Jimmy Abraham Thomas And Ors. vs The State Of Maharashtra And Ors. on 21 September, 2001

JUDGMENT

H. L. Gokhale, J.

1. All the writ petitions in Group (A) above invoking Article 226 of the Constitution of India raise common questions with respect to the correctness and legality of the Maharashtra Health Sciences Common Entrance Test (MH-CET 2001) conducted by the State of Maharashtra and the Director of Medical Education and Research of the State of Maharashtra and the results of this Common Entrance Test. Some of these petitions have been filed on the Original Side of this High Court whereas some of them are filed on the Appellate Side and one writ petition is arising out of a letter sent by a student Miss Priyanka Dinkar Borde from Kopargaon, District Ahmednagar, which letter has been converted into a suo motu writ petition. These petitions raise questions with respect to the legality and validity of the results of this examination which were declared on 17th May, 2001 and the consequent admissions to various medical courses. These petitions are undoubtedly of urgent nature. All of them are therefore being heard and decided together finally at the admission stage itself.

2. From amongst these petitions. Writ Petition No. 1658 of 2001 is
the first one and is being treated as the lead petition. The State of
Maharashtra and the Director of Medical Education and Research of the
State of Maharashtra were joined initially as the two Respondents in this
petition. Replies have been filed by these Respondents in Writ Petition No.
1658 of 2001 from time to time and they are treated as the replies in the
other petitions also. Some interveners appeared in this petition to support
it, whereas some appeared to oppose it and some only to make a few
suggestions. Some parties filed petitions wherein the prayers were exactly
opposite to the Group (A) petitions, These petitions are placed in Group
(B). Writ Petition No. 1658 of 2001 has been filed by the students who have
initially sought revaluation of their answer papers and who have sub
sequently prayed that the revised merit list prepared by the State Govern
ment be Implemented in place of the earlier merit list and the admissions
be granted strictly in accordance therewith. Petitions at Sr. Nos. 6 to 10
in Group (B) above were filed by 5 students who would be affected if Petition
No. 1658 of 2001 and other petitions in Group (A) were to be allowed. In these petitions, the Medical Council of India was joined as Respondent
No. 3 and the Chief Secretary, Ministry of Health & Family Welfare,
Government of India was joined as Respondent No. 4. Prayer (a) of this
petition was to direct Respondent Nos. 1 and 2, i..e. State of Maharashtra
and Director of Medical Education & Research, not to cancel the admis
sions of the students and prayer (b) was to increase the number of seats
for the present year. Then there were some other petitions making different
and peculiar prayers. They are in Group (C).

3. A number of counsel have appeared for all these Petitioners and also on behalf of the interveners who are either supporting or are opposing these petitions and they have all been heard. Mr. V. C. Kotwal, Senior Advocate, has led this team of lawyers in Group (A) petitions and by and large his arguments are adopted and supported by other counsel appearing for the petitioners in these petitions and the Interveners appearing in support. Mr. Gulam Vahanvati, Advocate General with Mr. A. A. Kumbhakoni, Special Counsel and Mrs. Armin Kalyanram, Assistant Government Pleader, have appeared for the Respondent Nos. 1 and 2. Ms. Simran Puri has appeared for Medical Council of India, the Respondent No. 3. Mr, V. R. Bhandare and Mr. Madhav Jamdar, led the lawyers, who appeared for interveners, opposing the cause of the Group (A) petitions orwho have filed the Group (B) petitions. Ms. Suvedita Shah appeared for the Petitioners in Petitions at Sr. Nos. 6 to 10 of Group (B) mentioned above and Mr. Suraj M. Shah appeared for Union of India in those matters. Petitions in Group (B) are in fact a sort of cross petitions to the petitions in Group (A). After these matters were heard for quite sometime, it was felt necessary that Petition No. 1658 of 2001 be treated as the representative petition and notice under Order 1 Rule 8 of the C.P.C. be Issued to the students who would be affected if the prayer in that petition to implement the revised merit list was granted. Dr. Bhoir and Dr. Doshi represented by Mr. Jamdar and Mr. Bhandare respectively were joined in this Writ Petition No. 1658 of 2001 as Respondent Nos. 4 and 5 to represent the cause of the students likely to be affected. After that notice was made returnable, some 40 students or their parents intervened through their Advocates and they have also been heard. Mr. R. S. Apte has appeared for a few intervening students, who are presentlyln the XI Standard, only to make suggestions with respect to such examinations to be held in future. The counsel for the Petitioners in Group (C) were also separately heard. The arguments of all the counsel will be dealt with in detail later on. For the sake of convenience, the reference to the parties or their submissions hereinafter are with respect to the lead Petition No. 1658 of 2001. However, in the event a separate mention of other matters is required, it is so done at that stage.

WRIT PETITION NO. 1658 OP 2001

4. The Respondent Nos. 1 and 2 to this petition conducted the above referred Common Entrance Test for admissions to all Health Science Courses, such as Medicine (M.B.B.S.), Dentistry (B.D.S.). Ayurved (B.A.M.S.), Homoeopathy (B.H.M.S.), Unanl Medicine (B.U.M.S.), Physio Therapy (B.P.T.H.), Occupational Theraby (B.O.Y.H.), Audio & Speech Therapy (B.A.S.L.P.) and Prosthetlcs & Orthotics (B.P. & O.). Some 67,563 students appeared for this examination throughout the State of Maharashtra which examination could be given by all the students appearing for the XIIth Standard HSC examination in the science stream. Out of them 17,974 became eligible for being considered for admission for M.B.B.S. and B.D.S. courses since they obtained the requisite qualifying marks (50% for open category, 40% for reserved categories). The examination consisted of 200 marks with 50 marks each in Physics and Chemistry and 100 marks for Biology (Zoology and Botany). With a view to see to it that there is no chance of any malpractices and copying, the question paper was prepared in four versions and they were marked as “Versions 11,22,33 and 44”. The questions in all the versions were the same but there was a change in their order. Thus the students answering the examination in an examination hall were given papers with different versions one after another, i.e. Versions 11, 22, 33 and 44, and thereafter again Versions 11, 22, 33 and 44 and soon, which would make copying and adopting the answers of other students very difficult.

5. The results of this examination were declared on 17th May, 2001. Writ Petition No. 1658 of 2001 is filed by 14 students coming together. It is their case that when they saw the mark list, they found that in the paper of Biology answered by them, they had received far lesser marks than their expectation. Subsequently the results of the HSC examination were declared by the Examination Board and it is the case of these Petitioners that they obtained excellent marks in Biology. It was in this context that they came in contact with each other and realised that all of them had answered the question booklet marked “Version 33” for Biology and all of them had received much lesser marks as compared to what they received in the HSC examination. Thus as far as the 14 petitioners are concerned in this petition, the position with respect to their Biology (B) marks in the HSC examination and the Common Entrance Test (C.E.T.) is as follows :-

Sr. No.

Name

(B)
HSC

(B)
C.E.T.

State
Merit List (S.M.L.) Rank

1.

Jimmy A. Thorns

97

75

780

2.

Yashodhan Bichu

81

65

4565

3.

Prajakta Upadhye

79

58

8416

4.

Ekta Shah

90

58

7385

5.

Aparna Anand

92

66

4091

6.

Megha Sheth

86

54

8492

7.

Sourabh Agarwal

80

63

1728

8.

Kunal Wani

91

69

1719

9.

Ramya Uppulurl

93

73

652

10.

Arvfnd Ganeshan

97

77

1071

11.

Devyanl Barve

94

76

298

12.

Aboil Dahake

91

77

1151

13.

Salome Thirodkar

91

78

296

14.

Tushar Yadav

82

61

7291

6. The Petitioners therefore suspected that there was obviously some error in the correction of the Biology paper in the Common Entrance Test. The Petitioners point out in this behalf that the answer sheet for this examination is designed to suitwhat is known as “Optical Magnetic Reader” (O.M.R.). For each question, four options are given as answers and against each answer hollow circles are provided. To put in a correct answer for a question, the candidate has to fill the appropriate hollow circle completely with black ball point pen only. Thereafter the answer books are assessed by computers on the basis of the circles so marked. This would imply that for proper and correct evaluation of the answer book, the computers have to be correctly fed with the data relating to the proper and correct answers. It is thereafter stated in para 3(e) of the petition that “In the event therefore if there are any errors in the said data of Model Answer Sheets fed in/ provided to the computers, there would be corresponding errors in the assessment of the answer sheets of the students”. Some of the petitioners applied for verification within 48 hours as required under the examination rules, but got stereo-typed reply that there was no error in the correction. Thus for example, the Petitioners have drawn our attention to the receipts of payment made by Petitioner Nos. 11 and’6 for verification on 17th and 18th May, 2001 and the reply received on 28th May, 2001. The Petitioners however found on inquiry with other students that the top rankers, who appeared for this examination, scored more than 85 marks, but practically all of them were from Versions 11. 22 or 44 for the Biology paper, whereas the students who wrote Version 33, consistently scored less than 79 marks. On inquiry, the Petitioners learnt that hardly any candidate from Version 33 figured in the first 100 two rankers.

7. It is on this background that they ultimately filed Writ Petition No. 1658 of 2001 on 9th July, 2001. It is stated that the Petition is filed with utmost dispatch. To this petition, they enclosed a chart at Exhibit B showing the position of the marks obtained by them as against some of the students who wrote answer books of Versions 11, 22 and 44. By the time they came to this Court, the news with respect to this discrepancy had spread all over and the newspapers raised serious questions with respect to this C.E.T.. Some of these reports appeared in Marathl dailies “Lokmat” of 30th June, 2001. “Maharashtra Times” of 1st July, 2001 and “Loksatta” of 5th July, 2001, all published from Mumbai. An apprehension was expressed in these news items that in the process of computerisation, perhaps mistakes had occurred in the master copy of the answers for Version 33. The Petitioners enclosed copies of these news reports to the present petition. They prayed for revaluation of the Biology section of the C.E.T. They also prayed for a stay on the selection of the candidates pending the hearing and final disposal of this petition.

8. Foundation for these prayers is laid by submitting as follows in para 11 of the petition.

“The Petitioners submit that the entire examination results would be vitiated if it is found that there is an error in the assessment of Biology Section of question Version Set 33. The Petitioners submit that the exam being a highly competitive exam every mark obtained counts and is relevant and there would be a large number of students for every mark difference. Further, the Petitioners submit that the performance in the MH CET Exam becomes more important for students to get admission on merits and not on a payment seat. Further so, a higher rank would ensure a seat in Mumbai as compared to seats in far off places outside Mumbai.”

The course taken by the present proceeding

9. This petition was affirmed on 9th July, 2001. It was mentioned before the Court for admission on 16th July, 2001. It was directed to be placed for admission after notice on 23rd July, 2001, on which date a request was jointly made by Mr. Kotwal, learned counsel for the Petitioners, and Mr. Kumbhakoni, Special Counsel for the Respondents, that the matter be heard in Chambers on 26th July, 2001. On that date, after Mr. Kotwal made a few submissions pointing out the discrepancies in the examination, particularly with respect to the answer books of Version 33, Mr. Kumbhakoni, Special Counsel for the Respondents, very fairly accepted that there was a need to look into those submissions. He therefore sought time and stated that by the next date all the answer books will be looked into with respect to the model answers for all the versions and depending on that, the Court will be informed as to whether there were any errors. Mr. Kumbhakoni however pointed out that by that date first round of admissions for Medicine and Dentistry was almost over by 6th July, 2001 wherein some 60% seats were already filled. He however stated that the further rounds will not be conducted until the matter was further heard. The Bench which heard that matter (Gokhale & Bhosale, JJ.) made a noting accordingly and adjourned thematterto 3rd August, 2001. Again, on that date, the matter was adjourned to 8th August, 2001.

First affidavit of Government – Acceptance of mistakes in correction of Version 33

10. One Dr. Abhay Chowdhary, Officer on Special Duty for this examination; filed an affidavit on behalf of the Respondent Nos. 1 and 2 on 8th August, 2001. Mr. Chowdhary stated in this affidavit that after the declaration of results of C.E.T., mark lists were given to all the candidates on 17th May, 2001 and they had the liberty to seek verification in 48 hours. This was treated as provisional merit list. After this exercise of verification, final list was published on 28th May, 2001. The admission process started on 12th June, 2001 and till date candidates upto State Merit List No. 12200 had been interviewed.

11. Mr. Chowdhary in his affidavit stated that after the matter was adjourned on last date, i.e. on 26th July, 2001, the Respondents had convened a meeting of the six examiners/paper setters on 1st August, 2001. They were called upon to verify each and every aspect about the question papers and the model-key answer sheets of all the versions. The verification so carried out by all the six examiners revealed that there were mistakes/errors in the model-key answer sheet of Version No. 33 in the subject of Biology. With reference to other versions for Biology paper, it is specifically stated in para 28 that there were no mistakes of any nature in Versions 11, 22 and 44. With respect to the papers of Physics and Chemistry, it is stated in para 27 that there was no mistake of any nature in any of the versions. In para 29 of this affidavit. It is stated as follows as to how the above mistake occurred in Version 33 :

“….. I say that it was revealed that by mistake the model-key answers for a block of 10 questions was interchanged with another block of 10 questions. 1 say that though this was a single mistake, because of the number of questions involved in the block, it would have resulted into 20 incorrect answers. But accidentally by a curious coincidence, a total of eight model-key answers in these block match with what were the correct answers. I say that therefore this mistake was only of twelve answers instead of twenty. I say that an Isolated mistake in model-key answer recorded for question No. 103 of Version No. 33 was also detected.”

Thus Dr. Chowdhary accepted that there were errors in correction of 13 answers and then stated in paragraph 30 that the examiners/paper setters have reduced the minutes of the meeting by admitting their mistake expressing their regret for the inadvertent error and by tendering their sincere apology for the same. Thereafter it is stated in this affidavit that freshly prepared model-key for Version No. 33 was handed over to the computer agency, which had originally evaluated the answer sheets of the candidates. The agency was directed to carry out fresh evaluation of all the answers of the candidates who attempted Version No. 33.

12. Thereafter it is stated in para 32 of this affidavit as follows :

“I say that total 16,858 candidates were handed over Version No. 33 of the question paper at the time of examination. I say that out of these candidates. In case of 1,479 candidates no change in the marks was noticed. I say that in case of 11,823 candidates increase in their marks ranging from 1 mark to 13 marks on account of aforesaid correction was noticed and accordingly effected. I say that in case of 3,556 candidates the decrease in their marks ranging from 1 mark to 10 marks on account of aforesaid correction was noticed and the correction was accordingly effected.”

Thereafter the affidavit accepts that the candidates whose marks changed were placed in merit list so finally prepared at the relative merit position by giving them relative merit position in decimal numbers. Thus it is pointed out that for example, the Petitioner No. 1 – Jimmy Abraham Thomas was initially at No. 780 with 139 marks in the State Merit List. He secured additional 13 marks after the aforesaid exercise. His corrected total number of marks will now be 152 and he gets elevated to the merit position at 183.4. This system was adopted so as not to disturb the State Merit List number of candidates of other Versions (who are 75%) whose marks remained unaltered even after the aforesaid exercise.

13. It is further stated in this affidavit that in view of this development. the Respondents have decided to prepare fresh merit list showing corrected merit position and to undertake the entire admission process afresh in respect of all the seats and all the candidates Including those who have already been admitted. This in para 34 of this affidavit, it is stated as follows :-

“….. I say that to facilitate this exercise and from the point of view of convenience of all concerned including the candidates so also to avoid any confusion and mistakes by granting double admissions etc. the respondents have decided to cancel all the admissions so far granted to all the candidates.”

Thereafter it is stated in para 36 that in view of the admission of their mistake, appropriate punitive action will be taken against the paper-setters/examiners for the subject of Biology responsible for this situation. On a query from the Court, the report made by the Director of Medical Education & Research was made available for the perusal of the Court. Lastly it is stated that yet the Respondents will ensure that no candidate will lose his/her rightful claim for admission to the medical course as a consequence of aforesaid mistake.

14. In view of tendering of this affidavit by the Respondents on 8th August, 2001, the matter was adjourned to the next date. i.e. 9th August. 2001. On this date, it was noted that if these admissions were cancelled, it would lead to a cascading effect. A large number of students, who go out of the medical stream, would like to go into the engineering faculty. A list at the end of first round for admissions to engineering was then ready though the admissions were to be effected on Saturday, 11 th August, 2001. Hence on 9th August, 2001, the learned Advocate General Mr. Gulam Vahanvati took over the matter on behalf of the Respondents and made a statement that no such admissions will be given on 11th August, 2001 and necessary Instructions will be given to the authorities concerned. It is on this date that Mr. Bhandare intervened on behalf of the students who were already admitted and opposed any modification/cancellation of the admissions which were already given. He was allowed to intervene. He stated that by next date he will file a regular chamber summons for intervention.

Amendment of the petition to implement revised merit list.

15. On the next date of hearing, i.e. on 14th August, 2001, the Petitioners sought to amend their petition in view of the affidavit filed by the Respondents. They sought to add a few paragraphs based thereon and prayer Clause (b-1) that the Respondents be directed to publish and implement the revised merit list and grant admissions to students strictly in accordance therewith including admissions to colleges of their choice in accordance with the respective positions on the revised merit list. That amendment was granted on 14th August, 2001 and the matter was adjpurned to 16th August, 2001.

Government’s second affidavit : Willingness to accommodate affected students

16. On the this date, i.e. on 16th August, 2001, Mr. Bhandare tendered the chamber summons to Intervene on behalf of a few affected students. The State Government through above referred Dr. Chowdhary filed another affidavit affirmed on 16th August, 2001. Dr. Chowdhary stated therein that consequent upon the earlier affidavit stating that the entire admission process will be reconducted, anxiety was expressed in various quarters Including parents of students who were likely to be disturbed in the event of implementation of the new merit list. It is stated in this affidavit that State had therefore reconsidered Its position. It was further stated that the implementation of the new merit list would lead to inter se movement in the colleges themselves. Then it is stated in para 2(c) thereof that about 152 students presently admitted in private colleges would be entitled to move up from free seats in private colleges to Government colleges. This would require an increase in the number of seats in the government colleges to absorb such students coming from Version No. 33 numbering approximately 152. Then it is stated in para 2(f) in this affidavit that the other problem will be that some 150 students from various other streams, viz. Dentistry, Ayurved or other streams of medicine would be entitled to move to M.B.B.S. course. Accommodating them will require increasing of seats and would require a favourable approach from the Medical Council of India and Government of India and an effort would be made to obtain a clearance from them to get additional seats. Thereafter it is stated in this affidavit that some 50 seats were expected to be increased in the Government Medical College at Aurangabad and 40 seats were expected to be increased in a private Dental College at Nasik. In short, it was indicated in this affidavit that efforts would be made to get the seats increased so that the students coming up from Version 33 would be accommodated without disturbing the students who were already admitted.

17. In this behalf, it is necessary to record that in para 10 of this affidavit, it was clarified once again that apart from Version 33. the model key answer sheets of the other three versions were also verified and their correctness was certified by the paper-setters/examiners. This para 10 reads as follows :-

“I say that the examiners/paper setters were called upon to check model key answer sheets of all the four Versions 11, 22. 33, 44. I say that the examiners/ paper setters have verified model key answer sheets of all the aforesaid four versions in respect of all the three subjects of Physics, Chemistry and Biology. I say that examiners/paper setters have certified about correctness of all the aforesaid four model keys after correcting model key of Version 33. I say that the committee appointed by the State Government has also verified the fact that all the four model keys of answer sheets match with each other in every respect.”

18. During the arguments on that day, i.e., on 16th August. 2001, it was pointed out on behalf of the State of Maharashtra that in view of the efforts, which were being made to increase the seats in medicine, there was no need to withhold the admissions to the engineering students. An affidavit was also filed on this date by Shri N. B. Pasalkar. Director of Technical Education affirmed on 16th August. 2001. In this, it was stated that if the students from medical stream were required to be included in the engineering courses in view of their necessity to shift over, that can be considered after admission process round 3-B for the candidates from Maharashtra State was over and before considering the students from outside Maharashtra. He suggested that this can be done in the following manner :

“(a) The students be asked to produce proof that they had secured admission to M.B.E.S. and the same is cancelled because of the events that transpired later.

(b) They have not applied for Engineering admission for the year 2001-2002.

(c) They have passed Std. XIIth with Physics, Chemistry, Mathematics as per eligibility criteria for Engineering admissions.”

Therefore in a speaking order passed on that day, we accepted this suggestion of the Director of Technical Education and asked him to get in touch with the Director of Medical Education after round 3-B was over and find out if any students who opted initially for medicine were required to be absorbed and then act as promised in this affidavit.

