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TMI Blog2013 (8) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... produced a sentence from the decision of the High Court that proclaimed in sheer anguish: Shakespeare in Othello has written Chaos is come again The saga of anguish continues with constant consistency. In Asha v. Pt. B.D. Sharma University of Health Sciences and others [2012) 7 SCC 389] a two-Judge Bench commenced the judgment thus:- Admission to the medical courses (MBBS and BDS) has consistently been a subject of judicial scrutiny and review for more than three decades. While this Court has enunciated the law and put to rest the controversy arising in relation to one facet of the admission and selection process to the medical courses, because of the ingenuity of the authorities involved in this process, even more complex and sophisticated sets of questions have come up for consideration of the Court with the passage of time. One can hardly find any infirmities, inaccuracies or impracticalities in the prescribed scheme and notifications in regard to the process of selection and grant of admission. It is the arbitrary and colourable use of power and manipulation in implementation of the schedule as well as the apparently perverse handling of the process by the persons co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decide the merit. (iv) A candidate, who has failed three times in a particular subject, shall not be eligible for registration for the degree or diplomas for which the marks of that subject are considered. (v) For admission to the postgraduate degree and diploma courses, the candidates belonging to the General Category will be required to obtain minimum 50% and the candidates belonging to the Scheduled Casts, Scheduled Tribes and Other Backward Classes will be required to obtain minimum 40%, aggregate marks as determined above. The said Rule governs the admission to the singular medical college and the lone dental college, both Government colleges affiliated to Goa University. On 9.8.2012 the Government of Goa in the Department of Public Health, through its Under Secretary (Health) communicated to the Dean, Goa Medical College, as follows:- I am directed to refer to your letter No. Acad/141/NEET/12/G.M.C./245 dated 27.6.2012 on the subject cited above and to convey approval of the Government for implementation of the Medical Council of India 's Notification on the National Eligibility-cum-Entrance Test (NEET) for the Under Graduate and Post Graduate students ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Test(NEET) for both MBBS and PostGraduate courses in different disciplines, as also the BDS and MDS examinations. Presuming that the hearing would be completed on the dates indicated, we had directed that the Medical Council of India, the Dental Council of India, as well as the States and Universities and other institutions, would be entitled to conduct their respective examinations for the MBBS, BDS and Post-Graduate courses, but the results of the examinations were not to be declared until further orders of the Court. Consequently, although, the examinations have been held, the results have been withheld and have not been declared, on account of the interim order passed by us. The hearing could not be concluded within 17th January, 2013, as we had hoped, on account of the enlargement of the scope of the hearing and the large number of parties who had to be heard in the matter. In fact, the matters were last heard on 30th April, 2013, and it has, therefore, not been possible to pronounce judgment before the Supreme Court closed for the summer vacations on 10th May, 2013. While the matters were being heard, we had been informed by the learned senior counsel appearing f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e following interim order:- Mr. Nadkarni submits that the applications for admission to postgraduate courses in Goa Medical College have been invited from the students, who fall in the category of M.B.B.S. examination from Goa Medical College as well as those who have passed National Eligibility-cum-Entrance Test ('NEET ' for short) and counselling and admission process are presently being undertaken in terms of MCI Rules on the basis of the result of the NEET. Considering the equities in the matter, we direct the respondents to hold counselling in respect of both the categories of students and permit admission to the students, who have passed NEET subject to further orders that may be passed by this Court, depending upon the order passed by the Apex Court in the matter pending before it. The selected candidates shall be put on notice that the admissions are provisional in nature and shall be subject to further orders that may be passed by this Court. It is condign to note here that on the basis of the ranks in NEET examination and the counselling the writ petitioners were admitted in the Government Medical College at Goa. At this juncture, we are obliged to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Official Gazette Series I No. 50 and Series I No. 51, Notification No. I/B/2033-II/PHD. Provisional admissions given on the basis of the NEET merit earlier thus stands cancelled. [Underlining is ours] This wise act of the State Government can irrefragably be compared with absence of common sense in an uncommon degree When the writ petitions came before the