K. S. Bhoir
Vs. State of Maharashtra & Ors [2001] Insc 651 (12 December 2001)
V.N.
Khare & B.N. Agrawal V. N. Khare, J.
Appeal (civil) 8486-8488 of 2001
Leave
granted.
This
group of appeals gives rise to following two questions for our decisions :
1) Whether,
in view of an extraordinary situation having arisen, the Central Government was
justified in rejecting the request of the State Government to grant one time
increase in admission capacity in Medicine (MBBS) and Dentistry (BDS) courses
run in various medical colleges located within the State of Maharashtra.
2)
Whether, in view of the facts and circumstances of the case, the High Court in
exercise of its power under Article 226 of the Constitution ought to have
issued directions to the Central Government to grant one time increase in
admission capacity in Medicine (MBBS) and Dentistry (BDS) courses undertaken by
various medical colleges (government run as well as private management run
colleges) in the State of Maharashtra.
The
aforesaid questions have arisen in the context of the facts and circumstances
stated hereinafter. On 29.4.2001, the Maharashtra Health Sciences Common
Entrance Test (hereinafter referred to as MH-CET 2001) was conducted for health
sciences courses such as Medicine (MBBS), Dentistry (BDS), Ayurved (BAMS),
Homeopathy (BHMS), Unani Medicine (MUMS), Physio Therapy (BPTH), Occupational
Therapy, Audio and Speech Therapy (BASLP) and Prosthetics and Orthotics (BP
& O). In the said examination about 67,563 students appeared throughout the
State of Maharashtra. With a view to see that there is
no chance for any unfair means, the question papers were prepared in four
versions and they were marked as versions 11, 12, 33 and 44. The questions in
all the versions were the same. But there was a change in their order. Thus,
the students answering the examination were given papers of different versions
one after another i.e. version 11, 22, 33, and 44 and thereafter version 11,
22, 33 and 44 and so on which would have made copying or use of unfair means
very difficult. The result of the said examination was declared on 17.5.2001.
On the basis of the result of the said examination a merit list was prepared
for purposes of admission in various colleges. Those who were higher in merit
were given admission in colleges of their choice and adjusted against free
seats. In other words, admissions against free seat and payment seat in various
courses and disciplines were made according to the merit list.
Many
selected students on the basis of the said merit list took admission in various
medical colleges and seats meant for Medicine and Dentistry were particularly
filled up. After the result was declared, the writ petitioners in writ petition
No. 1658/2000 before the High Court found that they have received lesser marks
in biology paper answered by them than their expectations. The writ petitioners
before the High Court suspected that there was obviously some error in the
evaluation of biology paper in the MH-CET 2001. Some newspapers printed and
published from Mumbai also reported that some mistakes have occurred in the
process of computerization in the master copy for answer paper in version 33.
It is under such circumstances, the writ petitioners filed a petition under
Article 226 of the Constitution praying for re-valuation of biology paper of
the said examination. After filing of the writ petition, the State Government
got a re-verification of answer sheets carried out by six Examiners. The
Examiners reported that there were mistakes/errors in the model key answer
sheet of version 33 in the subject of biology. In view of the aforesaid mistake
and error, the respondents decided to reevaluate all the answer sheets of
version 33. After revaluation of the answer sheets of version 33 the
directorate prepared revised merit list showing the correct ranking of the
students in the light of re-verification and undertook the entire admission
process afresh in respect of all the candidates, including those who have
already been admitted. In view of the aforesaid decision by the State
Government, the writ petitioners before the High Court got the writ petition
amended and sought directions to the respondents to publish and implement the
revised merit list and grant admission to them in the colleges of their choice
in accordance with their respective position in the revised merit list. The
said amendment was allowed.