19. Mr. Kumbhakoni, learned Special Counsel assisting Advocate General, pointed out on that day that over and above the intake capacity of the Government Colleges, Municipal Colleges, Government Aided Colleges and the University Departments, 15% supernumerary seats were available to the authorities which were marked for persons of Indian origin from abroad, foreign nationals and foreign students. He pointed out that Non-resident Indians also had a 5% separate quota which was however part of the intake capacity. Mr. Kumbhakoni however pointed out that many of these NRI seats were already filled. He however made a statement that the remaining NRI seats and this 15% supernumerary quota will not be filled by the institutions concerned until further orders in this matter. He stated that in the event of it becoming necessary and if permissible, the Government will shift the quota of 5% NRI students Into this 15% supernumerary quota at a later point of time. It was thus noted that an additional 5% seats may perhaps become available in this manner at a later point of time for the students, who have presently opted for medicine, being required to shift to engineering. In view of this statement, the learned Advocate General was relieved of his statement which he had made on 9th August, 2001 and it was directed to be substituted by the statement which was made to the Court by the Director of Technical Education in his affidavit and Mr. Kumbhakoni, Special Counsel appearing for the Respondents. It was also noted that the Petitioners had no objection to this substitution and in view thereof, the State Government and the authorities in-charge of engineering admissions were permitted to proceed with those admissions.

Legitimate expectations of the Petitioners

20. It had so transpired that by this date of hearing, the Respondents had revised the marks position and prepared a revised merit list. This changed position has been shown in a separate column marked as “New State Merit List” in a book which gives the revised merit list of candidates of Version 33. They are given the rank numbers without disturbing the position and the rank numbers of the students who were from Versions 11, 22 and 44. Another book containing the combined revised merit list is also prepared. When we look into these two books, what is seen is that a large number of these students from Version 33 move upwards in the new revised merit list. Thus as far as the 14 petitioners in Writ Petition No. 1658 of 2001 are concerned, the revision in their marks and their New State Merit list position will be as follows :-

Sr. No.

C.E.T.
No

Name

Old Total

New
Total

Old
S.M.L.

New
S.M.L.

1.

02107

Jimmy
A. Thomas

139

152

780

183.4

2.

013323

Yashodhan
Bichu

113

121

4565

2743.28

3.

032127

Prajakta
Upadhye

101

106

8416

6354.55

4.

033403

Ekta
Shah

104

110

7358

5162.52

5.

020415

Aparna
Anand

115

123

4091

2399.23

6.

011419

Megha
Sheth

101

112

8492

4627.54

7.

025239

Sourabh
Agarwal

129

138

1728

788.18

8.

012039

Kunal
Wanl

129

135

1719

1008.19

9.

021195

Ramya
Uppuluri

141

151

652

205.6

10.

021023

Arvind
Ganeshan

135

142

1070

546.6

11

010223

Devyani
Barve

149

160

298

68.5

12.

022981

Aboil
Dahake

134

—–

1151

Ver.

11

13.

020747

Salome
Tirodkar

149

160

296

68.3

14.

012595

Tushar
Yadav

104

107

7291

6027.53

21. The above chart prepared on the basis of this book shows that from amongst these 14 Petitioners, Petitioners No. 12 – Aboli Dahake is not from Version 33, but she is from Version 11. Mr. Kotwal therefore made a statement that Petitioner No. 12 was wrongly included amongst the Petitioners and she was not prosecuting this petition. The statement was accepted. Keeping her case apart, all the other 13 students moved up substantially in their position. Thus, for example, two of the Petitioners, i.e., Petitioner No. 11 – Devyani Barve, moves from Old State Merit List No. 298 to New State Merit List No. 68.5 and Petitioner No. 13 – Salome Tirodkar moves from Old State Merit List No. 296 to New State Merit List No. 68.3. Thus they come under first 100 students. Even the two students amongst these 13, who are at lower rank positions. i.e., Petitioner No. 3 – Prajakta Upadhye and Petitioner No. 6 – Megha Sheth, move up from Old State Merit List No. 8416 to 6354.55 and from 8492 to 4627.54 respectively. Thus whereas two of these petitioners come up amongst the first 100 toppers, even the lowest in the list, i.e. Megha Sheth, (Petitioner No. 6), moves up in her rank position by 3865 steps. This will result into their getting the College/Course of their choice. The following chart shows the Courses/ Colleges to which they are presently admitted and the Course/College to which the student at a position Immediately below their new rank or nearest to that rank is admitted. These petitioners will therefore be entitled to get, as desired by them, into these Courses/Colleges as per their merit.

Sr.No.

Name

Rank
in Old S.M.L. and (Marks)

College/
Course to which Petitioner is admitted

Rank
in New S.M.L. and(Marks)

Position
of candidates nearest in revised S.M.L (Marks)

College/
Course to which the nearest students arc admitted (Where the Petitioner
may shift and has a legitimate expectation)

1.

J.

A.

780
(139)

Govt.

MedicaCollege, MIraj/ M.B.B.S.

 187.1
(152)

A.

B. Sayamber 188 (152)K. H, Modha 189 (152)

B.

J. Medical College. Pune/ M.B.B.S. Nair Medical College (B.M.C.) M.B.B.S.

2.

Yasbodban
Biehu

4565(113)

Ayurvedic
College Kolhapur

2650.

1(122)

A.

A. Soni 2651 (122)

Mimer
Latur/ Dental

3.

Prajakta Upadhye

8416
(101)

Standby

6200.1
(107)

H.

R. Chauwan 6205 (107)

HMC
College Chinchwad/ Homoeopathy

4.

Ekta
Shah

7358
(104)

Standby

5068.1
(111)

H.

B. Muley 5069 (111)

VYWS
CollegeA m r a v a t i (Pay)/Denlal

5.

Aparna
Anand

4091
(115)

Standby

2293.2(124)

S.

A. Magar 2295 (124)

A.

M. College Kanchanwadi/ Ayurved

6.

Megha
Seth

3492(101)

Standby

4533.1
(113)

B.

R. Patil 4551 (113)

AMD
Dhule/ Ayurved

7.

Saurabh
Agarwal

1728
(129)

Medical
College at Lon 1/ M.B.B.S.

782.1
(139)

K.

V. Shah 783 (139)S. R. Das 784 (139) R. K. Maru 797 (138)

Govt.

Medical College, Miraj/ M.B.B.S. BJMC. Punem.b.b.sTerna
Medical College. Navi M u m ba i / M.B.B.S.

8.

Kunal
Wani

1719
(129)

Standby

994.1(136)

R.

K. Bagai 995(136)S. R- Sawant 999 (136)

Somalya
Medical College (Pay Seat)/ M.B.B.S. Govt. Dental College. Mumbai

9.

RamyaUppuluri

652(141)

Standby

194.1(152)

195

-Not taken admission K. A. Valla 189 (152)

Natr
Medical College (B.M.C.) Mumbai/ M.B.B.S.

10.

Arvind Ganeshan

1070 (135)

Medical College at Lonl/ M.B.B.S.

506.1 043)

T. R. Jlndal 508 (143) S. M. Varunjikar 509 (143)
Nisha Hariharan 513 (143)

BJMC, Pune. M.B.B.S, VMC/Sholapur M.B.B.S. D,Y.

Patil. Mumbal/

11 .

Devyani Barve

298 (149)

Grant Medical College/ M.B.B.S.

68.1 (161)

Manish Garg 69 (161)

M.B.B.S. G. S. Medical College (B.M.C.) M.B.B.S.

12.

Aboil Dahake

13.

Salome Tlrodkar

296(149)

GrantMedical College/ M.B.B.S.

67.1 (161)

Mevada 68 (161)

G. S. Medical College (B.M.C.) M.B.B.S.

14.

Tusbar Yadav

7291 (104)

Standby

5880.1
(108)

R. R. Bidkar 5882 (108)

VAM Amravati Ayurved

(The remark “standby” indicates that the student concerned has not taken the admission to the course/college which was offered to him when his turn came up at the time of counselling, but has preferred to wait for another course or college.)

This revision will entitle hundreds of students situated at different rank positions to move from Government Medical Colleges all over the State to Prime Government/Municipal Medical Colleges in major cities. A large number of them who could not get fnto the Government or Municipal Medical Colleges and had to opt for Private Medical Colleges will be eligible to shift to the Government and Municipal Medical Colleges, and large number of those who are in Private Medical Colleges on pay seats will become entitled to move to the free seats in the Private Medical Colleges or Government Medical Colleges depending upon revision in their rank. Mr. Kotwal points out that in the first 100 students there are only 3 candidates of Version 33 as of now. In the revised list the number goes upto 35. Thus 32 students who should have been in the first 100 are wrongfully denied their rightful positions. Similarly upto rank No. 508 in the new list, 75 more from Version 33 appear from rank No. 101 to 508. and further 89 get added in rank Nos. 509 to 1000. This is apart from those who are already there. Thus,,now there will be 310 students from Version 33 in first 1000 wherein 196 are the added ones.

Likely effect of operation of the revised merit list and proposal of the State Government to increase seats

22. If this upward shifting was to be permitted, consequently there will be a corresponding downward movement and a large number of other students will be required to move from college “A” to college “B” either within Prime Medical Colleges, or from Prime Medical Colleges to other Government or Municipal Medical Colleges, or from those colleges, of their choice situated in cities of their choice to some other cities. Many of them will be shifted from Government and Municipal Medical Colleges to Private Medical Colleges and many from free seats in Private Medical Colleges to pay seats in the Private Medical Colleges. A large number of them will even lose their admissions to Medical and Dentistry and may have to shift down to other faculties like Ayurved, Unani Medicine, Physio Therapy and so on or even outside the medical courses to other faculties.

23. The authorities of the State Government therefore made an overall assessment of the situation and came up with a general estimate of the figures of the students likely to shift. It was stated to the Court on that date that in view of the upward movement of Version 33 students, some 152 students would be required to be shifted down from Government Medical Colleges to Private Medical Colleges and some 230 students from private free seats to private pay seats. The total comes to 382. To take care of this situation, it was suggested that the Government would like to move the Medical Council of India proposing an increase in the intake capacity of different medical colleges run by the State Government and Municipal Bodies. A chart was given to us proposing an increase of some 300 seats. The proposed increase was as follows :-

Sr.

No.

Name
of the College

Existing
Intake capacity

Proposed
increase In capacity

1.

G.

S. Medical College, Parel, Mumbai

180

20

2.

L.

T. Medical College. Sion, Mumbai.

100

15

3.

T.

N. Medical College, Mumbai

120

15

4.

Govt.
Medical College, Miraj

100

25

5.

Dr.

V. M. Medical College Solapur

100

25

6.

S.

R. T. R. Medical College. Ambajogal

50

50

7.

S.

B. H. Govt. Medical College. Dhule

50

50

8.

Indlra
Gandhi Medical College, Nagpur

100

25

9.

Grant
Medical College. Mumbai

200

25

10.

B.

J. Medical College, Pune

200

25

11.

Govt.

Medical College. Nagpur

200

25

 

1400

300

The Court was also informed on that date of hearing that a Dental College situated at Nasik known as “M.G.V. Dental College” had initial intake capacity of 100 and that it had been reduced to 40 due to some deficiencies, and the same having been removed, the capacity was expected to be resorted again to 100. Some more seats had become available at Government Medical College at Aurangabad and some more seats were expected to become available because of some of the students shifting to engineering stream. The establishment of the Government Medical College at Kolhapur had been set aside by the Aurangabad Bench of this High Court and the State Government was hopeful of getting that decision reversed.

24. The Court was also informed, as stated in para 5 of the affidavit of Dr. Chowdhary, that an urgent notice had been sent to Medical Council of India and the State Government was also taking up the matter and further that the Medical Council of India had informed the authorities of the State Government that they required one more week to take a decision in that behalf.

Magnitude of the problem

25. At this stage, it is necessary to note the magnitude of the problem. We were told that some 67.563 students appeared in this C.E.T. and out of them, 16,858 had answered this Version 33, and further that after the revision and correction of the papers, the marks assigned to 11,823 candidates had changed. While this exercise was going on one hand, on the other hand some 60% of the total number of seats had already been considered in the first round of admissions to medicine and allied courses. The total number of seats to be filled after this C.E.T. were 9,580 and their break up is as follows :

 
 Medicine (M.B.B.S.)   3105
Dentistry (B.D.S.)    780
Ayurved (B.A.M.S.)   2340
Homoeopathy (B.H.M.S.)   2635
Unanl Medicine (B.U.M.S.)   200
Occupational Therapy (Both)   120
Physio-Therapy (B.P.T.H.)   370
Audiology & Speech Therapy (B.A.S.L.P.)  25
Prosthetlcs & Orthotics (B.P. & O.).  5
Total      ..    9580
 

26. Thus we had a situation wherein if the correction of the Version 33 papers was to be implemented, some 350 and odd students were expected to go up in Medicine and Dentistry dislodging an equal number of students. On the other hand, out of these 9,580 seats, 5483 seats i.e. about 60% seats had already been filled. The seats meant for Medicine and Dentistry were practically all filled in. Just as the Petitioners who were wrongfully denied admissions to the courses and colleges of their choice are innocent students, those students, who were already admitted to different courses, were equally innocent. They had in the meanwhile taken their admissions, paid fees and bought costly equipments and books and had incurred expenditure of around Rs. 10,000/- per student apart from fees.

27. This was an extraordinary situation. The problem cropped up because of mistakes at the hands of the paper-setters and examiners. The Court was told that these were bona fide mistakes and nobody disputed that position. The fact however remains that at least 350 students from Version 33, who would have gone up in Medicine and Dentistry or other courses, had suffered because of the wrong evaluation and thousands of students had been given wrong placements. On the other hand, thousands of students had already been admitted in the meanwhile in different colleges. We therefore thought that the proposal of the State Government to get the seats increased as a one time measure for this year was worth consideration. The Government had already approached the Medical Council of India. Therefore we thought that this effort deserved to be followed up. This was particularly on the background of the statement of the Government lawyers that the Government and Municipal Medical Colleges did have all the necessary facilities to take care of these additional seats. The matter was therefore adjourned, as requested by the State Government to seek the reaction of the Medical Council of India, to 23rd August, 2001. In the meanwhile, we directed the Petitioners as well as the Government counsel to carry out an exercise either separately or jointly to assess the impact of implementation of the revised merit list. This was with a view to know as to how many of these students will move into prime medical colleges or the other Government Medical Colleges or in the private free seats as precisely as possible so that in the event the request of the State Government is turned down by the Medical Council of India, appropriate suggestions could be invited in respect of this situation.

28. The pendency of this matter and non-finallsation of the medical admission list was creating problems in different forms in the meanwhile. On the adjourned date of hearing, i.e., on 23rd August, 2001, we were told that those students, who were going for interviews for engineering courses, were required to produce the original certificates within 4 days after their selection into the engineering stream. We therefore directed on that date that the authorities in-charge of the engineering admissions will not insist upon the production of the original certificates until further orders are passed in these matters unless a student opts for engineering and states on his own that he has no claim on any medical seat. This direction was with respect to those students who were already admitted to various medical courses or whose names appeared in the revised admission list though this list was not acted upon in the meanwhile. We also recorded the statement of the Special Counsel for the Government Mr. Kumbhakoni that on being selected into engineering stream, a student’s name would not be struck off from the medical stream unless he wanted to give up that option completely.

The affidavit of Medical Council of India

29. On this date of hearing, i.e., on 23rd August, 2001, an affidavit was tendered on behalf of the Medical Council of India wherein a clear stand was taken that it was not possible to grant or concede any increase as sought by the State Government. Various reasons in support of this stand were mentioned in this affidavit. They were principally the following :

(a) Firstly, it was stated that it was necessary that the medical college concerned ought to have the minimum necessary proportionate Infrastructurel teaching and other facilities and it was the responsibility of the Medical Council of India to see that such facilities are adequately available for the number of students to be taught in the college concerned. It is stated that prior to 1st June, 1992, a number of Institutions were started without these facilities creating a number of difficulties and there was a decline in the standard of education. This led to the incorporation of Sections 10A, 10B and 10C with effect from 1st June, 1992 in the Indian Medical Council Act. 1956 and the Dentists Act, 1948. and they provided for the necessary statutory mechanism. In J. P. Urmikrishnan v. State of Andhra Pradesh, (decided on 4th February, 1993), the Supreme Court also observed that necessary statutory mechanism had become the need of the hour.

(b) Under these provisions, prior permission from the Central Government was made mandatory as a pre-condition before –

(i) establishing a new medical or dental college;

(ii) starting a higher medicine or dental course;

(iii) seeking to increase the annual intake capacity already fixed by the Medical or Dental Council of India as the case may be.

To carry out this legislative mandate under Section 10A, the Central Government approved the statutory regulations providing an entire statutory scheme and procedure for grant of Initial permission and the annual renewals towards establishment of new Medical or Dental Colleges, starting higher medicine or dental course, and for increasing the annual Intake capacity. Under this scheme, for obtaining permission of the Central Government to increase the admission capacity, such an application is to be made well in advance in the particular year so that finally after the technical scrutiny and various procedures, queries and fulfilment of the requirements, the letter of permission is issued by the Central Government well before 31st October, the last date by which the list of admitted students is to be submitted to the Medical Council and the University.

(c) Thereafter reliance is placed on the Judgment of the Apex Court in Medical Council of India v. State of Karnataka, wherein the Apex Court held that these regulations providing minimum infrastructural teaching and other facilities were statutory, mandatory and binding, and all the State enactments to the contrary were repugnant and not sustainable.

(d) The Medical Council of India has laid down that no medical colleges was allowed to have the intake capacity of more than 150 students in the M.B.B.S. course. That was challenged in Civil Appeal No. 4747 of 2000 and in the Judgment dated 19th April, 2001 of the Apex Court in that matter, J. N. Medical College v. State of Karnataka, it was held that no authority is empowered to permit any increase in excess of this capacity and no subsequent regularisation can be permitted. (A copy of that unreported Judgment was produced.)

(e) Then a reliance is placed on another judgment of the Apex Court in State of Punjab v. Renuka Singla. That matter arose out of the judgment of Punjab and Haryana High Court directing the State Government to increase one seat in Dentistry to accommodate a candidate, Who was otherwise not eligible. The Apex Court held :-

“….. The High Courts 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, staff, the limit of the number of admissions is fixed either by the Medical Council of India or Dental Council of India. The High Court cannot disturb that balance between the capacity of the institution and number of admissions, on compassionate ground. The High Courts should be conscious of the fact that in this process they are affecting the education of the students who have already been admitted, against the fixed seats, after a very tough competitive examination. There does not appear to be any Justification on the part of the High Court, in the present case, to direct admission of respondent No. 1 on compassionate ground and to issue a flat to create an additional seat which amounts to a direction to violate Section 10A and Section 10-B(3) of the Dentists Act.”

(f) A reliance is also placed on a recent unreported judgment of the Apex Court in Akansha Sharma and Anr. v. State of Punjab. In this matter, the Punjab Government declined counselling for admission to two students after initially permitting them to appear for the Common Entrance Test, although they were not eligible for consideration. A request had been made to increase the intake capacity by two seats. Although the two students did have a strong case in equity, the Apex Court did not grant any increase but directed that the two students be placed at their merit position and be considered on their merit.

(g) It was therefore submitted that an increase in the annual intake capacity beyond 150 admissions annually was not sustainable. The State of Maharashtra can be permitted to admit only such number of students in the M.B.B.S. course in the academic year 2001-2002 which is in accordance with the annual intake capacity and which has been fixed by the Medical Council of India for different colleges in accordance with Section 10A referred to above and the statutory regulations and not in any manner over and above the same.

Suggestion by the State to withdraw All-India seats

30. In view of this affidavit on behalf of the Medical Council of India, a suggestion was made by the learned Advocate General that the quota of seats to be filled by All-India Examination in the colleges in the State of Maharashtra in the next year be permitted to be withdrawn for this academic year. In lieu thereof, corresponding number of seats will be reduced from the other seats to be filled in the State by C.E.T. next two to three years and will be made available for the All-India quota. The suggestion meant addition of some 247 seats this year. Ms. Simran Puri sought time to take instructions from M.C.I. The matter was therefore adjourned to 29th August, 2001. It was recorded in this order of 24th August. 2001 that Writ Petition No. 1658 of 2001 will be treated as the main petition and the same will be disposed of finally at the admission stage itself. The statement of the learned Advocate General was also recorded that the students, who were desirous of knowing their revised marks and their ranks, were at liberty to visit the office of the Director of Medical Education in Mumbai on 27th and 28th August, 2001 to note the same. Inasmuch as some of the students, who were admitted to medical courses and who were fearing a displacement had in the meanwhile now taken admissions for engineering also, the learned Advocate General made a statement that the authorities in-charge of engineering admissions will be instructed that the fees paid by the students, who had taken admission for engineering and who were on the medical admission list/revised list, will not be forfeited until further orders to be passed in this matter. This was to be on the footing that the student concerned will inform the authorities that he/she is already admitted for medical stream or is expecting admis-sion in the medical stream. During the course of the discussion on this matter, it was noted that if the admissions are required to be redone in their entirety, there will be a large upward and downward movement. An inquiry was therefore made by the Court as to whether any sub-classification could be done with respect to the admissions to (a) prime medical colleges, (b) other Government and municipal medical colleges, (c) free seats in private colleges and (d) other medical colleges. This was with a rider to examine as to whether an internal movement becoming necessary within a particular group could be avoided. The learned Advocate General assured the Court that by the next date, he will find out as to whether such a sub-classification was workable.

