IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.944 of 2011
In
Civil Writ Jurisdiction Case No. 8262 of 2011
With
Interlocutory Application No. 4275 of 2011
In
Letters Patent Appeal No.944 of 2011
======================================================
1. Kaithar Medical College, Katihar through its Managing Director,
Karimbagh, P.S. Katihar Muffasil, District-Katihar.
2. The Principal Katihar Medical College.
.... .... Appellants/Respondents
Versus
1. The State of Bihar
2. The Principal Secretary, Department of Health and Family Welfare,
Government of Bihar, Patna.
3. Bihar Combined Entrance Competitive Examination Board,
Government of Bihar, Patna.
4. The Controller of Examination, Bihar Combined Entrance Competitive
Examination Board, Government of Bihar, Patna.
5. Bhupendra Narayan Mandal University, Lalu Nagar, Madhepura, P.S.
and District-Madhepura through its Registrar.
.... .... Respondents
6. Dr. Sadhna Kumari D/o Yadu Singh, resident of Flat No. M/82, Asha
Singh Chowk, Housing Board, Gaya.
7. Dr. Nirendra Anand S/o Dr. Birendra Kumar Gupta, resident of Flat
No.302, Deokinandan Apartment, Near Ashiana Housing Home Main
Road, Khajpura, P.S. Shastri Nagar, District-Patna.
8. Dr. Abhay Kumar, S/o Sri Narendra Sharma, resident of Village-
Thumathi, P.S.-Kinjer, District-Arwal.
9. Dr. Abhishek Basuka S/o Dr. Barkinath Gupta, resident of Basuki Villa,
2 Patna High Court LPA No.944 of 2011 (3) dt.08-07-2011
2 / 11
Opposite Maria Academy, Kalisthan, Machhua Toli, P.S. Danapur,
District-Patna.
10. Dr. Binita Singh, D/o Ram Gopal Singh C/o Dr. Shailendra Mishra,
Sector-C, Housing No.C/C60, Peoples Co-operative Colony,
Kankarbagh, P.S.-Kankarbagh, District-Patna.
11. Dr. Md. Mushir Reyaz son of Md. Niyzmuddin at and P.O. Sarsasiya,
P.S. Bettia Gadar, District-West Champaran.
12. Dr. Sumol Ratan S/o Dr. Amar Nath Prasad Gupta, resident of Village
and P.O.-Rajapakar, P.S. Rajapakar, District-Vaishali.
13. Dr. Gunjan D/o Dr. Surendra Prasad Singh, resident of Mohalla-
Hanuman Path Tilka Manjhi, P.S. Kotwali, District-Bhagalpur.
14. Dr. Gagan Gunjan, S/o Tarakant Thakur, Resident of Mohalla-
Tulsinagar Bank Colony, Bhagalpur, P.S. Tilka Manjhi, District-
Bhagalpur.
.... .... Respondents-Writ Petitioners
======================================================
With
Letters Patent Appeal No.945 of 2011
IN
Civil Writ Jurisdiction Case No. 8314 of 2011
With
Interlocutory Application No. 4276 of 2011
In
Letters Patent Appeal No.945 of 2011
======================================================
Mata Gujri Memorial Medical College (MGMMC), Kishanganj, P.S.
Kishanganj, Dist.-Kishanganj through its Director Dr. Dilip Kumar Jaiswal.
.... .... Appellant-Respondent
Versus
1. The State of Bihar
2. The Principal Secretary, Department of Health and Family Welfare,
Government of Bihar, Patna.
3. The Bihar Combined Entrance Competitive Examination Board,
Government of Bihar, Patna.
4. The Controller of Examination, Bihar Combined Entrance Competitive
3 Patna High Court LPA No.944 of 2011 (3) dt.08-07-2011
3 / 11
Examination Board, Government of Bihar, Patna.
5. Bhupendra Narayan Mandal University, Lalu Nagar, Madhepura, P.S.
and District-Madhepura through its Registrar.
6. Medical Council of India, New Delhi.
.... .... Respondents
7. Dr. Anil Kumar Sharma, Son of Shri Shiv Shankar Sharma, Resident of
C/119, 2nd Floor, Near Blind School, P.S. Rajendra Nagar, New
Rajendra Nagar, New Delhi 110 060.
8. Dr. Rani Navomita, D/o Sri Krishna Prajapati, C/o Dr. Panna Lal Pandit,
Resident of Mohalla Ajanta Colony, Opposite Green Field Public
School, Kesri Nagar, Road No.1, P.S. Patliputra District Patna.
9. Dr. Pallavi Sharma, D/o Dr. Dilip Kumar Sharma, Resident of Mohalla-
Chandra Niketan, Law College Road, Mahendru P.S. Sultanganj,
District-Patna.