The
consequences of the preparation of the revised merit list were that at least
350 students from version 33 who ought to have been admitted in Medicine and
Dentistry at the first instance but for the wrong evaluation of their answer
sheets were denied admissions were to displace the students already admitted in
Medicine and Dentistry and other courses. The displaced students were to be
sent downwards and adjusted against seats in various other Medical Colleges or other disciplines as per their ranking in the revised
merit list. In fact, an extraordinary situation arose due to mistake at the
hands of the paper setters and examiners. Under such circumstances, to meet such
an extra-ordinary situation, the State Government wrote to the Central
Government for grant of one time increase in admission seats in the MBBS and
BDS courses in various medical colleges in the State of Maharashtra, but the
same was refused by the Central Government on account of non-compliance of the
provisions of Section 10A and the regulations. In that view of the matter, the
High Court, in order to meet the extraordinary situation, by the impugned
judgment while allowing the writ petitions, issued several directions to
accommodate those students who were already admitted on the basis of first
merit list in various courses and dislodged by the revised merit list.
Aggrieved,
the students who were displaced due to revised merit list having prepared and
others have filed these appeals.
Shri
T.R. Andhyarujina, learned senior counsel, appearing for the appellants
referred to certain passages of the impugned judgment which we shall advert
slightly later and, on the strength of the said passages argued that in view of
the extraordinary situation having arisen, it was incumbent upon the Central
government to have granted one time increase in admissions in Medicine (MBBS)
and Dentistry (BDS) courses in various medical colleges in the State of Maharashtra.
His further argument is that provisions of Section 10-A of the Act apply only
to such a situation where medical colleges apply for regular and permanent
admissions capacity.
According
to the learned counsel, there being no provision to comply with the requirement
for grant of one time increase in admission capacity in various medical
colleges, in the interest of the students who have suffered for no fault of
their own in a particular year, the Central Government acted illegally in
refusing to grant permission for one time increase in admissions capacity in
various Medical Colleges. He also argued that in any case, the High Court, in
view of an extraordinary situation having arisen, as noticed by it, ought to
have issued directions to the Central Government to grant one time increase in
admission capacity in Medicine (MBBS) and Dentistry (BDS) courses in various
colleges in the State of Maharashtra.
Learned
counsel, appearing for the Central Government and Medical Council of India
argued that the view taken by the Central Government while refusing to grant
one time increase in admission capacity in Medicine (MBBS) and Dentistry (BDS)
courses was fully justified and was in accordance with law. It was also argued
that the High Court acted within the parameter of law while refusing to issue
writ of mandamus to the Central government to increase one time admission
capacity in Medicine (MBBS) and Dentistry (BDS) courses.
Coming
to the first question, since long time past, establishing of a medical college
and medical education therein are governed by the Indian Medical Council Act,
1956 (hereinafter referred to as the Act ) and Dentist Act, 1948. Despite there
being such provisions, it was experienced that large number of persons and
institutions established medical colleges without providing therein the minimum
necessary and proportionate infrastructure i.e. teaching and other facilities
required for them. As a result it was found that there was sharp decline in the
maintenance of higher standard of medical education. In order to put check on
unregulated mushroom growth of medical colleges and maintain high standard of
medical education, it was thought to bring more stringent provisions in the
Act. With the aforesaid view of the matter, in the year 1993, Sections 10A, 10B
and 10C were inserted in the Medical Council Act by amending Act 31/93.
