NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9835 OF 2016
(ARISING OUT OF SLP (C) NO. 26558 OF 2016)
|STATE OF MAHARASHTRA & ORS. |.....APPELLANT(S) |
|VERSUS | |
|DR. D.Y. PATIL VIDYAPEETH & ORS. |.....RESPONDENT(S) |
W I T H
CIVIL APPEAL NO. 9836 OF 2016
(ARISING OUT OF SLP (C) NO. 26572 OF 2016)
CIVIL APPEAL NO. 9837 OF 2016
(ARISING OUT OF SLP (C) NO. 26567 OF 2016)
A N D
CIVIL APPEAL NOS. 9838-9839 OF 2016
(ARISING OUT OF SLP (C) NOS. 27918-27919 OF 2016)
J U D G M E N T
BY THE COURT:
Leave granted
All these appeals arise out of the common order dated August 30, 2015
passed by the High Court of Judicature at Bombay in the writ petitions
filed by the respondents herein. In the said writ petitions, Rule has been
issued and during the course of arguments we are informed that these are
now listed for final hearing on September 29, 2016.
Subject matter of challenge in these appeals is the interim order which is
passed by the High Court granting stay of Letter dated August 09, 2016
issued by the Government of India through the Ministry of Health and Family
Welfare, the Government Resolution dated August 20, 2016 passed by the
State of Maharashtra and the consequential Notice dated August 21, 2016 of
the State of Maharashtra.
Respondents herein are the deemed universities established under Section 3
of the University Grants Commission Act, 1956 (hereinafter referred to as
the 'UGC Act'). The issue pertains to the admission of students in
MBBS/BDS courses. An All India Test known as National
Eligibility–cum–Entrance Test (NEET) has been conducted in order to have
the centralised admission process. This NEET has been conducted by the
Central Board of Secondary Education, Delhi, on the basis of which Merit
List showing All Indian Ranking has been drawn of the successful
candidates. It is the common case of the parties that admission is to be
given on the basis of the said Merit List by the educational institutions.
However, the process of admission is to be preceded by counselling of
eligible candidates/students. It is this counselling which has become the
bone of contention.
Vide the aforementioned Letter and Resolution, which have been stayed by
the High Court, a decision is taken by the Central Government/State
Government that the centralised counselling shall be conducted by the State
Government. For this purpose, the appellants, i.e. the State of
Maharashtra, supported by the Union of India, relied upon the Constitution
Bench judgment of this Court in Modern Dental College and Research Centre &
Ors. v. State of Madhya Pradesh & Ors.[1] and some other Constitution Bench
judgments including the orders passed in Sankalp Charitable Trust & Anr. v.
Union of India & Ors.[2] whereby system of NEET is restored coupled with
centralised counselling. On the other hand, the respondent universities
maintain that being deemed universities, they are autonomous bodies and,
therefore, it is their right to undertake the counselling process and the
only rider is that they are supposed to admit the students only from the
Merit List drawn from the NEET and that too on merit. According to them,
the impugned orders issued by the Central and State Governments are ultra-
vires as the State Government has sought to exercise its powers under the
Maharashtra Act No. XXVIII of 2015 which does not apply to the deemed
universities, nay, specifically excludes the institution declared to be a
deemed university under Section 3 of the UGC Act, as per the definition of
'Private Professional Educational Institution' provided under Section 2(q),
to which institutions the said Act applies, regulating their admission and
fees. It is also argued that right to admit students is the fundamental
right of these deemed universities guaranteed under Article 19(1)(g) of the
Act as per the eleven Judge Bench decision of this Court in T.M.A. Pai
Foundation v. State of Karnataka[3] and any reasonable restrictions
thereupon can be imposed only by 'law'. It is, thus, submitted that the
impugned decisions and communications which are administrative in nature,
having no force of law, cannot take away the right of the deemed
universities to admit the students.
This is the main issue which is to be adjudicated upon and to
be decided by the High Court in the writ petitions filed by the
respondents.
