1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE15H DAY OF SEPTEMBER2016PRESENT THE HON’BLE MR.JUSTICE JAYANT PATEL AND THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NOS.44731-44732/2016 (EDN-MED-ADM) C/W WRIT PETITION NOS.46081-46084/2016 (EDN-MED-ADM) IN WP NOS.44731-32/2016: BETWEEN:
1. KARNATAKA PROFESSIONAL COLLEGES FOUNDATION (FORMERLY KARNATAKA PRIVATE MEDICAL AND DENTAL COLLEGES’ ASSOCIATION) NO.132, 2ND FLOOR, 17TH CROSS, 11TH MAIN, MALLESWARAM BENGALURU - 560055 REP. BY ITS EXECUTIVE SECRETARY MR R.V.GOVINDA RAO AGED ABOUT70YEARS2(SENIOR CITIZEN BENEFIT NOT CLAIMED) 2. M.S.R MEDICAL COLLEGE AND HOSPITAL MSRIT POST, MSR NAGAR, BENGALURU - 560054 REPRESENTED BY ITS PRINCIPAL DR.MEDHA RAO AGED ABOUT61YEARS W/O SRI YOGISH RAO (SENIOR CITIZEN BENEFIT NOT CLAIMED) ...PETITIONERS (BY SRI.K.SHASHIKIRAN SHETTY, SR.COUNSEL FOR MS.FARAH FATHIMA, ADVOCATE) AND: THE MEDICAL COUNCIL OF INDIA POCKET14 SECTOR8DWARKA PHASE1 NEW DELHI - 110077 THROUGH ITS SECRETARY (BY SRI.N KHETTY, ADVOCATE) ...RESPONDENT THESE WRIT PETITIONS ARE FILED UNDER ARTICLES226& 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE COMMUNICATION BEARING NO.MCI-34(MC)/2016-MED/123575 DTD:3.8.2016 ISSUED BY THE RESPONDENT WITH RESPECT TO NRI ADMISSIONS TO BE MADE STRICTLY AS PER REGULATION5OF GME1997AND NRI QUOTA SEATS IN MBBS COURSE ARE TO BE FILLED UP BY MEDICAL COLLEGES FROM MERIT3LIST PREPARED ON BASIS OF MARKS OBTAINED IN NEET EXAMINATION FOR ACADEMIC YEAR201617 (ANNEXURE-A) AND ETC. IN WP NOS.46081-84/2016: BETWEEN:
1. MANIPAL UNIVERSITY (FORMERLY MANIPAL ACADEMY OF HIGHER EDUCATION) "A DEEMED TO BE UNIVERSITY", HAVING ITS REGISTERED OFFICE AT UNIVERSITY BUILDING, MADHAV NAGAR, MANIPAL-576104 (KARNATAKA) THROUGH ITS REGISTRAR DR.NARAYANA SABHAHIT2 MANIPAL ACADEMY OF HIGHER EDUCATION TRUST MANIPAL-576104 REPRESENTED BY ITS CHAIRMAN DR.RAMDAS M PAI3 KASTURBA MEDICAL COLLEGE MANIPAL-576104 REPRESENTED BY ITS DEAN.
4. KASTURBA MEDICAL COLLEGE MANGALORE-575001 REPRESENTED BY ITS DEAN ...PETITIONERS (BY SRI.RAJEEV DHAWAN, SR.COUNSEL FOR SRI.P.N.MANMOHAN, ADVOCATE) 4 AND:
1. UNION OF INDIA DEPARTMENT OF HEALTH & FAMILY WELFARE, NEW DELHI-110077 REPRESENTED BY ITS SECRETARY2 MEDICAL COUNCIL OF INDIA POCKET NO.14, SECTOR-8 DWAKARA PHASE-1 NEW DELHI-110077 REPRESENTED BY ITS SECRETARY3 CENTRAL BOARD OF SECRETARY EDUCATION NATIONAL ELIGIBLE ENTRANCE TEST UNIT, SHIKSHA KENDRA2 COMMUNITY CENTER PREET VIHAR, DELHI-110092 REPRESENTED BY ITS DEPUTY SECRETARY (EXAMINATION) ...RESPONDENTS (BY SRI.N KHETTY, ADVOCATE FOR R2 ASG SERVED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES226& 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE COMMUNICATION DTD:3.8.2016 ISSUED BY THE R-2 (PRODUCED AS ANNEXURE-V) AND ETC., 5 THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR PRONOUNCMENT OFORDER
S THIS DAY, JAYANT PATEL J., PASSED THE FOLLOWING: FORORDER
S, COMING ON As in all these petitions more or less commonORDER
questions arise for consideration, they are being considered simultaneously.
