Case BriefsSupreme Court

Supreme Court: In an appeal seeking clarity on the issue of the legality and validity of domicile/residence-based reservation for admission to the Post Graduate Medical Courses (MD/MS Courses 2019) Government Medical College and Hospital, Chandigarh, a 2-judge bench of AM Khanwilkar and Dinesh Maheshwari, JJ has referred the said question to a larger bench. The bench, however, observed:

Prima facie, it appears that even if domicile/residence-based reservation in admission to PG Medical Courses is held permissible, the mode and modalities for its application would still require further examination because it remains questionable if such reservation could be applied by way of such stipulations, as made in the impugned Clause 2B of the prospectus in question.”

The Court was hearing the appeals against Punjab and Haryana High Court order dated 23.04.2019, wherein it was held that the provisions made by the Medical College in question in its prospectus were invalid, so far relating to the domicile/residence-based reservation as provided in UT Chandigarh Pool; and had struck down the same while directing that all the admissions made on the basis of such invalid reservation in the said Medical College be cancelled and fresh admission process for admission to the PG Medical Courses for the academic year 2019-20 be carried out on the basis of merit obtained by the candidates in National Eligibility-Cum-Entrance Test.

Before referring the issue to a larger bench, the Court noticed that 50% of the seats are assigned to the States/Union Territories as being the State Quota seats, hence, the generalised and blanket prohibition on domicile/residence-based reservation may not be workable in relation to the State Quota seats of PG Medical Courses. Considering that the peculiar feature in relation to the State Quota seats is that if some provision as regards domicile/residence-based reservation is not made, the only other method of filling up these State Quota seats would be by way of institutional preference, the Court noticed,

“This would effectively result in entire of the State Quota seats going to institutional preference alone. Now, if the entire State Quota seats are provided for institutional preference alone, the consequence would be that only the candidates of the medical institutions in the State/UT would be filling up the State Quota seats; and such a consequence may not be permissible at all.”

Having made the abovementioned observations, the Court referred the following questions to a larger bench,

  1. whether providing for domicile/residence-based reservation in admission to “PG Medical Courses” within the State Quota is constitutionally invalid and is impermissible?
  2. (a) If answer to the first question is in the negative and if domicile/residence-based reservation in admission to “PG Medical Courses” is permissible, what should be the extent and manner of providing such domicile/residence-based reservation for admission to “PG Medical Courses” within the State Quota seats?(b) Again, if domicile/residence-based reservation in admission to “PG Medical Courses” is permissible, considering that all the admissions are to be based on the merit and rank obtained in NEET, what should be the modality of providing such domicile/residence based reservation in relation to the State/UT having only one Medical College?
  1. If answer to the first question is in the affirmative and if domicile/residence-based reservation in admission to “PG Medical Courses” is impermissible, as to how the State Quota seats, other than the permissible institutional preference seats, are to be filled up?

[Dr. Tanvi Behl v. Shrey Goel, 2019 SCC OnLine SC 1576, decided on 09.12.2019]

Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri, J. allowed a revision petition filed against the judgment of the trial court whereby the petitioner was convicted for offence punishable under Section 354-A IPC (sexual harassment).

On the day of the incident, the petitioner was acting as an invigilator inside the examination hall where the complainant was writing her History subject examination paper. It was alleged that the petitioner made unwelcome physical contact with the complainant involving explicit sexual overtures against her. Further, he met the complainant nearby the bus stand and uttered certain words towards her intending to insult her modesty and intrude upon her privacy. The trial court found the allegations proved and convicted the petitioner as aforesaid. Aggrieved thereby, the petitioner approached the High Court.

At the outset, the High Court noted that an accused can be convicted on the sole testimony of the prosecutrix, but in the instant case, the Court was of the opinion that the complainant’s testimony was not such as to inspire confidence. It found many discrepancies and improvements in her statements as was evident from the record of the case.

