Maharishi Markandeshwar University And Another vs State Of Himachal Pradesh And Others

Jyotsna Rewal Dua, J

Petitioner is a Private State University established in the State of Himachal Pradesh as per Maharishi Markandeshwar University (Establishment and Regulation) Act, 2010. After obtaining all necessary approvals and permissions, it has established a Medical College at Kumarhatti, District Solan (petitioner No.2 herein) with an annual intake of 150 students in MBBS w.e.f. academic year 2013-14. The University was also granted approval for Post-Graduate MD/MS courses with initial intake of 23 seats w.e.f. academic year 2017-18 and thereafter, with intake of 26 seats w.e.f. 2018-19 and with intake of 92 seats w.e.f. academic sessions of 2019-20 onward. This writ petition has been filed by the University and its Medical College for the following prayers:-

"i) Issue a writ of mandamus, order or direction commanding the Respondents to allot 15% NRI seats out of the total sanctioned intake of 150 seats in MBBS course of 2020-21 onwards i.e. 22 NRI seats, as per the NRI criteria mandated by the Apex Court and DGHS (Annexure P-1 colly). A necessary incorporation to that effect may also be directed to be made by the respondents in the MBBS prospectus for academic course 2020-21 onwards.

ii) Issue a writ of mandamus, order or direction commanding the Respondents to allot 15% NRI seats out of the total sanctioned intake of 92 seats in MD/MS course of 2021-22 onwards, as per the NRI criteria mandated by the Apex Court and DGHS (Annexure P-1 Colly). A necessary incorporation to that effect may also be directed to be made by the respondents in the MD/MS prospectus for academic course 2021-22 onwards.

iii) Issue a writ of mandamus, order or direction commanding the Respondents to incorporate a stipulation in the MBBS prospectus of 2020-21 onwards & MD/MS prospectus of 2021-22 onwards, to the effect that the remaining vacant seats including the NRI seats shall be transferred to the petitioner atleast a week before the last date of admissions every year & the petitioner shall be allowed to fill the remaining vacant seats including the NRI seats at its own level."

After hearing the matter, this Court passed the following order on 13.10.2020:-

"Even though the State has placed on record certain instructions. However, we find that the same is not in consonance with the recent judgment rendered by the Hon'ble Supreme Court in Nilay Gupta vs. Chairman NEET PG Medical and Dental Admission/Counselling Board, decided on 09.10.2020.

Learned Senior Counsel, on the basis of the instructions imparted to him, states that the petitioners are ready to adjust 15% quota of NRI seats of the total sanctioned intake towards the seats falling to the management quota.

State to obtain instructions.

List on 14.10.2020."

In light of the judgment rendered by Hon'ble Apex Court in Nilay Gupta vs. Chairman NEET PG Medical and Dental Admission/Counselling Board , Civil Appeal No.3345/2020, decided on 9th October, 2020, this Court vide order dated 16.10.2020, permitted the petitioners "to fill-up 15% of quota of the total intake towards the NRI seats against the management quota."

During hearing of the case today, learned Senior Additional Advocate General submitted that the respondent - State has no objection for confirming the direction issued by this Court in order dated 16.10.2020. Ordered accordingly.

Learned Senior Counsel appearing on behalf of the petitioners submitted that now only two grievances of the petitioners survive, viz. (i) the petitioners should be allowed to fill-up the remaining vacant seats including the NRI seats after second round of counselling in the institute level mop-up round and (ii) NRI seats should be directed to be filled-up in accordance with the guidelines noticed by the Hon'ble Apex Court in its order dated 22.08.2017 passed in Writ Petition (Civil) No.689 of 2017, titled Consortium of Deemed Universities in Karnataka (CODEUNIK) & Anr. Versus Union of India & Ors. The guidelines as noticed in the aforesaid order are extracted hereinafter:-

"In this regard our attention has been invited to a Division Bench decision of the High Court of Madhya Pradesh rendered in Anshul Tomar vs. State of M.P. and Others (2008) 2 MPLJ 450, wherein the High Court after referring to the authority in Ruchin Bharat Patel (supra) has referred to a set of guidelines drafted by Pravesh Niyantran Samiti (Medical Education), Mumbai. The said guidelines read as follows:-

"Based upon the decision of Hon'ble Supreme Court referred herein above dated 13th November, 2006 has laid down a criteria for admission in NRI quota, the Samiti decides and resolves the criteria for granting the admissions in NRI quota, as under :

1) If the mother or father of student is NRI and residing abroad ordinarily, then, either of the situations so held will be considered to be proper.

2) If the first degree relation of the student is NRI and residing abroad ordinarily, then in such circumstances also, qua this year, should be considered eligible. It is natural that such definition would include the real brother and sister over and above the mother-father of the first degree relation.

3) As per the definition revised by the Hon'ble Apex Court, interpretation of clause 3 thereof as not made limited but if made in a broad perspective, then, it is clear that the person who wanted to consider such student as ward (Palya), then, he be considered to be proper subject to compliance of the following conditions :

a) He should be the nearest relation.

b) In the definition of the nearest relation, committee has considered following relative having blood relations.

i) Real brother and sister of father i.e. real uncle and real aunt.

ii) Real brother and sister of mother i.e. real maternal uncle and maternal aunt.

iii) Father and mother of father i.e. grand father and grand mother.

iv) Father and mother of mother i.e. maternal grand father and maternal grand mother.

v) First degree-paternal and maternal cousins.

vi) Such person should be NRI.

c) Such persons should ordinarily be residing abroad.

d) Such person should have looked after such student as the guardian of the student and evidence to that effect must have been produced before the committee by such person.

e) There should be affidavit with aforesaid fact................"

Learned Senior Counsel for the petitioners also submitted that these guidelines are being followed by various States. In this regard, he has made reference to the prospectus/notifications issued by the Government of Maharashtra and Haryana. To this prayer, the only objection raised by learned Senior Additional Advocate General is that the above order is applicable only for Deemed Universities, whereas the petitioner is not a Deemed University. We are afraid that the objection has been taken only for the sake of opposing without there being any merit in the objection. The order passed by the Hon'ble Apex Court prescribes the principles to be followed for admission of NRI candidates. As per the uncontroverted averments in the petition, the Director General Health Services, Government of India, vide notification dated 05.03.2019 alongwith copy of order dated 22.08.2017 in consortium of Deemed Universities in Karnataka's case, supra, issued information for all regarding compliance with NRI criteria for selection against 15% allocated NRI seats. Therefore, it cannot be held that the principles laid down in the order are applicable only to the Deemed Universities. These principles are also applicable while making selection against 15% allocated NRI seats in petitioner No.2-Medical College. Further, we direct the respondents to transfer the remaining vacant seats including the NRI seats after second round of counselling at least one week before the last date of admission to enable the petitioners to fill-up the remaining vacant seats including the NRI seats in the institute level mop-up round.

With these observations, the writ petition is disposed of alongwith pending miscellaneous application(s), if any.