31. On the next date, i.e. on 30th August, 2001, Ms. Slmran Purl, learned counsel appearing for the Medical Council oflndia, reported that the suggestion made by the learned Advocate General for withdrawing the All-India seats for the next year for the present academic year was not acceptable to the Medical Council of India. The suggestion meant withdrawing some 247 seats and although this was a temporary withdrawal, it meant an increase in the Intake capacity meant for one year. Besides, this suggestion was opposed by Mr. Ram Apte, the learned Counsel intervening on behalf of the students who are studying in the 11th Standard this year. The learned Advocate General also reported that the sub-classification of the seats in groups as Inquired by the Court was not workable. This is apart from the fact that the Petitioners and students likely to shift to a better college within a particular group were opposed to the same.

Steps taken by the State Government with Central Government and Medical Council of India

32. The earlier referred Dr. Abhay Chowdhary filed one more affidavit
on this date affirmed on 30th August, 2001 placing on record the various
steps, which the State of Maharashtra and its officers had taken in the
meanwhile, to persuade the Medical Council of India as also the Central
Government. It is stated on this affidavit that the State of Maharashtra and
its officers had taken the following steps in the meanwhile.

 Sr.  Date    Events
No.
1. 13.8.2001 The Secretary, Medical Education, Government of
   Maharashtra submitted a proposal in writing by fax with
   the Secretary, Health and Family Welfare, Government of
   India, seeking one time increase of seats for the present
   academic year. In detail the circumstances warranting such
   an increase were set out in the said letter.
2.  14.8.2001 A notice was issued to the Medical Council of India by fax.
3.  15.8.2001 The Hon'ble Minister for Medical Education & Health (Mr.
   Digvijay Khanvllkar) and the Secretary, Medical Education
   and Drugs Department, State of Maharashtra (Mr. G. S.
   Gill. I.A.S.) personally went to Delhi.
4. 16.8.2001 The Hon'ble Minister of Medical Education and the afore-
   said Secretary personally met the Hon'ble Union Minister
   for Health and Family Welfare (Dr. C. P. Thakur) at Delhi.
   Both of them explained in details the circumstances that
   resulted into filing of the present petition and the develop-
   ment that had occurred by that time. An earnest request
   was made to permit increase of seats as one time increase.
5. 17.8.2001 The Secretary, Government of Maharashtra submitted in
   writing again a detailed proposal with the Secretary
   Ministry of Health and Family Welfare, Government of India
   seeking to grant one time additional seats. In this proposal
   college-wise chart was given setting out therein present
   seats and the proposed seats. A detailed information of
   each of the colleges, availability of infrastructure was also
   submitted with the aforesaid proposal. A copy of the order
   passed by this Court on 16th August. 2001 was also
   handed over along with the said proposal to persuade the
   Government of India to grant one time additional seats.
6. 19.8.2001 The Hon'ble Union Minister of Health and Family Welfare
   visited Mumbai. At the time of his visit, the Hon'ble Minis-
   ter, Government of Maharashtra personally met the Hon'ble
   Union Minister and renewed his earnest request to accept
   the proposal of the Government of Maharashtra for one
   time increase in the admission capacity of prime colleges.
   On the same day, the Secretary, Government of Maharashtra,
   deputed Dr. S. Bijwe, Officer on Special Duty to follow up
   the matter with the Government of India and the Medical
   Council of India. Dr. Bijwe personally went to Delhi and
   submitted a reminder to the Secretary, Government of India
   on 20th August, 2001, which was duly signed by the
   Secretary. Government of Maharashtra. Along with this
   reminder detailed college-wise charts of the candidates,
   their C.E.T. roll number were also submitted.
   Dr. S. Bijwe stayed at Delhi and throughout his stay met
   various officials of Medical Council of India as also the
   Government of India and pursued the matter with them. He
   stayed at Delhi till 22nd August, 2001.
8. 21.8.2001 Special Counsel Mr. A. A. Kumbhakoni appearing in the
   present matter on behalf of the State of Maharashtra,
   personally went to Delhi and met the office-bearers of
   Medical Council of India. He explained all facts and
   circumstances of the case as also thrust of the order passed
   by this Court on 16th August, 2001. He also personally met
   the various office-bearers of the Government of India and
   persuaded them to convene an urgent meeting of the Hon'ble
   Union Minister, the Secretary, Government of India, Min-
   istry of Health and Family Welfare, the office-bearers of
   Medical Council of India and all other who were officers
   functioning at the highest level in the country. Accordingly
   an urgent meeting was convened at 3 o' clock the next day.
9. 22.8.2001 The meeting at the highest level was convened in the
   Ministry of Health at 3 o'clock in the office of the Hon'ble
   Union Minister, Nirman Bhavan, New Delhi. The Secretary,
   Government of Maharashtra personally went to Delhi to
   attend this meeting. At this meeting all the exigencies were
   explained in details and an earnest request was made on
   behalf of the State of Maharashtra once again for permis-
   sion of one time increase in the seats. All the consequences
   of not granting such an increase were explained in details.
 

33. Thereafter it is stated in this affidavit that the Medical Council of India as also the Government of India expressly declined to grant any additional seat even as one time Increase. It is stated that the present situation, is an unprecedented and an extraordinary situation and Section 10A of the Indian Medical Council Act will apply to a permanent increase and not to a one time increase. It is further stated in this affidavit that the proposal of the State Government to admit 247 additional students in lieu of seats reserved for the All-India Entrance Examination for the next year and to spread these reduced seats for 3-5 years was also declined by the Medical Council of India. As far as the defects in answers to Version 33 are concerned, it was also assumed that the Government had decided to commence necessary punitive action against the examiners.

Notice under Order 1 Rule 8 of C.P.C.

34. The above course of events have been recorded only to point out as to how efforts were made to see if the problem arising out of the incorrect correction of Version 33 could be solved without causing any dislocation or reducing it. On all these earlier mentioned dates, arguments had been advanced from time to time on behalf of the Petitioners as well as on behalf of the State, the Medical Council of India and the interveners who had supported the cancellation of the admissions which had been already effected and also by those who were opposed to cancellation. These arguments will be dealt with a little later. It is only on this background that when it appeared prima facie that there would be no way out except to cancel the earlier results and implement the revised merit list that it was felt necessary that somebody ought to represent the students who would be affected if at all the petition was to be allowed. Hence on 30th August, 2001 Mr. Kotwal for the Petitioners applied for amending Writ Petition No. 1658 of 2001 and to convert it into a representative petition. He sought to add one Dr. K. S. Bhoir, who had in the meanwhile filed a chamber summons for intervention to oppose the petition on 28th August, 2001 on behalf of some 700 students represented by one Medical Admissions Forum through Advocate Madhav Jamdar. He also sought to add Dr. Doshi (who had already intervened through Advocate Bhandare). They were to be joined as parents of two students who were affected and who had already intervened in this matter to oppose the prayers in the petition. He sought to join them as Respondent Nos. 4 and 5 after joining Medical Council of India as Respondent No. 3. He also intended to add a paragraph pointing out that the Petitioners were pursuing the petition on behalf of the other students who had answered Version 33 so as to convert this petition into a representative petition. That amendment was granted by an order passed on the same day and a notice was directed to be issued under Order 1 Rule 8 of Civil Procedure Code that this petition had been filed in a representative capacity and if the same was to be entertained, it would affect those students who have been already admitted and hence they would have a right to be heard on the next date of hearing. The notice was directed to be published in English as well as Marathi dailies published from Mumbai, Pune. Nagpur and Aurangabad on or before Saturday, 1 st September, 2001 and the notice was made returnable on 6th September, 2001. The Advocate General also made a statement to the Court on that date that the Director of Medical Education & Research will send instructions to all the medical colleges that the notice be displayed on their notice boards also.

35. When the matter came up on the returnable date of the notice, i.e., on 6th September. 2001, we were informed by the learned Advocate General that such notices were published on the notice boards of all the medical colleges. Subsequently copies of the public advertisement issued on Saturday, the 1st September, 2001 in newspapers as directed were also placed on record through the affidavits filed by the Petitioner’s as well as by the State Government.

Intervention applications by some more students/parents

36. On the returnable date of the notice under Order 1 Rule 8 of the C.P.C., i.e. on 6th of September. 2001. some 40 students and parents moved applications for intervention by either taking out Chamber Summons or filing affidavits and by engaging Advocates. Some of them supported the submissions made in the petition whereas some of them opposed the same. We also received nearly 700 letters/representations from the students/parents situated all over the State of Maharashtra. They placed their view point for the consideration of the Court. We heard the Counsel who appeared for these students and have gone through the letters/representations made by them. In that what we find is that those who are supporting the petitioners pointed out as to how inspite of their merits, they are not getting admissions to which they are entitled. There are letters from students who state that it was their dream to become doctors and they had put in hard work and Inspite of their merit, they were saddled with some other courses. On the other hand, there are letters of the students who are admitted in the meanwhile pointing out as to how they would be affected if re-shuffling takes place. We heard the Counsel for these 40 interveners on three consecutive dates t.e. on 6th, 7th and 8th of September, 2001. Hundreds of students attended the proceedings in the Court since they were very much concerned with their career and we would like to record that though they came in such large number, their behaviour in the Court was exemplary. Dr. Bhoir who was joined us respondent No. 4 has subsequently filed who more affidavits on 6th and 8th September, 2001 placing on record the difficulties of the affected students and making some submissions.

Affidavit of Respondent No. 4

37. Dr. Bhoir was joined as Respondent No. 4. He has stated in his affidavit affirmed on 6th September, 2001 that what was necessary was that the condition prescribed under the Indian Medical Council Act and the Regulations were to be satisfied. In his submission, the colleges referred to by the Government did satisfy the conditions. In any case, a Joint Committee consisting of representatives of Union of India, Medical Council of India and State Government could be formed to ascertain the number of seats which can be increased. The Committee can also suggest additional infrastructural facilities if there are any deficiencies.

38. In his second affidavit affirmed on 8th September, 2001. he pointed out that as per the Information and the charts prepared by the Government itself, some 241 students of Version 33 were expected to be benefited effectively. Some of them had secured admissions to engineering and many of them were already admitted to some Medical or Dental College, but would move to colleges of their choice. He pointed out in the charts annexed to this affidavit that the concerned Government and Municipal Medical Colleges had adequate number of patients being attended through their out-patient departments and the bed strength was also quite high. Teaching staff was also sufficient and all necessary modern equipment for education and research had been established. He therefore supported the submission of the State Government that the Central Government and the Medical Council of India ought to examine the State Government’s request for one time increase. He submitted that it is not the procedural part of the Act and the Rules which are that material. It is the substantive provisions and the requirements thereunder which have to be looked into.

39. He submitted that any dislocation of the students, who are already admitted, would make them suffer serious mental trauma, depression, hardship and irreparable loss. It was therefore necessary to balance the equities considering the fact that the students likely to be shifted were also very large in number.

Representations made in the intervention applications

40. Most of the interveners were students likely to be affected. Their submissions in general were as follows :-

(1) The admission should not be cancelled.

(2) The student will be affected if the new merit list is operated or there are re-admissions.

(3) The students will lose their seats.

(4) The students will be dislocated.

(5) The students who have got admission are innocent and should not be made to suffer for no fault on their part.

(6) The State and D.M.E.R. Is at fault and the students should not be punished for the fault on part of D.M.E.R.

(7) Punish the guilty persons and not the students.

(8) if the students from Version 33 have to be accommodated, that can be done by increasing seats.

(9) There could be mistakes in other versions also and they be verified also.

(10) A new batch be started for Version 33 in October or next year.

41. Some of these interveners have given other details. We refer to only a few of them. (1) One Vishal Sharma of Jalna, who has filed Chamber Summons No. 137 of 200l has stated that he passed HSC in March, 2000. In 2000. he appeared for C.E.T., but did not get admission in M.B.B.S. or B.D.S.. Therefore he appeared for C.E.T. this year. His O.M.L. is 2055 which will now go down and he will be affected. (2) Samiksha Desai of Malad who has filed a Chamber Summons has stated that as she got admission in B.D.S.. she gave up option for B.Sc. (Bio-Tech) Course in Ruia College in which she was also interested. She further stated that her admission in B.D.S. Is final and cannot be changed as there is no provision in the Rules for cancellation of admission once the admissions are finalised. Many students opt for Engineering and therefore many M.B.B.S. and B.D.S. seats would be vacant due to which the 350 students of Version 33 can be accommodated. (3) Shri RavindraSlnghl. fatherof Shruti Singhi of Mumbai. has stated that his daughter had taken admission in B.Sc. (Bio-Tech) at K. C. College, Mumbai. She cancelled the admission after getting admission in Occupational Therapy at Nair Hospital, Mumbai. He says that if there is reshuffling, his daughter will lose this seat and as she has already given up the earlier B.Sc. seat, she will be adversely affected. (4) Shaunak Thakker of Vile Parle and Javed All Khan of Navi Mumbai have filed a Chamber Summons. In this case, Javed All Khan, the 2nd Applicant, is from Defence category. He further states that there is only one Def-1 seat in 392 students. Hence the 2nd Applicant will lose a seat. Both say that they should be retained in the same college.

42. There are many who have prayed for reassessment of papers, for example, the daughter of Shri Murlidhar Joshi of Jalgaon, the daughter of Ramesh Sabnani of Chandrapur. There are students from various versions like Versions 11, 22 and 44, who have prayed for reassessment of their papers. For example, Avani A. Mody of Mumbai prays for assessment of Version 11, Rohan Virani of Mumbai for revaluation/manual verification of Version 44 papers and so on. The common stand is that if there is readmission, the students will be adversely affected.

43. pn the other hand, there are various chamber summonses and affidavits filed by the Version 33 students. They say that the new merit list should be implemented. They have worked hard and merit should be given its due. They should not be made to suffer for someone else’s mistake.

44. In his affidavit, Shri S. P. Karkhanis has stated that due to no fault on his part, he was forced to accept the college against his wish/desire. Therefore the new merit list should be implemented due to which he may get college of his choice.

45. Similarly, Anagha Joshi has stated that she is from Version 33, She submits that grave injustice has been caused to her by depriving her of her choice of college and course inspite of being a meritorious and deserving candidate. She says that the revised list should be implemented.

46. A. R. Gundale of Thane has stated that grave injustice has been caused to him. He has been deprived of his choice of college and course. Inspite of being a meritorious and deserving candidate, he was forced to accept a college away from his home town and stay in a hostel, thus incurring heavy expenses. Now he has a chance to get a college in his home town. Therefore revised list should be implemented.

Representations through letters

47. Nearly 700 letters have been received by us. We have numbered them serially. Most of them are from students or from parents whose child was from Versions 11, 22 or 44. They make submissions which are almost similar to those in the intervention applications.

48. There are some letters which give various suggestions, e.g. Letter No. 8 by Sarin Siddiqui of Jalna, Letter No. 36 by Rahul Salunke of Satara and Letter No. 636 by Vlrendra Patil of Satara. They say that MH-CET should be done away with. Students should be given admissions on the basis of their H.S.C. marks or that the same process for admission as followed for engineering admissions should be followed. This would eliminate situations like the present one or other pitfalls.

49. There are cases of students who had got admission in other colleges/courses but after having got admission in M.B.B.S. or B.D.S. etc., they have cancelled their earlier admissions. (Refer Letter No. 246 by Amit Kelkar of Thane). In this case, the student had secured admission in Ruia College, Mumbai for B.Sc. (Bio-Tech). However, as he secured admission in the Occupational Therapy course in G. M. College, Nagpur, he cancelled his admission in Ruia College. Now he fears that he may lose his seat in Occupational Therapy.

50. One of the students i.e. S. S. Kopadekar (Letter No. 21) states that he was also interested in agriculture and wanted to apply for the same. However, as he got admission in medical stream, he did not apply. Now if he loses his seat, he will not get admission in agriculture also.

51. There are students who may have to shift from free to pay seats or vice versa. For example, Letter No. 611 by Dipti Ravindranath of Borivali, Mumbai who says that if correct valuation was done, she would not have had to go for a pay seat.

52. Due to the new merit list, some of the students may be shifted outside their city. For example, in Letter No. 456 by Abizar N. Manded, it is stated that if he has to shift outside Mumbai, he will lose the seat as he cannot afford hostel fees. Similarly, the student Avinash Tanuwar of Ambejogai in Letter No. 136 has stated that he is interested in doing only medicine that too only at Ambejogai because his father is in service there. He had a chance to get admission in better colleges but as his father would not be able to afford hostel fees if he had to go outside Ambejogai.

53. Then there are individual cases of great hardship. For example, letter of E. S. Zambare (refer Letter No. 11) who states that he used his provident fund for expenses and now if his child loses the medical seat, he will be nowhere.

54. This is a case of Letter No. 65 by a handicapped student who is a resident of Nashlk and he has got admission in NDMVP College at Nashik. If there are readmissions or fresh admissions, he may lose his seat in Nashik and it would be an extremely difficult situation for him if he has to go outside Nashik.

55. There is also an unusual case of a student R. D. Sorse (Letter No. 80), who had appeared last year for MH-CET, but as his marks were not upto the mark, he opted for Engineering. He studied engineering for one year. Thereafter he appeared for MH-CET this year and on the basis of his marks, he secured admission in medical course. Thereafter he gave up his engineering seat. Now due to the reshuffle, he may lose his medical seat.

Additional Medical and Dental seats sanctioned by Central Government during the pendency of these petitions though not in the Prime Medical Colleges as sought by the State Government

56. Two more affidavits were filed by Dr. Chowdhary, one affirmed on 7th September. 2001 and another on 10th September, 2001. In the first affidavit affirmed on 7th September, 2001, it is placed on record that after 6th July, 2001 merely 300 medical seats had been approved by Central Government in different medical colleges and 40 in a Dental College. Out of these 300 seats, 127 were for various reserved categories, 6 for defence personnel, 43 for N.R.I. and 124 were available for the open category. Similarly, out of 40 dental seats having become available, 17 were for the open category. Out of these 300 medical seats, 50 seats were in the Government Medical College at Aurangabad and at Yavatmal. In this affidavit he also stated that the State Government had not proposed any increase in the seats in the Government Dental Colleges in view of limited resources available to the State Government for providing infrastructure. The Government had decided to utilise its limited resources for providing infrastructure to the colleges conducting M.B.B.S. course. The chart enclosed giving the increase in the intake capacity is as follows :-

Increased intake capacity of Medical Colleges (after 6.7.2001)

Sr.No
College Name
Reseved
Common
Defence
NRI
Total

1.
Govt. Medical College, Aurangabad
22
18
3
7
50

2.
V. N. Medical College, Yavatmal
22
18
3
7
50

3.
K. J. Somatya Medical College.Mumbal
(Merit) 12
(Pay) 8
13
10

–

–

7

–

25
25

4.
N.K.P. Salve Medical College, Nagpur
(Merit)12
(Pay) 8
13
10

–

–

–

7
25
25

5.
MIMER Medical College, Talegaon, Dhabade
(Merit)25
(Pay) 18
25
17

–

–

–

15
50
50

Total . .

127
124
6
43
300

Increased intake capacity of Dental Colleges (after 6.7.2001)

Sr. No.
College Name
Reserved
Common
Defence
NRI
Total

1.
N.D.M.V.P.S. Dental College, Nasik
(Merit) 10
(Pay) 7
10
7

–

–

–

6
20
20

Total
17
17

6
40

As far as increase of the 50 seats in the Government Medical College at Aurangab.ad and 40 dental seats in the private college at Nasik are concerned, Dr, Chowdhary had mentioned about this approval in his earlier affidavit of 16th August, 2001. With respect to the increase of further 250 seats in the other four colleges, he enclosed the approval letters either of M.C.I. or of Central Government to his further affidavit of 10th of September. 2001. They are :-

(1) Government Medical College, Aurangabad – increase in intake capacity by 50 (from 100 to 150) – Government of India, Health Ministry’s letter received on 5.9.2001.