Perusing the impugned order, it was noted, inter alia, that the trial court, as well as the Appellate Court, relied upon the suggestion given on behalf of the petitioner to the complaint that she had already obtained the phone number of the petitioner after leaving the examination hall and that is how she knew the same. The Appellate Court observed that the suggestion essentially goes to show that the petitioner himself had admitted the possession of his phone number with the complainant. However, in High Court’s opinion, the question of whether a suggestion given by the counsel on behalf of the accused can be considered as admission and bind the accused under Section 18 of Evidence Act is to be answered in negative. Referring to earlier decisions, according to the Court, the plea or defence put forward by the lawyer of the accused cannot bind him. The lawyer has no implied authority to admit the guilt or facts incriminating the accused.

In light of the inconsistencies and the improvements made by the complainant during her deposition and in absence of any corroborating evidence to support her statement, the Court was of the opinion that the testimony of the complainant does not inspire confidence. It was held that the prosecution failed to prove the case against the petitioner, the finding of guilt recorded by the trial court and the Appellate Court was manifestly illegal and perverse. Resultantly, the revision petition was allowed. The petitioner’s conviction was set aside. [Pawan Kumar v. State, 2019 SCC OnLine Del 10452, decided on 10-10-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: The Division Bench comprising of Harinder Singh Sidhu & Arun Monga, JJ. dismissed the writ petition on the ground that there was no legal infirmity in the action of the State of Punjab to adopt the wider definition of the NRI in the domain of policymaking.

A writ petition was made against Clause 17 of the Notification whereby, definition and scope of Non-Resident Indian (NRI) have been restricted to include only an NRI and/or children of NRI.

The facts of the case were that the petitioner took the National Eligibility cum Entrance Test (for short ‘NEET’) conducted for admission to MBBS/BDS in medical colleges situated all over India including the State of Punjab. The petitioner qualified the cut off marks prescribed in the examination and was eligible to apply for admission in the medical colleges. The petitioner was primarily aggrieved by the action of the State in excluding the first degree relations of NRI and wards thereof from the realm of the definition of ‘NRI’.

Pankaj Bansal, Counsel for the petitioner submits that by restricting the Category I to mean ‘an NRI and/or children of NRI’ results in hostile discrimination towards the students in the State of Punjab. NRI reservation was provided in all the medical colleges of India wherein a wider meaning has been given to word ‘NRI’ by including the first degree relations of NRI and wards of NRI within the meaning of word ‘NRI’. Learned counsel for the petitioner has also emphatically argued that restriction on the scope of the word ‘NRI’ has no reasonable nexus with the objectives sought to be achieved. He submits that if the scope of the definition of NRI is widened then the wider pool of talent would be available and the same will thus advance the requisite merit. The petitioner put reliance on the case of  P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537, wherein the Supreme Court has discussed the definition of NRI.

Rashmi Attri and M.S. Longia, Counsels for the respondents opposed the impugned notification on the ground that there are quite a large number of NRIs and in its wisdom, the State Government had rightly restricted the scope of the definition of NRI to mean either ‘an NRI or children of the NRI’. Enlarging the scope of the same to first degree relatives and/ or the wards of the NRI would open flood gates for the applicants to seek the benefit of NRI quota.

High Court thus opined that purpose of narrowing down the definition of ‘NRI’ vide clause 17, does not miss the very ratio laid down in Inamdar’s case, inasmuch as, it has been clearly laid down by the Apex Court that under the garb of NRI quota less meritorious students who can afford to spend more money get admission even though neither the student is an NRI nor his/ her parents are NRIs.

Thus, the Court was of the opinion that the purpose of restricting the definition is to give weightage only to the genuine cases where the children of those parents who have migrated to other countries to get the benefit of education in their native country. Court further added that “we also do not find any merit in the argument that the narrowing of the scope of the definition of ‘NRI’ by the State is hostile discrimination qua the students of Punjab. It is open for the State Government to make any policy with regard to the residents of the State and no interference is warranted by this Court in the domain of policymaking. It is up to the State to widen or narrow the scope of the definition of ‘NRI’ and such exercise of power would not amount to any discrimination.” Thus the petition was dismissed.[Asmita Kaur v. State of Punjab, 2019 SCC OnLine P&H 937, decided on 26-06-2019]

Case BriefsHigh Courts

Kerala High Court: A Division Bench of CJ Hrishikesh Roy and A.K. Jayashankaran Nambiar, J. opined that the students could not be compelled to continue in a college which according to their perception was detrimental to their career and laid that there was no reason to interfere with the judgment of the single Judge whereby students were allowed the inter-college transfer.