Similarly, the provisions of Sections 10A, 10B and 10C were also incorporated
in the Dentists Act, 1948. Sub-section (1) of Section 10A of the Act provides
that no person shall establish a medical college or no medical college shall
open a new or higher course of study or training or increase its admission
capacity in any course of study or training except with the previous permission
of the Central Government obtained in accordance with the provisions of the
Act. Sub-section (2) thereof provides that every person or medical college
desirous of opening a medical college or increase its admission capacity in any
course of study or training, including a post graduate course of study or training
shall submit to the Central Government a scheme prepared in accordance with the
provisions of the Act and the Central government shall refer the said scheme to
the Medical Council for its recommendation. Sub-section (3) of Section 10A
further provides that on receipt of such a scheme by the Council, it may obtain
such other particulars, as may be considered necessary and consider the said
scheme having regard to the factor referred to in sub-section (7) of Section
10-A of the Act and send its recommendations to the Central Government. Under
sub-section (4) of Section 10A, the Central government, on receipt of the
recommendation of the Medical Council is empowered to either approve or
disapprove the scheme. It may grant or refuse permission to open a medical
college or increase its admission capacity. If it is found that the scheme is
not in conformity with the provisions of the Act and regulations framed thereunder,
it may refuse to accord permission to increase the admission capacity in any
course of study or training. Section 33 of the Act empowers the Medical Council
to make regulations for carrying out the purposes of the Act. The Medical
Council, in exercise of power conferred by Section 33 read with Section 10A of
the Act, has framed regulations known as 'Establishment of New Medical
Colleges, Opening of Higher Courses of Study and Increase of Admission Capacity
in Medical Colleges Regulation, 1993' (hereafter referred to as the
'regulations'). The said regulation provides for eligibility criteria to be
complied with even for making an application and part of the said regulations
deal with the requirements to be complied with when any medical college applies
for increase in admission capacity in the college. A perusal of the provisions
of Section 10A read with regulations shows that it is mandatory on the part of
the institution or management desirous of increasing its admission capacity in
any course of study to submit a scheme complying with the provisions of
sub-section (7) of Section 10A and the requirements envisages under the
regulations. If any of the infrastructure facilities, as required either under
sub-section (7) or under the regulations are absent, it is open to the Central
Government to refuse permission for increase in the admission capacity in any
course of study in a medical college. The object of compliance of requirements
mentioned in sub-section (7) of Section 10A and the regulation is to ensure the
maintenance of highest standard of education.
In
Medical Council of India vs. State of Karnataka and others 1998 (6) SCC 131 and Dr. Preeti Srivastava and another etc.
vs. State of Madhya
Pradesh and others
etc. 1999 (7) SCC 120, it was held that the regulations framed by the Medical
Council under Section 33 of the Act are mandatory. In Medical Council of India
vs. State of Kartanaka (supra), while dealing with the
admission made in excess of intake capacity fixed by the Council, this Court
observed thus:
"A
medical student requires gruelling study and that can be done only if proper
facilities are available in a medical college and the hospital attached to it
has to be well equipped and the teaching faculty and doctors have to be
competent enough that when a medical student comes out, he is perfect in the
science of treatment of human beings and is not found wanting in any way. The
country does not want half-baked medical professionals coming out of medical
colleges when they did not have full facilities of teaching and were not
exposed to the patients and their ailments during the course of their
study." The compliance of the requirements under the Act and the
regulations being mandatory, in the absence of its compliance, no permission
can be granted by the Central Government for increase in admission capacity in
any course in any medical college. In the present case, the State Government
sought one time increase in admission capacity in various medical colleges on
the premise that medical colleges possessed all the facilities. This was not
sufficient. What was required, was that medical colleges desirous of one time
increase in admission capacity should have submitted a scheme prepared in
accordance with the Act and the regulation to the Central Government. No such
scheme was submitted to the Central Government and medical council has no occasion
to verify the sufficiency of the facilities and other requirements. There being
no compliance of requirements under the Act, the Central Government was
justified in refusing the permission for one time increase in the admission
capacity in the medical colleges. We do not, therefore, find any infirmity in
the order of the Central Government when it refused to grant permission to the
State Government to have one time increase in admission capacity in Medicine
and Dentistry in various medical colleges located in the State of Maharashtra.
It was
then urged by the learned counsel appearing for the appellants that the
provisions of Section 10A do not prohibit the possibility of one time
enhancement of intake capacity for admission to medical colleges and, thus,
permission ought to have been granted by the Central government for such a one
time enhancement or creation of additional number of seats beyond 150 in view
of extraordinary situation and the refusal on the part of the Central
Government to grant such permission was erroneous. It was also argued that
sub-sections (1) to (5) of Section 10A being merely procedural, sub- section
(7) of Section 10A providing for factors to be taken into consideration for an
increase in the admission capacity in a medical college has an overriding
effect on the procedural provisions of sub-sections (1) to (5) and, therefore,
the Central Government committed an error in refusing to permit one time
increase in admission capacity in Medicine and Dentistry courses in the medical
colleges. We do not find any merit in the submission.
