IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1207 of 2011
In
Interlocutory Application No. 5723 of 2011
In
Civil Writ Jurisdiction Case No. 13522 of 2011
======================================================
1. The Board of Governor, Indira Gandhi Institute of Medical Science,
Sheikhpura, Patna through its Director.
2. The Director, Indira Gandhi Institute of Medical Science, Sheikhpura,
Patna.
............. Respondents/Appellants.
Versus
1. Kumar Ksitiz Abhinav, S/o Uma Shankar Singh, R/o A/22, Professor‟s
Colony near Mohanpur, Punaichak, Shivpuri, Patna-23, Bihar.
............Writ Petitioner/Respondent
2. The State of Bihar through Principal Secretary, Department of Health &
Medical Education, Government of Bihar, New Secretariat, Patna.
3. The Controller of Examination, Bihar Combined Entrance Competitive
Examination, 2011, IAS Association Building, Near Patna Airport, PO-
Veterinary College, Patna-14.
......... Respondents/Respondents
With
Letters Patent Appeal No. 1206 of 2011
In
Interlocutory Application No. 5723 of 2011
In
Civil Writ Jurisdiction Case No. 13522 of 2011
The State of Bihar through Principal Secretary, Department of Health &
Medical Education, Government of Bihar, New Secretariat, Patna
............... Respondent/Appellant.
Versus
1. Kumar Ksitiz Abhinav, S/o Uma Shankar Singh, R/o A/22, Professor‟s
Colony near Mohanpur, Punaichak, Shivpuri, Patna-23, Bihar.
............Writ Petitioner/Respondent
2. The Board of Governor, Indira Gandhi Institute of Medical Science,
Sheikhpura, Patna through its Director.
3. The Director, Indira Gandhi Institute of Medical Science, Sheikhpura,
Patna
2 Patna High Court LPA No.1207 of 2011 (2) dt.26-08-2011
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4. The Controller of Examination, Bihar Combined Entrance Competitive
Examination, 2011, IAS Association Building, Near Patna Airport, PO-
Veterinary College, Patna-14.
......... Respondents/Respondents
=======================================================
Appearance:
(In LPA No.1207/2011)
For the Appellant/s : Mr. Lalit Kishore, AAG-1
Mr. Sunil Kumar Singh, Advocate
For the BCECE Board: Mr. Vikas Kumar, Advocate.
For the Respondents : Mr. Ashok Kumar Jha
Mr. Ajay Kumar Jha, Advocates.
(In LPA No.1206/2011)
For the Appellant/s : Mr. Ashok Kumar Keshri, AAG-11
For the BCECE Board: Mr. Vikas Kumar, Advocate.
For the Respondents :Mr. Ashok Kumar Jha
Mr. Ajay Kumar Jha, Advocates
For the IGIMS : Mr. Lalit Kishore, AAG-1
Mr. Sunil Kumar Singh, Advocate
=======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
2 26-08-2011 These Appeals preferred under Clause 10 of the Letters
Patent arise from the order dated 19th August 2011 made by the
learned single Judge pending the above CWJC No. 13522 of 2011.
Letters Patent Appeal No. 1207 of 2011 is preferred by the Indira
Gandhi Institute of Medical Sciences through its Board of
Governor and the Director. Letters Patent Appeal No. 1206 of
2011 is preferred by the State of Bihar.
The Appeals are permitted to be circulated today for urgent
hearing. Learned Advocate Mr. Ashok Kumar Jha appearing for
the writ petitioner in above CWJC No. 13522 of 2011, has been
informed. He is present before us and has been heard.
