REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICITION
CIVIL APPEAL NOS. 8429-8430 OF 2010
(Arising out of S.L.P. (C) Nos.26164-26165 of 2010
R.D. Gardi Medical College & Anr. etc. ...Appellants
Versus
State of M.P. & Ors. ...Respondents
JUDGMENT
T.S. THAKUR, J.
1. Leave granted.
2. These appeals are directed against an order dated 30th July,
2010 passed by the High Court of Madhya Pradesh in Writ Petitions
Nos. 6876 and 8979 of 2009 whereby a total of 15 seats in the 1st year
MBBS course have been directed to be reduced from out of the
management quota of the appellant-college for the academic session
2010-2011, with a direction to the Admission and Fee Regulator
Committee to ensure that the order passed by the Court is carried out
in letter and spirit. The facts giving rise to the filing of the writ
petitions may be summarized as under:
3. For the academic session 2006-2007 the appellant-M/s R.D.
Gardi Medical College, Ujjain, admitted to the first year of MBBS
course as many as 19 students who had not secured 50% marks in
the examination conducted by the Association of Private Medical and
Dental College of M.P. The legality of the said admissions came up for
scrutiny before the High Court who declared the same to be illegal
hence liable to be cancelled. Aggrieved by the said order the affected
students approached this Court in Civil Appeal Nos.5518-5521 of 2008
which were disposed of by this Court by an order dated 4th September,
2008 holding that the college was not justified in giving admission to
students who were not eligible in terms of the relevant rules. This
Court, however, permitted the students to continue their studies but
directed that an equal number of seats shall be reduced from the
management quota of the college for the academic session 2009-
2010. This Court said:
“The management of the R.D. Gardi Medical college
was not justified in giving admission to these students.
Certainly, they must be aware of the fact that the
candidates should have secured at least 50% marks in
the entrance examination but the learned senior
counsel appearing for the college says that they were
not aware of the marks secured by these candidates as
the entrance examination was held by a different
association as the marks were not furnished to them by
the association. However, as the admission is found to
be irregular, equal number of students shall be reduced
from the management quota for the year 2009-10.
The appeals are disposed of accordingly. No
costs.”
(emphasis supplied)
4. By an order dated 22nd April, 2009 passed by the High Court in
Writ Petitions No.5592 of 2008 and 5624 of 2008, on the analogy of
the order of this Court extracted above two more seats against which
the said petitioners were admitted without satisfying the essential
condition of eligibility were also directed to be reduced from
management quota of the appellant-college for the academic session
2009-2010 thereby taking the total number of seats to be reduced
from the quota of the management to 21.
5. On the receipt of the orders abovementioned the Medical
Council of India sent a communication dated 26th May, 2009
requesting the Principal Secretary, Government of Madhya Pradesh
and the Director of Medical Education, Madhya Pradesh to fill up 21
seats (19 admission as per the Order of this Court dated 4th
September, 2008 and 2 admission as per the order dated 22 nd April,
2009 passed by the High Court of Madhya Pradesh) through MPCET
entrance test for the academic session 2009-2010. Writ Petition
No.2732 of 2009 filed by the private educational institutions before
the High Court of Madhya Pradesh challenging the constitutional
validity of what is known as “M.P. Niji Vyavsayik Shikshan Sanstha
(Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007”
was in the meantime disposed of by the High Court on 21st May, 2009,
aggrieved whereof the private educational institutions filed Civil
Appeal No.4060 of 2009 in this Court by special leave. This Court
noticed that the common question of law that arose in the said batch
of appeals was as to how far it was permissible under the Constitution
for the State to control and regulate admissions and fee in private
unaided professional educational institutions in the State of Madhya
Pradesh. Relying upon the decisions rendered by this Court in T.M.A.