Sub-section
(1) of Section 10A is a substantive provision in itself and begins with non-obstante
clause "notwithstanding anything contained in the Act..", it means
there is a prohibition in the matter of an increase in the admission capacity
in a medical college unless previous permission of the Central Government is
obtained in accordance with the recommendation of the Medical Council of India.
The entire scheme of Section 10A of the Act has to be read in consonance with
other sub-sections to further the object behind the amending Act. The object
being to achieve highest standard of medical education. The said objective can
be achieved only by ensuring that a medical college has the requisite
infrastructure to impart medical education. As noticed earlier, the object of
amending Sections 10A, 10B and 10C was for a specific purpose of controlling
and restricting the unchecked and unregulated mushroomed growth of medical
colleges without requisite infrastructure resulting in decline in the
maintenance of highest standard of education. The highest standard of medical
education is only possible when the requirement of provisions of Section 10A
and the regulations are complied with. It has been experienced that unless
there is required infrastructure available in the medical college, the standard
of medical education has declined. Unless an institution can provide complete
and full facilities for training to each student who is admitted in various discipline,
the medical education would remain incomplete and the medical college would be
turning out half-baked doctors which, in turn, would adversely affect the
health of public in general. Thus, for every increase in the admission capacity
either it is one time or permanent, the Council is obliged to ensure a
proportionate increase of infrastructure facilities. The Medical Council can
only make recommendations to the Central Government for grant of permission for
one time intake capacity in seats only when it is satisfied that scheme to be
submitted by the medical colleges fulfils all the requirements. Unless such a
scheme providing for all the requirements provided for in the Act and the
regulations is submitted to the Central Government and the Medical Council is satisfied
that the scheme complies with all the requirement and makes a recommendation to
that effect, only then the Central government can consider for grant of
permission for increase of admission capacity in a medical college.
Similarly,
the Central Government without compliance of the Act and the regulations cannot
grant, without recommendation of the Medical Council, any permission for one
time increase in admission capacity in various courses conducted by the medical
colleges. For the aforesaid reasons, we are of the view that the Central
Government was fully justified when it rejected the request of the State
Government for grant of permission for one time increase in the admission
capacity in medicine and Dentistry courses in various medical colleges in the
State of Maharashtra.
Coming
to the second question, it is no doubt true that the High Court while deciding
the writ petitions made the following observations :
"The
seats meant for Medicine and Dentistry were particularly all filled in.. Just
as the petitioners were wrongfully denied admissions to the courses and
colleges of their choice are innocent students, those students, who were
already admitted to different courses, were equally innocent. They had in the
meanwhile taken their admissions, paid fees and bought costly equipments and
books and had incurred expenditure of around 10,000/- per student apart from
fees.
This
was an extraordinary situation. The problem cropped up because of mistakes at
the hands of the paper-setters and examiners. The Court was told that these
were bonafide mistakes and no body disputed that position. The fact however
remains that at least 350 students from version 33, who would have gone up in
Medicine and Dentistry or other course, had suffered because of the wrong evaluation
and thousands of students had been given wrong placements. On the other hand,
thousands of students had already been admitted in the meantime in different
colleges. We therefore thought that the proposal of the State government to get
the seats increased as a one time measure for this year was worth
consideration. The government had already approached the Medical Council of
India. Therefore, we thought that this effort deserved to be followed up. This
was particularly on the background of the statement of the Government lawyers
that the Government and Municipal Medical Colleges did have all the necessary
facilities to take care of these additional seats." The aforesaid
observations by the High Court were in the context of the extraordinary and
difficult situation that had arisen due to revision of the merit list. It is in
this light the aforesaid observation has to be read and understood. It is no
doubt true that a large number of students who were already admitted in the
colleges and incurred a lot of expenditure in taking admissions were to be
dislodged by issue of the revised merit list. In such a situation one can sympathise
with the plight of such students who for no fault of their own were to be
dislodged. However, the compassion and sympathy has no role to play where a
rule of law is required to be enforced.