(2) Government Medical College at Yavatmal – Government of India, Health Ministry’s letter received on 8.9.2001 raising the intake capacity from 50 to 100,

(3) Somaiya Medical College, Mumbai – Government of India Ministry’s letter dated 21st August, 2001 permitting increase in the intake capacity from 50 to 100.

(4) N. K. P. Salve Medical College, Nagpur – (No letter enclosed. However, Central Government’s letter dated 12th September, 2001 referred later on Jn this judgment refers to approval of increase from 50 to 100.)

(5) Medical College at Talegaon – permission for admission of 100 students recommended by Medical Council of India to the Central Government by its letter dated 27.8.2001.

57. It is further stated in this affidavit that these additional 300 seats (100 in Government colleges and 200 seats in private colleges) will not be made available to accommodate the students who may be displaced in the event of operating the revised merit list. Similarly 40 seats in Dentistry in the private college at Nasik will also be available. It is further stated that although 3 more private Dental Colleges i.e. (i) Yerala Medical Trust in Navi Mumbai, (ii) Rangoonwala Dental College at Pune and (iii) Pt. Dindayal Dental College at Solapur, had applied for permission to start their courses, the proposals of two institutions viz. Rangoonwala Dental College at Pune for 100 seats and Dental College at Amritnagar near Sangamner for 100 seats were already cleared by Dental Council of India. The exact strength about the intake capacity would however be known only after the approval is received from the Central Government. For these two colleges also, it is submitted that a direction may be given to the Maharashra Health University to grant affiliation to these colleges when the occasion arises.

Refusal of Central Government to grant one time Increase

58. Along with his affidavit affirmed on 10th September, 2001, Dr. Chowdhary enclosed a letter by the Director, Medical Education from the Ministry of Health. Government of India dated 24th August, 2001 is annexed. This is in reply to the State Government’s letters dated 17th and 19th August, 2001 proposing a one time increase in the intake capacity in 8 medical colleges in Maharashtra requiring for the students who were to be accommodated according to the revised merit list. This letter states that M.C.I., D.C.I. and the Central Government can grant permission for increase in the annual intake capacity only in accordance with the statutory scheme and the statutory procedure which fs mandatory and binding under Section 10A of the regulations made thereunder. The letter refers to the Judgments of the Apex Court in Medical Council of India v. State of Karnataka and J. N. Medical College v. State of Karnataka. Thereafter the letter states as follows :-

“In view of the above, it is requested that the State Government may apply
to the Central Government, for increase of seat capacity of any college by
submitting a scheme under Section 10(A) of the I.M.C. Act and Regulations
made thereunder by providing necessary documents Including Essentiality
Certificate. University affiliation and also the prescribed fee for inspection of the
premises by the M.C.I.. Once the scheme is received by the Central Government,
I assure you that immediate action will be taken to forward the same to M.C.I.

and conduct insperl Ion for assessing the Infrastructure, teaching facilities etc.
available with the respective college. I would like to reiterate that there is no
provision in any Act under the Ministry of Health & Family Welfare to increase
the seats capacity as a one time exception, which would amount to a violation
of the statutory provisions under Section 10(A).”

(Underlining supplied)

Dr. Chowdhary therefore states in this affidavit – “I say that the aforesaid letter is self-explanatory. The same communicates clear refusal of the Central Government to increase the intake capacity of the Government and Corporation colleges as one time increase that was sought for by the State Government”.

Occupational Therapy/Physiotherapy/Audiology/Prosthetics

59. As stated earlier, although the Common Entrance Test was held for 9 courses, 4 of them do not have any central governing authority and they are within the control of the State Government. They are B.Sc. Occupational Therapy, B.Sc. Physiotherapy, Audiology & Speech Therapy and Prosthetics & Orthotics. It was stated in this affidavit of Dr. Chowdhary dated 7th September, 2001 that in the event revised merit list was made operational and if any of the students from these streams are required to leave those courses, the State Government will protect them by providing additional seats at the respective colleges. A direction of this Court is sought through this affidavit to the Maharashtra Health University to grant affiliation for such increased seats in these four courses.

Affidavit of Director of Ayurved

60. Thereafter one affidavit is filed by Vaidya Ramesh Padmavar, Director of Ayurved of State of Maharashtra affirmed on 10th September, 2001. He is-incharge of the Medical Colleges conducting courses in Ayurved, Homoeopathy and Unani. The affidavit states that there are four Ayurvedic colleges run by the State Government with total intake capacity of 220. Besides, there are 43 private colleges of Ayurved. There are 34 Homoeopathy colleges and 4 Unani colleges. They are all private colleges. The Homeopathy colleges are governed by Central Council of Homoeopathy constituted under the Homoeopathy Central Council Act, 1973. Ayurvedic and Unani colleges are governed by Central Council of Indian Medicine constituted under the Indian Medicine Central Council Act, 1970. The permission of these Councils is required for increasing the intake capacity.

61. However, it is stated thereafter that last year out of 700 payment seats in Ayurved, 214 seats remained vacant. In Homoeopathy out of 1340 payment seats, 727 seats remained vacantand in Unani out of 37 payment seats, 27 seats remained vacant. This was to indicate that this year also there was no likelihood of any one of students admitted to these courses suffering due to displacement provided they take the payment seats. It is further stated in this affidavit that for increasing the intake capacity, the bed occupancy is required to be increased but bed occupancy in these hospitals is not very encouraging. He has, however, assured that as far as two Government Ayurvedic colleges viz. Podar Ayurvedic College, Mumbai and Ayurvedic College, Nagpur are concerned, the Government will make an effort for increasing their annual intake capacity. In the other two Government Ayurvedic colleges, their intake capacity was Increased only last year and it is, therefore, not possible to increase the same.

How did the mistakes actually take place?

62. In the affidavit of Dr. Chowdhary affirmed on 1 Oth September, 2001, it was explained as to how the mistake occurred in the Model Answer Key of Version 33. Thus, for example, it is pointed out with reference to Question No. 131 in Version 33 which is as follows :-

“131 :- Which one of the following is freely movable bone in the skull.

(a) Mandible (c) Palatine

(b) Maxilla (d) Zygomatic.

I say that the aforesaid same question with same answer options was provided in the other three versions of the question paper namely 11, 22 and 44 at Serial Noa. 171. 121. and 161 respectively. I say that the correct answer option provided for this question in the Model Key Answer Sheet of these three versions namely 11, 22 and 44 was option ‘A’. However, the earlier incorrect Model Key Answer Sheet of Version 33 provided the correct answer option for the aforesaid same question as ‘B’ instead of ‘A’.

I say that the Question No. 121 from Version    33 was as follows :-
 

121: in man, seventh cranial Nerve is termed.
 (a) Occulomotor (c) Vagus
(b) Facial (d) Trigeminal
 

I say that the same question appeared in Version 11, 22 and 44 at Serial No. 181, 191 and 111 respectively. I say that the correct answer option provided for this question in the Model Key Answer Sheet of these versions namely 11, 22 and 44 was option ‘B’. However, the earlier incorrect Model Key Answer Sheet of Version 33 provided the correct answer option for the aforesaid same question as ‘A’ instead of ‘B’. I reiterate that the correct answer options for a block of question numbers 121 to 130 got exchanged with the block of question numbers 131 to 140 only in respect of Version 33. The aforesaid example will clarify the position.”

63. The learned Advocate General placed in our hands the chart giving the question numbers and answers of two blocks to point out as to how the interchanging took place. Thus as the first question shows this Question No. 171 was placed as Question No. 171 in Version 11, question No. 121 in Version 22. Question No. 131 in Version 33 and Question No. 161 in Version 44, Four options were given to these questions, i.e., A. B, C and D and the correct answer as A. As against that, question No. 181 was shown as question No. 181 inversion 11. Question No. 191 inversion 22, Question No. 121 in Version 33 and Question No. 111 in Version 44. The correct answer to these questions was B. Now the entire block of answers for Question Nbs. 131 to 140 in Version 33 inadvertently got shifted to question Nos. 121 to 130. That is why as against question No. 131 in Version 33, where the answer should have been A, the computer was fed with B as the correct answer and correspondingly for question No. 121, where the correct answer was B, instead of that A was fed as the correct answer. This Interchange is seen in all these Question Nos. 131 to 140 on one hand and Question Nos. 121 to 130 on the other. The following chart will explain the position.

Corresponding Question Numbers and Key Options

Q. No.
Version 11 9. Key
Version 22 Q. Key
Version 33 Q. Key
Version 44 Q. Key

171
171A
121A
131B*
161A

172
172A
122 A
132C*
162A

173
173B
123B
133B
163B

174
174D
124D
134C*
164D

175
175B
125B
135A*
165B

176
176C
126C
136A*
166c

177
177C
127C
137C
167c

178
178B
128B
138B
168B

179
179A
129A
139A
169 A

180
180B
130B
140A*
170B

181
181B
191B
121 A’
111B

182
182C
I92C
122A’
112C

183
183B
193B
123B
113B

184
184C
194C
124D*
114C

185
185A
195A
125B*
115A

186
186A
196A
126C*
116A

187
187C
197C
127C
117C

188
188B
198B
128B
118B

189
189A
199A
129A
119A

190
190A
200A
130B*
120A

[Note : Asterisk (*) Indicates incorrect option.]

Stand of the Central Government

64. In Writ Petition (Lodging) No. 2338 of 2001 and four others, the Chief Secretary. Ministry of Health and Family Welfare, Government of India had been joined as Respondent No. 4. The first prayer in this petition was of course not to chancel the results of these students, who submitted that the results ought to be maintained as declared earlier and not as revised. Alternatively, however they had pleaded that the Medical Council of India and the Central Government be directed to increase the necessary number of seats as sought by the State of Maharashtra in the present academic year itself so that in the event the new list is operated, there is no hardship caused to the students who were already admitted. After hearing the arguments of Ms. Suvedita Shah, notice was issued to the Central Government in this matter and Mr. SuraJ Shah, Senior Panel Counsel, appeared for the Central Government. He took time to take instructions and on 13th September, 2001 he tendered a letter issued by the Director (Medical Education). Ministry of Health and Family Welfare dated 12th September, 2001 reiterating what was stated earlier in the letter of the Director dated 24th August, 2001. This letter confirmed what was stated earlier in the main matter on behalf of the Medical Council of India that a one time increase could not be granted and that the request of the State Government was turned down. The said letter reads as follows :-

“Dear Shri Shah,

12th Sept. 2001

Please refer to your fax dated 12th Sept., 2001 and our conversation this evening regarding clarifications sought by the Hon’ble High Court of Maharashtra regarding the Government stand on the issue of increase of seat capacity in Maharashtra colleges.

I wish to inform you that the Government of India has already written a letter to the Health Secretary of Maharashtra on 24th August, 2001 {copy enclosed) clearly indicating the stand of the Government of India in the matter.

I wish to inform you further that the Government of India has recently allowed additional seats as per the statutory regulations of M.C.I, as under :-

   

1.    Increase of seat capacity in N.  K. P. Salve Institute of   50 to 100 Medical Sciences
 

2.    Renewal of permission for increase of seat capacity in K, J.    50 to 100 Somaiya Medical College
 

3.    Renewal of permission for increase of seat capacity in     50 to 100 Government Medical   College, Yavatmal
 

4. Renewal of permission for MIMER Medical College. Telegaon. 100 seats As I mentioned in the letter written to the Health Secretary, Maharashtra. the State Government is free to apply to the Central Government for increase of seat capacity of any college by submitting a scheme under Section 10(A) of the M.I.C. Act and Regulations made thereunder by providing necessary documents including Essentiality Certificate, University Affiliation and also the prescribed fee for inspection of the premises by the M.C.I. Once the scheme is received by the Central Government, immediate action will be taken to forward the same to M.C.I. and thereby asking them to conduct Inspection for assessing the infrastructure, teaching facilities etc. available with the respective college. You may kindly Inform the stand of the Central Government to the Hon’ble Court.

I would be grateful if you could inform me about the outcome of the Court case as and when the Judgment is delivered. With regards.

Yours sincerely
Sd/-

(S.K.Rao)”

Submissions on Behalf of the Petitioners :

65. The petitioners submit that the Common Entrance Examination has been resorted so that there is a uniformity in the decision making process prior to the finalisatlon of the admissions to M.B.B.S. and other medical courses. This pattern has been resorted to with a view to follow the directions of the Apex Court and, therefore, merit is important in giving the placement to the successful candidates and there need not be any debate on this aspect. It is submitted that the students who wrote Version – 33 answer book, are some 25% of the entire number of students who appeared for this examination and such a large segment cannot be denied admission on merits. Mr. Kotwal, learned Senior Counsel appearing for the petitioners, referred to some of the clauses from the brochure published by the Directorate of Medical Education and Research of the Government of Maharashtra. The brochure bears the following title :-

 

 "APPLICATION FORM AND INFORMATION BROCHURE FOR  
MAHARASHTRA HEALTH SCIENCES COMMON ENTRANCE TEST 
 (M.H.-C.E.T. 2001) AND RULES FOR ADMISSION 

TO 
FIRST YEAR COURSES IN HEALTH      SCIENCES 
 (M.B.B.S./B.D.S./B.A.M.S./B.H.M.S./B.U.M.S./B.P.T.H./B.O.T.H./ 
B.A.S.L.P./B.P. & O.) 
MERIT & PAYMENT SEATS IN MAHARASHTRA 2001-2002)"
 

It is a booklet running into 129 pages, a specimen copy of application form is printed on page 124. A specimen copy of the front page of the question booklet is printed on page 125. A specimen copy of the O.M.R. answer sheet is printed on pages 126 and 127 and a specimen copy of the statement of marks is printed on page 128. Apart from the notification by the Secretary to the Government and foreword by the Competent Authority and Director of Medical Education and Research, the booklet is an exhaustive one giving all particulars, procedures, rules, forms and information about this examination. The book is divided in 16 Chapters and has a large number of Annexures.

 

66. As stated above, at the outset, in the brochure the notification
issued   by the Medical      Education and Drugs Department dated 24th
January, 2001, is printed. The Notification reads as follows:-
 
 "GOVERNMENT OF MAHARASHTRA    NOTIFICATION
       Medical Education & Drugs
       Department, Mantralaya,
       Mumbai    - 400 032.
T. C. Benjamin
Secretary     Dated : 24th January, 2001
 

No. MED 1001/250/CR-11/EDU-1 : Medical Council of India has issued Regulation on Graduate Medical Education 1997 and has prescribed Common Entrance Test for admission to Medical Courses. The Hon. Supreme Court of India, in Writ Petition No. 649/97 has directed the State Government to hold Common Entrance Test for admission in Medical Courses. As per the provision made in the Medical Council of India’s Regulation and the Hon. Supreme Court order, the State Government is conducting Common Entrance Test from the year 1999-2000 for the admissions in Health Sciences Courses. The Government is pleased to accord sanction to the rules of the MH CET – 2001 appended to this notification for the admissions of 2001-2002.

The Director of Medical Education & Research is already appointed as Competent Authority vide Government Resolution, dated 26th December, 2000. She is directed to carry out the admissions of Health Sciences courses as per Admission Rules.

By order and in the name of the Governor of Maharashtra.

Sd/-            

T.C.Benjamin        
Secretary to Government.”

Mr. Kumbhakoni made available to us a copy of the Apex Court’s unreported judgment in above referred Writ Petition No. 649 of 1977 dated 27.2.1998 along with order in Ravindra Kumar Rai v. State of Maharashtra.

67. Mr. Kotwal drew our attention to some of the relevant clauses of the brochure viz. Clause 8.1 giving basis of selection, Clauses 8.3.3 regarding verification of marks. Clause 8.4 is concerning final merit list and Clause 9 is regarding interview and counselling. These clauses read as follows :-

“8.1. BASIS OF SELECTION :

Marks obtained by the candidates at the MH-CET 2001 will form the basis of selection. These marks will be corrected with additional weightage for the circumstances/activities stated at Annexure ‘G’ and State Merit List Indicating regional merit number, categorywise merit number will be prepared on the basis of such corrected marks, in descending order of merit.

8.3.3, VERIFICATION OF MARKS :

The answer sheets of MH-CET 2001 examination will be assessed by scanning with the help of Computer. There is no chance of error in this system. Inspite of this, if the candidate is not satisfied and wishes to verify the answer sheet, a written representation in prescribed proforma (Annexure ‘P’) should be submitted to the Divisional Authority (as mentioned in Annexure ‘A’) within 48 hours of declaration of the result of MH-CET 2001, alongwith Demand Draft/ Pay Order of Rs. 200/- [Rs. Two Hundred only) drawn on Nationalised Bank in favour of Director of Medical Education & Research, Mumbai, payable at Mumbai. The representations received by the Divisional Authorities are to be submitted within next 24 hours to the Competent Authority for verification and necessary correction, if any. The reply to the said representation will be given within the period of 8 days. Representations received after the specified period will not be entertained. The changes in the merit number of the candidate, if any, will be displayed on notice board at the office of the Competent Authority and on the web-site. The decision of the Competent Authority shall be final and binding.

8.4 FINAL MERIT LIST :

The Competent Authority will prepare a final State Merit List after necessary corrections in the provisional merit list. Only corrections will be displayed on notice board at the office of the Competent Authority. Web-site and all Government Medical Colleges.

9. INTERVIEW AND COUNSELLING

9.1 The Programme for interview will be as per State Merit List numbers. Candidates should note that the Serial Numbers of Merit mentioned in Notification for Admission Process refers only to State Merit List Number (S.M.L.) and not to regional of category State/Regional Merit Numbers.

9.3 At the time of interview, the candidates will be called individually in descending order of merit.

9.6 Depending on the merit position/category and availability of seats for which the candidate is eligible and has exercised the choice, a seat will be allotted.”

68. Mr. Kotwal, therefore, submitted that it cannot be gainsaid that merit is the basis of these admissions. He relied upon relevant paragraphs of the Apex Court Judgment in the case of J. P. Unni Krishnan and Ors. v. State of Andhra Pradesh and Ors.. They are as follows :-

“208. The expression “appropriate authority” means the Government, University or other authority as is competent to grant permission to establish or to grant recognition to a professional college.”

“210. …..

(1) …..

(2) At least, 50% of the seats in every professional college shall be filled by the nominees of the Government or University, as the case may be. hereinafter referred to as “free seats”. These students shad be selected on the basts of merit determined on the basts of a common entrance examination, where it is held or in the absence of an entrance examination by such criteria as may be determined by the Competent Authority or the appropriate authority, as the case may be. It is, however, desirable and appropriate to have a common entrance examination for regulating admissions to these colleges/institutions, as is done in the State of Andhra Pradesh. The remaining 50% seats (payment seats) shall be filled by those candidates who are prepared to pay the fee prescribed therefore and who have complied with the Instructions regarding deposit and furnishing of cash security/Bank guarantee for the balance of the amount. The allotment of students against payment seats shall also be done on the basis of inter se merit determined on the same basis as in the case of free seats.”

(3) The number of seats available in the professional colleges (to which this scheme is made applicable) shall be fixed by the appropriate authority. No professional college shall be permitted to increase its strength except under the permission or authority granted by the appropriate authority.”

(Underlining supplied)”

His submission, therefore, is that Respondent Nos. 1 and 2 having accepted that there was an error in the merit list initially prepared by them, were duty-bound to correct the same, and they having corrected the same, were duty-bound to implement the same. The petitioners had a legitimate expectation that the admissions will be given on the basis of merit. No other basis can be justified or supported in any manner whatsoever.

69. Mr. Kotwal submitted that when a public body was conducting a common test for admission to particular faculty, the condition precedent to the preparation of merit list was application of a uniform standard of assessment. It implied that the candidates will answer the same set of questions and their performance will be judged by applying uniform standard of assessment. It is only if this condition precedent is fulfilled and the name of a candidate is placed on the merit list prepared accordingly that he will acquire a status of being eligible for being considered for admission in accordance with his number in the list. Until this takes place, one is not eligible to enter into any contract of admission with a college. Any such contract will be non est. In the instant case, the performance of as many as 25% of the students was Judged on the basis of the answers which admittedly did not conform to the standard set for all the students. This failure to apply uniform standard has resulted into a windfall for the candidates of other series and an unequal and unjust treatment to the students of Version 33. Such a list will therefore have to be treated as non est, not creating any right. Any expectation based thereon cannot be considered as legitimate expectation as far as the beneficiery students are concerned. It will amount to treating unequals as equals and will be violative of Article 14 of the Constitution.