Respondent student sought inter-collegiate transfer from the Cochin Institute of Science and Technology to another self-financing college under the same university since the amenities and infrastructure in his college were inadequate. But the college principal did not accord permission for the inter-college transfer. Thus, the respondent herein had filed a petition before this Court and a Single Judge Bench[1] allowed the same holding that college could not arbitrarily reject issuance of NOC to students desirous of taking admission into another college/ institute. Aggrieved by the said decision, the appellant-college preferred the instant appeal.

The counsel for the appellant, Anoop V. Nair and M.S. Sandeep Sudhakaran contended that if such inter-college transfer was permitted, the functioning of the appellant college would itself be put to jeopardy as it might possibly adversely impact those opting to continue in the Cochin Institute of Science and Technology.

The Court relied on the judgment of Supreme Court in the case of K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, in which it was held that the right of a person to individual autonomy was matter of personal choice and preferences were integral to his dignity and thereby it was his fundamental right under Article 21 of the Constitution of India. It remarked that “freedom to choose the college of his/her choice for pursuit of their studies is according to us, an aspect of the Fundamental Right to privacy, guaranteed under Article 21 of the Constitution.”

The Court held that the appellants had not been able to show any condition either statutory or contractual which obliged a student admitted to their college to necessarily continue their course of study in the same institution and therefore when a student felt that he could secure better education in another college and there was no legal bar in exercise of such option, appellants could not compel the students to continue their curriculum from the same college. Hence, the Court dismissed the appeals for being devoid of merit.[Cochin Institute of Science and Technology v. Jisin Jijo, 2019 SCC OnLine Ker 1800, decided on 04-06-2019]

[1] https://blog.scconline.com/post/2019/06/12/ker-hc-college-cannot-arbitrarily-reject-issuance-of-noc-to-students-desirous-of-taking-admission-into-another-college-institute/

Case BriefsSupreme Court

Supreme Court: The vacation bench of Deepak Gupta and Surya Kant, JJ has refused to grant extension of time to respective medical colleges/deemed universities for carrying out counselling for P.G. courses and has said,

“If we permit violation of schedule and grant extension, we shall be opening a Pandora’s box and the whole purpose of fixing a time schedule and laying down a regime which strictly adheres to time schedule will be defeated.”

The petition filed by Education Promotion Society for India which representing a large number of   educational institutions including medical colleges running post­graduate (P.G.) medical courses that showed concern over the large number of seats in these colleges that are lying vacant. It was argued that there is an acute shortage of doctors in India and, in fact, the Union of India has permitted increase of seats in government medical colleges without increase of infrastructure

“this shows that the intention of the State is to ensure that more and more doctors pass out and treat the patients.”

The petitioner also cited various orders of this Court where extension of time was granted to medical colleges for carrying out counselling. On this the Court said,

“In this case the petitioners want a general extension of time not on account of any particular difficulty faced by any individual college or university but generally on the ground that a large number of seats for the P.G. courses are lying vacant.”

Taking judicial notice of the fact that every year large number of nonclinical seats remain vacant because many graduate doctors do not want to do post­graduation in non­clinical subjects, the Court said,

“Merely because the seats are lying vacant, in our view, is not a ground to grant extension of time and grant further opportunity to fill up vacant seats. The schedule must be followed.”

[Education Promotion Society for India v. Union of India, 2019 SCC OnLine SC 780, decided on 21.06.2019]

Case BriefsForeign Courts

“….senior members of the Bar have a duty to contribute to the learning and grooming of entrants during the mandatory apprenticeship period by imparting their knowledge and expertise of different areas of practice.”

 Supreme Court of Pakistan: The three-judge Bench of Mian Saqib Nisar, Umar Ata Bandial and Ijaz Ul Ahsan, JJ. was hearing a petition filed by the Pakistan Bar Council (PBC) under Article 184(3) of the Constitution of Islamic Republic of Pakistan seeking enforcement of judgment rendered in Pakistan Bar Council v. Federal Government, 2006 SCC OnLine Pak SC 8 (PBC judgment).

