Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
INHERENT JURISDICTION
REVIEW PETITION (CIVIL) NOS.18351836 OF 2020
IN
I.A. NO.183249 OF 2019
IN
SPECIAL LEAVE PETITION (CIVIL) NOS.3103731038 OF
2016
ABDUL AHAD AND ORS. ...PETITIONER(S)
VERSUS
UNION OF INDIA AND ORS. ...RESPONDENT(S)
WITH
REVIEW PETITION (CIVIL) NO.19881989 OF 2020
IN
I.A. NO.183249 OF 2019
IN
SPECIAL LEAVE PETITION (CIVIL) NOS. 3103731038 OF
2016
J U D G M E N T
B.R. GAVAI, J.
1. The review petitioners have approached this Court
seeking review of the order passed by this Court dated
20.7.2020 thereby dismissing the Special Leave Petition (Civil)
1
Nos. 3103731038 of 2016 filed by Glocal University, Glocal
Medical College, Super Specialty Hospital and Research Centre
(hereinafter referred to as ‘Glocal Medical College’) and Abdul
Waheeb Education and Charitable Trust (hereinafter referred to
as ‘original writ petitioners’).
2. The review petitioners were not a party to the said
st
petitions. They were admitted in 1 year Professional MBBS
course for the Academic Session 20162017 in Glocal Medical
College, which was affiliated to the Glocal University, a deemed
University.
3. The bare necessary facts giving rise to the present
review petitions are thus:
The review petitioners appeared in the National
4.
Eligibilitycum Entrance Test (hereinafter referred to as
‘NEET’), 2016 and qualified the same. According to the review
petitioners, therefore, they became eligible to get admission in
MBBS course.
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5. Vide Notification dated 31.8.2016, the State of Uttar
Pradesh issued a direction for conducting centralized
counselling for admission to MBBS/BDS course in all
colleges/universities in the State of Uttar Pradesh, including
private colleges and minority institutions and further
prescribed the schedule and procedure for counselling,
reservation, eligibility criteria for admission, etc.
6. Vide another Notification dated 2.9.2016, the State of
Uttar Pradesh directed that 50% of the sanctioned intake of
private institutions shall be reserved for students who had
domicile of State of Uttar Pradesh. The said direction was
issued in respect of all the private institutions (excluding
minority institutions) after deducting the pool of 15% for All
India quota.
7. The said Notification dated 2.9.2016 came to be
challenged before the High Court of Allahabad by way of Writ
Petition No.20575 of 2016 and other connected writ petitions.
The said petitions were decided on 15.9.2016 by the Division
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Bench of the Allahabad High Court. The order dated 15.9.2016
passed by the Division Bench of the Allahabad High Court
came to be challenged by the original writ petitioners before
this Court by way of Special Leave Petition (Civil) Nos. 31037
31038 of 2016.
8. It appears that in the interregnum, the original writ
petitioners had conducted their private counselling despite
Notifications issued by the State of Uttar Pradesh regarding
common counselling. It further appears that in the meantime,
some petitions for special leave to appeal also came to be filed
by some of the students being SLP(C) No. 28886 of 2016. By a
common order passed in the petitions for special leave to
appeal, including the one filed by Madhvi Goel & others [SLP(C)
No.28886 of 2016] and the one filed by Glocal University &
others [SLP(C) No.3103731038 of 2016], this Court passed the
following order on 20.3.2017:
“As an interim measure, it is directed that
the students prosecuting their studies in the
petitionerUniversity in S.L.P. (C) Nos.
3103731038 of 2016, may appear in the
4
examination, but their results shall not be
published. Needless to say, no equity shall
be claimed on the basis of the present
interim order.”
9. It further appears that in the meantime, the Medical
Council of India (hereinafter referred to as ‘MCI’) issued a
discharge letter dated 27.1.2017 to the Glocal Medical College
and directed to discharge 67 students admitted by it, whose
names did not figure in the list supplied by the Director
General of Medical Education & Training (hereinafter referred to
as ‘DGME’).