2. W.P.Nos.44731-32/2016 (hereinafter referred to as the first matter) are preferred by Karnataka Professional Colleges Foundation, which is an association of the Karnataka Private Medical and Dental Colleges with M.S.R Medical College and Hospital for the relief interalia to quash and set aside the communication issued by the respondent-Medical Council of India (hereinafter referred to as ‘the MCI’ for the sake of brevity) (Annexure ‘A’), whereby MCI has communicated to the Secretary of the first petitioner- Foundation that admissions under NRI Quota have to 6 be made strictly in accordance with the Regulation 5 of the Graduate Medical Education, 1997 (hereinafter referred to as ‘the Regulation’ for short). In the said communication, there is also a reference to the order dated 11.05.2016 (which is wrongly typed as 12.05.2016) passed by the Apex Court, wherein the Apex Court has permitted NRI Quota seats in MBBS course to be filled by the Medical Colleges, on the basis of merit and the marks obtained in NEET examination.
3. The second prayer by the petitioners in the petitions is to declare that Regulation 5 of the Regulation is not applicable to NRI Quota for admission in MBBS Course and Regulation-5 is in the teeth of judgment of this Court in W.P.No.102850/2015 and connected matters, confirmed by the Apex Court.
4. Whereas W.P.Nos.46081-46084/2016 (hereinafter referred to as the second matter for the 7 sake of convenience) are preferred by Manipal University and Kasturba Medical College, seeking prayer to quash and set aside the very communication dated 03.08.2016 issued by the MCI (Annexure ‘V’) to the present petitions.
5. We have heard Mr.Rajeev Dhawan, learned Senior Counsel with Mr.P.N.Manmohan, learned Counsel in the second group of petitions and Mr.K.Shashikiran Shetty, learned Senior Counsel appearing with Ms.Farah Fathima, in the first group of petitions and we have also heard Mr.Khetty, learned Counsel appearing for MCI, which is the main contesting party.
6. The principal contention raised by the learned Senior Counsel appearing for the petitioners were as under:
8. The right of the management of the Private Medical Colleges is read by the Apex Court in case of P.A.Inamdar and Others Vs. State of Maharashtra and Others reported at (2005) 6 SCC537and more particularly para-131 of the said decision for NRI seats. The contention was that so far as Common Entrance Test (hereinafter referred to as ‘CET’ for short) for assessing the merit, would be applicable only for other than NRI seats may be CET or COMED-K students. For the purpose of assessment of merits of students to be granted admission on NRI Seats, the College or the institution has its own mechanism. Therefore, it is not open to the MCI to contend that merit of the NEET or passing of the NEET exam by the students to be admitted in NRI quota is a must and therefore the exercise of the power is running counter to the observations made by the Apex Court in the case of 9 P.A.Inamdar (supra) and more particularly paragraph- 131 of the said decision. It was also submitted on behalf of the petitioners that once right is read and conferred for NRI seats with the management of the Medical Colleges by the Apex Court through its judicial decision in case of P.A.Inamdar (supra), it can neither be nullified nor can be diluted by any Regulation or by any other provision unless the basis of such right is taken out. The learned Counsel submitted that there is no legislation enacted to take out the right of the managements of the Private Medical Colleges to Medical and Dental Colleges by any statutory enactment may be by the state legislature or law made by Parliament. It was submitted that the Regulation even if made are to be read in conformity with or by reconciling the rights read by the Apex Court as per its decision in case of P.A.Inamdar (supra). It 10 was also submitted that the Regulation, as such, cannot nullify the right already read by the judicial decision that too of the Apex Court. Learned Senior Counsel in furtherance to their submission contended that similar Circular was issued by the MCI for the academic year of 2015-2016 on 16.01.2015 insisting that the merit determined at the CET should be taken into consideration and the admission on NRI seat should be given by the Medical Colleges on the merit of CET. The said Circular dated 16.01.2015 was challenged before this Court by certain