PREETI SAINI Vs. STATE

JUDGEMENT

(1.) THESE two writ petitions pertain to admission in MBBS/BDS Course. It is to challenge the advertisement dated 17.05.2010 and 26.05.2010 for holding Pre -Medical Test by the NIMS University for admission in MBBS/BDS Course. A further direction is sought to fill all the seats of the courses through entrance test namely; RPMT & PCPMT. Learned counsel for petitioners submits that admissions in MBBS/BDS Course can be made as per Regulation on Graduate Medical Education, 1997 framed by MCI (in short "MCI Regulation") however NIMS University issued advertisement and filled the seats de hors MCI Regulation. It is moreso when the Hon'ble Apex Court earlier decided the similar issue when one of the Medical Colleges namely; Gitanjali Medical College had given admissions de hors Regulation 5 of the MCI Regulation. The NIMS University had yet evolved mechanism to give admissions in MBBS/BDS course by holding entrance test at their own. They issued advertisement for holding All India Combined Pre -Medical Test/Dental Test on 28th May, 2010. The respondent University thereafter issued another advertisement to extend the date of entrance test for 11th June, 2010. The advertisements for entrance test were issued despite of Pre Medical Test conducted by Rajasthan University of Health Sciences vide its advertisement dated 18.02.2010 and Private College Pre -Medical Test conducted by Mohanlal Sukhadia University. The respondent -NIMS University thus conducted entrance test at their own to fill up their own seats in violation of MCI Regulation and which cannot be said to be by fair, impartial and non -exploitative method. The entrance test and consequential admission thus deserve to be set aside with further direction to fill the seats through RPMT or PCPMT.

(2.) LEARNED counsel referred the judgement in the case of PA Inamdar v. State of Maharashtra, reported in : (2005) 6 SCC 537 where it was held that while unaided institution can claim right under Article 19(1)(g) of the Constitution of India for establishment of the institution, the admissions can be made by one common entrance test by the institutions imparting same or similar professional education. The State can also provide common entrance test to secure fair and merit based admission. It is to avoid mal -administration. In the background aforesaid, the respondent -NIMS University was under an obligation to fill all the seats from an amongst meritorious candidates either from PMT or PCPMT. A further reference of the judgment in the case of Islamic Academy of Education v. State of Karnataka & Ors., reported in : JT 2003 (7) SC 1 has been given. In the aforesaid case, the judgment in the case of TMA Pai Foundation & Ors. v. State of Karnataka & Ors., reported in : JT 2002 (9) SC 1 was considered in great details. The majority judgment in the case of TMA Pai Foundation (supra) was summarized in seven points which is again have bearing on the present case. Therein, it was held that unaided professional colleges can have certain percentage of seats for admission for those students who have passed common entrance test conducted by itself or by the State/University however remaining seats have to be filled on the basis of counselling by the State agency. In the instant case, the respondent University departed from direction given in the case aforesaid.

(3.) IN view of MCI Regulations, admission to the MBBS/BDS Course deserves to be set aside inasmuch as any admission de hors the Regulations, if allowed to maintain, it would be nothing but perpetuation of illegality. The admission should be cancelled. A reference to the judgment in the case of Abhyudya Sanstha v. Union of India, reported in : (2011) 6 SCC 145 has been given apart from reference of the case of Harish Verma & Ors. v. Ajay Srivastava & State of Rajasthan & Ors., reported in : AIR 2003 SC 3371 wherein illegal admissions were cancelled.