The said order dated 27.1.2017 of MCI came to be
10.
challenged by Glocal Medical College in this Court by way of
Writ Petition (Civil) No. 411 of 2017. This Court vide order
dated 18.9.2017, while disposing of the said petition with
certain directions, observed thus:
“The students who have been admitted in
pursuance of the letter of permission
granted for the year 20162017 shall be
permitted to continue their studies.”
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11. According to the review petitioners, they appeared for
First Year Professional MBBS examination and cleared the
same. However, Glocal Medical College did not conduct the
nd
examination for the 2 year MBBS and further the classes and
practicals were also suspended by the College. According to the
review petitioners, this gave them a cause of action to file Writ
Petition No.19399 of 2019 before the Allahabad High Court.
According to the review petitioners, only during the hearing of
the said petition, they came to know about the discharge order
dated 27.1.2017 issued by MCI.
12. The review petitioners therefore filed writ petition being
Writ Petition No.26367 of 2019 before the Allahabad High Court
assailing the order of MCI dated 27.1.2017. The Allahabad
High Court disposed of the said writ petition with liberty to
approach this Court.
13. The review petitioners therefore filed Writ Petition (Civil)
No.1287 of 2019 before this Court challenging the discharge
order, but the same was dismissed with liberty to file an
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application for intervention in the pending Special Leave
Petition (Civil) Nos. 3103731038 of 2016 filed by the original
writ petitioners, as stated above. The review petitioners
therefore filed Intervention Application being I.A. No.183249 of
2019 in the said Special Leave Petition (Civil) Nos. 3103731038
of 2016. By the order under review dated 20.7.2020, the
Special Leave Petition (Civil) Nos. 3103731038 of 2016 as well
as Intervention Application being I.A. No.183249 of 2019 came
to be dismissed by this Court.
14. Seeking review, the present Review Petitions are filed
by the review petitioners. This Court on 6.10.2020 passed the
following order in the present Review Petitions:
“After carefully examining the Review
Petitions we are of the considered view that
the application for hearing in the open Court
deserves to be allowed.
Delay condoned.
Issue notice.
List the Review Petition in Court.”
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15. Accordingly, we have heard the learned counsel for the
parties in the Court.
We have extensively heard Shri Neeraj Kishan Kaul,
16.
learned Senior Counsel appearing on behalf of the review
petitioners, Shri Dhawal Mohan, learned counsel appearing on
behalf of MCI and Shri Ankit Goel, learned counsel appearing
on behalf of the respondent – State of Uttar Pradesh.
Shri Neeraj Kishan Kaul, learned Senior Counsel
17.
appearing for the review petitioners would submit that the
review petitioners were duly qualified to be admitted inasmuch
as, they had cleared the NEET examination. He further
submitted that the review petitioners were admitted through
the counselling conducted by the Glocal Medical College. Not
st nd
only that, but they have also cleared the 1 year and 2 year
examination. It is therefore submitted that it will not be in the
interest of justice to throw the review petitioners at this point of
time.
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18. As against this, learned counsel for MCI as well as
learned counsel for the State of Uttar Pradesh submitted that
the review petitioners were admitted by backdoor entry. It is
submitted that their admission is the result of collusion
between the Glocal Medical College and the review petitioners.
It is further submitted that Glocal Medical College, being very
well aware about the Notification dated 22.8.2016, had
conducted private counselling, which was not permissible in
law and as such, the review petitioners, who entered through
backdoor entry, are not entitled to any equitable relief.
19. It will be relevant to refer to the following paragraph of
Notification dated 22.8.2016:
“1. After due consideration and in
continuation to the aforesaid
notification dated 20.08.2016,
decision has been taken for getting
conducted counselling of universities
of private sector/minorities
universities of private sector/deemed
university of private sector through
combined counselling board
constituted according to above.”