Medical Colleges in W.P.Nos.102850-102851/2015 and allied matters by Shri Basaveshwar Vidya Vardhak Sangha and Others and the Division Bench of this Court vide its judgment dated 17.04.2015 has held that the Regulation-5 cannot be made applicable to introduce CET for NRI category students and ultimately 11 this Court for the reasons recorded in the said judgment has quashed the Circular issued by MCI dated 16.01.2015. It was also submitted that the SLP was preferred against the above referred decision of the Division Bench of this Court in case of Shri Basaveshwar Vidya Vardhak Sangha and Others being SLP Nos.16229-16230/2015 by MCI and the Apex Court vide order dated 06.07.2015 dismissed the SLP. In the submission of the learned Senior Counsel for the petitioners, since the judgment is not interfered with by the Apex Court, it is holding the field in the process to be adopted for NRI seats for assessment of the merit and the said judgment is binding to the co-ordinate bench of this Court and hence MCI cannot take a different stand by the impugned notification insisting the merit or the requirement to pass NEET examination for grant of admission in medical seats to the students 12 on NRI quota or NRI seats. The learned Senior Counsel also submitted that after the above referred decision of this Court in case of Shri Basaveshwar Vidya Vardhak Sangha and the dismissal of SLP by the Apex Court, MCI had also issued another Circular dated 18.09.2015 whereby the earlier Circular dated 16.01.2015 issued by MCI has been withdrawn and the MCI in this manner accordingly accepted the decision of the Division Bench of this Court in case of Shri Basaveshwar Vidya Vardhak Sangha. The learned Counsel submitted that so far applicability of NEET and the Regulation made for NEET are concerned, they would for all purposes apply for the admissions to MBBS course on the seats other than NRI/Management quota and such cannot be applied to the admissions to NRI seats/NRI quota. It was submitted that if NEET examination or merit at the 13 NEET is to be considered for admission to NRI seats, resultantly the same situation would arise as had arisen earlier when MCI issued Circular dated 16.01.2015 for CET examination which has been quashed by this Court in the above referred decision in case of Shri Basaveshwar Vidya Vardhak Sangha and hence the impugned communication by MCI is nothing but running on the teeth of the decision of this Court. The learned Senior Counsel for the petitioners also submitted that the order of the Apex Court dated 11.05.2016 in case of Vigyan Bharati Trust in W.P. (Civil) No.490/2014, which has been relied upon by the MCI in the impugned communication speaks for the liberty to the management of the College who was petitioner therein to select NRI students who have passed NEET examination for the academic year of 2016-2017 and thereby it cannot be said that the 14 Institute or College cannot grant admission to any student who has not passed NEET examination for the academic year 2016-2017 and hence the order of the Apex Court has not been properly understood by MCI.
7. Mr.Rajeev Dhawan, learned Senior Counsel additionally submitted for the petitioners in the second group of petitions that it has already entered into agreement with the Government of Malaysia and others based on the law prevailing earlier for grant of admission on NRI quota to the genuine NRI and wards of NRI. It is too late on the part of MCI to communicate on 03.08.2016 to convey that the passing of NEET examination and the merit at the NEET should be insisted or should be the criteria for grant of admission to the students on NRI seats. He therefore alternatively submitted that in any case, for the present academic year of 2016-2017, since MCI has communicated for the 15 first time on 03.08.2016 about the insistence of NEET examination and passing thereof, the same may not be applied, otherwise the Institution will be in great difficulty apart from the students and it would also adversely affect the amount to be collected for admissions, which otherwise as per the scheme of the NRI seats to be utilized by the Institution/Colleges for extending the benefit to students on government seats and other seats.
8. The learned Senior Counsel for the petitioners therefore submitted that this Court may quash the communication made by MCI and may also give declaration as prayed by the respective petitioners.