The matter at dispute relates to filling up of 85 seats in the
first year MBBS Course offered by the Indira Gandhi Institute of
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Medical Sciences, Sheikhpura, Patna from amongst the
successful candidates of the Combined Entrance Competitive
Examination held by the Bihar Combined Entrance Competitive
Examination Board (hereinafter referred to as „the Board‟)
constituted under the Bihar Combined Entrance Competitive
Examination Act, 1995 (hereinafter referred to as „the Act of
1995‟)
Indira Gandhi Institute of Medical Sciences (hereinafter
referred to as „the IGIMS‟) is a medical college. The IGIMS is
permitted to commence degree course in medical science for the
first time from the Academic Year 2011-12. The permission for
the first year MBBS course for 100 seats granted by the Medical
Council of India was received on 30th June 2011 under
communication dated 29th June 2011. Out of 100 seats permitted,
15 seats have to be filled up from the Central Pool. In the wake of
permission received on 30th June 2011, to fill in the remaining 85
seats, the IGIMS advertised a public notice on 18th July 2011
calling upon the eligible candidates to apply for admission to the
first year MBBS course in the IGIMS with a detailed time frame
for receiving application, for holding competitive examination,
declaring the result and the date of admission being 31 st August
2011. However, later the Governing Body of the IGIMS
reviewed its decision and took a decision to do away with the
entrance examination advertised on 18th July 2011 and instead to
draw the students from the merit list prepared by the Board for
admission to the first year MBBS courses for the academic year
2011-12.
It is the aforesaid decision which led to filing of the writ
petitions under Article 226 of the Constitution. A few of the
applicants have challenged the decision of the IGIMS to take
students from the merit list prepared by the Board.
Pending the said challenge in the writ petition, the learned
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single Judge has, by the impugned order dated 19th August 2011,
issued an ad interim injunction restraining the IGIMS from taking
any kind of admission in the MBBS course.
Feeling aggrieved, the IGIMS filed Interlocutory
Application No. 5720 of 2011 and the State Government filed
Interlocutory application No. 5723 of 2011 for vacation of the
above referred order dated 19th August 2011. We are informed that
the said applications have been rejected yesterday the 25 th August
2011. Therefore, the present Appeals.
Learned Additional Advocate General Mr. Lalit Kishore has
appeared for the appellant. Mr. Lalit Kishore has submitted that
the matter is very urgent as under the judicial direction issued by
the Hon‟ble Supreme Court in the Matter of Mridul Dhar (minor)
& Another Vs. Union of India and Others [(2005)2 SCC 65], the
last date for admission in first year medical course is 3oth August
2011 and the course has to commence on 31st August 2011. The
IGIMS having realized that it would not be able to hold the
examination and finalise the admission within the time specified ;
reconsidered its decision to hold the entrance test and instead
decided to draw the students from the merit list prepared by the
Board pursuant to the Combined Entrance Competitive
Examination. Mr. Lalit Kishore has also relied upon the Act of
1995. He has submitted that the Act of 1995 enfolds in its embrace
all vocational courses including the medical science. Section 3 of
the Act of 1995 makes it obligatory that admission to the first year
of the vocational course including the medical science shall be
made on the basis of Combined Entrance Competitive
Examination conducted by the Board. He has submitted that the
learned single Judge has erred in making impugned order of
injunction.
The Appeal is contested by learned Advocate Mr. Ashok
Kumar Jha appearing for the writ petitioner. Other Advocates have
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also appeared and intervened.
A preliminary objection has been raised against the present
Appeals being heard today. It is submitted that the matters are
scheduled for final hearing on 29th August 2011. No prejudice
would be caused to the IGIMS. Besides, there is no restriction
against the counseling; the IGIMS can continue counseling. In
case the petitioners lose in the writ petitions, the admission can be
granted on 30th August 2011. Mr. Jha has also submitted that 30th
August 2011 is not the final date. Under given circumstances, it
may be extended up to 30th September 2011. The right course of
action for the appellants was to approach the Hon‟ble Supreme
Court for extension of time. He has also submitted that the
decision of the IGIMS to do away with the entrance examination
pursuant to the public notice dated 18th July 2011 and to draw
students from the merit list prepared by the Board is vitiated by
mala fide. He has submitted that the said decision has been taken
pursuant to the misleading information given by the Health
Secretary.