Pai Foundation v. State of Karnataka (2002) 8 SCC 481, Islamic
Academy of Education v. State of Karnataka (2003) 6 SCC 697
and P.A. Inamdar & Ors. v. State of Maharashtra & Ors. (2005) 6
SCC 537 this Court prima facie came to the conclusion that the
impugned enactment in so far as the same handovers the entire
selection process to the State Government or the agencies appointed
by it for under-graduate, graduate and post-graduate medical/dental
colleges and fee fixation was contrary to the observations made by the
11-Judges Bench of this Court in T.M.A. Pai’s case (supra). This Court
further observed that a literal interpretation of the Act would render
the same unconstitutional. An interim arrangement was accordingly
made under which 15% seats were to be first excluded towards NRI
quota to be filled up by the private institutions as per the observations
made by this Court in Inamdar’s case (supra). Out of remaining 85%
seats available for admission to the under-graduate and post-graduate
courses 50% were to be given to the State Government while the
remaining 50% were to be filled up on the basis of a selection process
to be conducted by the Association of Private Medical and Dental
Colleges who were to hold their own separate entrance examinations
for the purpose. The following passage from the said order is, in this
regard, relevant:
“We, therefore, direct that the admissions in the
private unaided medical/dental colleges in the State of
Madhya Pradesh will be done by first excluding 15%
N.R.I. seats (which can be filled up by the private
institutions as per para 131 of Inamdar’s case), and
allotting half of the 85% seats for admission to the
under-graduate and post-graduate courses to be filled
in by an open competitive examination by the State
Government, and the remaining half by the Association
of the Private Medical and Dental Colleges. Both the
State Government as well as the Association of Private
Medical and Dental colleges will hold their own
separate entrance examination for this purpose. As
regards the `NRI Seats’, they will be filled as provided
under the Act and the Rules, in the manner they were
done earlier.
We make it clear that the aforesaid directions
will for the time being only be applicable for this
academic year i.e. 2009-10. We also make it clear that
if there are an odd number of seats then it will be
rounded off in favour of the private institutions. For
example, if there are 25 seats, 12 will be filled up by
the State Government and 13 will be filled up by the
Association of Private Medical/Dental Colleges. In
Specialities in P.G. courses also half the seats will be
filled in by the State Government and half by the
Association of Private Medical/Dental Colleges and any
fraction will be rounded off in favour of the Association.
In other words if in any discipline there are, say, 9
seats, then 5 will be filled in by the Association and
remaining 4 will by the State Government. Capitation
fee is prohibited, both to the State Government as well
as the private institutions, vide para 140 of Inamdar’s
case (supra). Both the State Government and the
Association of Private Medical/Dental Colleges will
separately hold single window examinations for the
whole State (vide para 136 of Inamdar’s case (supra).”
6. The Government of Madhya Pradesh constituted a Counseling
Committee comprising of nine bureaucrats and the Secretary of the
Association. The said Committee undertook an exercise for distribution
and allocation of seats in the appellant-college for the academic
session 2010-11 in compliance with order dated 4th September, 2008
passed by this Court and that passed by the High Court of Madhya
Pradesh on 22nd April, 2009. We shall presently deal with the allocation
so made by the Committee but before we do so we need to point out
that Writ Petition No.8979 was filed by Nidhi Ahankari and another in
public interest, inter alia, praying for a writ of certiorari quashing the
allocation and distribution of seats made by the appellant-college and
a mandamus directing that 46 seats of the said college and 21 seats of
management quota making a total of 67 seats be filled up by the
State Government on the basis of the merit of the candidates in the
PMT quota. The writ petition alleged that the allocation of seats
between the management and the State was not proper nor was the
reduction of 21 seats from the management quota given effect to as
directed by this Court. The result, alleged the petitioners, was that the
meritorious candidates entitled to said quota were deprived of
admission to the appellant-college.
7. By an interim order passed by the High Court on 23rd July,
2010 the appellant was directed to keep 10 seats vacant out of the
seats filled by the APDMC of the appellant-college as the High Court
was prima facie of the opinion that calculation and allocation of seats
required to be surrendered by the college, was wrong and that the
appellant had been permitted to fill up the seats in violation of the
orders passed by this Court. That order was followed by an order
dated 30th July, 2010 impugned in the present appeal allowing the writ
petitions and directing 10 seats to be reduced from out of the
management quota for the academic session 2010-11 in compliance
with the order of this Court dated 4th September, 2008 and that
passed by the High Court of Madhya Pradesh on 22nd April, 2009. The
High Court took the view that 21 seats permitted to be reduced from
the management quota had been erroneously reduced from the total
of 100 seats available in the college which was not correct
understanding of the order passed by this Court on 4th September,
2008 and that passed by the High Court in Writ Petition No.6876 of
2009 dated 31st August, 2009. The High Court observed:
“What was proposed by the State Government
in its return had the effect of reducing 21 seats out of
total available 100 seats which included a seat of the
State quota also whereas there was clear direction of
the Apex Court in its order dated 4.9.2008 and the
order of this Court in Writ Petition Nos.5592/2008 &
5654/2008 decided on 22.4.2009 to reduce the
management quota seats only. The State initially
wanted to benefit the management by its action and
wanted to proceed on the basis of what was proposed
by the College. There was no room to violate the
aforesaid order also passed on 31.8.2009.