70. Mr. Kotwal relied upon a number of judgments in this behalf. Firstly, he relied upon a judgment of the Apex Court in the case of Guru Nanak Dev University v. Parminder Bansal, where the Apex Court held that the admission cannot be ordered without regard to eligibility of the candidates and Courts should be wary in directing such admissions. He referred to the observations of the Apex Court in a recent Judgment in the case of A.I.I.M.S. Students Union v. A.I.I.M.S. and Ors., where in para 42 the Court observed as follows :

” …. The basic rule is equality of opportunity for every person in the country which is a constitutional guarantee. A candidate who gets more marks than another is entitled to preference for admission. Merit must be the test when choosing the best, according to this rule of equal chance for equal marks.”

Mr. Kotwal relied upon another judgment of the Apex Court in the case of Convenor, M.B.B.S./B.D.S. Selection Board v. Chandan Mishra. That was also a matter wherein an entrance examination was held for M.B.B.S./ B.D.S. courses on the basis of objective type questions. The expert committee constituted by the High Court had found that as many as 8 key answers were wrong and the High Court had directed revaluation. The Selection Board however concealed the fact that the admissions had already been made on the basts of list declared defective by the High Court. Consequently, the Supreme Court granted leave to grant admission on the basis of revaluations as directed by the High Court. The Apex Court held that the said admissions were mala fide and illegal. In para 12, the Court observed as follows :-

“12….. The candidates who are the beneficiaries of the admissions cannot claim to be heard as any interest they may have or claim is acquired after the filing of the writ petitions and after the very basis of list on their claims are based was declared illegal. If the admissions continue even for a day public confidence would be shaken.”

The Court therefore set aside the admissions of the all the 290 candidates made to the different courses. The Court directed that those candidates will be kept out of the necessary courses. Thereafter the Court observed in para 16 that some of the candidates, who were admitted earlier, may not become entitled for re-admission on the basis of revised merit list and therefore if there was an undue hardship such as that they had given up other opportunities of technical education elsewhere and are rendered nowhere to go, the Government may consider to rehabilitate the deserving cases by requesting the Indian Medical Council for additional intake. Thus, Mr. Kotwal pointed out that in that matter the revised merit list was operated to grant admissions to as many as 290 meritorious students. It was further directed that if it resulted into somebody going out of the course altogether, the efforts be made to get additional seats. Mr. Kotwal submitted that the Petitioners had no objection to additional seats becoming available, but as of now the revised merit list should become operational and the operation of the revised merit list should not be withheld any further and to wait for such additional seats becoming available. If they become available, they should be given to those who would be entitled to them in their order of merit even if they are displaced. He then relied upon another judgment of the Apex Court in Dr. Mamta Shetty v. State of Maharashtra, wherein the Apex Court held that in a situation where right to compete was denied to eligible candidates, the relief could not be denied to the students merely because by the time of grant of such relief, selection for admissions had already been made. The Court observed “The presentation of a fait accompli is not something on which the rights of eligible students can be sacrificed.” Then Mr. Kotwal relied upon a Division Bench Judgment of Andhra Pradesh High Court in the case of G. Nalini v. Director of Medical Education, Government of Andhra Pradesh. Mr. Kotwal submitted that where a mistake goes to the root of the matter, no rights can flow therefrom and it had to be corrected. In that matter before the Andhra Pradesh High Court, key answers to two questions at the time of medical entrance examination were demonstrably wrong. The Court directed addition of the marks : two, one or nil as the case may be, and to fix their rank in the merit list and admit them to the medical courses in case they are entitled to admission in accordance with their ranking in the altered merit list. He submitted that in our case, this exercise has already been carried out and that having been done, the only thing that is expected now was to operate the revised merit list.

71. Mr. Kotwal again referred to the observations of the Apex Court in Guru Nanak Dev University v. Par minder Bansal. where the Apex Court had interfered with the interimorder passed by the High Court to allow students to undergo internship course even without passing the M.B.B.S. examination. The Court observed in para 7 as follows :-

“We are afraid that this kind of administration of interlocutory remedies. more guided by sympathy quite often wholly misplaced, does no service to anyone. From the series of orders that keep coming before us in academic matters, we find that loose, ill-conceived sympathy masquerades as interlocutory Justice exposing judicial discretion to the criticism of degenerating into private benevolence. This is subversive of academic discipline, or whatever is left of it. leading to serious impasse in academic life. Admissions cannot be ordered without regard to the eligibility of the candidates.”

He relied upon the observations of the Apex Court in the State of Maharashtra v. Vikas Roundale, where the Court held “Slackening the standard and judicial fiat to control the mode of education and examining system are detrimental to the efficient management of the education. The directions to the appellants to disobey the law is subversive of the rule of law.” A similar approach is seen in the judgment in CBSE v. P. Sunil Kumar & Co., in that matter, the students of unaffiliated colleges were permitted to appear at the examination conducted by the Board under the interim order of the High Court. The Apex Court set aside that decision. In the last para of that judgment, the Court noted that “It was conscious of the fact that the order would cause injustice to the students who were already admitted.” Yet the Court held that permitting such students to appear for the examination would be subversion of law and such orders based on misplaced sympathy could not be sustained.

72. The submissions of Mr. Kotwal were supported by Mr. Virag Tulzapurkar appearing for one of the interveners. He drew our attention to the judgment of the Apex Court in Krishna Priya Ganguli v. University of Lucknow, where in para 26 the Court observed as follows:-

“26. The High Court could not devise its own criterion for admission. Since the academic body has made the marks obtained in M.B.B.S. examination the criterion, admission had to be made by such a criterion. The High Court could not have introduced its own notions in such an academic matter. The High Court was not competent to do so and had no jurisdiction to import its own ideology.”

Submissions on behalf of the students who are already admitted on the basis of the earlier merit-list

73. Apart from Mr. Madhav Jamdar and Mr. Bhandare, who appeared for respondent Nos. 4 and 5 to represent the students who are already admitted in various courses on the basis of the earlier merit list, a large number of Counsel appeared and made their submissions. The principal submission was that the students who are admitted are innocent students. They are also admitted after passing the very examination. They have already taken admissions in different colleges and after the first round of admissions was over by 6th of July, 2001, they were prosecuting their studies. By the time this matter was progressing, they had put in more than two months of study. They paid the fees, took hostel accommodation, shifted from place to place, bought books and equipments worth about Rs. 10,000/- each and were interested in pursuing their career hereafter. Assuming that there were defects found in the correction of answer books of Version 33, the students who wrote the answer books of the other three versions were 75% of the total number of students who gave the examination. Out of the total number of seats which were 9,580, nearly 60% were already filled in by the time of the first round and the number comes to around 5,483. They are students situated in different parts of the State, They have changed their positions by taking admission into these courses and in many cases given up other courses which would have been available to them. Any change in the admissions already effected will result into a large scale shifting and dislocation which was not desirable. Many of these students may even perhaps land outside the stream of Medicine and Dentistry. This will cause serious mental trauma to a large number of them. It was, therefore, submitted that if at all anything was required to be done for the Version 33 students, that may be done without disturbing the admissions already granted to the students of the other three versions who constitute 75% of the students. It was submitted that they should not be made to suffer because of the failure on behalf of the State to conduct the examination correctly, or carelessness on the part of the State being found out at this stage. Reliance was essentially placed on the Doctrine of Promissory Estoppel enunciated by the Apex Court in the case of Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh, wherein the Court observed in para 8 of the judgment as follows :-

“The true principle of promissory estoppel seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any pre-existing relationship between the parties or not.”

74. Reliance was placed on a number of judgments wherein the Apex Court (and other Courts) took a sympathetic view in such situations in different matters. Thus, reliance was placed on the judgment of the Apex Court in the case of Ashok Chand Singhvi v. University of Jodhpur and Ors., That was a matter where the candidate did not conceal anything from the University and the authorities granted him admission to the engineering course after considering all relevant facts. He was at that time working as an Instructor/Administrator in Engineering college and after specifically mentioning the names of such other candidates who were granted admission in pursuance of the resolution of the University syndicate, he sought admission. The application was, however made after the last date for admission in the general seats had expired. Still his case was recommended by the Dean and the recommendation was accepted by the Vice-Chancellor. The candidate deposited the requisite fees and joined the classes. Subsequently, he was informed by the Dean that his admission was put in abeyance which he had challenged. The Apex Court observed that ” . . . . Assuming that the appellant was admitted through mistake, the appellant not being at fault, it is difficult to sustain the order withholding the admission of the appellant.”

75. Reliance was placed on another judgment of the Apex Court in the case of Nitasha Paul v. Maharisht Dayanand University, Rohtak and Ors.. That was a matter wherein the Vice-Chancellor and the Principal of the Medical College had selected the students of their own choice for migration ignoring the select list of students for migration prepared by a subcommittee set up by the Vice-Chancellor. There was no satisfactory explanation given as to why these recommendations were ignored and the selection of candidates was found to be arbitrary. Even so, considering the fact that several candidates had already been absorbed and had given up their old colleges and had migrated and were actually studying at the concerned Dental College at Rohtak, the Trial Court had directed the University to admit the petitioner in the concerned course. In that situation, the Apex Court directed in para 19 of the judgment as follows :-

“Under these circumstances, it will not be fair at this stage to interfere with their course of study. The University stated that creation of an additional seat will cause problems for the Dental College. But this situation has been brought about by the capricious mode of selection adopted by the Vice-Chancellor. Under these circumstances, we direct that the order of the Trial Court should be resorted and Nitasha Paul should be allowed to join the Dental College at Rohtak. An extra seat may be provided for this purpose, if found necessary.”

76. Mr. Madhav Jamdar laid particular emphasis on the judgment of the Apex Court in the case of S. Sathyapriya and Ors. v. State of A. P. Ors.. That was the matter wherein the Court found that as many as 54 seats were given to the reserved category students seeking admission to medical colleges in excess of their quota and correspondingly the students belonging to the open category got less number of seats. Yet. the Court declined to cancel the admission, but proceeded to direct the Government of Tamil Nadu to create 52 extra seats in the Government medical colleges for the particular academic year 1994-95 (as seen in para 8 of the judgment).

77. Mr. Jamdar submitted that in the present case also similar course of actions were desirable. It was further submitted that if any infrastructural requirements under the regulations framed by the Medical Council are required to be satisfied they can be satisfied subsequently. Right now, the Court should direct the M.C.I. to increase as many as number of seats as are sought by the State Government to accommodate the students from Version 33. That will not disturb the students who are already admitted and after the M.C.I. carries out its inspection, the deficiencies in the infrastructure could be removed. It was pointed out that the request for increasing seats was made on behalf of the Government and Municipal colleges. All necessary capacity and infrastructure was already existing. A slight increase was sought therein and if the M.C.I. was not inclined to consider that, this Court should direct the necessary increase. It was submitted that the affidavit of Medical Council of India was totally devoid of any particulars with respect to the deficiencies, if any, in the colleges wherein the State Government had sought an increase in capacity. The Medical Council of India had only slated the legal position. That was not inspected in a situation like this. A reliance was placed on an order passed by the Aurangabad Bench of this Court on 13th July, 2001 in Writ Petition No. 4046 of 2000 and it was pointed out that way back on 13th July, 2001 inspection of all the colleges in the State had been directed with respect to the infrastructural facilities including teaching, non-teaching staff, building, equipments, etc. available to the Government Medical Colleges in the State of Maharashtra. That report can certainly help the Court to subsequently find out whether there were any deficiencies. For this purpose, reliance was placed on the approach of the Apex Court in the case of Union of India v. Era Education Trust and Anr.,. In that matter, by an impugned order passed by the Allahabad High Court on the very day of presentation of the petition, the Court had granted interim mandatory relief to run the medical college. The Apex Court set aside that order. However, considering the fact that the respondent had started the college in the meanwhile, admitted the students and made specific statement that all Infrastructure requirements under the regulations framed by M.C.I. will be complied with and that 300 bedded hospital was likely to be ready within Six months, running of the college was not disturbed by the Apex Court and necessary directions were given in para 11 of that Judgment. It was pointed out that even in a matter concerning the State of Maharashtra in the case of Vinay Shankar v. Director General of Health Services and Ors., similar problem arose where the State had granted admission in excess of the State quota and it was in conflict with respect to the directions given by the Apex Court earlier regarding allotment of seats to the candidates in wait-list in all India quota. It was submitted on behalf of the M.C.I. that the same was done without satisfying the M.C.I. with respect to availability of instructional facilities to support the additional intake. The Court however noted that during the pendency of that matter the State of Maharashtra did furnish requisite particulars. The M.C.I. was, therefore, directed to act expeditiously and find out a way to act in aid of the State’s request unless there are compelling reasons against it.

78. Ms. Bhavna Shah appeared for the petitioner in Writ Petition (Lodging) No. 2323 of 2001. This petition is in the nature of a cross petition to the main petition. Ms. Shah submitted that cancellation of the admission was not desirable. She relied upon an unreported judgment of a Division Bench of this Court in Hrishikesh Vaidya v. State of Maharashtra. The Division Bench has held in that matter that selection made once is final and should not be disturbed mysteriously. She also relied upon the observations of the Apex Court in the case of State of Uttar Pradesh and Ors. v. Dr. Anupam Gapta, etc., where the Court held that admission in the midstream would disturb the courses and also work an handicap to the candidates themselves to achieve excellence. The Court held that the vacancies of the seats would not be taken as a ground to give admission and. therefore, the direction by the High Court to admit the students into those vacancies was set aside.

79. Mr. Harsh Desai appearing for one of the interveners-Samikhsa Desai. pointed out that she had given up the admission in the course of Biotechnology in Ruia College and did not appear for the All India examination since she got admission for Dentistry in the Government Dental college, in the new revised list, her number was to go down from 1047 to 1245 and if this list was implemented she may not get admission in dentist stream or in a free seat or in a dental college in Mumbai. He submitted that when there was no fraud or misrepresentation on the part of the students like her, they should not be made to suffer by cancelling the admission. He stated that by granting admission, a right has been created in favour of the students, they had acted to their prejudice by giving up other courses and now, getting admission to other courses is not possible since most of those admissions are closed. It is submitted that since the Government was responsible for the situation which had arisen, the Government must find the solution. He submitted that additional seats ought to be created by consulting Dental Council of India. He criticised the State Government for not contacting the Dental Council for Increasing the seats in Dentistry, to which Mr. Gulam Vahanvati, learned Advocate General replied that the Dental Council was not contacted since there was no chance of getting the seats in Government colleges increased and since the Government preferred to spend its meager funds in increasing the seats in medicine. Mr. Desai submitted that, in a matter like this, balancing of the equities was required. He referred to a judgment of the Apex Court in the case of Ramniklal N. Bhutta and Anr. v. State of Maharashtra and Ors., wherein the Apex Court observed in the context of land acquisition that while exercising the powers under Article 226, the Courts have to weigh the public interest vis-a-vis the private interest and there were many ways of affording appropriate relief and redressing a wrong. The normal method of quashing the acquisition proceeding was not the only mode of redress. “To wit, it is ultimately a matter of balancing the competing interests.” By way of a suggestion, Mr. Desai submitted that if the new merit list was to operate the students to be displaced from Medicine or Dentistry be accommodated with preference in the next academic year.

80. Mr. Shyam Divan, learned Counsel appearing for one of the interveners, submitted that it would not be proper to make any innocent group of students suffer due to the order to be passed by the Court. In his submission, contractual obligations had been created in view of the admissions having been granted to the students by various colleges and now, it was not permissible to cancel these rights.

81. Since this is a matter which was affecting the career of a large number of students some of the Counsel representing the students went to the extent of raising suspicion about the manner in which the Government went about in the matter, viz. Initially stating that the results were final, subsequently preparing another merit list, thereafter making an attempt to accommodate the students and lastly, leaving it to the Court to pass appropriate orders. Mr. Bhatt, learned Counsel appearing for Jay Vinod Goel, for example, submitted that there was some conspiracy. He demanded appointment of a committee to took into this grievance. He pointed out that his client had paid the fee to the tune of Rs. 1,55,200/ on 21st June, 2001 in a private medical college at Dhule. and now, if the admissions are cancelled there was a problem of getting admission in another college, apart from getting an early refund of the fees paid. He submitted that unless fraud or cheating is established on the part of the students, their admissions could not be cancelled. He pointed out that his client had the option to go to other colleges and courses in the State as well as in State of Karnataka, but now it would be difficult to go for any other course. Same was the submission of Mr. Mihir Desai appearing for a cross petition being Writ Petition (Lodging) No. 2310 of 2001. He pointed out that his client was admitted in Terana Medical College in Navi Mumbai. She paid the fees of Rs. 1,31,360/- on 28th of June. 2001. She is attending the course and she has also given a unit test. He submitted that if necessary, the petitioner be awarded compensation but admitted students should not be made to suffer.

82. Mr. Sethia, learned Counsel appearing for some of the students, who are admitted for the Physiotherapy course in a college in District Wardha, submitted that they were border-line students. Similar was the submission of Mr. Trivedi who appeared for a student who is admitted in Homoeopathy. For both these types of situation, however, as has been narrated earlier, there would not be any difficulty in the event of operation of the new merit list. For the courses of Occupational Therapy, Physiotherapy, Audiology & Speech Therapy and Prosthetics & Orthotics, a statement has already been made on an affidavit by Dr. Chowdhary for the State Government on 7.9.2001 that such students will not be required to leave their courses and necessary number of seats will be increased by making a request to Maharashtra Health University. As far as Ayurved, Homoeopathy and Unani medicine is concerned, the concerned Director of Ayurved has also filed an affidavit placing it on record that as far as these three streams are concerned, last year a large number of payment seats remained vacant and, therefore, this year also a problem of displacement should not arise.

83. Ms. Bharucha, learned Counsel, appeared for two students, who are admitted in Government Dental College in Mumbai. One of them Javed Ali Khan is a son of a defence personnel. He got the admission in that category. His earlier rank number was 2770 and it will now go down to 3162. He fears that in the event a claim on behalf of any other defence personnel being made in these numbers going above him, he will be required to be shifted. Similar is the submission of Miss Anita Patil appearing for a student hailing from District Kolhapur. He belongs to a Nomadic Tribe and he is admitted in Government Dental College in category NT-2. There is only one seat for NT-2. His rank number goes down from 5436 to 6023. He fears that it is possible that a student above him and who belongs to NT-2 category and who has taken admission in the open category would be required to fall back on a reserved category in which case he may lose his admission. Mrs. Pande, Advocate, came all the way from Akola to point out the hardships the girl students are likely to face. Many of them have taken hostel accommodation in other towns and now they will be displaced and some of them may not even continue their education. These are only a few of the submissions by way of illustrations to point out the anxieties expressed by the students who are admitted to different courses and who fear displacement. Mr. Ram Apte appearing for the students who are presently in the 11th Standard made suggestions on the pattern in Karnataka and Andhra Pradesh to bring in transparency, and mainly to give copies of answer books to the students after the examination.

Submissions on behalf of the Medical Council ;

84. Ms. Puri, learned Counsel, who appeared for Medical Council of India, submitted that she understood the anxiety expressed by the students fearing displacement. She, however, pointed out that the Medical Council of India had to enforce the law in the interests of the medical education and the students community. She pointed out, as stated in the M.C.I.’s affidavit referred to earlier, that a maintenance of proper standard of medical education is necessary and, therefore. Sections 10A, 10B and 10C were Inserted in the Indian Medical Council Act, 1956 (“the said Act” for short) with effect from 1st June, 1992. Now for an increase in the admission capacity, a previous permission of the Central Government was required under Section 10A(1)(b)(ii) of the said Act. For that purpose, the concerned Medical college had to submit a scheme to the Central Government and the Central Government has to forward it to the Medical Council for its recommendations. While making its recommendations, the Council has to see as to whether necessary facilities in respect of staff, beds. equipment, accommodation, etc. are provided or will be provided within the time limit under the Scheme. Where any increase is granted in a medical college except without such a prior permission it is not recognised as a necessary medical qualification under Section 10-B(3) of the said Act.

85. Relevant Section 10A(1),(2) and Sub-section (7) read as follows :-“10A. Permission for establishment of new medical college, new course of study, etc.- (1) Notwithstanding any thing contained in this Act or any other law for the time being in force.-

(a) no person shall establish a medical college: or

(b) no medical college shall –

(i) open a new or higher course of study or training (including a postgraduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or

(ii) increase its admission capacity in any course of study or training (including a post-graduate course or study or training), except with the previous permission of the Central Government obtained in accordance with the provisions of this section.

Explanation 1.- For the purposes of this section, “person” includes any University or a trust but does not include the Central Government.