9. Whereas the learned Counsel appearing for the respondent-MCI contended that it is not a matter where NEET has been introduced and the merit at NEET examination is insisted by MCI for the first time in 16 August by the impugned communication. As per him, when Regulations were already framed in the year 2010 and the same is put to life by the order of Apex Court dated 28.04.2016 passed in W.P.(C) No.261/2016, such amendment in the regulation by the notification has come into effect automatically. Resultantly, the regulations are to be read with the amendment. Apart from the other aspects, there is also amendment in the regulation Nos.4 and 5, out of which Regulation No.4 touches to the eligibility criteria and Regulation No.5 touches to the selection of the students. As per him, once Regulation 1(A) of the regulation is inserted, the student should also meet with the requisite eligibility criteria of passing NEET exam. So far as selection of students provided by Regulation-5 is concerned, as per him, since the amendment is also brought about in Regulation No.5 requiring for considering the merit at 17 the NEET examination, the same cannot be ignored, but is rather required to be considered. However, in his submission so far as interse merit at the NEET examination is concerned, for the purpose of selection of the students, he submitted that the respective category is to be classified separately may be Government quota, management quota or NRI quota, as the case may be, and the interse merit for the NEET examination of that respective clause or category is required to be considered while granting admission for NRI/management seats and it cannot be given a go-by. As per the learned Counsel for the MCI, for the assessment of the common merit, the mechanism of the NEET is a must, because the students come from not only different Secondary Boards or the Pre-Universities in different parts of the country but for foreign students or wards of NRI, as the case may be, they may have 18 passed their examination from the different level though standard may be equivalent but the yardstick for the students, subjects etc. would be different. Therefore the common merit should be the appropriate criteria for admissions to medical seats. He submitted that it is by now well settled right from the decision of the Apex Court in case of Preeti Srivastava (Dr.) And Anr. Vs. State of M.P. reported at (1999) 7 SCC120 that merit cannot be given a go-by more particularly, for admissions to Medical Course. In his submission, once the Apex Court has ruled that NEET should be given effect to by bringing about amendment in the regulation, this Court may hold in conformity with the view taken by the Apex Court and if the operation of the impugned communication is stayed or a situation is created permitting the Management/institutions of the Medical Colleges to admit students without insistence of 19 the NEET or without insistence of the merit at the NEET examination such may result into diluting the effect of the order of the Apex Court and hence this Court may not grant relief as prayed by the petitioners in these petitions. The learned Counsel also submitted that the decision of the Apex Court in case of P.A.Inamdar (supra) is for availability of the seats but for eligibility of the students and the selection of the students, College has to follow all regulations prevailing from time to time as framed by the MCI and it cannot be dehors the regulation framed by MCI.
10. In his submission, there is no conflict in the regulation including amendment made with the observations made or read by the Apex Court for granting admission on NRI seats and hence the learned Counsel submitted that impugned communication is just a communication reiterating the requirement 20 prevailing and nothing new is communicated and as per him, the communication is in conformity with the order dated 11.05.2016 passed by the Apex Court in case of Vigyan Bharati Trust and hence he submitted that this Court may not interfere and may decline the relief to the petitioners.
11. In our view, the matter can be considered and examined in three facets:
1. One is the right read by the Apex Court in case of P.A.Inamdar (supra) for the admission of the private Medical Colleges to grant admission on NRI seats.
2. The second is the effect of amendment in the regulation which has come into force after the order passed by the Apex Court dated 28.04.2016 in W.P.(C)No.261/2016 in case of Sankalp Charitable Trust and Anr. Vs. Union of India And Ors.. 21 3. The third is when the Apex Court has passed the order for giving effect to the amendment in the regulation for the eligibility and for selection of students, whether this Court should pass an order which may resultant into diluting the effect of the order of the Apex Court for requirement of NEET in medical admissions.
12. In addition to the above, two incidental aspects may also arise for consideration: One is the binding effect of the judgment of the Division Bench of this Court in case of Shri Basaveshwar Vidya Vardhak Sangha after the amendment in the regulation put to life by the order of the Apex Court dated 28.04.2016 in W.P.(C)No.261/2016 and the another is the effect of order of the Apex Court dated 11.05.2016 in case of Vigyan Bharati Trust in I.A.No.5/2016 in W.P. (Civil) 490/2014. 22 13. We may now proceed further consider the matters.