There was absolutely no room to entertain any
doubt whatsoever as the orders passed by the
Supreme Court and this Court clearly indicate that the
seats were to be reduced out of the management
quota. But seats were reduced from State quota also
resulting in filling of 10 seats than permissible by D.
MAT by College.”
8. In so far as NRI seats for the session 2009-10 were concerned, the
High Court noticed that 10 seats had remained vacant in the State
quota as only 5 of such seats were filled up. Unfilled NRI seats had,
therefore, to be shared between the State and the appellant-college in
equal proportion. The High Court rejected the contention that the said
seats had to be filled up entirely by the management of the college. It
observed:
“It is submitted by Shri Rajendra Tiwari senior
counsel appearing on behalf of the Management that
the Supreme Court has mentioned that the seats of
NRI quota have to be filled in as used to be done
earlier. Thus, the Supreme Court meant the seats
were to be filled in by APDMC.
The aforesaid submissions cannot be accepted
in view of the order passed by the Supreme Court.
There was no direction issued by the Supreme Court
that the unfilled NRI seats are to be filled in by the
students on the basis of the DMAT examination
conducted by APDMC. The intention of the order is
clear that out of the available seats, 50% are to be
filled in by the State quota and 50% by DMAT
examination.”
9. The High Court accordingly directed 5 seats which were
wrongly filled up by the management of the college for the session
2009-10 to be reduced from out of the management quota taking the
total number of seats to be reduced for the session 2010-2011 to 15.
The Court observed:
“Thus, we direct 5 seats in addition to the 10
seats which have been agreed to be reduced in the
aforesaid part of the order total 15 seats be
surrendered by the Institution to the State quota for
the year 2010-2011. The management quota shall
stand reduced by further 15 seats for the year 2010-
2011.”
10. The present appeals, as noticed earlier assail the correctness of
the above directions.
11. We have heard learned counsel for the parties at considerable
length and gone through the record including the orders passed by
this Court and those passed by the High Court of Madhya Pradesh.
These appeals, in our opinion, are an abuse of the process of law. We
say so for two precise reasons. Firstly, because the order passed by
the High Court has on more than one occasions recorded the consent
of the appellant-institution to the reduction of 10 seats from the
management quota during the session 2010-2011. The High Court
has in para 12 observed:
“In writ petition No.6876/2009, relief has been
prayed with respect to the ten seats which were filled
in by the College out of APDMC. The College has
agreed to surrender 10 seats which were illegally filled
by it in 2009-2010 out of available seats for the
academic sessions 2010-2011 out of the management
quota seats.”
(emphasis supplied)
12. Again in para 25 of the order, the High Court has recorded the
agreement of the institution to the reduction of 10 seats from its
quota for the academic session 2010-2011 so that the directions
issued by this Court on 4th September, 2008 and those issued by the
High Court of Madhya Pradesh on 22nd April, 2009 were complied with.
The High Court has observed:
“Accordingly, the Writ Petition is allowed. We direct 10
seats as agreed by the – College to be reduced of the
management quota for the academic session 2010-
2011 in order to comply with the order passed by the
Supreme Court on 4.9.2008 in SLP (Civil) Nos.17990-
17991/2008 and the order dated 22.4.2009 passed by
this Court in Writ Petition Nos.5592/2008 & 5654/2008
which has been agreed to the Institution. In addition,
we direct 5 more seats are to be reduced out of the
management quota for 2010-2011 as 5 excess seats
which remained vacant out of NRI quota were filled by
the management of 2009-2010 though they were
required to be filled in by the State quota on the basis
of PMT. Thus, further 5 seats of the management
quota shall stand reduced on this count for the
academic sessions 2010-2011.”
(emphasis ours)
13. We find it difficult to appreciate how the institution can
question the direction issued by the High Court regarding the
reduction of 10 seats after having agreed to such reduction before the
High Court.