9
The said Notification dated 22.8.2016 came to be
20.
challenged by various petitioners including Glocal University
before a Division Bench of the Allahabad High Court. The
Allahabad High Court by an elaborate judgment dated
15.9.2016 found no fault with the Notification issued by the
State of Uttar Pradesh prescribing centralized counselling for all
institutions for admission to MBBS/BDS course in the State,
based on NEET 2016. It will be relevant to refer to the
following observations in the operative part of the judgment of
the Allahabad High Court dated 15.9.2016, which read thus:
“(i) Subject to what has been held
hereinabove, the impugned orders
prescribing a Centralized Counselling
for all institutions for admission to
MBBS/BDS medical courses in the
State based on NEET 2016, do not
suffer from any error.
(ii) Minority institutions shall be allowed
to admit the students of their
community based on Centralized
Counselling held by the State on the
basis of NEET 2016, to the extent
permissible, but, without deviating
10
from the merit of such students as
reflected in the NEET list 2016, so as
to subserve their minority status
under Article 30(1) of the
Constitution of India.”
It could thus clearly be seen that though minority
21.
institutions were allowed to admit the students of their
community based on Centralized Counselling held by the State
on the basis of NEET 2016, the same was to be done without
deviating from the merit of the said students.
Though Shri Neeraj Kishan Kaul, learned Senior
22.
Counsel, tried to submit that the Notification dated 22.8.2016
is only an administrative instruction and therefore not binding,
we are unable to accept the same.
23. It will be relevant to refer to the following observations
of this Court in the case of Modern Dental College and
Research Centre and others v. State of Madhya Pradesh
1
and others :
1 (2016) 7 SCC 353
11
| “168. Having regard to the prevailing<br>conditions relating to admissions in private<br>professional educational institutions in the<br>State of Madhya Pradesh, the legislature in<br>its wisdom has taken the view that merit<br>based admissions can be ensured only<br>through a common entrance test followed by<br>centralised counselling either by the State or<br>by an agency authorised by the State. In<br>order to ensure rights of the applicants<br>aspiring for medical courses under Articles<br>14, 15 and 16 of the Constitution of India,<br>legislature by the impugned legislation<br>introduced the system of common entrance<br>test (CET) to secure meritbased admission<br>on a transparent basis. If private unaided<br>educational institutions are given unfettered<br>right to devise their own admission procedure<br>and fee structure, it would lead to situation<br>where it would impinge upon the “right to<br>equality” of the students who aspire to take<br>admissions in such educational institutions.<br>Common entrance test by State or its agency<br>will ensure equal opportunity to all<br>meritorious and suitable candidates and<br>meritorious candidates can be identified for<br>being allotted to different institutions<br>depending on the courses of study, the<br>number of seats and other relevant factors.<br>This would ensure twin objects: | |
|---|---|
| (i) fairness and transparency, and | |
| (ii) merit apart from preventing<br>maladministration. |
12
Thus, having regard to the larger interest and
welfare of the student community to promote
merit and achieve excellence and curb
malpractices, it would be permissible for the
State to regulate admissions by providing a
centralised and singlewindow procedure.
Holding such CET followed by centralised
counselling or singlewindow system
regulating admissions does not cause any
dent on the fundamental rights of the
institutions in running the institution. While
private educational institutions have a “ right
of occupation ” in running the educational
institutions, equally they have the
responsibility of selecting meritorious and
suitable candidates, in order to bring out
professionals with excellence. Rights of
private educational institutions have to yield
to the larger interest of the community.
169. By holding common entrance test and
identifying meritorious candidates, the State
is merely providing the merit list of the
candidates prepared on the basis of a fair
common entrance test. If the screening test is
conducted on merit basis, no loss will be
caused to the private educational
institutions. There is neither restriction on
the entry of the students in the sanctioned
intake of the institutions nor on their right to
collect fees from the students. The freedom of
private educational institutions to establish
and run institution, impart education, recruit
staff, take disciplinary action, admit
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students, participate in fixation of fees is in
no way being abridged by the impugned
legislation; it remains intact.”