In the impugned interim order, the High Court has taken note of the
provisions of the University Grants Commission (The Institutions Deemed To
Be Universities) Regulation, 2016 and other statutory provisions on the
basis of which it has come to the prima facie view that the State
Government cannot transgress the powers of the deemed universities by
issuing Government Resolution, when the field of holding the counselling
and right to admit the students is occupied by the Central legislation like
the Amendment Notification dated August 05, 2016 issued by the Medical
Council of India under Section 33 of the Indian Medical Council Act, 1956
and the aforementioned Regulation, 2016. Sustenance is also drawn from the
judgment of this Court in Modern Dental College and Research Centre case on
the basis of which it is observed by the High Court that right to admit
students is conferred upon educational institutions. The High Court has
also extensively quoted similar interim order passed by the Kerala High
Court on August 26, 2016 in the writ petitions which are filed by private
unaided educational institutions in the State of Kerala. While issuing the
interim stay of the impugned orders certain conditions are also imposed, as
can be seen from paras 10 and 11 of the order of the High Court, which read
as under:
“10. Having considered the aforesaid statutory provisions, we are of the
view that the universities coming under the purview of Deemed Universities
under Clause 2.11 of Regulation 2016 are entitled to admit the students as
per the merit list drawn on the basis of All India ranking of NEET. In our
prima facie view in view of the statutory provisions as extracted above,
the State Government cannot transgress the powers of the Deemed
Universities by issuing Government Resolution. When the field of holding
the counselling and right to admit the students is occupied by the central
legislation like Amendment Notification 2016 and Regulation 2016 the
Government Resolution cannot override the said statutory provision. We
also find that the Hon'ble Supreme Court in the case of Modern Dental
College (supra) has categorically held the rights which encompass the right
to occupation of educational institutions includes “a right to admit
students”. We also find that in identical circumstances the Kerala High
Court vide order dated 26th August, 2016 has stayed the Government
Resolution issued by the State of Kerala by observing at para 9 and 10 as
under:
“9. We have given our anxious consideration to the respective contentions
advanced before us. It is contended by the learned Advocate General that
the impugned orders are issued to ensure that students are admitted only on
the basis of merit as per the ranking in NEET, 2016. However, we notice
that the admission process itself has been directed to be done by the
Commissioner for Entrance Examinations which is not permissible. Though it
is contended that it is for the respective colleges to furnish to the
Commissioner for Entrance Examinations the list of students who have
applied to their colleges, and that it would be only on the basis of such
list that students would be admitted, we are not satisfied that the said
arrangement is in accordance with the dicta laid down by the Apex Court in
T.M.A. Pai Foundation case (supra) and P.A. Inamdar case (supra). In the
said decisions, the Apex Court has clearly laid down that, the right to
make admissions forms as integral part of the right of the Self Financing
Institutions to establish and administer the same. By the impugned orders,
the power of admitting students is conferred on the Commissioner for
Entrance Examinations. Though we had put a pointed question to the learned
Advocate General as to what was the source of the power that has been
exercised by the State, we have not been able to get an answer. It is one
thing to say that the admission procedure should be fair, transparent,
nonexploitative and merit based. It is a totally different thing to say
that in order to ensure the same, the allotment would be made by the
Commissioner for Entrance Examinations. The limited power that the State
has been conceded, extends only to ensuring that the admission process
satisfies the criteria laid down by the Supreme Court in T.M.A. Pai
Foundation case (supra) and P.A. Inamdar case (supra). Prima Facie, the
impugned orders by conferring the power to admit students on the
Commissioner for Entrance Examinations has impinged upon the right of the
Petitioners to admit students. Therefore, we are satisfied that an interim
order of stay of the impugned orders is necessary to be granted. However,
we are conscious at the same time that, it is necessary to ensure the
admission process to be fair, transparent, nonexploitative and merit based.
Therefore, the interim stay shall be subject to appropriate conditions.
10. Accordingly, there shall be interim stay of operation and
implementation of the impugned orders, G.O. (Rt.) No. 2314/2016/H&FD dated
20.08.2016, subject to the following conditions:
(i) Admissions to the MBBS/BDS Courses shall be only on the basis of the
ranking of candidates in the rank list of NEET, 2016 on the basis of the
interse merit among the candidates, who have applied to the respective
colleges.
(ii) All the colleges agree that, the applications for admission are
received only through online and that, the said process provides
transparency with regard to the merit as well as the identities of the
applicants. Such applications shall therefore be uploaded for the scrutiny
of the Admission Supervisory Committee also immediately on the expiry of
the last date for submission of applications.
