and not refunding the amount received from them well before the last date for admission in colleges for that academic year as grossly irresponsible and as it resulted in them losing one academic year and unnecessary litigation causing unimaginable mental agony to them the High Court ordered the college to pay Rs. 1 crore each to all the three students as compensation along with refund of the amount paid by them to the college for the admission. Girish Rithvik K.R. v. Union of India,  2015 SCC OnLine Kar 2305decided on 08.07.2015

 

Case BriefsHigh Courts

Delhi High Court: In one of the most sought cases , the Court, giving the ruling in favour of the unaided private schools regarding the autonomy in the nursery admissions, held  that private unaided recognized school managements have a fundamental right under Article 19(1)(g) of the Constitution to maximum autonomy in the day-to-day administration including the right to admit students.The court presided by Justice Manmohan said that the concept of autonomy has also been recognized and conferred upon schools by the Delhi School Education(DSE) Act and Rules, 1973 and that Rule 145 of DSE Rules, 1973 states that the head of every recognised unaided school shall regulate admissions in its school.

The Lieutenant Governor of Delhi has directed that seventy five per cent nursery students, i.e., after excluding twenty five per cent seats reserved for economically weaker section, shall be admitted on the following basis:-

1) 70 marks for neighbourhood ;

2) 20 marks for siblings;

3) 5 marks for parent /alumni; and

4) 5 marks for inter-state transfers.

Sunil Gupta with Vedanta Varma, the counsel for the petitioner, argued that the executive order was arbitrary and against public interest and also contrary to the principles of autonomy laid down in T.M.A. Pai Foundation and others vs.State of Karnataka. He further added that by a blind adherence to the neighbourhood rule and that too, for an exaggerated quantum of seventy points, the respondent in one stroke had destroyed the reasonableness and collective wisdom of all previous orders. 

P.P. Malhotra, who argued from respondant side, contended that under Section 3 and 45 of DSE Act, 1973, the administrator had wide powers to administer and regulate the education system but his argument was not accepted by the court. The court further added that children below six years have a fundamental right to education and health as also a right to choose a school under Article 19(1)(a) of the Constitution in which they wish to study. Right of Children to Free and Compulsory Education Act, 2009 prescribes duty upon the State to ensure availability of neighbourhood schools. It nowhere stipulates that children would have to take admission only in a neighbourhood school or that children cannot take admissions in schools situated beyond their neighbourhood. The court said that the power to choose  a school primarily vests in the parents and not in the administration.(Forum for Promotion of Quality Education for All vs. Lt. Governor of Delhi, 2014 SCC OnLine Del 6650decided on 28.11.2014)