14. On the first facet for ready reference, we may reproduce para-131 of the decision of the Apex Court in case of P.A.Inamdar (supra). The same reads as under: “NRI Seats “131. Here itself we are inclined to deal with the question as to seats allocated for Non- Resident Indians (“NRI” for short) or NRI seats. It is common knowledge that some of the institutions grant admissions to certain number of students under such quota by charging a higher amount of fee. In fact, the term “NRI” in relation to admissions is a misnomer. By and large, we have noticed in cases after cases coming to this Court, neither the students who get admissions under this category nor their parents are NRIs. In effect and reality, under this category, less meritorious students, but who can afford to bring more money, get admission. During the 23 course of hearing, it was pointed out that a limited number of such seats should be made available as the money brought by such students admitted against NRI quota enables the educational institutions to strengthen their level of education and also to enlarge their educational activities. It was also pointed out that people of Indian origin, who have migrated to other countries, have a desire to bring back their children to their own country as they not only get education but also get reunited with the Indian cultural ethos by virtue of being here. They also wish the money which they would be spending elsewhere on education of their children should rather reach their own motherland. A limited reservation of such seats, not exceeding 15%, in our opinion, may be made available to NRIs depending on the discretion of the management subject to two conditions. First, such seats should be utilized bona fide by NRIs only and for their children or wards. Secondly, within this quota, merit should not be given a complete go-by. The 24 amount of money, in whatever form collected from such NRIs, should be utilized for benefiting students such as from economically weaker sections of the society, whom, on well defined criteria, the educational institution may admit on subsidized payment of their fee. To prevent misutilisation of such quota or any malpractice referable to NRI quota seats, suitable legislation or regulation needs to be framed. So long as the State does not do it, it will be for the Committees constituted pursuant to the direction in Islamic Academy to regulate.” 15. As per the above referred judicial pronouncement of the Apex Court for the seats allocated to Non-resident Indian (NRI for short)), it has been held by the Apex Court that:
1. A limited reservation of such seats, not exceeding 15% may be made available to NRI depending upon the discretion of the 25 management subject to two conditions as stated therein.
2. The first condition is such seats should be utilized bona fide by NRIs only and for their children or wards.
3. The second condition is that within this quota the merit should not be given a go-by.
4. It has been observed that to prevent misutilisation of such quota or any malpractice referable to any NRI quota seats, suitable legislation or regulation needs to be framed.
5. So long as the State does not frame the legislation or regulation, it will be for the Committees constituted pursuant to Islamic Academy’s direction to regulate.
16. The aforesaid makes it clear that the provision can be made for reservation of seats of NRI quota not exceeding 15% but it should be utilized for bonafide NRIs or for their children or wards and the second is that within this quota, the merit should not be given a 26 complete goby. So far as misutilization of the quota of NRI is concerned, some States have made legislation. For Karnataka State, the legislation is enacted known as ‘The Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006’, read with the amendment made under the said Act by ‘The Karnataka Professional Educational Institutions (Regulation Of Admission And Determination of Fee) (Amendment) Act, 2015’.
17. The aforesaid Act provides for the manner and the mode of allocation of the seats. It does speak for the Common Entrance Test as well as counseling in a fair, transparent and non-exploitative manner as per the consensual arrangement or agreement. But this has to be read with the Regulations framed by MCI for admission to Medical Council for admission to Medical Courses framed by MCI. The Regulation-4 provides for 27 eligibility criteria for Admission to Medical Course and Regulation-5 provides for Selection to Students. Hence, it appears that the rights so read in the decision of the Apex Court in the case of P.A.Inamdar (supra) is to be considered subject to the fulfillment in any case of eligibility criteria as per the Regulation framed by the MCI. The right for selection of students on NRI quota may have the role to play in the selection process or selection procedure provided for selection of students but in any case fulfillment of the eligibility criteria is sine qua non for admission to the medical education. Therefore, we cannot accept the contention of the learned Counsel for the petitioners to the extent that the right so created by the judicial pronouncement in the decision of the Apex Court is to be read in absolute irrespective of the eligibility criteria. 28 18. The learned Senior Counsel for the petitioners did contend that the eligibility criteria at the relevant point of time was being satisfied and hence the same should continue to remain in operation even for post amendment made by the notification of 2010 introducing NEET. In our view, when one speaks for eligibility criteria it has to be read as prevailing from time to time unless eligibility criteria so laid down is struck down or declared ultra vires to the power or is declared illegal.
19. Under the above circumstances, the right read by the Apex Court in the case of P.A.Inamdar (supra) for admission on NRI seats by private medical Colleges is to be read subject to fulfilling of the eligibility criteria as per the Regulation framed by MCI from time to time. 29 20. However, so far as the selection of students is concerned, such right also in our view, cannot be read in isolation to Regulation-5 framed by MCI. Regulation- 5 framed by MCI speaks for procedure for selection of MBBS Course and therefore one may argue that since for the purpose of selection of the students in the decision of the Apex Court in case of P.A.Inamdar (supra), it has also been provided for discretion of the management with the condition that merit should not be given a complete go-by and any test conducted by the management for that respective category of NRI will be one of the modes for assessment of the merit and when similar questions arose for consideration before the earlier Bench of this Court in its decision in case of Shri Basaveshwar Vidya Vardhak Sangha (supra), the Division Bench of this Court held that the requirement of Regulation-5 of MCI would not apply to 30 the NRI seats and therefore even after the amendment made under Regulation-5 by the notification of 2010, the same view may be reiterated.