Explanation 2.- For the purposes of this section, “admission capacity”, in relation to any course of study or training (including post-graduate course or study or training) in a medical college, means the maximum number of students that may be fixed by the Council from time to time for being admitted to such course or training.

(2) (a) Every person or medical college shall, for the purpose of obtaining permission under Sub-section (1), submit to the Central Government a scheme in accordance with the provisions of clause (b) and the Central Government shall refer the scheme to the Council for its recommendations.

(b) The scheme referred to in Clause (a) shall be in such form and contain such particulars and be preferred in such manner and be accompanied with such see as may be prescribed.”

“(7) The Council, while making its recommendations under Clause (b) of Subsection (3) and the Central Government, while passing an order, either approving or disapproving the scheme under Sub-section (4), shall have due regard to the following factors, namely :-

(a) whether the proposed medical college or the existing medical college seeking to open a new or higher course of study or training, would be in a position to offer the minimum standard of medical education as prescribed by the Council under Section 19A or, as the case may be, under Section 20 in the case of post-graduate medical education:

(b) whether the person seeking to establish a medical college or the existing medical college seeking to open a new or higher course of study or training or to increase its admission capacity has adequate financial resources;

(c) whether necessary facilities in respect of staff, equipment, accommodation, training and other facilities to ensure proper functioning of the medical college or conducting the new course of study or training or accommodating the increased admission capacity have been provided or would be provided within the time-limit specified in the scheme;

(d) whether adequate hospital facilities, having regard to the number of students likely to attend such medical college or course of study or training or as a result of the increased admission capacity, have been provided or would be provided within the time-limit specified in the scheme;

(e) whether any arrangement has been made or programme drawn to impart proper training to students likely to attend such medical college or course of study or training by persons having the recognised medical qualifications:

(f) the requirements of manpower in the field of practice of medicine; and

(g) any other factors as may be prescribed.”

Sections 10B and 10C read as follows :-

“10B. Non-recognition of medical qualifications in certain cases.- (1) Where any medical college is established except with the previous permission of the Central Government in accordance with the provisions of Section 10A, no medical qualification granted to any student of such medical college shall be a recognised medical qualification for the purposes of this Act.

(2) Where any medical college opens a new or higher course of sludy or training (including a post-graduate of study or training) except with the previous permission of the Central Government in accordance with the provisions of Section 10A, no medical qualification granted to any student of such medical college on the basis of such student or training shall be a recognised medical qualification for the purposes of this Act.

(3) Where any medical college increases its admission capacity in any course of study or training except with the previous permission of the Central Government in accordance with the provisions of Section 10A, no medical qualification granted to any student of such medical college on the basis of the increase in its admission capacity shall be a recognised medical qualification for the purposes of this Act.

Explanation.- For the purposes of this section, the criteria for Identifying a student who has been granted a medical qualification on the basis of such increase in the admission capacity shall be such as may be prescribed.

10C. Time for seeking permission for certain existing medical colleges, etc.-(1) If, after the 1st day of June, 1992 and on and before the commencement of the Indian Medical Council (Amendment) Act, 1993 any person has established a medical college or any medical college has opened a new or higher course of study or training or increase the admission capacity, such person or medical college, as the case may be, shall seek, within a period of one year from the commencement of the Indian Medical Council (Amendment) Act, 1993, the permission of the Central Government in accordance with the provisions of Section 10A.

(2) if any person or medical college, as the case may be, fails to seek the permission under Sub-section (1), the provisions of Section 10B shall apply, so far as may be, as if, permission of the Central Government under Section 10A has been refused.”

86. Ms. Puri then submitted that in September, 1993 the necessary regulations had been framed by the Medical Council oflndia. She referred to the latest regulations of 3rd July, 1997 framed in exercise of its power under Section 33 of the said Act (and printed in Gazette of India, dated 23rd August, 1997), whereunder Competent Authority has been defined under Regulation 3(c) as follows :-

“(c) “Competent Authority” means the Central Government or State Government or medical college or any other authority as may be designated by the Central Government or the State Government, as the case may be, to allot students for admission to various medical colleges in a State or Union Territory. Where there is no designated authority as defined, the Medical College conducting undergraduate or post-graduate medical course shall be deemed to be the Competent Authority for that medical college.”

Regulations 4 to 9 are also relevant for our purpose which read as follows :-

“4. Sanctioned intake capacity in medical college.- The Council shall every year, prior to the start of undergraduate/post-graduate academic, medical course, intimate the medical colleges and State/Union Territory Government, the sanctioned intake capacity of students for undergraduate/post-graduate courses in medical colleges.

5. Medical colleges to furnish year-wise list of students. All medical colleges conducting undergraduate/post-graduate course shall, within three months of publication of these regulations in the Official Gazette, furnish year-wise lists of students admitted during the academic sessions commencing in the year 1992 till the year in which these regulations are published for Bachelor of Medicine and Bachelor of Surgery and postgraduate course (for each course separately) to the Council.

6. The Competent Authority shall furnish lists of students admitted during each academic year for Bachelor of Medicine and Bachelor of Surgery and post-graduate courses to the Council and State Medical Council and the affiliating university, within one month of the closure of admission or 31st October of that year, whichever is earlier.

7. List of students to be famished to the Council :- A list of students to be furnished under these regulations to the Council shall be prepared by a Competent Authority in order of merit on the basis of which admission have been made. The list shall be supported by affidavit of the Dean/ Principal of a medical college stating the sanctioned admission capacity of that medical college and that no admission has been made in excess of the admission capacity. The names of students admitted in a medical college through All India Entrance Examination/Central Pool quota/mandatory reservation for Scheduled Castes/Scheduled Tribes, shall find mention in the list.

8. Matters relating to excess admission to be decided by the Council. All matters relating to excess admission of students shall be decided by the Council taking into account the list furnished to the Council by a Competent Authority and the admission capacity fixed for the medical college. After it is found by the Council that excess admissions have been made, the students lower down in the list shall be treated to be admitted against the increase in admission capacity to the extent of excess admissions. The students admitted through All India Entrance Examination/Central Pool Quota/mandatory reservation for Scheduled Castes/Scheduled Tribes etc. shall be included within the fixed admission capacity.

9. Identification of excess admission and non-recognition of medical qualifications :- The Council shall find out the excess admissions in a medical college and no medical qualification granted to any identified student of the medical college which comes under the excess admission shall be recognised medical qualification for the purpose of Indian Medical Council Act (102 of 1956). The names and other particulars of students so indefinite shall be intimated by the Council to all concerned for taking action under the provisions of the Act.

Any dispute in the matter of identification of excess admission student(s) in a medical institution shall be referred to the Central Government whose decision shall be final.”

87. In her submissions, Ms. Purl reiterated what is stated in the earlier affidavit of M.C.I. and particularly relied upon the Judgments in the cases of State of Punjab and Ors. v. Renuka Singla and Ors., Medical Council of India v. State of Karnataka and Ors., and the two other unreported Judgments referred earlier in the cases of G. N. Medical v. State of Karnataka and Akansha Sharma v. State Punjab. (Supra) She pointed out that the same trend is reflected in the recent Judgment in the case of Malikarjuna v. State of Karnataka,’. She submitted that after the enforcement of these sections i.e., from 1st June, 1992 and enforcement of present regulations of 3rd July, 1997, nodepartures have been permitted from these provisions in any of the judgments of the Apex Court. Any excess admission is liable to suffer and any such order on compassionate ground at the costs of medical education and standard is frowned upon by the Apex Court in a number of matters as pointed out above. She, however, submitted that in the meanwhile good number of seats have become available in the State of Maharashtra by now and a further application by State of Maharashtra if made in accordance with the rules for increase in the Government or Municipal Colleges will be duly considered. She stated that it was not desirable either to grant provisional admissions or to regularise them subsequently. She pointed out that similar are the provisions under Sections 10A, 10B and 10C of the Dentist Act. 1948 and same principles will govern.

88. She emphasized the observations of the Apex Court in paragraphs 29, 30 and 31 in Medical Council of India v. State of Karnataka (supra) which are to the following effect :-

“29. A medical student requires grueling study and that can be done only if proper facilities are available in a medical college and the hospital attached to it has to be well equipped and the teaching faculty and doctors have to be competent enough that when a medical student comes out, he is perfect in the science of treatment of human beings and is not found wanting in any way. The country does not want half-baked medical professionals coming out of medical colleges when they did not have full facilities of teaching and were not exposed to the patients and their ailments during the course of their study. The Medical Council, in all fairness, does not wish to invalidate the admissions made in excess of that fixed by it and does not wish to take any action of withdrawing recognition of the medical colleges violating the regulation. Henceforth, however, these medical colleges must restrict the number of admissions fixed by the Medical Council. After the insertion of Sections 10A. 10B and 10C in the Medical Council Act, the Medical Council has framed regulations with the previous approval of the Central Government which were published in the Gazette of India, dated 29.9.1993 (though the notification is dated 20.9.1993). Any medical college or institution which wishes to increase the admission capacity in M.B.B.S./higher courses (including diploma/degree/higher specialities), has to apply to the Central Government for permission along with the permission of the State Government and that of the university with which it is affiliated and in conformity with the regulations framed by the Medical Council. Only the medical college or Institution which is recognised by the Medical Council can so apply.”

“30. Having thus held that it is the Medical Council which can prescribe the number of students to be admitted in medical courses in a medical college or institution, it is the Central Government alone which can direct increase in the number of admissions but only on the recommendation of the Medical Council. In our opinion, the learned Single Judge was right in his view that no medical college can admit any student in excess of its admission capacity fixed by the Medical Council subject to any increase thereof as approved by the Central Government and that Sections 10A, 10B and 10C will prevail over Section 53(10) of the State Universities Act and Section 4(1)(b) of the State Capitation Fee Act. …….”

“31. What we have said about the authority of the Medical Council under the Indian Medical Council Act would equally apply to the Dental Council under the Dentists Act,”

She made a statement on instructions that if the Government of Maharashtra makes an application for increase in the seats to the Central Government, on receiving the same from the Central Government, the Medical Council will examine it and forward its recommendations to the Central Government within two months of receipt of such an application. Ms. Puri submitted that under scheme of the Act as it stood, there was no scope for any one time increase.

Submissions on behalf of the State Government :

89. Mr. Gulam Vahanvati, learned Advocate General, ably assisted by Mr. Kumbhakoni, learned Special Council and Mrs. Armin Kalyanram, learned A.G.P., represented the State of Maharashtra and the Director of Medical Education. It is undoubtedly true that the initial mistake in correction of Version 33 was committed by the paper setters of Biology to whom the work was entrusted by the State Government and the Director of Medical Education. It was not easy to find/found out this mistake. In this situation, all the students who applied for verification, got standard replies. When the matter came to the Court, however, the Director of Medical Education and Research Ms. Mrudula Phadke was fair enough to direct her officers to look into the questions and the answers afresh and it is only on account of the fairness shown by the Director and her officers that 13 mistakes were revealed in Version 33. The State Government showed its willingness to cancel the results in its affidavit affirmed on 8th August, 2001. However, having noted the magnitude of the problem and the cascading effect on the entire students community, the Government made an attempt to move the Medical Council of India and the Central Government to get the seats increased for one year. The learned Advocate General initially submitted to the Court that in a matter like this, a pragmatic and flexible approach, as indicated in the Apex Court judgment in State of Kerala v. Kumari T. P. Roshana, was desirable. In that matter, the Apex Court did not stop at merely declaring that the scheme of admission accepted by the Government was ultra vires. The declaration would have affected 30 students. The Court observed that it should come to the assistance of the University, students already admitted and undergoing their medical courses. The Court noted that this particular requirement would not survive the particular academic year and hence directed the State Government to admit 30 more willing students in the concerned University. The same approach is reflected in the subsequent judgment of the Apex Court in Punjab Engineering College v. Sanjay Gulati, wherein following the lead given in the earlier judgment, the Court directed creation of 16 necessary additional seats.

90. The learned Advocate General was however, fair enough to accept that these judgments were prior to the insertion of Sections 10A, 10B and 10C to the Indian Medical Council Act, 1956. He however, submitted that these sections did not rule out a one time increase. He also criticised the attitude of M.C.I. and the Central Government inasmuch as they ought to have helped the State Government to overcome the situation. He pointed out that the request made by the State Government was only with respect to the increase in seats in Government and Municipal Colleges where adequate infrastructure already existed. He also pointed out that every year we find large number of students from outside the State coming to the State of Maharashtra since the educational standard in the State was better. He pointed out that there was also a discernible trend that the students admitted to the private colleges subsequently shilling to the Government colleges since they are also held to be the better ones. In his submission, therefore, it was desirable that M.C.I. and the Central Government be directed to consider this one time increase. He however, left it to the Court to pass appropriate orders in the light of the law as it stood.

91. As stated above, the learned Advocate General in the meanwhile also took instructions that the additional seats which have now become available will he put into general pool if a direction is given to implement the revised list. He also tendered the affidavits of the Government officers stating that the students in streams such as Physio therapy, Occupational therapy, Audiology & Speech therapy and Prosthetics & Orthotics will not be affected and necessary increase in the seats will be recommended to the Health University. He submitted that as far as Ayurved, Homoeopath and Unani are concerned, he did not expect any student to get displaced in view of a large number of seats which remained vacant last year. In his view, the problem was now essentially about the seats in Medicine and Dentistry. With 100 seats now becoming available in Government colleges and 200 in private colleges and 40 in Dentistry (with 200 more in pipeline), the problem will now be confined only to shifting of the students in the event the implementation of the new list is directed. In his submission, hardly any student will now be denied admission either in Medicine or Dentistry.

Submissions on behalf of Central Government :

92. Mr. Suraj M. Shah learned Counsel appeared for the Central Government in Writ Petition (Lodging) No. 2338 of 2001 and four other petitions. He tendered on record the letter sent by the Central Health Ministry to him dated 12th September, 2001 wherein the Central Government reiterated its stand in its earlier letter dated 24th August, 2001. Thus, Mr. Shah made it clear that there was no chance for any one time additional increase as sought by the State Government and which was clearly understood and reflected in para 5 of the affidavit of Dr. Chowdhary, dated 10th September, 2001 in Writ Petition No. 1658 of 2001. Mr. Shah also however stated that, as stated above, in the meanwhile, good number of seats have become available and any application to be made by the State Government under Section 10A will be processed by the Central Government expeditiously.

Petitions in Group-C Above :

93. In this group, we have some peculiar petitions. Thus, we have Writ Petition Nos. 2150 of 2001 and 2238 of 2001. Mr. V. M. Thorat appeared for these petitioners. He accepts that there is an error in Version 33 students and he submits that the revised merit list should be operated. He, however, submits that the Court ought to give a direction in the meanwhile to the M.C.I. and the Central Government to increase the seats provisionally as has been done in a few cases, he relied upon the recent judgment of the Apex Court jn the case of Dental Council of India v. Subharti Charitable Trust,. That was a matter wherein although the college had granted admissions in excess of the permissible capacity, after finding that the same was erroneous, the Apex Court had obtained the report about the status of the college and then by consent, directed that subject to the satisfaction of the prescribed conditions, final recognition be considered. The Court had not disturbed the increased seats. It is material to note that the Apex Court had, however, made it clear in para 16 that the order was passed in the peculiar facts and circumstances of the case and should not be treated as a precedent.

94. Another petition in this group was Appellate Side Writ Petition No. 4158 of 2001 wherein Mr. Chomal appeared for the petitioner. The submission in this matter was to increase one mark to all the students. Mr. Chomal, however, could not justify the claim as to why these marks should be increased. In our view, in view of the thorough checking of the question and answer books by the State Government, no prayer as in this petition is warranted.

95. Another peculiar Writ Petition was Writ Petition (Lodging) No. 1889 of 2001 wherein Mr. Vashi appeared for the petitioner. The problem in this matter was this wise that although the petitioner had all the necessary certificates when he was called out for counselling, he did not have the nationality certificate. He had his father’s nationality certificate and his own ration card which is one of the basic documents for nationality certificate. In fact, he obtained this certificate subsequently. The request of Mr. Vashi is that in the event a fresh counselling is directed on the basis of the revised merit list, the petitioner ought to be permitted to be considered on the basis that he has now fulfilled all the requirements.

96. A similar situation has arisen in view of the judgment of the AUrangabad Bench of this Court, dated 2nd July, 2001 in Writ Petition No. 2502 of 2001 where the Division Bench directed in the case of students of reserved category that those whose caste certificates were pending scrutiny be also called for counselling. The learned Advocate General appearing for the State made a statement that the State Government had no objection to permit counselling to all such students who get all the necessary documents by the date of fresh counselling. He submitted that all those students whose names and communities were recorded in their forms and in the hook containing revised merit list prepared by the respondents will be eligible to be considered. Since Mr. Kotwal has filed the present petition in representative capacity on behalf of Version 33 students, we asked him as to whether the petitioner has any objection and he submitted that they did not have any such objection. Mrs. Armin Kalyanram, learned A.G.P., informed the Court that in the meanwhile particular orders had been passed by another Bench in 21 writ petitions permitting them to be considered in the particular reserved category. The petition numbers and the names of the students are as follows :-

“I. Petitioners who had claimed reservation in their application form

1. W. P. (L) No. 1524 of 2001 – Tausif Sarguroh

2. W. P. (L) No. 1555 of 2001 – Abizer Manked

3. W. P. (L) No. 1556 of 2001 – Fatema Lokat

4. W. P. (L) No. 1561 of 2001 – Chamandeep Kambhoj

5. W. P. (L) No. 1565 of 2001 – Vikas Oswal

6. W. P. (L) No. 1566 of 2001 – P. G. Yadav

7. W. P. (L) No. 1576 of 2001 – Mausmi Kadali”

“II. Petitioners who had not claimed reservation in their application form

1. W. P. (L) No. 1503 of 2001 – Priti Das

2. W. P. (L) No. 1504 of 2001 – Uzma Naik

3. W. P. (L) No. 1508 of 2001 – Isheta Patani

4. W. P. (L) No. 1515 of 2001 – Shruti Shah

5. W. P. (L) No. 1516 of 2001 – Anjana Jani

6. W. P. (L) No. 1539 of 2001 – Vinayak Khatav

7. W. P. (L) No. 1553 of 2001 – Shifa Shaikh

8. W. P. (L) No. 1554 of 2001 – Amey Potnis

9. W. P. (L) No. 1560 of 2001 – Ishwarlal Seneri

10. W. P. (L) No. 1562 of 2001 – Manoj Bodhwani

11. W. P. (L) No. 1566 of 2001 – Sanjay Chopra

12. W. P. (L) No. 1579 of 2001 – Amina Ajmal

13. W. P. (L) No. 1664 of 2001 – Nikhil Patel

14. W. P. (L) No. 1661 of 2001 – Yogin Patel ”

97. Another order passed by the Division Bench in Aurangabad Bench in Writ Petition No. 2910 of 2001 on 13th August, 2001 was also brought to our notice, which directed that as per the Rules, 30% reservation has to be maintained for the girls in each category for various institutions on eligible basis. The learned Advocate General made a statement that the rule was being scrupulously followed.

Rejoinder by Mr. Kotwal

98. In his rejoinder, Mr. Kotwal submitted that the petitioners had no objection to an increase in the number of seats but their right to shift into the courses and colleges to which they were rightfully entitled should not be differed any further until such happening. He pointed out that this was a matter where the mistake committed by the State Government went to the root of the matter and it vitiated the entire results. He referred to the approach of the Apex Court in M.B.B.S., B.D.S., Selection Board v. Chandan Mishra (supra) wherein the Apex Court held that the wrongful admissions shake the public confidence and cannot be continued. That was also a matter wherein the Apex Court set aside the admissions of as many as 290 candidates and directed admissions on merits. As far as mistake going to the root of the matter is concerned, he again referred to the judgment of the Andhra Pradesh High Court in the case of G. Nalini v. Director of Medical Education (supra) where in an identical situation, the Court directed the correction of the merit list appropriately by adding marks to the students to whom they were denied wrongfully on the basis of similar computerised objective examination.