The PBC judgment directed all law schools/colleges to comply with the “Affiliation of Law Colleges Rules” (Affiliation Rules”) framed by PBC to ensure uniform quality of legal education. The instant petition alleges that none of the respondent law colleges and universities have complied with the directions given in the PBC judgment and have instead granted affiliation to private law colleges in violation of the Affiliation Rules.

The Court noted that principal causes of a decline in the standard of legal education are due to the proliferation of sub-standard law degree awarding institutions that are motivated solely by commercial considerations rather than academic excellence. This shift in priorities has inevitably compromised the quality of education and hampered the intellectual development of law students.

In the foregoing perspective, it was concluded that a five-year LL.B. programme be introduced in law colleges that are not already offering it. This would provide the time and exposure to ensure a complete and comprehensive legal education where students can adequately learn and acquire the knowledge, skills, values and practical judgment required for the legal profession. Admission to 3-year LL.B. programme was banned after 31-12-2018. The Court also directed introduction of a test for entry to law colleges, i.e., Law Admission Test (LAT) and directed to restore bar entrance examination, i.e., Law Graduate Assessment Test (LAW-GAT).[Pakistan Bar Council v. Federal Government, Constitution Petition No. 134 of 2012, Order dated 31-08-2018]

Case BriefsHigh Courts

Allahabad High Court: Petitioner-institution claimed before the Bench of Ajay Bhanot, J. that nine students, who were admitted directly in the D.El.Ed./B.T.C. course, were not to be permitted to appear in the examination.

Petitioner brought Court’s attention on the communication of the Examination Regulatory Authority. This communication was addressed to the Principal of District Institute of Education & Training (DIET), Mathura. According to the communication, DIET had to confirm to the Examination Regulatory Authority whether the names, particulars, and number of students were uploaded for on-line verification and were they on the website of the Examination Regulatory Authority. In reply, the nine students were mentioned to be admitted and their papers were received in the office of DIET, Mathura. Though, the reply mentioned nothing about the names being uploaded/locked on the website of the Examination Regulatory Authority. It was contended by petitioner that the future of students will be affected even though they had taken valid admission in the Institute.

High Court after hearing the contentions of the parties was of the view that this matter requires to be considered. [Maharaja College, Mathura v. State of U.P., 2019 SCC OnLine All 106, Order dated 25-01-2019]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Chakradhari Sharan Singh, J., allowed the application which challenged press communiqué issued by State Government whereby NEET qualification was made mandatory for admission to AYUSH courses.

Facts of the case were that petitioner was aggrieved by a press communiqué released by the Health Department, Government of Bihar making NEET mandatory exam for entrance in AYUSH courses. Petitioner contended that the communiqué was provided after the last date of filing form for NEET was over and that requirement for AYUSH courses were distinct from one required in MBBS/BDS courses as NEET is an entrance exam specifically for MBBS and BDS. Whereas respondent defended the communiqué by stating it to be a result of Supreme Court judgment which stated the requirement of a common entrance test for admission to medical courses with a sole purpose of granting admission to meritorious students. The question before Court was to see if NEET qualification can be made a mandatory requirement for admission to AYUSH courses without amending the Indian Medical Council Act, 1970 and regulations thereunder. Court answered the above question by stating that without amendment in Act and Regulation, NEET qualification cannot be made mandatory for entry into other courses than MBBS/BDS.

High Court was of the view that the notification came after the last date for filing the application form of NEET was over and that syllabus and requirement for AYUSH courses were different from MBBS/BDS. The decision of Union government making NEET mandatory for admission to AYUSH (UG) courses was found to be contrary to regulations framed under the Indian Medicine Central Council Act, 1970. With the above view, Court set aside the letter of the Central government and quashed the press communiqué issued by State government. [Vihar Private Unani Medical Colleges v. Union of India,2018 SCC OnLine Pat 1857, order dated 10-10-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Arun Mishra and Vineet Saran, JJ., allowed the appeals pertaining to the admission of appellants under the physically handicapped category for the next year.