10. Dr. Md. Ainul Haque, S/o Md. Abdul Rahman, Resident of Village
Azampur, Markha P.S. Barari, District-Katihar.
11. Dr. Abhishek Sharma, S/o Dr. Satyadeo Sharma, Resident of 1338 Sec.
41 Urban Estate Near CCA School, Gurgaon, Haryana-122 001.
12. Dr. Sumit Garg, S/o Mr. Raj Kumar Garg, Resident of House No.113,
Lane No.6C, Molaband Extension, Badarpur, P.S. Badarpur, New Delhi.
13. Dr. Alamgir Shams, S/o Shamshul Haque Ansari, Resident of Mohalla-
Dharmpur, Ward No.02, P.O., P.S. & District-Samastipur.
.... .... Respondents-writ petitioners
======================================================
With
Letters Patent Appeal No.969 of 2011
IN
Civil Writ Jurisdiction Case No. 8262 of 2011
With
Interlocutory Application No. 4404 of 2011
In
Letters Patent Appeal No.969 of 2011
======================================================
Dr.Ram Akhilesh Singh, son of Shri Ram Krishna Singh, resident of C/o
Late Jamuna Prasad Yadav, Kannu Lal Road, Mithapur, Patna.
4 Patna High Court LPA No.944 of 2011 (3) dt.08-07-2011
4 / 11
.... .... Appellant
Versus
1. The State of Bihar
2. The Principal Secretary, Department of Health and Family Welfare,
Government of Bihar, Patna.
3. Bihar Combined Entrance Competitive Examination Board,
Government of Bihar, Patna.
4. The Controller of Examination, Bihar Combined Entrance Competitive
Examination Board, Government of Bihar, Patna.
5. Bhupendra Narayan Mandal University, Laloo Nagar, Madhepura, P.S.
and District-Madhepura through its Registrar.
6. The Medical Council of India, New Delhi
.... .... Respondents-Respondents
7. Dr. Sadhna Kumari D/o Yadu Singh, resident of Flat No. M/82 (Plot),
Asha Singh Chowk, Housing Board, Gaya.
8. Dr. Nipendra Anand S/o Dr. Birendra Kumar Gupta, resident of Flat
No.302, Deoki Nandan Apartment, Near Ashiana Housing Home Main
Road, Khajpura, P.S. Shastri Nagar, District-Patna.
9. Dr. Abhay Kumar, S/o Sri Narendra Sharma, resident of Village-
Jhunathi, P.S.-Kinjer, District-Arwal.
10. Dr. Abhishek Basuka S/o Dr. Baskinath Gupta, resident of Basuki Villa,
Opposite Maria Academy, Kali Sthan, Machhua Toli, P.S. Danapur,
District-Patna.
11. Dr. Md. Mushir Reyaz son of Md. Nezamuddin resident of at and P.O.
Sansariya, P.S. Bethia Sadar, District-West Champaran.
12. Dr. Sumol Ratan S/o Dr. Amarnath Prasad Gupta, resident of Village
and P.O.-Rajapakar, P.S. Rajapakar, District-Vaishali.
13. Dr. Gunjan daughter of Dr. Surendra Prasad Singh, resident of Mohalla-
Hanuman Path, Tilka Manjhi, P.S. Kotwali, District-Bhagalpur.
.... .... Petitioners-Respondents
======================================================
Appearance :
(In LPA No.944 of 2011)
For the Appellants : Mr. Yadu Vansh Giri, Senior Advocate
Mr. Dharmeshwar Mishra, Advocate
5 Patna High Court LPA No.944 of 2011 (3) dt.08-07-2011
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Mr. Sheojee Prasad, Advocate
For the Respondent State : Mr. Lalit Kishore, AAG-1 with
Mr. Ravindra Kr Choubey, SC-8
For the BCECB : Mr. Vikash Kumar, Advocate
For the MCI : Mr. Kumar Brajnandan, Advocate
For the Respondent- Mr. Rajendra Pd. Singh, Sr. Advocate with
Writ petitioners Mr. Subodh Kumar Jha, Advocate,
Mr. Krishna Murari, Advocate
Mr. Bidhan Chandra Jha, Advocate
Mr. Sarveshwar Tiwary, Advocate
(In LPA No.945 of 2011)
For the Appellants : Mr. Basant Kumar Choudhary, Senior
Advocate
Mr. Dharmeshwar Mishra, Advocate
Mr. Sheojee Prasad, Advocate
For the Respondent State : Mr. Lalit Kishore, AAG-1 with
Mr. Ravindra Kr Choubey, SC-8
For the BCECB : Mr. Vikash Kumar, Advocate
For the MCI : Mr. Kumar Brajnandan, Advocate
For the Respondent- Mr. Rajendra Pd. Singh, Sr. Advocate with
Writ petitioners Mr. Subodh Kumar Jha, Advocate,
Mr. Krishna Murari, Advocate
Mr. Bidhan Chandra Jha, Advocate
Mr. Sarveshwar Tiwary, Advocate
(In LPA No.969 of 2011)
For the Appellant : Mr. Abhinav Srivastava, Advocate
For the Respondent State: Mr. Lalit Kishore, AAG-1
For the MCI : Mr. Kumar Brajnandan, Advocate
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
6 Patna High Court LPA No.944 of 2011 (3) dt.08-07-2011
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3. 08-07-2011 These three Appeals preferred under Clause 10 of the
Letters Patent arise from the common order dated 27 th June 2011
made by the learned single Judge pending the above C.W.J.C. No.