(iii) Since the counsel for the Admission Supervisory Committee has voiced
a complaint that some of the colleges have not obtained approval of the
Admission Supervisory Committee, for their prospects, the admission process
shall be proceeded with only on the basis of a prospects, for which
approval of the Admission Supervisory Committee has been obtained.
(iv) The Admission Supervisory Committee is directed to either approve or
disapprove the Prospectus submitted to them for approval, within three days
of such submission.
11. Having regard to the aforesaid, we are of the view that the impugned
letter dated 9th August, 2016 issued by the Government of India through the
Ministry of Health and Family Welfare, the Government Resolution dated 20th
August, 2016 issued by State of Maharashtra and the consequential notice of
the Government of Maharashtra dated 21st August, 2016 deserves to be and
are hereby stayed. However, it is made clear that the admission as may be
given by the Petitioners shall be strictly by abiding the Clause 6.4 of the
Regulation 2016 and the Petitioners shall admit the students strictly on
the basis of ranking of the candidates in the list of NEET on the basis of
inter se merit amongst the students who have applied to the Petitioner's
institution.”
We may point out at this stage that the learned counsel appearing on either
side had argued the matter in great detail, touching upon the main question
of law as well which is raised in the writ petitions. It was the endeavour
of Mr. Shyam Diwan, learned senior counsel appearing for the State of
Maharashtra, and Mr. Ranjit Kumar, learned Solicitor General appearing for
the Union of India, that the aforesaid reasons given by the High Court in
coming to its prima facie conclusion were patently erroneous. On the other
hand, Mr. P. Chidambaran and Dr. A.M. Singhvi, learned senior counsel, and
other learned counsel appearing in the matters, supported the impugned
order and also advanced arguments to the effect that the present case had
to be tested having regard to the provisions of the Maharashtra Act XXVIII
of 2015 which excluded deemed universities.
We are not reproducing the submissions of counsel for both sides in detail
as these questions of law are to be determined by the High Court in the
writ petitions filed by the respondents herein. We, therefore, do not want
to make any comments on the arguments raised by both sides so as not to
influence the decision making process of the High Court. However, few
comments are required to be made at this stage, which are as follows:
(i) Insofar as judgment of the Constitution Bench of this Court in Modern
Dental College and Research Centre case is concerned, it does not help the
respondent universities at all. On the contrary, it is held by this Court
in the said case that the process of admission encompasses not only
Centralised Entrance Test (CET), but counselling as well. This is made
abundantly clear by the Constitution Bench in its recent order dated
September 22, 2016 in the case of State of Madhya Pradesh v. Jainarayan
Chouksey & Ors.[4] It is amazing that it is the respondents which had
taken shelter under the aforesaid judgment in Modern Dental College and
Research Centre case, before us this argument was abandoned and the
respondents tried to distinguish this judgment, whereas the appellants
heavily relied upon the said judgment.
The question, however, is as to whether the said judgment is
applicable to the deemed universities having regard to the provisions of
the Maharashtra Act XXVIII of 2015, which aspect has to be decided by the
High Court.
(ii) Reliance upon the order dated August 26, 2016 passed by the Kerala
High Court is also misconceived as the order passed pertained to private
unaided medical institutions and not deemed universities. Since special
leave petitions are preferred by the Union of India against the
aforementioned order passed by the Kerala High Court, which are yet to be
heard, we refrain ourselves from making any further comments.
We are, however, confronted by a different situation altogether. The
central issue highlighted above needs to be considered by the High Court.
In the meantime, pursuant to the impugned orders passed by the High Court,
the respondent universities, which had invited the successful students from
the Merit List drawn on the basis of NEET to register for admission in
their respective universities, went ahead with the counselling of those
students who applied for admissions to them and a statement was also made
at the Bar that even admissions have also been done on the basis of first
counselling. So much so, classes have started and those admitted students
are attending the course. We were informed that second and further
counselling would be needed as many such students admitted in particular
courses change their discipline of study and/or get admission in other
medical institutions, thereby resulting into vacating the seats occupied by
them. Last date for admission in MBBS/BDS courses is September 30, 2016.
It was also argued by the learned counsel appearing for the respondents
that admission was done strictly in accordance with the merit of the
successful candidates of NEET who had applied in their respective
universities.