21. In our view, the said aspect can be addressed in two ways. One is pre-amendment of Regulation 5 and the another is post amendment of Regulation-5. So far as pre-amendment of Regulation-5 is concerned, since there is already a decision of the Division Bench of this Court in case of Shri Basaveshwar Vidya Vardhak Sangha (supra) and the SLP against the said decision is dismissed, we need not express any view. However, if the matter is to be considered in light of the post- amendment of Regulation-5, certain aspects would be relevant to be taken note of. One is that judgment of the Division Bench of this Court in case of Shri Basaveshwar Vidya Vardhak Sangha (supra) is delivered on 17.04.2015 and at the relevant point of 31 time, the amendment in the Regulation including Regulation No.5 had not come into force. It is only after the order dated 28.04.2016 passed by the Apex Court, the amendment in the Regulation has been put to life and therefore the legal position would not be of the same as was prevailing prior to 28.04.2016. In the earlier Regulation-5 (prior to amendment), selection process did provide for the basis of competitive entrance examination and hence it may be possible for the management of the private Medical Colleges to argue that when separate test was being conducted and so permitted by the aforesaid Act, 2006, prevailing in State of Karnataka, the same would be the criteria for assessment of the merit and when the Apex Court observed for not giving a complete go-by to the merit, separate mechanism for assessment of the merit for the purpose of selection of the students in NRI quota was 32 permissible. However, so far as NEET is concerned, it is a combined assessment of the eligibility as well as entrance test. The name itself speaks for Eligibility- cum-Entrance Test. As observed by us hereinabove, so far as eligibility is concerned, clause 1(A) has already been inserted in Regulation-4 providing for eligibility criteria. But for procedure of selection to the MBBS course provided by Regulation-5 (5), it has been substituted which interalia provides by clause (V) as under: “All admissions to MBBS course within the respective categories shall be based solely on the marks obtained in the National Eligibility- cum-Entrance Test.” [Emphasis supplied].
22. The distinguishing aspect is that in the earlier Regulation-5, it did not speak for the word “all admissions” nor did it provide “within the respective 33 categories” and therefore the specific provision for “all admissions to MBBS” and “within the respective categories” is introduced for the first time by amendment in Clause-5(V) of the Regulation 5. The normal interpretation would be that Regulation 5(5) would be applicable to ‘all admissions to MBBS course’ even ‘within the respective categories’. If one looks for the respective category, such would be Government quota, Medical College Association quota and NRI quota and there is no other category conceived or contemplated. Therefore, one possible view is that it would apply to all admissions irrespective of that category for merit on the basis of NEET.
23. The learned Senior Counsel Mr.Rajeev Dhawan, appearing for the second group of petitioners did contend that neither by regulation or by any statutory enactment, the judicial pronouncement made 34 by the Apex Court can be nullified and therefore he submitted that when right is read for the amendment of private Medical Colleges to grant admission on NRI seats, the same cannot be controlled or diluted by the regulation or any statute, unless the basis is taken out by bringing about the amendment that no reservation is to be made for NRI seats and therefore he submitted that this Court may read the pronouncement made by the Apex Court in case of P.A.Inamdar (supra) by reconciling the regulations.