8262 of 2011 and other writ petitions.
The subject matter of dispute is the admission to post
graduate medical courses granted by the Katihar Medical College
and Mata Gujri Memorial Medical College, Kishanganj
(hereinafter cumulitatively referred to as „the Colleges‟). Both the
aforesaid Colleges are admittedly non-government, non-grant-in-
aid, minority colleges. According to the Colleges, they being
minority, non-grant-in-aid colleges, they have exclusive right of
governance and admission to medical courses. In exercise of the
same they have granted admission to post graduate medical
courses on the basis of the result of the Post Graduate Medical
Entrance Test-2011 conducted by the Private Medical Colleges
Association, Bihar (hereinafter referred to as „the Association‟).
Such admissions were granted in the last week of April 2011.
The said admissions have been challenged by the
private respondents, the qualified Doctors, seeking admission to
post graduate medical courses pursuant to the result of the Post
Graduate Medical Admission Test-2011 conducted by the Bihar
Combined Entrance Competitive Examination Board, Government
of Bihar (hereinafter referred to as „the Examination Board‟).
According to the writ petitioners, they have successfully passed the
aforesaid admission test conducted by the Examination Board.
They have a right to admission to post graduate medical courses on
50% of the seats sanctioned by the Medical Council of India in the
non-government, non-grant-in-aid medical colleges.
The learned single Judge has, after hearing the parties,
7 Patna High Court LPA No.944 of 2011 (3) dt.08-07-2011
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pending the writ petitions held, “….. till Regulation-9 of Medical
Council of India is declared to be unconstitutional the private
medical college of India do not have a right to resist admission
under 50% State quota which has been provided for in the
year 2009.” Consequently, the learned single Judge has directed
the Colleges to refund the full fees to those students who have
been admitted on 50% State quota. The Court further directed the
Colleges, “to offer admission forthwith to all the petitioners
who are before this Court up to 30th June 2011”.
Feeling aggrieved by the aforesaid directions, the
Katihar Medical College has preferred the above Letters Patent
Appeal No.944 of 2011 and the Mata Gujri Memorial Medical
College has preferred above Letters Patent Appeal No.945 of 2011.
Letters Patent Appeal No.969 of 2011 is preferred by one of the
post graduate students with the leave of this Court. He apprehends
that in case above referred directions are permitted to be
implemented his admission to DCP (Pathology) (a post graduate
medical course) in Katihar Medical College may be cancelled.
Learned counsel Mr. Y.V. Giri has appeared for the
appellant Katihar Medical College. He has assailed the order of the
learned single Judge on the basis of the observations made by the
Hon‟ble Supreme Court in the matter of T.M.A. Pai Foundation v.
State of Karnataka, [(2002) 8 SCC 481]. He has submitted that
Article 15(5) of the Constitution read with Article 130 of the
Constitution read with the observations made by the Hon‟ble
Supreme Court in the above referred matter of T.M.A. Pai
Foundation followed by the Hon‟ble Supreme Court in the matter
of P.A. Inamdar v. State of Maharashtra, [(2005) 6 SCC 537];
the Colleges are, being minority, non-government, non-grant-in-
8 Patna High Court LPA No.944 of 2011 (3) dt.08-07-2011
8 / 11
aid institutions, fully empowered to control their administration
and also admission to various courses offered by the Colleges. The
State Government has no right to interfere in the said matters. Mr.
Giri has particularly relied upon observations made in paragraphs
45, 50, 55 and 68 of the judgment in the matter of T.M.A. Pai
(supra) and paragraphs 109, 110, 121, 124, 129, 130, 132 and 134
of the judgment in the matter of P.A. Inamdar (supra). He has also
submitted that against the prospectus issued by the State
Government incorporating 50% of the seats sanctioned for the
Colleges for common admission test conducted by the
Examination Board, the Colleges had lodged objection as early as
on 3rd March 2011. The Colleges, therefore, cannot be compelled
to give admission to the successful students of the common
admission test conducted by the Examination Board.