99. As far as the objection on the basis of delay is concerned, Mr. Kotwal pointed out that the results of the C.E.T. became available on 17th May, 2001. Students applied for re-valuation within 48 hours but got stereotyped replies. The H.S.C. results became available on 31st May. 2001 and then only after comparing the two results that the students apprehended that there were serious errors in correcting Version 33 results. The first round of counselling started on 12th June, 2001 and vent on till 6th July, 2001. It is during this process that news items appeared in various newspapers raising doubts on 30th June, 2001 onwards. It was not very easy for the students to establish that there was any error and that is why when they filed the petition on 9th of July, 2001 they initially sought only the re-valuation. During the course of the initial arguments before this Court, when they pointed out one mistake to the respondents, it was only at that time that the respondents decided to look into the problem genuinely. Until then there was no question of any mistake being found. This is because in O.M.R. system all that was to be done was to feed answer books into the computer and the model answers were to be compared. The printouts of all the versions were not taken out. It is only when the paper-setters went into the questions and answers of all versions carefully that they realised that there was mistaken shifting of block of 10 answers for Version 33. This was detected on 1st August. 2001 and admitted in Court on 8th August, 2001. The Government had shown its inclination to cancel the results at that time itself. However, it was the anxiety to take care of the affected students and to hear them in these proceedings, which had taken the time of a month or 15 days thereafter. The petitioners cannot be blamed and it cannot be said that there was delay or laches on their part.

100. The submission that the students, who are already admitted, had rights vested in promissory estoppel and contract was met by submitting that for making out the case in promissory estoppel one must first have a right. Similarly for making out a case in contract one must first have the status to the particular position. In the instant case, the condition precedent to obtain the status of a higher rank was application of uniform standard of assessment. In the absence of a uniform standard, the status obtained is unjustified and it has only led to an unjust advantage to the students who are already admitted and a windfall in their favour. The merit list will, therefore, have to be considered as non est and the injustice done to the petitioners will have to be removed. Otherwise it means treating unequals as equals and it is violatlve of Article 14 of the Constitution of India. Mr. Kotwal, therefore, submitted that the revised list ought to be operated at the earliest and if the Court deems fit, appropriate directions be given to take care of the students likely to be displaced.

CONCLUSIONS
Whether the Petitioners in Group “A” are Entitled to the Prayers made in the Petition

101. Having noted the submissions of the Petitioners in different groups and of various Respondents and after having recorded the steps taken in all these matters, comes the question as to whether the Petitioners in GrouP “A” are entitled to the prayers that they have made in the petitions. As stated earlier Writ Petition No. 1658 of 2001 is the lead petition in this Group. As far as prayers (a) and (b) thereof are concerned, they are with respect to revaluation of the results of the MH-CET 2001 examination. That prayer is already granted by the State Government having done this exercise. At the end of this exercise, it has been accepted by the State Government in its affidavit of 8th August. 2001 that there were as many as 13 mistakes in the correction of Version 33 of the Biology paper of this examination. Thereafter the State Government has prepared the revised merit list also. Based on this development, the Petitioners have amended this petition and are seeking a further prayer b(1) which is to direct the Respondents to publish and implement the revised merit list and grant admissions to students strictly in accordance therewith including admissions to colleges of their choice in accordance with their respective positions on the revised merit list. Again as far as publication of this list is concerned, the same is already released on internet and the students concerned have been permitted to look into this revised list by approaching the office of this Director of Medical Education and Research. What remains now is the part of this prayer which is with respect to implementation of this list and granting admissions in accordance therewith to the colleges of their choice and that as per the respective positions of the students in the revised merit list.

102. As far as the mistake, which has occurred in the correction of the paper of Biology in Version 33 is concerned, it has already come on record as to hew the mistake took place and one entire block of answers of ten questions was erroneously placed against another block of ten questions and vice versa. That led to 12 errors apart from one another isolated error. It has been stated on affidavit on behalf of the Respondents that all the examiners of all the three papers have checked the questions and answers of all the three versions. This has been stated on two affidavits. Thereafter it is also stated that the examiners concerned have admitted in writing that this serious mistake has occurred (and have regretted this lapse on their part). They have tendered sincere apology for the same. In any event, in view of this serious mistake resulting into denial of as many as 13 marks to a large number of students who were rightfully entitled to receive better marks, the basis and foundation of the earlier merit list and the admissions granted on that basis itself gets vitiated. It is a mistake going to the root of the matter. It cannot be disputed that merit is the basis of this entire exercise of selection. This is clearly reflected in the various clauses from the brochure/booklet published by the State Government. “The measure is academic excellence and not litigative persistence” stated Krishna Iyer, J. in para 42 of State of Kerala v. Kum. Roshna (supra).The same view is expressed by the Apex Court recently in para 42 of A.I.I.M.S. Students Union v. A.I.I.M.S. and Ors.,

103. In fact, for that matter, the basis of the selection of the students, who are already admitted, is also merit. They have been admitted on the basis of their ranks which are related to their marks which are arrived at on the basis of the yardstick of assessment applied to 75% students. That being the position, the students belonging to Version 33 have are remaining 25% of the students cannot be denied the same treatment when their submission is also that their admissions should be given on the basis of merit assessed on the yardstick applied to 75% students. The State having accepted their submission with respect to errors in the selection of the Biology paper of Version 33, these students cannot be denied their rights based in the revised merit list. Doing anything to the contrary and continuing to maintain the earlier revised list and the admissions based thereon will amount to treating unequals equally which will be violative of Article 14 of the Constitution. The list published earlier cannot therefore claim any finality and legal validity.

104. It was contended on behalf of the students, who are already admitted, that they paid their fees and are attending the classes, that various colleges, which admitted them, have entered into a contract with them. The colleges have even taken the first Unit Test. It was submitted that so long as there was no fraud or deception on their part, this contract cannot be vitiated. Now what is material to note is that one gets right to enter into this contract on the basis of the status which one is entitled to on the basis of his rank position. Now the status of being eligible for admission to a college in accordance with one’s number in the merit list is depending on fulfilling the condition precedent that the merit list is prepared by the application of uniform standard of assessment. If and only if this condition precedent is fulfilled and the name of a candidate is placed on the merit list, then only one can acquire that status. In the instant case, once the basis of a uniform standard of assessment vanishes, the status contained in the rank position is lost. Unless one is entitled to the status on the basis of a uniform standard of assessment, the contract entered on the basis thereof will have to be held to be bad, non est and non-enforceable.

105. It was then contended on behalf of the affected students that they had acted to their prejudice. As stated above, they had already taken admissions, paid fees and given up courses to which they were otherwise entitled in other colleges. This submission was advanced on the basis of Doctrine of Promissory Estoppel that in view of this position, the State was estopped from disturbing the students in midst of their studies. Again, as stated earlier, once the basis of the selection is vitiated, no expectation far less a legitimate expectation can flow therefrom. The admission of the students, who are admitted on the basis of a defective list, will have to be construed as a windfall for them. The Doctrine of Promissory Estoppel cannot be Invoked in a situation like this or else it will mean sanctifying an unjust advantage. Again what is material to note is that the principle is sought to be invoked not merely against the State Government but against third parties, namely the students who were denied admissions although they wrote correct answers. In a situation like this, the actions taken by the affected students consequent upon the defective merit list cannot be used to deny the rights which are available to the meritorious students. These submissions of the admitted students cannot therefore be accepted. In fact, as pointed out earlier, in Convenor, M.B.B.S./D.D.S. Selection Board v. Chandan Mishra,’ as many as 290 admissions were cancelled by the Apex Court. In the present case also, a similar approach will have to be adopted and the prayer made by the Petitioners in Writ Petition No. 1658 of 2001 for implementation of the revised merit list and granting admissions to them in accordance therewith to the colleges and courses of their choice as per their rank position will have to be granted.

Mitigating the hardships

106. Undoubtedly there is a question of hardships which are likely to be caused to a large number of students who will be required to shift from college to college or may be from a course to another course. It is with a view to avoid this situation that efforts were made to obtain a one time increase in the Prime Government and Municipal Medical Colleges where there was a more demand by the meritorious students. If, this one time increase was accepted by the Central Government and Medical Council of India, perhaps the Court could have considered accommodating the Version 33 students into these increased seats. However, so long as this is not approved by the Medical Council of India and the Central Government, the Court cannot keep the Version 33 students waiting any further. The revised merit list will therefore have to be implemented.

107. It is undoubtedly true that by now some 200 seats in Private Medical Colleges and 100 seats in Government Medical Colleges at Aurangabad and Yavatmal have become available. Forty more seats in a Private Dental College at Nasik have also become available and 200 more dental seats are stated to be in the pipeline. One cannot direct that the Version 33 students be accommodated in those colleges. That will be highly unjust to these students. Most of the students, who appeared for this examination, are naturally interested in getting admitted into the Prime Medical Colleges which are run by the State Government or the Municipal Bodies in cities of their choice. They are also interested in getting admitted into the courses and the colleges preferably in their home down. Merely because there was an error on the part of the State Government in correcting their papers, the Version 33 students cannot be told that they will be accommodated in the Medical College at Aurangabad or at Yavatmal or in the Private Medical Colleges against their own desire. In fact, many of these students are already admitted in one or the other medical colleges or courses. Thus, for example, the 1st Petitioner is admitted In the Government Medical College at Miraj. He is a boy from Mumbai and he wants to prosecute his education preferably in Mumbai. As it is already indicated in a chart as per the revised merit list, the students nearest to his revised rank position are admitted either in B. J. Medical College at Pune or in Nair Medical College in Mumbai. Then only should the 1st Petitioner be denied the college to which he is entitled to as per his rank position? Similarly, the Petitioner Nos. 6 and 11 are already admitted in the Grant Medical College, which is a college run by the State Government in Mumbai. They are however desirous of getting admitted into G. S. Medical College run by the Brihan Mumbai Municipal Corporation. Mr. Kotwal, learned counsel for the Petitioners, informs that in the understanding of the meritorious students and their parents, it is desirable to study in a Municipal Medical College than in the Government Medical College. It is stated that often there are difficulties with respect to the professors in the Government Medical Colleges on account of their transfers from place to place which problem is not there or is comparatively lesser amongst the colleges run by the Brihan Mumbai Municipal Corporation. Be that as it may, if these students are interested in attending the course in a particular college, they ought to be granted admissions therein on the basis of their meritorious position. Prayer b(1) of Writ Petition No. 1658 of 2001 will therefore have to be granted.

Can it be said that there is any delay or laches on the part of the Petitioners?

108. A submission was advanced on behalf of the affected students that there was a delay on the part of the Petitioners in moving the Court. As already narrated earlier, the results of the C.E.T. were declared on 17th May, 2001. The students sought verification within 48 hours but got stereotyped reply that there was no change in their marks. The results of the H.S.C. examination became available only on 31st May, 2001 and counselling began on 12th June, 2001 and went on till 6th July, 2001. It is during the course of this period that the students of Version 33 came to read news items which appeared in the newspapers on 30th June, 2001 onwards. It is on this background that they came together and filed Writ Petition No. 1658 of 2001 on 9th July, 2001. After conducting the verification at its level, the State Government for the first time accepted in its affidavit affirmed on 8th August, 2001 that there were serious mistakes in the correction of Biology paper of Version 33. The State Government was in fact ready to cancel the earlier merit list and that was stated in that very affidavit. However with a view to protect the Interest of the admitted students that the State Government decided to move the Medical Council of India and the Central Government for a one time increase after making a provisional assessment of the requirement of seats. Thereafter a notice was issued under Order 1 Rule 8 of the C.P.C. on 30th August, 2001 so that the affected students get a hearing. All this took about a month and half. Although the hearing of the main petition was concluded on 10th September, 2001, the hearing of the connected petitions in Group “B” was over only on 13th September, 2001 when a statement was made on behalf of the Central Government. It is within a week thereafter that all these groups of matters are being decided. The time taken in between was necessary considering the magnitude of the problem and the necessary procedure required. This time cannot be read against the Petitioners and It cannot be said that they should be denied their rightful admissions because of the alleged delay. In the facts and circumstances mentioned above, it will have to be said that the petition was undoubtedly filed with utmost dispatch on 9th July, 2001 and is also being disposed of at the earliest considering the urgency of the matter. Neither the petition nor the reliefs sought therein can suffer either on the ground of delay or laches.

Restriction on Power of Court to increase seats

109. It was submitted on behalf of the students, who are likely to be affected that a direction be given to the Medical Council of India and the Central Government to increase the number of seats as sought by the State Government. It was suggested that this should be done either as a one time exercise or the seats meant for the All India quota for the next year in the State of Maharashtra be withdrawn in the present year and correspondingly the State seats be spread over and reduced for next 2 to 3 years. As far as the second suggestion is concerned, it was not possible to accept the same since that would affect the students taking admission in the next year and though some of them had intervened on their behalf, that section of the students was in fact not before the Court. Besides, such an arrangement would have affected the students claiming admissions through the All India quota next year and they were also not present before the Court. Such an arrangement therefore could not be made. As far as the suggestion that the High Court should direct increase of the seats as a one time exercise is concerned, what is to be noted is that whether seats are to be increased or not is completely within the domain of the Medical Council of India or the Dental Council of India. These bodies consist of experts, who are supposed to take the necessary decision. The High Court cannot substitute itself in the position of these bodies and direct increase in the seats. A number of orders passed by the Apex Court and other Courts were brought to our notice in this behalf. What is however relevant to note is that many of these orders are prior to the inclusion of Sections 10A, 10B and 10C to the Indian Medical Council Act, 1956 and the Regulations of 1997 framed thereunder. The law laid down in this behalf in Medical Council of India v. State of Karnataka (supra) is very clear. The Apex Court has clearly laid down that on any such compassionate ground, no devaluation in the standards of education could be brought upon. That is not something in the interest of students also. The few judgments, which are subsequent to the above Judgment, are either by consent as in the case of Dental Council of India v. Subharti Charitable Trust (supra) or are orders passed in the peculiar facts and circumstances of the case, [e.g. Ashok Chand Stnghvi, Nitasha Paul, S. Sathya Priya, Era Educational Trust, Vijay Shankar (supra)]. They cannot be read as permitting the High Court to depart from the law laid down in Medical Council of India v. State of Karnataka and State of Punjab v. Renuka Singla.

110. In Ashok Chand Singhvi’s case (supra), the Appellant before the Apex Court had been granted admission by the University for engineering in breach of its own rules. The Apex Court had held that the cancellation of his seat subsequently was bad since he could not be made to suffer for no fault of his. By granting him an admission, no other student was being denied admission to that course nor was it a case of obtaining admission or) the basis of common entrance test. In Nttasha Paul’s case, the selection of students for migration to the Dental College was made ignoring the select list. Although the selection was held to be bad, the Apex Court directed a seat to be provided to the Appellant. The Appellant had been given migration all the way from Belgaum in Karnataka to Rohtak in Haryana during second year of her B.D.S. course. Considering the fact that several other students of this type had already been absorbed and they had given up their earlier course, the Appellant was directed to be accommodated. This was again not a case of common entrance test and it was also a case prior to the Regulations of July, 1997. S. Sathya Priya (supra) was a case wherein reserved category candidates were admitted in excess of their quota to the medical colleges. Considering this fact the additional seats were directed to be created for the benefit of the open category candidates. This case also will have to be confined to the peculiar situation which was there before the Apex Court, This is also a judgment prior to the 1997 Regulations. In Era Educational Trust (supra), an interim mandatory relief was granted by the High Court to run a medical college. The Supreme Court did not approve the decision at all. It was however considering the fact that the students were admitted and the college had started that although the order of the High Court was set aside, on an assurance that the infrastructure will be provided that the admissions were not disturbed. Same approach is seen subsequently in Vinay Shankar (supra) and Dental Council of Indict u. Subharti Charitable Trust (supra). These decisions cannot be read as precedents to permit High Court to pass orders in similar situation in the hope that the Apex Court will approve them.

111. The judgment in State of U.P. v. Dr. Anupam Gupta (supra) was cited before us to submit that admissions in the midstream disturbs the course. In that matter, the admission had been directed to be given by the High Court after more than one year and the decision of the High Court was set aside. In the present case, it is not so. The Petitioners have moved at the earliest and within one month after closing of the first round of admission, the State Government has itself admitted that the merit list was erroneous. Within a month and half thereafter, this order is being made. The claim of the Petitioners cannot therefore be defeated alleging that it is a midstream admission. In the unreported Judgment in the case of H. U. Vaidya (Writ Petition No. 2777 of 1993) of a Division Bench of this Court, referred by Ms. Bhavna Vyas, the students admitted to Private Medical College, who were on the waiting list, were denied transfer to the Government Medical Colleges on the basis of validity of the concerned Rule. This Judgment can be of no assistance to the students who are already admitted. Mr. Harsh Desai has relied upon the judgment of the Apex Court in Ramniklal Bhuta (supra) to contend that the Court must try to balance the equities in a situation like the present one by passing appropriate orders. In our view, the students who are already admitted are having an unjust advantage vis-a-vis the students of Version 33 and cannot be placed on the same pedastal as the Version 33 students to whom a grave wrong has been done. Even so, inspite of the best efforts made, the seats in the Prime Medical Colleges are not being increased in the present academic year. That being the position, the dislocation of the admitted students cannot be avoided. In all probability, most of them will be accommodated amongst the seats which have become available by now and in that sense, an appropriate care has been taken of their interest within the four corners of law.

112. It is also pertinent to note in this behalf that the Regulations made in 1997 are quite stringent. They clearly lay down that any admission in excess of the capacity would be bad in law and the medical qualifications of such students shall not be recognised. The Court cannot be party to any such decision whereby students would be put to a further anxiety. As stated earlier, it is another thing that if these bodies were themselves to agree to a provisional increase this Court was also of the view that such an exercise could be considered. In that event, a different order could have been considered. However, in the absence of any such clearance from Medical Council of India and the Central Government, this Court cannot take that task upon itself and put the career of such students into a double jeopardy.

Likely impact of implementation of the revised merit list.

113. As recorded earlier, some 9,580 seats were covered in this C.E.T. All these seats can be divided into three groups, viz. (1) Medicine and Dentistry (2) Ayurved, Homoeopathy and Unanl Medicine, and (3) Occupational Therapy, Physio Therapy, Audiology and Prosthetics & Orthotics. As far as Group (3) is concerned, the Government has stated on an affidavit that the Government is prepared to increase the seats if required so that any student, who is already admitted to any of these courses, will not be required to be dislodged. A direction to the Maharashtra Health Ministry is sought in that behalf. As far as seats of Ayurved, Homoeopathy and Unani Medicine are concerned, although there is a Central Council governing these streams, the provisions thereunder are not as stringent as under the Indian Medical Council Act, 1956 or as under the Dentist Act, 1948. As far as Ayurved and Unani Medicine are concerned, there is a Central Council of Indian Medicine constituted under Section 3 of the Indian Medicine Central Council Act, 1970. For studies in Unani Medicine, good knowledge of Urdu language is necessary. The seats as of now are 200 and it is stated by the Director of Ayurved on an affidavit that last year 27 out of 37 payment seats had remained vacant. In Ayurved also, 214 out of 700 payment seats had remained vacant. As far as Ayurved is concerned, it is stated by the Director of Ayurved that the permission of the Council is required for increase in the intake capacity. However, it is experienced that bed occupancy in the hospitals attached to these colleges is not encouraging. Yet he has assured that efforts will be made to increase the annual intake capacity in the Ayurved Colleges at Mumbai and Nagpur. so that no student is dislodged.

114. The studies in Homoeopathy are governed under the Homoeopathy Central Council Act. 1973. As far as this stream is concerned, it is stated that 727 seats out of 1340 payment seats remained vacant last year. Thus, there is no likelihood of students in these three streams suffering. It is of course possible that some students from Medicine and Dentistry may get shifted into these streams. However, in all probability, most of them will be accommodated.

115. The real problem comes in the field of Medicine and Dentistry. As far as Dentistry is concerned, the provisions in Sections 10A, 10-B and 10C of the Dentist Act, 1948 are almost similar to the one under Sections 10A, 10B and 10C of the Indian Medical Council Act, 1956. The Dental Council of India also has the similar stringent powers as are available to the Medical Council of India. Fortunately however, by the time this matter is being decided, 100 more seats in Government Medical Colleges at Aurangabad and Yavatmal and 200 seats in Private Medical Colleges have become available, 40 more seats have become available in a Private Dental College at Nasik and 200 more seats in Dentistry are in the pipeline. With the revised merit list being implemented, there will undoubtedly be a shifting of large number of students from place to place or from college to college. However, considering the figures which we have received from time to time, in all probability, there will be sufficient number of seats to accommodate all the students who are presently admitted to these two streams even after accommodating the students who become eligible from Version 33. This is because many of the Version 33 students are already in Medicine and Dentistry though they will get shifted to some other places and colleges of their choice. Good many of them from other streams like Ayurved and Physio Therapy will move upwards in their rank position pushing down some of those from other versions who are already admitted in Medicine and Dentistry. However, the additional 340 seats which have now become available + 200 seats which may become available in a short time, would, in all probability, suffice to accommodate them also. It is of course conceivable that some will move outside Medicine and Dentistry to Ayurved or Physio Therapy, but they will certainly be accommodated in those streams. This number is not expected to be very large or may be such an occasion may not arise. That will all depend on how the movement of the students takes place. This is because, as noted earlier, some 196 students come in additionally amongst the first 1000 students from Version 33. As far as 3105 seats of Medicine and 780 seats of Dentistry are concerned, approximately 300 students of Version 33 from outside these streams are expected to come in dislodging that many number of students from these two streams and, as stated earlier, they would get absorbed in the increased seats in Medicine and Dentistry or any other streams of Health Sciences. It is also relevant to note at this stage that many of the students have opted for engineering and other courses in the meanwhile. They belong to all the four versions. Good many of them had stood standby for various courses. The requirement for seats in Medicine and Dentistry will correspondingly be less to the extent of that number. It is however not possible to make any guess work and the exact number will only be known when the entire exercise is completed. It is however enough to note that essentially the revision will result in a large scale shifting though most of the students are likely to get accommodated in some stream of Health Sciences or the other.