High Court on 25.7.2013, it passed the following order:- Mr. Nadkarni, learned Advocate General appearing on behalf of respondents No. 1 to 5 states that in view of the decision of the Supreme Court dated 18/07/2013 in T.C. (C) No. 98 of 2012 and allied matters, the State Government has decided to follow its decision dated 15/06/2013 and grant admissions in terms of the State Regulations. In view of the statement made by the learned Advocate General, Mr. Lotlikar, learned Senior Counsel seeks leave to withdraw the petition, which is objected to by the learned counsel appearing on behalf of the private respondents. Before granting leave to withdraw the petition, we deem it appropriate to hear the respondents. We also direct the State Government to place on record the decision taken by it to g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d taken admissions. The High Court by its order dated 20.6.2013 directed to hold counselling in respect of both the categories of students and permit admissions to the students who have passed NEET subject to further orders that may be passed by it depending upon the order passed by the Apex Court in the matter pending before it. As per the direction of the High Court the selected candidates are to be put on notice that the admissions are provisional in nature and shall be subject to further orders that may be passed by the High Court. The High Court should not have entertained the writ petition on three counts, namely, (i) all the writ petitions challenging the notification from all the High Courts had been transferred to this Court; (ii) that the Court had been passing interim orders from time to time; and (iii) that any order passed by it had the potentiality to usher in some kind of anomaly. What the High Court would have done while finally adjudicating the matter is another issue but on the basis of the decision taken by the State Government on 25.7.2013, possibly the learned Advocate General made a statement before the Court on 25.7.2013 Mr . Singh, learned senior counsel, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer to the authority in Superintending Engineer, Public Health, U.T. Chandigarh and others v. Kuldeep Singh and others [(1997) 9 SCC 199] wherein the Court has reproduced the observations of Farl Cairns L.C. in the House of Lords in Julius v. Lord Bishop of Oxford [(1880) 5 A.C. 214] which was quoted with approval by this Court in Commissioner of Police, Bombay v. Gordhandas Bhanji [AIR 1952 SC 16]. The succinctly stated passage reads thus:- There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so. But, unfortunately, here the authorities of the State Government have felt courageous enough to play possum and proceeded to crucify the fate of the candidates who had been protected by the verdict of this Court. Such an action is absolutely impermissible. Thus analysed the letter dated 25.7.2013 deserves to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that seats in medical colleges cannot be increased indiscriminately without regard to proper infrastructure as per the Regulations of the Medical Council. In Faiza Choudhary (supra) a two-Judge Bench has ruled thus:- In Medical Council of India v. State of Karnataka this Court held that the number of students admitted cannot be over and above that fixed by the Medical Council as per the Regulations and that seats in the medical colleges cannot be increased indiscriminately without regard to proper infrastructure as per the Regulations of the Medical Council. In Medical Council of India v. Madhu Singh [(2002) 7 SCC 258], this Court held that there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year. Recently, this Court in Satyabrata Sahoo v. State of Orissa has reiterated that it would not be possible to increase seats at the expense of candidates waiting for admission in the succeeding years. From the aforesaid decisions two principles emerge: (i) that there cannot be direction for increase of seats and (ii) there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent years At th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendency of this petition there has been a request to the Medical Council of India to prepone it for the year 2013-14. Enhancement of seats requires inspection and is controlled by a set of Regulations and, in any case, the application for 2014-15 cannot be directed to be processed in the current year The next submission relates to the issue whether the students who cannot be adjusted in the seats of All India quota that have been transferred to the State quota of this year can be adjusted next year. During the course of hearing though there was some debate with regard to giving of admissions to such students in the academic year 2014-15, Mr. Amit Kumar, learned counsel for the Medical Council of India, has seriously opposed the same and, thereafter, has cited the authorities which we have referred to hereinbefore. We are bound by the said precedents. In certain individual cases where there is defective counselling and merit has become a casualty, this Court has directed for adjustment in the next academic session but in the case at hand, it is not exactly so. Though we are at pains, yet we must express that it will not be appropriate to issue directions to adjust them in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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