On the other hand, Mr. Diwan had made valiant effort to demonstrate that
had there been a centralised counselling, many students who are higher in
Merit could have got admission and they are deprived of their admission.
It was pointed out that approximately 15,000 students had registered
themselves with the State Government for taking admissions in the deemed
universities of the State of Maharashtra on the understanding that the
State would be conducting the counselling. A chart was submitted to show
that had the list been prepared in respect of such students, the scenario
would have been totally different in contrast with the admissions given by
the respondents. In nutshell, it was contended that admission was given to
many students whose ranking is much below in the Merit List and, therefore,
admissions given by the deemed universities do not meet the triple test of
'Fair, Transparent and Non-exploitative'. The respondents, on the other
hand, countered the aforesaid argument by contending that the list which
was prepared by the State Government in respect of the candidates who had
registered with them was on the basis of applications received and it may
not reflect the desire of such students to take admission in the respondent
institutions. It was argued that the fee structure of the respondent
universities was much higher than the Government colleges and even private
unaided medical institutions and, therefore, those students who are not
able to afford the fee may not be serious in getting admissions in their
institutions. It was submitted that many of those students who got
themselves registered with the State Government may have taken admission in
Government colleges and other educational institutions not only of the
State of Maharashtra but other such medical institutions spread throughout
the country. In nutshell, their submission was that the exercise done by
the appellants did not filter the aforesaid factors.
This Court is conscious of the fact that it is dealing with the interim
order passed by the High Court and the effect of the stay order given is
that the respondent universities are permitted to do the counselling and
admit the students. Having considered the respective submissions, our
endeavour is to bring about an equitable solution in the context of the
respondents, who are deemed universities and also keeping in mind the
developments which have ensued.
We, therefore, feel that following arrangement shall meet the ends of
justice insofar as this academic year is concerned:
(i) The stay order granted by the High Court shall stand vacated and
shall not continue for future years.
(ii) This, however, will not disturb the admissions already made by the
respondent universities. This direction is given keeping in view that
respondents are deemed universities.
(iii) Insofar as second or third counselling is concerned, that shall be a
joint exercise which means that it shall be done by the Committee of the
State Government which shall include one representative each from these
universities. The respondent universities shall nominate their respective
representatives forthwith. It would be a centralised counselling for all
the deemed universities and not university-wise counselling. In the second
or third counselling, students will be taken by making a combined list of
those who got themselves registered with the State Government as well as
the respondent universities. This shall ensure admission of those who are
more meritorious but left out but are interested in taking admission in the
respondent universities (as contended by Mr. Diwan). In this process, it
will also be known as to which students are in fact interested in getting
admission to the respondent universities.
(iv) In order to undertake the counselling, all the admission records of
the respondent universities shall be handed over to the State
Government/Committee forthwith.
(v) Since it may not be possible to complete the process of admission by
September 30, 2016, we extend the time to complete the admission by October
7, 2016.
(vi) The appellant State as well as respondent universities shall ensure
that all seats are filled and there is no vacant seat.
We make it clear once again that the aforesaid directions are given
in the peculiar situation that has arisen. We are reminded of the words of
the Chief Justice Marshall that life of law is not logic but the
experience. We also clarify that this order is passed in exercise of
powers under Article 142 of the Constitution.
Insofar as admission process of subsequent years is concerned, it
shall depend upon the outcome of the central issue raised in the writ
petitions.
Having regard to the fact that the issue raised is of seminal importance
and shall arise every year, we request the High Court to decide the writ
petitions of the respondents on merits, as expeditiously as possible, and
it would not allow the respondents to withdraw the writ petitions. Since
September 29, 2016 is the date fixed for this purpose by the High Court, we
hope that the final hearing would start on that date and would proceed on a
day-to-day basis.
The civil appeals are disposed of in the aforesaid terms.
.............................................J.
(A.K. SIKRI)
.............................................J.
(L. NAGESWARA RAO)
NEW DELHI;
SEPTEMBER 28, 2016.