24. It will further be apposite to note that some private
medical colleges had conducted their own counselling for
admitting students in their respective colleges and as such, the
State of Madhya Pradesh had filed a contempt petition. The
said contempt petition was decided by this Court in State of
2
. It
Madhya Pradesh v. Jainarayan Chouksey and others
will be relevant to refer to paragraphs 5 and 6 in Jainarayan
(supra), which read thus:
Chouksey
“5. We have heard the learned counsel for
the parties at length. We observe that
mandate of our judgment [ Modern Dental
College and Research Centre v. State of M.P. ,
(2016) 7 SCC 353:7 SCEC 1] was to hold
centralised entrance test followed by
centralised State counselling by the State to
make it a one composite process. We,
therefore, direct that admission to all
medical seats shall be conducted by
centralised counselling only by the State
Government and none else.
2 (2016) 9 SCC 412
14
6. If any counselling has been done by any
college or university and any admission to
any medical seat has been given so far, such
admission shall stand cancelled forthwith
and admission shall be given only as per
centralised counselling done by the State
Government.”
25. It could thus clearly be seen that the private
counselling by Glocal Medical College was conducted contrary
to the Notification issued by the State of Uttar Pradesh, which
Notification, in turn, was based on the judgment of this Court
in the case of Modern Dental College and Research Centre
(supra), which was decided on 2.5.2016. Not only that, but this
Court by order dated 22.9.2016 had further clarified the
position.
It will further be pertinent to note that the Division
26.
Bench of the Allahabad High Court vide judgment dated
15.9.2016 had negated the challenge to the Notification dated
22.8.2016.
15
27. In the light of this position, it was not at all permissible
for the Glocal Medical College to have conducted private
counselling. The admissions which were conducted through
the said private counselling cannot be termed as anything else
but per se illegal.
28. Though we have all the sympathies with the students,
we will not be in a position to do anything to protect the
admissions, which were done in a patently illegal manner.
29. It will be apposite to refer to the following observations
made by this Court in the case of
Guru Nanak Dev University
3
v. Parminder Kr. Bansal and others .
“In the present case, the High Court was
apparently moved by sympathy for the
candidates than by an accurate
assessment of even the prima facie legal
position. Such orders cannot be allowed
to stand. The courts should not
embarrass academic authorities by
themselves taking over their functions.”
3 (1993) 4 SCC 401
16
30. It will further be appropriate to refer to the following
observations of this Court in the case of
Gurdeep Singh v.
4
State of J & K and others .
“ What remains to be considered is
12.
whether the selection of Respondent 6
should be quashed. We are afraid, unduly
lenient view of the courts on the basis of
human consideration in regard to such
excesses on the part of the authorities, has
served to create an impression that even
where an advantage is secured by stratagem
and trickery, it could be rationalised in
courts of law. Courts do and should take
human and sympathetic view of matters.
That is the very essence of justice. But
considerations of judicial policy also dictate
that a tendency of this kind where advantage
gained by illegal means is permitted to be
retained will jeopardise the purity of
selection process itself; engender cynical
disrespect towards the judicial process and
in the last analysis embolden errant
authorities and candidates into a sense of
complacency and impunity that gains
achieved by such wrongs could be retained
by an appeal to the sympathy of the court.
Such instances reduce the jurisdiction and
discretion of courts into private benevolence.
This tendency should be stopped. The
selection of Respondent 6 in the sports
category was, on the material placed before
us, thoroughly unjustified. He was not
4 1995 Supp (1) SCC 188
17
eligible in the sports category. He would not
be entitled on the basis of his marks, to a
seat in general merit category. Attribution of
eligibility long after the selection process was
over, in our opinion, is misuse of power.
While we have sympathy for the predicament
of Respondent 6, it should not lose sight of
the fact that the situation is the result of his
own making. We think in order to uphold the
purity of academic processes, we should
quash the selection and admission of
Respondent 6. We do so, though, however,
reluctantly.”
31. Similar observations have been made by this Court in
5
.
K.S. Bhoir v. State of Maharashtra and others
32. The facts in the present case are somewhat similar with
the facts, which fell for consideration in the case of
Mahatma
6
Gandhi University and another v. GIS Jose and others .
In the said case, the admissions were given for M.Sc.
33.