Learned advocate Mr. Basant Kumar Choudhary has
appeared for the appellant Mata Gujri Memorial Medical College,
Kishanganj, the appellant in Letters Patent Appeal No.945 of 2011.
He has adopted the aforesaid arguments advanced by Mr. Giri.
Learned advocate Mr. Abhinav Shrivastava has
appeared for the appellant in Letters Patent Appeal No.969 of
2011. He has submitted that if the impugned order made by the
learned single Judge is sustained, some 20 students admitted to the
post graduate medical courses in Katihar Medical College will lose
their admission. It was, therefore, essential that such students were
heard before the impugned order was made. The appellant, not
being a party to the petition, his admission cannot be adversely
affected by the impugned order.
The appeals are contested by the learned Government
advocate Mr. R.K.Choubey and the learned Additional Advocate
9 Patna High Court LPA No.944 of 2011 (3) dt.08-07-2011
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General Mr. Lalit Kishore appearing for the State of Bihar and by
Mr. Rajendra Prasad Singh appearing for the writ petitioners.
Reliance is placed on Regulation-9 of the Medical Council of India
Postgraduate Medical Education Regulations, 2000. It is submitted
that proviso to Regulation-9 of the said Regulations specifically
provides, “Provided further that in non-Governmental
institutions fifty per cent of the total seats shall be filled by the
Competent Authority notified by the State Government and
the remaining fifty per cent by the management(s) of the
institution on the basis of Inter-se Academic Merit.”
The aforesaid regulations have been framed by the
Medical Council of India in exercise of power conferred by
Section 33 read with Section 20 of the Indian Medical Council
Act, 1956 with the previous sanction of the Central Government.
The said Regulations, unless held to be ultra vires by a Court of
law, are binding. All non-Government medical colleges are bound
by the said Regulations. It is not in dispute that the constitutional
validity of the aforesaid proviso to Regulation-9 of the Regulations
is the subject matter of challenge before the Hon‟ble Supreme
Court in the Writ Petition (Civil) No. 584 of 2009 filed by the
appellant Katihar Medical College under Article 32 of the
Constitution. Pending the said writ petition the Hon‟ble Court has,
on 14th May 2011 made order as under:
“As the State is in the process of sending
candidates for the 50% seats and in fact, has
already sent 8 students, interim relief is rejected.
However, admission of the students sent by the
State Government will be without prejudice to the
contentions of the petitioner and therefore will not
10 Patna High Court LPA No.944 of 2011 (3) dt.08-07-201110 / 11
be a precedent for the future.”
It is thus evident that though the Hon‟ble Court has
said that the above order shall not be a precedent, the Court has not
granted stay against the operation of the aforesaid proviso to
Regulation-9 of the Regulations. It cannot be gainsaid that the
State Government issued the prospectus for post graduate medical
admission test 2011 as early as on 11th December 2010. In the said
prospectus half of the seats sanctioned for the Colleges have also
been included in total number of the seats available for admission.
Nevertheless, the Colleges did not take any action until the month
of March 2011. Even then the Colleges thought it fit not to go
further than lodging objection. In our view, it is apparent that
lodging of the objection in the month of March 2011 was a mere
formality followed with a view to saving the admissions that the
Colleges intended to make in the month of April 2011.
In the above circumstances, we dismiss these appeals
for the reasons:- (i) The order impugned is an interim order made
pending the writ petitions; (ii) The Regulations framed by the
Medical Council of India are statutory in nature and are binding to
the appellant Colleges as well; and (iii) While granting admissions
to the students on the basis of the competitive examination
conducted by the Association the appellant Colleges were fully
conscious of their obligation to spare half of the seats for
admission from amongst the students passing the common
admission test conducted by the Examination Board.
As to the Letters Patent Appeal No.969 of 2011, the
appellant merely apprehends that the axe may fall on his admission
if the impugned order is permitted to be implemented. At the
moment the admissions have not yet been worked out. It is not
11 Patna High Court LPA No.944 of 2011 (3) dt.08-07-2011
11 / 11
possible to find out who will be the victim of the illegal admissions
granted by the Colleges.
Be that as it may, as the writ petitions are still at large
before the learned single Judge, the said appellant and any other
aggrieved person may join as party-respondent in the pending writ
petitions.
For the aforesaid reasons the Appeals are dismissed.
Interlocutory Applications are disposed of.
(R.M. Doshit, CJ)
(Birendra Prasad Verma, J)
Pawan Kumar/-