A few observations with respect to the conduct of the State Government, Central Government, the Medical Council of India and the students

116. Before we part with the matter, it is necessary to record our observations with respect to the manner in which the State Government, Central Government, Medical Council of India and the students have fared in this litigation. As far as the State Government is concerned, it is undoubtedly responsible for the initial mistake inasmuch as but for the lack of care on the part of the two of the paper-setters in Biology, this situation would not have arisen. It is true that prima facie the error on their part does not appear to be motivated or a malafide one. It is undoubtedly true that it was not easy to find out the mistake but if it was not found, Justice would not have been done to as large a Section as 1/4th of the students, who wrote the correct answers. By taking out the printouts of approved answers, this situation could have been avoided. In an examination of this type with the careers of thousands of students at stake, a higher standard of care was expected from them. If the authorities of the State and the paper-setters had taken out the prints of approved answers of all versions, they would have known immediately and in time before the assessment as to how the mistake had occurred. This failure to exercise necessary care resulted into the subsequent litigation and anxiety and innumerable consequences to a very large section of the students community. We cannot but place on record our strong indignation at this lack of care and would like to caution the State Government that any repetition of such or other mistakes will destroy whatever confidence the student community has in the fairness of the examination system. It is true that after the petition was filed, the Director of Medical Education and Research moved into the matter with all promptitude and the papers of all four versions were rechecked once again in the shortest possible time. In fact, the Director of Medical Education was fair enough to accept this mistake on the part of the State Government and on her part and has revised the State Merit List within the earliest possible time. The State Government and the Director of Medical Education have thereafter made available all the necessary information to the Court whenever required. They have also moved the Central Government and the Medical Council of India for a one time increase to overcome this situation. However, as we have noted subsequently, the problem was mainly confined to Medicine and Dentistry and other streams were not likely to be much affected. The State Government could have gone to the students community at the earliest and assured them with respect to these other streams. It could have informed them on its own that some more seats in Medicine and Dentistry, though not in the Prime Medical Colleges, but in the other Medical Colleges, were about to be increased. The State ought to have noted the inter-connection between Medical and other admissions such as Engineering and other Science Colleges and issued appropriate instructions to different authorities to protect the interest of the students. Such acts of assurance and information on the part of the State Government on its own would have helped the students community to gain some confidence in the disturbing situations. What we found is that the State Government itself was not very confident and therefore could not assure the students community In any manner whatsoever. In some of the letters received and submissions of intervening counsel, there was a criticism of the functioning the Maharashtra University of Health Sciences set up under the previous State Government. In some of the letters received, there was a severe criticism of the manner in which the previous State Government as well as the present State Government have treated education in general and medical education in particular, and that there has been a complete mess when it comes to medical admissions during last few years. Some parents have held the disputes between different political Governments and the Health University to be responsible for the lack of due care and attention. This picture of the functioning of the State Government was far from happy.

117. As far as the Central Government and the Medical Council of India are concerned, they are undoubtedly not responsible for the initial situation as it emerged. But they could have certainly helped the State Government to tide over this difficult situation by considering a one time increase in the Prime Medical Colleges run by the State Government and the Municipal Corporation. That would have been in tune with the expectation of Krishna Iyer, J. in State of Kerala v. T. P. Roshana (supra) to solve the problem on hand. In that matter, while criticising the rigid attitude adopted by Courts, Krishna Iyer, J. had observed “The Court cannot adopt a rigid attitude of negativity and sit back after striking down the scheme of Government leaving it to the helpless Government caught in a crisis to make-do as best as it may, or throwing the situation open to agitational chaos to find a solution by demonstrations in the streets and worse.” If we read “Medical Council of India” in place of “Court” in the above quotation, that will aptly describe the stand taken by Medical Council of India. The Medical Council of India is quite aware of the fact that most of these colleges are by and large well managed and they have all the adequate infrastructure. A small increase in each of these colleges as sought by the State Government could have given good number of seats to accommodate the upcoming Version 33 students and the entire dislocation could have been avoided. Whereas on the one hand, the Medical Council of India is saying no to the State Government for marginal one time increase in different colleges, on the other hand, we find that in some of the letters, the parents of the students have criticised the speed with which the colleges of the political leaders and increase of seats therein are approved by the Medical Council of India. The argument of Medical Council of India and the Central Government of course was that there could not be any such one time increase as claimed. We are not very much Impressed by this argument. If the Medical Council of India and the Central Government have the necessary power to control the intake capacity, that power under Section 10A can certainly be read to include the power to permit a one time increase in the seats. Besides, this provision does not expressly exclude such one time exercise. This was an extraordinary situation and the Medical Council of India and the Central Government could have reacted with a little more sensitivity than the way they did. The entire stand of Medical Council of India was to rely on the statutory provisions. They are within their rights to submit in that manner, At the same time, they must also appreciate that an authority, which has got so much centralised power, can act with flexibility in a difficult situation. In our view, both of them have failed to show any such sensitivity and flexibility. As seen in the earlier mentioned judgments, such situations requiring increase of a few seats have emerged on a number of occasions. There can always be a marginal increase of the seats for one batch which seats can be taken away after the requirement of that batch is over, unless the Medical Council of India decides to continue these increased seats. It is high time that the Medical Council of India evolves an appropriate scheme to deal with such situations at the earliest. Of course, white making these observations, we make it clear that it is only if these authorities were to clear this increase in seats as sought by the State Government that this Court could have considered absorbing the Version 33 students in these increased seats. However, we make it clear that the Court cannot give directions, as sought by some of the affected students, to Medical Council of India or to Central Government to increase the seats in the teeth of the law as it stands after the inclusion of Sections 10A, 10B and 10C in the Indian Medical Council Act.

118. As far as the students are concerned, we are quite conscious of, their difficulties and it is only to avoid large scale dislocation that much of the exercise was done. We are quite conscious that many of the students from Versions 11, 22 and 44 have taken their admissions in different colleges, they have paid their fees, bought their books and taken hostel accommodation also. They are going to be disturbed very badly in this exercise. As stated earlier, the only silver lining is that in all probability. most of the students will be accommodated though now as per their rank position. We would like to record that the students who attended the Court after notice under Order 1 Rule 8 of the C.P.C. was served on them, attended the proceedings in hundreds and yet acted in an exemplary manner. Nearly 700 students and their parents sent letters/representations. Some 40 students/parents filed Intervention applications and engaged Advocates. Their participation in the present proceedings in fact increased the responsibility of this Court. The Court would like to record its appreciation for the faith shown by the students community in the judicial process. Many of them will undergo a great trauma if at all they are required to shift. We only hope that they will have the courage to overcome this very unfortunate happening at the beginning of their career and proceed towards a brighter future.

119. We are undoubtedly not happy as to what is happening or the dislocation that will occur as a consequence of this order. At the same time, we cannot ignore that the law will have to take its own course.

Order and Directions

120. In the circumstances, we pass the following order and give the directions as below :-

(A) Orders on the petitions

(1) Writ Petition No. 1658 of 2001 is allowed in terms of prayer b(1). Consequently, the Respondent Nos. 1 and 2 are directed to publish and implement the revised merit list and grant admissions to the students strictly in accordance therewith including admissions to colleges of their choice in accordance with their respective position on the revised merit list. Consequently the admissions made on the basis of the earlier merit list will stand cancelled.

(2) All other petitions in Group “A” are also allowed to the above effect.

(3) Consequently the petitions in Group “B” above are all dismissed-

(4) As far as the petitions in Group “C” are concerned. Writ Petition No. 2150 of 2001 and Writ Petition (L) No. 2238 of 2001 are partly allowed in the sense that the revised merit list will be implemented. However, the prayer not to affect the admitted students cannot be entertained and Is rejected.

(5) Writ Petition No. 4158 of 2001 seeking addition of one mark to all the students is rejected.

(6) Writ Petition (L) No. 1889 of 2001 is allowed. The students who have the necessary supporting documents at the time and date of their counselling round to be held hereafter to establish their nationality or their reserved category will be permitted to produce those certificates provided of course their reserved category is already mentioned in the application forms filed by them and recorded in the book of revised merit list prepared by the Director of Medical Education and Research.

(7) All the chamber summonses and intervention applications are disposed of.

(B) Directions with respect to the fresh round of counseling

(1) At the time of calling the students for counselling, the Director of Medical Education and Research will also announce that as far as Medicine and Dentistry are concerned, 300 more seats in Medicine and 40 more seats in Dentistry have already become available. The State Government will approach the Maharashtra University of Health Sciences (M.U.H.S.), Nasik to grant recognition to these additional seats and the M.U.H.S. is expected to grant the recognition at the earliest.

(2) The Director of Medical Education and Research will publish a notice to the students by putting it up on the notice boards of all the Government and Municipal Medical Colleges and also ask the Private Medical Colleges to put them up that in view of the direction to implement the new revised list, the fresh round of counselling will start from Saturday, 29th September, 2001 at Mumbai. The necessary notice will be issued in the newspapers on Saturday, 22nd September, 2001 and will also be released on television. The necessary notice will be put up on the college notice boards as stated above latest by Monday, the 24th September, 2001. We are told that Saturday and Sunday are found more convenient by the students and hence the interviews are to start on Saturday, the 29th September, 2001. The new admissions and payment of fees by all the students will start from Monday, the 8th October, 2001.

(3) The candidates attending the interview must bring with them their previous selection letter with supporting documents and the admitted candidate, who fails to attend the interview at his/her merit position, will lost the existing seat permanently.

(4) As assured by the Director of Technical Education to this Court earlier in para 1(ii) of his affidavit affirmed on 16th August, 2001 (and as recorded in this order earlier), he shall inform the vacancy position of engineering admissions at the end of round 3B thereof to the Director of Medical Education. The Director of Medical Education will once again In the similar fashion as above publish that information for the benefit of the students who have passed the C.E.T. so that those who are desirous of a switch over will take necessary action. We are informed that this round 3B of engineering is not over as yet and C.E.T. students can participate therein as of now.

(5) The Director of Technical Education had made a statement on 16th August, 2001, and which we have recorded in para 5 of the order passed on that date, that although the engineering admissions had then started, those seats meant for N.R.I. quota and not filled till then and the 15% supernumerary quota will not be filled by the authorities of the Institutions running the Government Colleges, Municipal Colleges. Government Aided Colleges and the University Departments until further orders in the present matter by this Court. Now that we have directed a fresh round of admissions for Health Sciences Courses to be held, we have to make necessary further provisions. We are informed by Mr. Kumbhakoni, learned Special Counsel appearing for the State Government, that if the interviews start on 29th September, 2001, they will be over, at least for Medicine and Dentistry, on or before 7th October, 2001. It is on this footing itself that we have provided that the fees will be accepted from 8th October, 2001 onwards. We further direct that the above restraint on the engineering admission will continue until 10th October, 2001. This will enable those students, who are desirous of a seat in Medicine or Dentistry, to wait and see their position for these courses. They will get to know that by 7th October, 2001. The Director of Technical Education Is permitted to start the process for filling the remaining engineering seats from 10th October, 2001 onwards. The students, who wait for a seat in Medicine and Dentistry until 7th October, 2001, but who are not in a position to get one, will thereby get a chance to participate for the remaining engineering seats from 10th October, 2001. All the students, who are presently admitted to Medicine and Dentistry and whose admissions get cancelled because of this new round and who are not able to take admission In Medicine and Dentistry as per their choice, will be eligible to apply for engineering admissions. They will collect the necessary forms by 7th October, 2001 and tender them to the Director of Technical Education by 9th October, 2001. The next round for these remaining seats in engineering will start from 10th October. 2001. While appearing for Engineering interviews, the student concerned will bring with him/her the appropriate proof to point out that he/she was admitted in Medicine or Dentistry and now those admissions are cancelled.

(6) In the event of Director of Medical Education and Research coming to know of the increase of further 200 seats in Dentistry (in the two Private Medical Colleges at Pune and Sangamner as stated earlier), the same will also be put into this Interview if the Information is received before hand.

(7) In the event these seats becoming available on or before 15th October, 2001, the Director of Medical Education and Research will offer them to those who are In the higher rank position, but who have missed out the admission to Medicine or Dentistry including those who have been presently dislodged from these two streams.

(8) Within one week after this new round of admissions getting over, the State Government will examine the position as to whether any of the students dislodged from Medicine and Dentistry are remaining for want of admissions in those streams and will apply to the Central Government under Section 10A of the Indian Medical Council Act for the increase of seats In the Government and Municipal Medical Colleges and follow It up. The Medical Council of India will process the application within two months from the receipt thereof from the Central Government. The Central Government is expected to forward the same to the Medical Council of India at the earliest after receiving it from the State Government and to take decision on the recommendations of the Medical Council of India immediately on receiving the same.

(9) If such additional seats become available well before the next academic year, the students getting dislodged from Medicine and Dentistry will be considered with preference in accordance with their revised rank position. It is however made clear that if these seats become available rather late and by the time of initiating the admissions for the next academic year, the revised merit position will be of no use.

(C) Direction on payment of fees

In the event a student is required to cancel his admission from a college, where he is already admitted, the authorities of the college/ institution concerned will refund him his entire fees and return original documents received by them within 72 hours. The authorities of the college/institution, where the student is now to be admitted, will give him sufficient time to pay his fees and to tender original documents which should be a period of about one week, if not more, from the time the student approaches the college/institution for admission. In all those cases, where the students have taken hostel accommodation, they will be refunded proportionate hostel fees within 72 hours of the students reporting accordingly. The authorities of the State Government are expected to take a strict view of any breach of this direction.

(D) Direction on course of studies and grant of term

(1) As far as the students, who are admitted in a particular stream, but who after this new counselling will go to another college of that very stream are concerned, they will be continuing their studies in the very stream although in another college. However, for the benefit of the students coming into a new stream altogether, the college concerned will open an additional division or sub-division at least for a short period so that they come up with the other students at the earliest. We are stating so since we are informed by the Counsel for all concerned that the same is the practice whenever such additional students come to any college.

(2) We are informed that three of the subjects in the first year of Medicine and Dentistry are common. They are (1) Anatomy (2) Physiology and (3) Bio-Chemistry. For the students going to Dentistry however, there is one more extra subject, i.e. Dental Materials. For the students undergoing an interchange in these two streams and going to Dentistry, necessary arrangements will be made by the colleges to help the students to pick up the course in the subject of Dental Material required to be studied in the new stream.

(3) The M.U.H.S., Nasik is directed to grant the first term to all the students who Join the colleges on or before 31st October, 2001. The attendance and performance of the students in the same course shall be taken into consideration even if there is any change in the college. Similarly the first term of the students going into whichever stream shall be granted. This is on the footing that the students will pick up the remaining course by the end of the second term.

(E) Directions with respect to other courses

(1) The State Government will take all necessary steps to accommodate the students who are presently admitted in Ayurved, Unant Medicine and Homoeopathy courses by increasing the seats if required, wherever possible. The Central Council of Indian Medicine and the Central Council of Homoeopathy will co-operate with the State Government in this behalf.

(2) Similarly, the State Government will take appropriate steps to increase the required number of seats in Occupational Therapy, Physio Therapy, Audiology & Speech Therapy and Prosthetics & Orthotics. The M.U.H.S. will grant recognition to these additional seats.

(F) Direction for the future examination

(1) With a view to bring in transparency and to avoid such a situation in future, the Director of Medical Education is directed to consider publishing questions and correct answers in words and their appropriate key position (a, b, c or d) within one week of the examination for all the versions.

(2) The Director of Medical Education will examine and evolve a better and more satisfactory method of verification of answer books.

(3) As we have seen from a number of judgments noted earlier, such situations of requiring additional seats at the last moment have emerged often and there is need to have a mechanism to deal with such situations. We direct the Medical Council of India to evolve such appropriate scheme within six months hereof so that any such eventuality hereafter can be taken care of.

(G) Costs

The 13 petitioners (excluding Petitioner No. 12, who is not prosecuting this petition) from Writ Petition No. 1658 of 2001 are entitled to their costs. Similarly, all the other Petitioners in Group “A”, in all 25 in number, (excluding Priyanka Borde of Suo Motu Writ Petition No. 1971 of2001)will be entitled to the costs of this petition and we direct the Respondent No. 1 – State of Maharashtra to pay the costs of Rs. 2,000/- to each of these Petitioners. Thus the State will have to pay in all Rs. 50,000/- towards costs.

(H) Action against the two Biology Examiners

(1) The two Examiners of Biology, who are responsible for these serious mistakes, must face the consequences. These two Professors are not before us nor are we disclosing their names from the point of view of confidentiality and their security. However, we have perused the report made by the Director of Medical Education and Research to the State Government which records that they have accepted their mistakes. The two Professors have expressed their apology for the same in writing executed on 1st August, 2001. It is on this footing that this order is being passed.

(2) Inasmuch as it is these two Examiners of Biology, who are responsible for this situation, we direct the State Government to take necessary punitive action against both of them as promised by the State.

(3) It will be open to the State Government to recover Rs. 25,000/- each from these two Examiners, which the State is required to pay to the Petitioners by way of costs.

(4) The State Government shall inform all the Universities in the State that they will be expected to take steps in accordance with law to debar these two Examiners from any future examination work or any administrative work or position concerning examinations.

(5) If these two Examiners of Biology are aggrieved by this order, it will be open for them to apply to the Court for modification of this order.

(I) All the petitions stand disposed of as above

121. We conclude this Judgment by expressing our gratitude to all the counsel appearing in the matter for rendering effective assistance.

Request for stay

122. Mr. Jamdar appearing for Respondent No. 4 prays that the entire schedule laid down in this order be postponed by one week, in the sense that the notice to be published on 24th September, 2001 be published on 1st October, 2001 and all further steps be postponed by one week thereafter.

123. Mrs. Samant appearing for Respondent No. 5 states that the counselling may proceed upto 7th October, 2001 but admissions to be effected thereafter be postponed by two weeks further.

124. Mr. Harsh Desai appearing for one of the interveners prays for a straight stay for two weeks. Mr. Bhat appearing for one more intervener also prays for stay of three weeks. Mr. Reddy appearing for the Petitioners
with Mr. Thorat in Writ Petition No. 2150 of 2001 prays for a stay for four
weeks.

125. We will deal with the request of Mr. Reddy first. This is because the submission made on behalf of the two Petitioners by Mr. Thorat and Mr. Reddy during the hearing of the main petition was that the new list be made operational. The only other submission was that the list be operated in such a way that the presently admitted students are not affected. He therefore cannot be heard to seek a stay on counselling which is to go on till 7th October, 2001 for Medicine and Dentistry.

126. The request of Mrs. Samant appearing for Respondent No. 5 is for a stay of two weeks after the counselling is over by 7th October, 2001. Mr. Jamdar is asking for postponement of the entire schedule by one week. In our view, all these concerned parties as also those represented by Mr. Harsh Desai, who have sought a stay of two weeks, can move the Apex Court, if they want to, by 7th October, 2001. They clearly get two weeks till then. The admissions are to be effected only from 8th October, 2001. Any postponement will create difficulties for the list to be finalised and to be forwarded to the Medical Council of India and to the Universities by 31st October, 2001, which is the last date under the M.C.I. Regulations. As stated earlier, 340 additional seats in Medicine and Dentistry have already become available and they are to be included in the seats for interview. This being the position, whether any prejudice is going to be caused and to how many of these students will be known only by 7th October, 2001. As far as the border line students are concerned, they can certainly have their guess work as of now and if they are unhappy with this order, they can carry it to the Apex Court within the above period of two weeks as is available to them.

127. The grievance of the students already admitted as against the Version 33 students was that there was a delay on their part. It was stated that they were seeking midstream admissions. The courses have begun. This being the position, in our view, having followed the law laid down by the Apex Court and having done nothing more, the request for stay cannot be accepted. Prayer for stay is rejected.

128. Authenticated copy of this order be made available to the parties.