-----------------------
[1] (2016) 7 SCC 353
[2] (2016) 7 SCC 487
[3] (2002) 8 SCC 481
[4] Contempt Petition (C) No. 584 of 2016 in Civil Appeal No. 4060 of
2009.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9835 OF 2016
(ARISING OUT OF SLP (C) NO. 26558 OF 2016)
|STATE OF MAHARASHTRA & ORS. |.....APPELLANT(S) |
|VERSUS | |
|DR. D.Y. PATIL VIDYAPEETH & ORS. |.....RESPONDENT(S) |
W I T H
CIVIL APPEAL NO. 9836 OF 2016
(ARISING OUT OF SLP (C) NO. 26572 OF 2016)
CIVIL APPEAL NO. 9837 OF 2016
(ARISING OUT OF SLP (C) NO. 26567 OF 2016)
A N D
CIVIL APPEAL NOS. 9838-9839 OF 2016
(ARISING OUT OF SLP (C) NOS. 27918-27919 OF 2016)
J U D G M E N T
BY THE COURT:
Leave granted
All these appeals arise out of the common order dated August 30, 2015
passed by the High Court of Judicature at Bombay in the writ petitions
filed by the respondents herein. In the said writ petitions, Rule has been
issued and during the course of arguments we are informed that these are
now listed for final hearing on September 29, 2016.
Subject matter of challenge in these appeals is the interim order which is
passed by the High Court granting stay of Letter dated August 09, 2016
issued by the Government of India through the Ministry of Health and Family
Welfare, the Government Resolution dated August 20, 2016 passed by the
State of Maharashtra and the consequential Notice dated August 21, 2016 of
the State of Maharashtra.
Respondents herein are the deemed universities established under Section 3
of the University Grants Commission Act, 1956 (hereinafter referred to as
the 'UGC Act'). The issue pertains to the admission of students in
MBBS/BDS courses. An All India Test known as National
Eligibility–cum–Entrance Test (NEET) has been conducted in order to have
the centralised admission process. This NEET has been conducted by the
Central Board of Secondary Education, Delhi, on the basis of which Merit
List showing All Indian Ranking has been drawn of the successful
candidates. It is the common case of the parties that admission is to be
given on the basis of the said Merit List by the educational institutions.
However, the process of admission is to be preceded by counselling of
eligible candidates/students. It is this counselling which has become the
bone of contention.
Vide the aforementioned Letter and Resolution, which have been stayed by
the High Court, a decision is taken by the Central Government/State
Government that the centralised counselling shall be conducted by the State
Government. For this purpose, the appellants, i.e. the State of
Maharashtra, supported by the Union of India, relied upon the Constitution
Bench judgment of this Court in Modern Dental College and Research Centre &
Ors. v. State of Madhya Pradesh & Ors.[1] and some other Constitution Bench
judgments including the orders passed in Sankalp Charitable Trust & Anr. v.
Union of India & Ors.[2] whereby system of NEET is restored coupled with
centralised counselling. On the other hand, the respondent universities
maintain that being deemed universities, they are autonomous bodies and,
therefore, it is their right to undertake the counselling process and the
only rider is that they are supposed to admit the students only from the
Merit List drawn from the NEET and that too on merit. According to them,
the impugned orders issued by the Central and State Governments are ultra-
vires as the State Government has sought to exercise its powers under the
Maharashtra Act No. XXVIII of 2015 which does not apply to the deemed
universities, nay, specifically excludes the institution declared to be a
deemed university under Section 3 of the UGC Act, as per the definition of
'Private Professional Educational Institution' provided under Section 2(q),
to which institutions the said Act applies, regulating their admission and
fees. It is also argued that right to admit students is the fundamental
right of these deemed universities guaranteed under Article 19(1)(g) of the
Act as per the eleven Judge Bench decision of this Court in T.M.A. Pai
Foundation v. State of Karnataka[3] and any reasonable restrictions
thereupon can be imposed only by 'law'. It is, thus, submitted that the
impugned decisions and communications which are administrative in nature,
having no force of law, cannot take away the right of the deemed
universities to admit the students.
This is the main issue which is to be adjudicated upon and to
be decided by the High Court in the writ petitions filed by the
respondents.