Computer Science course in violation of admission rules. The
High Court had directed to declare the withheld result of such
5 (2001) 10 SCC 264
6 (2008) 17 SCC 611
18
students. Reversing the judgment of the High Court, this Court
observed thus:
| “10. The misplaced sympathies should not<br>have been shown in total breach of the rules.<br>In our opinion, that is precisely what has<br>happened. Such a course was disapproved by<br>this Court in CBSE v. Sheena<br>Peethambaran [(2003) 7 SCC 719]. In para 6<br>of the judgment, this Court observed as<br>follows: (SCC p. 724) | |
|---|---|
| “6. This Court has on several occasions<br>earlier deprecated the practice of<br>permitting the students to pursue their<br>studies and to appear in the examination<br>under the interim orders passed in the<br>petitions. In most of such cases, it is<br>ultimately pleaded that since the course<br>was over or the result had been declared,<br>the matter deserves to be considered<br>sympathetically. It results in very awkward<br>and difficult situations. Rules stare<br>straight into the face of the plea of<br>sympathy and concessions, against the<br>legal provisions.” | |
| 11. In the present case, the college where the<br>student was admitted, in breach of all<br>possible rules allowed her not only to<br>complete the course but also to write the<br>examination which was totally illegal.” |
19
34. It will further be relevant to refer to the following
observations of this Court in the case of
National Council for
Teacher Education and another v. Venus Public Education
7
.
Society and others
“3. It is to be clearly stated that an
institution that is engaged or interested in
getting involved in imparting a course for
training has to obey the command of law in
letter and spirit. There cannot be any
deviation. But, unfortunately, some of the
institutions flagrantly violate the norms with
adamantine audacity and seek indulgence of
the court either in the name of mercy or
sympathy for the students or financial
constraint of the institution or they have
been inappropriately treated by the statutory
regulatory bodies. None of these grounds
justify deviation. The case at hand
graphically depicts deviations but the High
Court, putting the blame on the statutory
authority has granted relief to the respondent
institution which is impermissible.”
35. In the backdrop of this legal position laid down in
various judgments of this Court, it will not be possible to
consider the cases of the review petitioners sympathetically.
7 (2013) 1 SCC 223
20
The Notification issued by the State of Uttar Pradesh on the
basis of the law laid down by this Court clearly provided that
the admissions were to be done only through the centralized
admission process. Glocal Medical College in contravention of
the said Notification conducted private counselling, which was
not at all permissible in law. The students cannot be said to
be ignorant about the Notification issued by the State of Uttar
Pradesh.
36. In such a situation, no sympathies can be shown to
such students who have entered through backdoor. Apart from
that, MCI vide order dated 27.1.2017 had discharged the said
students, who were not admitted through centralized admission
process. It is pertinent to note that 25 students admitted in the
same college, who were admitted through the centralized
admission process, were very much absorbed by the DGME in
other colleges. As such, the contention of the review
petitioners that they came to know about the discharge order
21
dated 27.1.2017 issued by MCI only when they had filed a
petition in the High Court in 2019 does not stand to reason.
37. Insofar as the contention with regard to the interim
order passed by this Court dated 20.3.2017 is concerned, the
same would clearly show that though the students were
permitted to appear in the examination, their results were
directed not to be published. There is no other order modifying
the said order.
It is difficult to appreciate as to how the results of the
38.
st
students were declared for the 1 year MBBS examination, how
nd
they were admitted in the 2 year MBBS course and how they
nd
cleared the 2 year MBBS examination, despite the fact that
MCI had discharged the students vide order dated 27.1.2017.
Insofar as the observations of this Court in order dated
39.
18.9.2017 in the writ petition filed by Glocal Medical College
challenging the discharge order is concerned, the observation
could not be construed to have vacated or modified the specific
directions issued by this Court on 20.3.2017.
22
40. In the result, the Review Petitions are without merit
and as such dismissed. Consequently, all pending
applications, including the application(s) for
intervention/impleadment shall stand disposed of.
…..….......................J.
[L. NAGESWARA RAO]
…….........................J.
[B.R. GAVAI]
…….........................J.
[KRISHNA MURARI]
NEW DELHI;
AUGUST 17, 2021.
23