24. There cannot be any dispute on the proposition that unless the basis is taken out of any judicial pronouncement, the statute may not be brought about which results into nullifying the judicial pronouncement and therefore, in present case, no amendment in the Regulation nor any statute is to be read resulting into abolition of NRI quota/seats but is to 35 be read in consonance with the eligibility criteria laid down by MCI prevailing from time to time. It is hardly required to be stated that eligibility is one aspect whereas selection of students is another aspect. In the decision of the Apex Court in case of P.A.Inamdar (supra) on the educational eligibility or the eligibility criteria required for admission to MBBS course, there is no specific right so read by the Apex Court, as sought to be canvassed. The discretion is given to the management for admitting students on NRI seats but subject to fulfilling of two conditions. One for genuine NRI or their wards and the another is for not to give complete go-by to the merit. When one seeks for merit or not to give complete go-by to the merit everything for assessment of the merit would begin from the minimum requirement for fulfilling of the eligibility criteria. It is only after fulfillment of the eligibility criteria the interse 36 merit may be required to be considered and where possibly management may have role to play but as observed earlier, Regulation 5 after amendment again controls the assessment of interse merit in the respective category based on NEET result in the respective category for all admissions to MBBS. Whether while assessing interse merit based on the result of the NEET examination, the student in the respective category of NRI management has any role to play and if yes to what extent, are the aspects if considered and examined may result into diluting the effect of the order dated 28.04.2016 passed by the Apex Court (above referred order) putting life to the notification bringing about the amendment in the Regulation which includes Regulation 5. Hence it is not a matter of nullifying the effect of any right so created or read by the Apex Court in its decision in case of 37 P.A.Inamdar (supra) but is rather a matter for regulating such rights and if yes to what extent. Hence, we do not find that there is any conflict in the statute and the pronouncement made by the Apex Court as canvassed nor harmonizing the regulation can be stretched to the effect of giving power to the management of the private medical colleges to grant admission dehors the fulfillment of the eligibility criteria or dehors interse merit to be assessed in the respective category of NRI seats/management seats.
25. However, if one is to read some discretion with the management for the purpose of grant of admission, the effect of Regulation 5 (5) Clause-(V) may have to be diluted. When the Apex Court as per the above referred order dated 28.04.2016 passed in W.P.(Civil) No.261/2016 while putting life to the notification dated 21.12.2010 has not diluted the effect of the aforesaid 38 Regulation -5 (5)(V) read with subsequent order passed by the Apex Court dated 09.05.2016 in case of Association of Managements Of Unaided Pvt. Medical & Dental College & Anr. Vs. Union of India & Ors. (Annexure ‘K’), we do not find that this Court while exercising the power under Article 226 of the Constitution may create any situation for diluting the effect of the Regulation 5 (5) Clause-V which has been put to life by the above referred order of the Apex Court. Hence, the aforesaid facet No.1 shall stand covered accordingly.
26. On the second aspect/facet, taking into consideration the discussion and the observations made hereinabove, once the amendment in the Regulation has come into force as per the order passed by the Apex Court dated 28.04.2016, in W.P.(C)No.261/2016 in case of Sankalp Charitable Trust And Anr. Vs. Union of 39 India And Ors., one may say that the amendment in the Regulation made by MCI as per the notification dated 21.12.2010 for all purposes has come into force after 28.04.2016 and therefore, if any admission process is to be considered for academic year of 2016- 2017, it has to be considered in accordance with the amendment vide notification dated 21.12.2010 which has come into force effectively from 11.04.2016, in any case from 28.04.2016. Consequently, the interpretation so made or the effects considered of the earlier Regulation-5 or the circular issued based on such Regulation would in any case, lose its efficacy. Hence the second facet shall stand covered accordingly.
27. On the third facet, in view of the observations made by us in the discussion on the first facet, we find that when the Apex Court has already put to life the amendment brought about in the Regulation by 40 notification dated 21.12.2010 while passing the order dated 28.04.2016, this Court in exercise of the power under Article 226 of the Constitution for observance of principles of Judicial discipline would refrain from passing any order which may result into diluting the effect of the order passed by the Apex Court for requirement of NEET in the medical admissions.
28. The alternative contention raised by the learned Senior Counsel for the second group of petitions is that atleast for this year i.e., 2016-2017, NEET requirement may be dispensed with or it may not be made applicable since the MCI has communicated late on 03.08.2016 by the impugned communication for the requirement of NEET.
29. Of course, the aforesaid would be in any case without prejudice to the rights and contentions of the 41 parties to move the Apex Court for diluting the effect of the amendment and more particularly, Regulation-4 (1A) and for eligibility criteria and for Regulation-5(5) (Clause-V) for the selection of students for admission in NRI quota/management seats.
30. In our view, the Apex Court has passed the order as back as on 28.04.2016. Further it is true that nowhere for the Regulation there is any specific reference to NRI seat or NRI quota and it is also true that such came to be specifically stated only when CBSE issued advertisement for private/management/NRI quota seats for second NEET examination.