In the impugned interim order, the High Court has taken note of the
provisions of the University Grants Commission (The Institutions Deemed To
Be Universities) Regulation, 2016 and other statutory provisions on the
basis of which it has come to the prima facie view that the State
Government cannot transgress the powers of the deemed universities by
issuing Government Resolution, when the field of holding the counselling
and right to admit the students is occupied by the Central legislation like
the Amendment Notification dated August 05, 2016 issued by the Medical
Council of India under Section 33 of the Indian Medical Council Act, 1956
and the aforementioned Regulation, 2016. Sustenance is also drawn from the
judgment of this Court in Modern Dental College and Research Centre case on
the basis of which it is observed by the High Court that right to admit
students is conferred upon educational institutions. The High Court has
also extensively quoted similar interim order passed by the Kerala High
Court on August 26, 2016 in the writ petitions which are filed by private
unaided educational institutions in the State of Kerala. While issuing the
interim stay of the impugned orders certain conditions are also imposed, as
can be seen from paras 10 and 11 of the order of the High Court, which read
as under:
“10. Having considered the aforesaid statutory provisions, we are of the
view that the universities coming under the purview of Deemed Universities
under Clause 2.11 of Regulation 2016 are entitled to admit the students as
per the merit list drawn on the basis of All India ranking of NEET. In our
prima facie view in view of the statutory provisions as extracted above,
the State Government cannot transgress the powers of the Deemed
Universities by issuing Government Resolution. When the field of holding
the counselling and right to admit the students is occupied by the central
legislation like Amendment Notification 2016 and Regulation 2016 the
Government Resolution cannot override the said statutory provision. We
also find that the Hon'ble Supreme Court in the case of Modern Dental
College (supra) has categorically held the rights which encompass the right
to occupation of educational institutions includes “a right to admit
students”. We also find that in identical circumstances the Kerala High
Court vide order dated 26th August, 2016 has stayed the Government
Resolution issued by the State of Kerala by observing at para 9 and 10 as
under:
“9. We have given our anxious consideration to the respective contentions
advanced before us. It is contended by the learned Advocate General that
the impugned orders are issued to ensure that students are admitted only on
the basis of merit as per the ranking in NEET, 2016. However, we notice
that the admission process itself has been directed to be done by the
Commissioner for Entrance Examinations which is not permissible. Though it
is contended that it is for the respective colleges to furnish to the
Commissioner for Entrance Examinations the list of students who have
applied to their colleges, and that it would be only on the basis of such
list that students would be admitted, we are not satisfied that the said
arrangement is in accordance with the dicta laid down by the Apex Court in
T.M.A. Pai Foundation case (supra) and P.A. Inamdar case (supra). In the
said decisions, the Apex Court has clearly laid down that, the right to
make admissions forms as integral part of the right of the Self Financing
Institutions to establish and administer the same. By the impugned orders,
the power of admitting students is conferred on the Commissioner for
Entrance Examinations. Though we had put a pointed question to the learned
Advocate General as to what was the source of the power that has been
exercised by the State, we have not been able to get an answer. It is one
thing to say that the admission procedure should be fair, transparent,
nonexploitative and merit based. It is a totally different thing to say
that in order to ensure the same, the allotment would be made by the
Commissioner for Entrance Examinations. The limited power that the State
has been conceded, extends only to ensuring that the admission process
satisfies the criteria laid down by the Supreme Court in T.M.A. Pai
Foundation case (supra) and P.A. Inamdar case (supra). Prima Facie, the
impugned orders by conferring the power to admit students on the
Commissioner for Entrance Examinations has impinged upon the right of the
Petitioners to admit students. Therefore, we are satisfied that an interim
order of stay of the impugned orders is necessary to be granted. However,
we are conscious at the same time that, it is necessary to ensure the
admission process to be fair, transparent, nonexploitative and merit based.
Therefore, the interim stay shall be subject to appropriate conditions.
10. Accordingly, there shall be interim stay of operation and
implementation of the impugned orders, G.O. (Rt.) No. 2314/2016/H&FD dated
20.08.2016, subject to the following conditions:
(i) Admissions to the MBBS/BDS Courses shall be only on the basis of the
ranking of candidates in the rank list of NEET, 2016 on the basis of the
interse merit among the candidates, who have applied to the respective
colleges.
(ii) All the colleges agree that, the applications for admission are
received only through online and that, the said process provides
transparency with regard to the merit as well as the identities of the
applicants. Such applications shall therefore be uploaded for the scrutiny
of the Admission Supervisory Committee also immediately on the expiry of
the last date for submission of applications.