The facts of the case are that the appellants were not given admission in the physically handicapped category due to the recommendations given by the Medical Council of India (MCI). Though the regulations framed by the MCI also adopts the provisions of the Rights of Persons with Disability Act, 2016 (RPWD).

The Apex Court while noting the facts of the case, cited the case of Purswani Ashutosh v. Union of India, 2018 SCC OnLine SC 1717, in which it was held that “statutory provisions have to prevail over the recommendations made by the Committee as the recommendations made have not taken statutory shape so far.” Hence, the Court stated that all the seats have been filled as of now and the appellants have been illegally deprived of the admission.

The Court directed that appellants be admitted for the MBBS Course next year in a government medical college and the general category seats be reduced next year i.e. 2019-2020 as the seats of the physically disabled were given to the general category this year due to which they were deprived of the admission.

The impugned Punjab and Haryana High Court orders were set aside and appeals were allowed by stating the present order to be ‘conclusive and binding’. [Parmod v. Union of India,2018 SCC OnLine SC 1919, Order dated 09-10-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Siddharth Mridul J., addressed a petition concerning a NEET UG, 2018 candidate, aggrieved during the counselling session of the said examination.

Petitioner was willing to participate in the counselling session of NEET UG, 2018 on attaining an all India rank of 24392 and had registered for the ‘All India Counselling’ by opting for ‘All India Quota’ seats and ‘Central University Quota’ seats, but couldn’t be granted admission on account of her all India merit.

The grievance of the petitioner is that due to her limiting the options at the time of online registration in ‘All India Quota’ and ‘Central University Quota’ she was barred to register in the second round of counselling under the category of ‘Deemed Universities’.  Also, it has been stated that the option of resetting was also exhausted by the petitioner which left her with no choice on registering for the second counselling under the category of ‘Deemed Universities’.

The High Court on taking into consideration the circumstances and all the other aspects of the issue and placing reliance on Salem Advocate Bar Association, T.N. v. Union of India, (2005) 6 SCC 344, stated that “rules or procedure is the handmaid of justice and not its mistress.” Therefore, in the special circumstances of the case, the Court directed the respondent that in the interest of justice the petitioner shall be permitted to register herself afresh for the ‘Deemed Universities’ category as there is no bar for a meritorious student to be considered for admission. [Jasmeen Kaur v. Union of India,2018 SCC OnLine Del 9778, decided on 10-07-2018]

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Bharati H. Dangre and S.C. Dharmadhikari, JJ., addressed a petition concerning the cancellation of an MBA degree holder of NMIMS, Mumbai, on grounds of attaining the admission through fraudulent means. The Bench also explained the principle of ‘Natural Justice’ on the lines of the present case.

In the instant case, the petitioner-aggrieved had attained a degree of MBA (Pharmaceutical Management) by following the due process of selection. The petitioner was working at a company in which he got placed through the college itself after completing the course. After a lapse of 3 years on completion of the degree, a show cause notice in regard of cancellation of the degree was sent stating that the petitioner had secured the admission through unfair means for which a complaint was filed by Respondent-1: NMIMS with the Crime Branch, Mumbai

It has been alleged that the petitioner engaged a ‘dummy candidate’ to appear on his behalf for the stated entrance test. Petitioner also contended that he was not supplied with the documents on which the show cause notice was relied upon which clearly did not give the petitioner an opportunity to deal with the documents which further if resulted into the cancellation of his degree would amount to the violation of principles of natural justice.

On complete analysis of the facts and contentions of the present case, the Hon’ble High Court concluded by stating that although the fraud was detected and a show cause notice was served to the petitioner, no material was supplied to deal with the allegations. One of the prominent observations made was that, the institute was a State recognised institute and any of its administrative decisions or actions resulting into civil consequences are liable to be judicially reviewed on the anvil of principles of natural justice, therefore, in the present case the impugned order was rendered as null and void due to violation of principles of natural justice. [Shiva Dhawan v. SVKM’s Narsee Monjee Institute of Management Studies,  2018 SCC OnLine Bom 1272, order decided on 20-06-2018]

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]