We do not see any substance in the vague allegation of mala
fide made against the Health Secretary or against the IGIMS. We
do appreciate the urgency voiced by Mr. Lalit Kishore. The
IGIMS is under obligation to complete admission on 30th August
2011. Unless the IGIMS commences the course as scheduled, the
IGIMS will lose the entire MBBS course. It will be loss not only
to the IGIMS, it will be a permanent loss to the students as well as
to the people in general. In any view of the matter, now that the
IGIMS is just four days away from the last date of admission, the
matter is indeed urgent. We do not see any reason for not deciding
the Appeals today.
The Bihar Combined Entrance Competitive Examination
Act, 1995 has been enacted by the State of Bihar especially for
holding combined entrance competitive examinations for
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admission to the vocational courses. Section 2(c) of the said Act
defines „vocational course‟ and it includes the course in medical
science. Section 2(d) thereof defines “University, college and
institute” to mean „any University, college and institute
managed and maintained by the State Government”. Section
2(i) thereof defines “Entrance” to mean “entrance in vocational
course of the Universities, College and Institutions on the basis
of merit -cum-option from the merit list”. The “Merit List” is
defined in Section 2(h) to mean “a merit list prepared under the
Act”. Section 3 thereof enjoins a university, college and institution
to make admission to first year of a vocational course on the basis
of the combined entrance competitive examination. Section 4 of
the Act of 1995 provides for constitution of the Bihar Combined
Entrance Competitive Examination Board. Section 6 of the said
Act enjoins the Board, inter alia, to conduct the Bihar Combined
Entrance Competitive Examination. Pursuant to the said obligation
cast upon the Board, the Board published a Brochure in respect of
2011-12 Bihar Combined Entrance Competitive Examination as
early as in December 2010. The said Brochure carried the
particulars of the seats available in different university/college/
institutions in different vocational courses. With respect to medical
science also it published the particulars of the medical colleges in
the State of Bihar and the numbers of seats available for admission
to first year MBBS course and the distribution of such seats
amongst various categories such as scheduled castes, scheduled
tribes, extremely backward class, backward class, girls. As the
permission granted to the IGIMS was not received until 30 th June
2011, the Board in its Brochure for the Academic Year 2011-12
published in the month of December 2010 did not mention or
include 85 seats of the IGIMS.
It is not in dispute that the IGIMS is managed and
maintained by the State Government. We must at first note that the
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Act of 1995 obliges the IGIMS to grant admission to the first year
MBBS course from amongst the candidates selected after
competitive examination given by the Board. At least, that is the
statutory provision. It is no wonder that the IGIMS or the seats
allotted to the IGIMS were not included in the Brochure published
by the Board in the month of December 2010. However, the said
Brochure did indicate that “any change in institutions/number of
seats will be made known at the time of counseling/interview”.
The Board did visualize a situation where an Institution may be
granted permission for a new course or for additional number of
seats after the publication of Brochure. The aforesaid provision
was made obviously to meet such a situation. We therefore, find
no wrong in the decision of the IGIMS to admit the students from
the merit list prepared by the Board pursuant to the Combined
Entrance Competitive Examination conducted for the academic
year 2011-12.
Mr. Jha has also submitted that a right has accrued to the
writ petitioners. Pursuant to the public advertisement, the
petitioners and thousands others have applied for the entrance
examination. A right has thus accrued to the petitioners to take
such entrance examination.
We see no substance in this submission. Merely by making
application pursuant to a pubic advertisement, no right of taking
examination or to admission accrued to any of the applicants. We
are also of the opinion that the decision to give entrance test and
consequent public advertisement did not constitute estoppel
against the IGIMS. The IGIMS was not estopped from revising its
earlier decision and to join the bandwagon under the Act of 1995.
Having regard to the importance of the admission to the MBBS
course according to the time frame specified by the Hon‟ble
Supreme Court in the matter of Mridul Dhar (minor) & Another
(supra), we consider it expedient that the IGIMS is not restrained
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from admitting students from the merit list prepared by the Board
pursuant to the combined entrance competitive examination for
2011-12 held by the Board.
For the aforesaid reason, we allow these Appeals. The
impugned order dated 19th August 2011 is set aside.
Parties will bear their own cost.
(R.M. Doshit, CJ)
Sujit/- (Birendra Prasad Verma, J)