(iii) Since the counsel for the Admission Supervisory Committee has voiced
a complaint that some of the colleges have not obtained approval of the
Admission Supervisory Committee, for their prospects, the admission process
shall be proceeded with only on the basis of a prospects, for which
approval of the Admission Supervisory Committee has been obtained.
(iv) The Admission Supervisory Committee is directed to either approve or
disapprove the Prospectus submitted to them for approval, within three days
of such submission.
11. Having regard to the aforesaid, we are of the view that the impugned
letter dated 9th August, 2016 issued by the Government of India through the
Ministry of Health and Family Welfare, the Government Resolution dated 20th
August, 2016 issued by State of Maharashtra and the consequential notice of
the Government of Maharashtra dated 21st August, 2016 deserves to be and
are hereby stayed. However, it is made clear that the admission as may be
given by the Petitioners shall be strictly by abiding the Clause 6.4 of the
Regulation 2016 and the Petitioners shall admit the students strictly on
the basis of ranking of the candidates in the list of NEET on the basis of
inter se merit amongst the students who have applied to the Petitioner's
institution.”
We may point out at this stage that the learned counsel appearing on either
side had argued the matter in great detail, touching upon the main question
of law as well which is raised in the writ petitions. It was the endeavour
of Mr. Shyam Diwan, learned senior counsel appearing for the State of
Maharashtra, and Mr. Ranjit Kumar, learned Solicitor General appearing for
the Union of India, that the aforesaid reasons given by the High Court in
coming to its prima facie conclusion were patently erroneous. On the other
hand, Mr. P. Chidambaran and Dr. A.M. Singhvi, learned senior counsel, and
other learned counsel appearing in the matters, supported the impugned
order and also advanced arguments to the effect that the present case had
to be tested having regard to the provisions of the Maharashtra Act XXVIII
of 2015 which excluded deemed universities.
We are not reproducing the submissions of counsel for both sides in detail
as these questions of law are to be determined by the High Court in the
writ petitions filed by the respondents herein. We, therefore, do not want
to make any comments on the arguments raised by both sides so as not to
influence the decision making process of the High Court. However, few
comments are required to be made at this stage, which are as follows:
(i) Insofar as judgment of the Constitution Bench of this Court in Modern
Dental College and Research Centre case is concerned, it does not help the
respondent universities at all. On the contrary, it is held by this Court
in the said case that the process of admission encompasses not only
Centralised Entrance Test (CET), but counselling as well. This is made
abundantly clear by the Constitution Bench in its recent order dated
September 22, 2016 in the case of State of Madhya Pradesh v. Jainarayan
Chouksey & Ors.[4] It is amazing that it is the respondents which had
taken shelter under the aforesaid judgment in Modern Dental College and
Research Centre case, before us this argument was abandoned and the
respondents tried to distinguish this judgment, whereas the appellants
heavily relied upon the said judgment.
The question, however, is as to whether the said judgment is
applicable to the deemed universities having regard to the provisions of
the Maharashtra Act XXVIII of 2015, which aspect has to be decided by the
High Court.
(ii) Reliance upon the order dated August 26, 2016 passed by the Kerala
High Court is also misconceived as the order passed pertained to private
unaided medical institutions and not deemed universities. Since special
leave petitions are preferred by the Union of India against the
aforementioned order passed by the Kerala High Court, which are yet to be
heard, we refrain ourselves from making any further comments.
We are, however, confronted by a different situation altogether. The
central issue highlighted above needs to be considered by the High Court.
In the meantime, pursuant to the impugned orders passed by the High Court,
the respondent universities, which had invited the successful students from
the Merit List drawn on the basis of NEET to register for admission in
their respective universities, went ahead with the counselling of those
students who applied for admissions to them and a statement was also made
at the Bar that even admissions have also been done on the basis of first
counselling. So much so, classes have started and those admitted students
are attending the course. We were informed that second and further
counselling would be needed as many such students admitted in particular
courses change their discipline of study and/or get admission in other
medical institutions, thereby resulting into vacating the seats occupied by
them. Last date for admission in MBBS/BDS courses is September 30, 2016.
It was also argued by the learned counsel appearing for the respondents
that admission was done strictly in accordance with the merit of the
successful candidates of NEET who had applied in their respective
universities.