14. That apart, a plain reading of the order of this Court dated 4th
September, 2008 and the orders passed by the High Court in the
connected matters dated 22nd April, 2009, leave no manner of doubt
that the reduction of the seats had to be from out of the management
quota alone. The interim order passed by this Court in Civil Appeal
No.4060 of 2009 on 27th May, 2009 clearly specified that the NRI seats
to the extent of 15% of the total number of seats, shall be first
reduced from the total and the balance 85% shared half and half
between college and the State. Instead of doing so, the Counseling
Committee and the govt. officials adopted a wrong method of
calculating the seats by reducing 21 seats from the total number of
100 seats. The above method of calculation was not the correct
method to be adopted in the matter. The Committee allocated the
seats in the following manner :
Name of Total NRI Pvt. State PH UR ST SC OBC Total Institution Seats Quota Quota R.D. Gardi 100 15 32 32+21 = 2 26 10 8 7 51 Medical -21 53 UR College, =79 Ujjain OBC
15. The direction of this Court that 15% seats towards NRI will be
first reduced from the total has been ignored by the authorities. By
doing so the reduction of 21 seats has taken place vis-`-vis not only
the management quota but even the State quota. This Court had
never directed reduction of any seat from the State quota. The
reduction had to be only from the management quota, for it was the
management who had committed an irregularity which it was directed
to correct by surrendering an equal number of seats to the State.
16. It was contended by learned counsel for the appellants that the
direction regarding reduction of 21 seats from management quota was
issued by this Court at a time when the management had 100 seats to
its share which position had changed on account of the interim
direction of this Court in Civil Appeal No.4060 of 2009. There is, in our
opinion, no merit in that contention. So long as the order of this Court
directing reduction from out of the management share of seats was
capable of being implemented and enforced and so long as there were
enough number of seats from out of which it could be made to
surrender the requisite number of seats, it did not make any
difference whether the management had 100 seats available to it or a
lesser number. Even after the interim order passed by this Court, the
management had at least 43 seats in its quota for the session 2009-
2010 to comply with the direction of this Court. In as much as the
management failed to do so with or without the support or connivance
of the State authorities who were charged with the duty of complying
with the direction of this Court it committed a mistake which could be
corrected by directing surrender of the requisite number of seats to
the State for the session 2010-2011. The direction, therefore, by the
High Court to that effect was perfectly justified.
17. Coming then to the question whether the direction regarding
surrender of 5 unfilled NRI seats for the session 2009-2010 to the
State was justified we need only mention that the High Court has
correctly interpreted the order of this Court and rightly held that
unfilled NRI seats to be shared equally between the college and the
management. Inasmuch as the appellant-college had utilized the
unfilled NRI seats all by itself it had committed clear irregularity
justifying reduction of the excess seats during the session 2010-2011.
18. This Court had directed the NRI seats to be filled up in
accordance with the Act and the Rules. Rule 8 of Admission Rules
2008 in this regard relevant may be extracted:
“Rule 8: For remaining vacant seats the sequence of
admission shall be as under:
1) “Firstly 15% seats shall be filled by management
of the respective institution by NRI candidates
only they are available. If sufficient number of
NRI candidates are not available remaining vacant
seats shall be merged into general pool. Seats in
general pool shall be filled on the basis of merit of
state level common entrance test conducted by
Madhya Pradesh Vyavasyik Pariksha Mandal or
may other agency authorized by the state
government for this purpose.
2) Secondly remaining seats shall be filled on the
basis of merit of National level test as decided by
the State Government.
3) Thirdly remaining seats shall be filled on the basis
of marks obtained in the qualifying examination.
4) All these admissions shall be done through
centralized counseling conducted by counseling
authority declared by the State Government
Committee for this purpose. The detailed
procedure for the counseling shall be notified by
the counseling authority from time to time.”
19. A plain reading of the above leaves no manner of doubt that
unfilled NRI seats had to be transferred to the general pool to be filled
up on the basis of the merit of the candidates in the State level
common entrance test conducted by Madhya Pradesh Vyavasyik
Pariksha Mandal or by any other agency authorized by the State
Government for that purpose. The unfilled seats in the NRI quota
were, therefore, to be treated as a part of the general pool and once
that was done the share of the college in terms of the order passed by
this Court would be 50% out of the said seats. The High Court has, in
that view, rightly held that while the management was justified in
filling up 5 unfilled seats in NRI quota, the remaining 5 could not have
been filled up otherwise than on the basis of the entrance test referred
to in Rule 8 (supra).
20. In the result there is no merit in these appeals which fail and
are hereby dismissed with costs assessed at Rs.50,000/-. The costs
shall be paid to the writ petitioners in equal proportion.
……………………………J.
(MARKANDEY KATJU)
……………………………J.
New Delhi (T.S. THAKUR) September 30, 2010