31. But even if the specific exception is to be carved out for the academic year 2016-2017, the same cannot be undertaken by this Court when the Apex 42 Court without any qualification or without carving out any exception has put to life the requirement of NEET brought about by the notification dated 21.12.2010 as per the order dated 28.04.2016. In our view, as observed earlier, this Court for observance of principles of Judicial discipline would refrain from granting any relief which may result into diluting the effect of the order passed by the Apex Court dated 28.04.2016 for requirement of NEET and put life to the notification and so will be the situation if any exception is to be carved out for the academic year of 2016-2017 for the petitioners or any other similarly situated private Medical Colleges.
32. On the first incidental aspect for binding effect of the judgment of the Division Bench of this Court in case of Shri Basaveshwar Vidya Vardhak Sangha, we have already observed earlier that one may say that 43 for the period of pre-amendment to Regulation-5, the position may be governed by the above referred decision of the Apex Court but after the order of the Apex Court dated 28.04.2016 putting life to the notification dated 21.12.2010 amendment in Regulation-5, the earlier Regulation-5 (5), in sub-clause (I) to (IV) of the said earlier Regulation-5 is deleted. Further, new regulation- 5 has come into force and therefore when the earlier Regulation-5 which came up for consideration is no more on the statute book and new Regulation-5 has come into force after the Apex Court passed the order dated 28.04.2016, the binding effect of the said judgment is to be considered and examined accordingly. When the law is already amended (which is Regulation in the present case), the situation would be altogether different for the academic year of 2016-2017 and hence it would be rather covered by the amendment made in 44 the Regulation inserting new Regulation-5 read with the order of the Apex Court dated 28.04.2016 unless as observed by us hereinabove, the Apex Court dilutes the effect of such amendment or its earlier order dated 28.04.2016 putting life to the notification dated 21.12.2010. Hence, if the matter is to be considered for the admission to the academic year of 2016-2017, it is not possible for us to accept the contention that the matter is to be examined in light of the effect of the judgment of the Division Bench of this Court in case of Shri Basaveshwar Vidya Vardhak Sangha (supra). On the contrary if the matter is to be examined for the academic year of 2016-2017, it has to be considered in light of the order passed by the Apex Court dated 28.04.2016 in W.P.(C)No.261/2016 read with the amendment brought about in the Regulation referred to hereinabove. 45 33. It is true that the order dated 11.05.2016 passed by the Apex Court in case of Vigyan Bharati Trust in I.A.No.5/2016 in W.P. (Civil) No.490/2014 uses the word “it will be open to the petitioner-Institute to select such N.R.I. students who have passed NEET examination for the academic year of 2016-2017”. However, if the order dated 11.05.2016 is read in light of above referred discussion, one may say that since the requirement of passing of NEET cannot be dispensed with, in view of the amendment brought about in the eligibility criteria under Regulation-4, the order has been passed by the Apex Court and such possible view by MCI cannot be said to be arbitrary. But of course, if the requirement of the NEET either with meeting with the eligibility criteria or for selection of student is to be diluted or to be dispensed with for the academic year of 2016-2017 as observed earlier, such may be by the 46 Apex Court but this Court for observance of the principles of Judicial discipline would refrain from creating any situation which may result into diluting the effect of the requirement of NEET by the amendment brought about in the Regulation or even for carving out any exception for the academic year of 2016-2017.
34. In view of the above, we do not find that any relief as prayed for can be granted by this Court in the present petitions. Of course, the aforesaid, in our view, are without prejudice to the rights and contentions of the parties to move the Apex Court for diluting its earlier order or for creating for exception for the petitioners-Institution for the academic year of 2016- 2017, since the communication by the MCI is made late on 03.08.2016. 47 35. Under the circumstances, subject to the observations, we do not find that relief as prayed for by the petitioners can be granted. Hence, all the petitions shall stand disposed of accordingly. JT/- Sd/- JUDGE Sd/- JUDGE FURTHERORDER
After the pronouncement of the order, the learned counsel appearing for the petitioners prays that the interim arrangement as per the order dated 25.8.2016 for not to disturb the admission already granted to genuine NRI/Foreign National be continued for sometime so as to enable the petitioners to approach before the higher forum. 48 The learned counsel appearing for the respondents states that as the petitions are disposed of, the interim arrangement may not be continued. Considering the facts and circumstances, the protection granted for not to disturb the admission already granted up to 25.8.2016 to genuine NRI/Foreign National in the respective institutions shall not be disturbed for a further period of two weeks. Sd/- JUDGE Sd/- JUDGE nd/-