The
High Court has rightly declined to issue any direction to the Central
Government to grant one time increase in the admission capacity in the medical
colleges, otherwise it would not have been proper exercise of jurisdiction
under Article 226 of the Constitution. Adjusting equities in exercise of
extraordinary jurisdiction under Article 226 is one thing, and the High Court
assuming the role of the Central Government and the Medical Council under
Section 10A of the Act is a different thing. The Court cannot direct to waive
the mandatory requirement of law in exercise of its extraordinary power under
Article 226. It is not permissible for the High Court to direct an authority
under the Act to act contrary to the statutory provisions. The power conferred
on the High Court by virtue of Article 226 is to enforce the rule of law and
ensure that the State and other statutory authorities act in accordance with
law. However, it does not mean that the High Court is powerless in that regard.
It can do so only when it finds that there was some illegality in the order of
the Central government in refusing to increase the admission capacity in
various colleges. The increase in admission capacity is permissible only when a
scheme, in accordance with the regulations, is submitted by a medical college
under Section 10A of the Act to the Central Government and the Medical Council
is satisfied that the scheme complies with the requirement of the Act and
regulations and thereafter the Medical Council recommends for such an increase
in admission capacity. So long as the requirements under Section 10A of the Act
are not complied with, no permission can be granted by the Central Government.
If any direction is issued by the High Court to the Central Government to
increase the admission capacity in a medical college, it would be in the teeth
of the statutory provisions and amounted to amending the provisions of Section
10A. It is not permissible for the High Court to direct an authority under the
Act to act contrary to the statutory provisions.
The
power conferred on the High Court by virtue of Article 226 is to enforce the
rule of law and ensure that the State and other statutory authorities act in
accordance with law.
In
A.P. Christian Medical Society vs. Government of A.P. 1986 (2) SCC 667, it was
held thus:
"
any direction of the nature sought by Shri Venugopal would be in clear
transgression of the provisions of the University Act and the regulations of
the University. We cannot by our fiat direct the University to disobey the
stature to which it owes its existence and regulations made by the university
itself. We cannot imagine anything more destructive of the rule of law than a
direction by the court to disobey the loss." In State of Punjab & Ors. vs. Renuka Singla &
Ors. 1994 (1) SCC 175, it was held thus:
"The
High Courts or the Supreme Court cannot be generous or liberal in issuing such
directions which in substance amount to directing the authorities concerned to violate
their own statutory rules and regulations, in respect of admissions of
students. Technical education, including medical education, requires
infrastructure to cope with the requirement of giving proper education to the
students, who are admitted. Taking into consideration the infrastructure,
equipment, staff, the limit of the number of admissions is fixed either by the
Medical Council of India or Dental Council of India. The High Court cannot
disturb that balance between the capacity of the institution and number of
admission, on 'compassionate ground'. The High Courts should be conscious of
the fact that in this process they are affecting the education of the students
who have already been admitted, against the fixed seats, after a very tough
competitive examination. There does not appear to be any justification on the
part of the High Court, in the present case, to direct admission of respondent
1 on 'compassionate ground' and to issue a fiat to create an additional seat
which amounts to a direction to violate Section 10A and Section 10B(3) of the
Dentists Act." For the aforesaid reasons, we are of the view that the High
Court acted within its parameters when it refrained itself from issuing
direction to the Central Government to grant one time increase in admission
capacity in various courses in different medical colleges in the State of Maharashtra.
We are
further of the view that in the facts and circumstances of the case, the High
Court was justified in issuing various final orders and directions while
allowing the writ petitions, excepting direction No. F (3), which was not
appropriate and the same is set aside.
For
the aforesaid reasons, except for the aforesaid modification in the judgment,
we affirm the judgment of the High Court. Consequently, the appeals fail and
are accordingly dismissed. There shall be no order as to costs.
.J.
(V. N.
Khare) J.
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