On the other hand, Mr. Diwan had made valiant effort to demonstrate that
had there been a centralised counselling, many students who are higher in
Merit could have got admission and they are deprived of their admission.
It was pointed out that approximately 15,000 students had registered
themselves with the State Government for taking admissions in the deemed
universities of the State of Maharashtra on the understanding that the
State would be conducting the counselling. A chart was submitted to show
that had the list been prepared in respect of such students, the scenario
would have been totally different in contrast with the admissions given by
the respondents. In nutshell, it was contended that admission was given to
many students whose ranking is much below in the Merit List and, therefore,
admissions given by the deemed universities do not meet the triple test of
'Fair, Transparent and Non-exploitative'. The respondents, on the other
hand, countered the aforesaid argument by contending that the list which
was prepared by the State Government in respect of the candidates who had
registered with them was on the basis of applications received and it may
not reflect the desire of such students to take admission in the respondent
institutions. It was argued that the fee structure of the respondent
universities was much higher than the Government colleges and even private
unaided medical institutions and, therefore, those students who are not
able to afford the fee may not be serious in getting admissions in their
institutions. It was submitted that many of those students who got
themselves registered with the State Government may have taken admission in
Government colleges and other educational institutions not only of the
State of Maharashtra but other such medical institutions spread throughout
the country. In nutshell, their submission was that the exercise done by
the appellants did not filter the aforesaid factors.
This Court is conscious of the fact that it is dealing with the interim
order passed by the High Court and the effect of the stay order given is
that the respondent universities are permitted to do the counselling and
admit the students. Having considered the respective submissions, our
endeavour is to bring about an equitable solution in the context of the
respondents, who are deemed universities and also keeping in mind the
developments which have ensued.
We, therefore, feel that following arrangement shall meet the ends of
justice insofar as this academic year is concerned:
(i) The stay order granted by the High Court shall stand vacated and
shall not continue for future years.
(ii) This, however, will not disturb the admissions already made by the
respondent universities. This direction is given keeping in view that
respondents are deemed universities.
(iii) Insofar as second or third counselling is concerned, that shall be a
joint exercise which means that it shall be done by the Committee of the
State Government which shall include one representative each from these
universities. The respondent universities shall nominate their respective
representatives forthwith. It would be a centralised counselling for all
the deemed universities and not university-wise counselling. In the second
or third counselling, students will be taken by making a combined list of
those who got themselves registered with the State Government as well as
the respondent universities. This shall ensure admission of those who are
more meritorious but left out but are interested in taking admission in the
respondent universities (as contended by Mr. Diwan). In this process, it
will also be known as to which students are in fact interested in getting
admission to the respondent universities.
(iv) In order to undertake the counselling, all the admission records of
the respondent universities shall be handed over to the State
Government/Committee forthwith.
(v) Since it may not be possible to complete the process of admission by
September 30, 2016, we extend the time to complete the admission by October
7, 2016.
(vi) The appellant State as well as respondent universities shall ensure
that all seats are filled and there is no vacant seat.
We make it clear once again that the aforesaid directions are given
in the peculiar situation that has arisen. We are reminded of the words of
the Chief Justice Marshall that life of law is not logic but the
experience. We also clarify that this order is passed in exercise of
powers under Article 142 of the Constitution.
Insofar as admission process of subsequent years is concerned, it
shall depend upon the outcome of the central issue raised in the writ
petitions.
Having regard to the fact that the issue raised is of seminal importance
and shall arise every year, we request the High Court to decide the writ
petitions of the respondents on merits, as expeditiously as possible, and
it would not allow the respondents to withdraw the writ petitions. Since
September 29, 2016 is the date fixed for this purpose by the High Court, we
hope that the final hearing would start on that date and would proceed on a
day-to-day basis.
The civil appeals are disposed of in the aforesaid terms.
.............................................J.
(A.K. SIKRI)
.............................................J.
(L. NAGESWARA RAO)
NEW DELHI;
SEPTEMBER 28, 2016.
-----------------------
[1] (2016) 7 SCC 353
[2] (2016) 7 SCC 487
[3] (2002) 8 SCC 481
[4] Contempt Petition (C) No. 584 of 2016 in Civil Appeal No. 4060 of
2009.
