Medical Council of India vs Dr. Sukarna Mukherjee and Others

Arun Mishra, C.J.—The appeals have been preferred by the Medical Council of India aggrieved by the judgment and order dated 07.03.2012 passed by the Single Bench of this Court in which the question arises for decision in the instant matters that whether this Court could have directed the second counselling to be held for unfilled seats at the fag end of the academic session of 2012-13 in March 2013, particularly in view of the order passed by the Hon''ble Supreme Court in the matters which were pending in this Court on 28th May, 2012 in Special Leave to Appeal (Civil) Nos. 17684-17688 of 2012 in which the Apex Court has ordered that as the counselling was in continuance, eligible candidates of both Categories shall be allowed to participate in the counselling. The incentive marks may be awarded to the carved out category as in the notification to the in-service candidates which shall be placed in a sealed cover before the Division Bench hearing the matter. After the matter is decided on merits, the High Court may implement its order giving effect to the admission. It was specifically observed that the admissions shall take place only after the order of the Division Bench of the High Court hearing the writ appeal. The time for giving admission was extended regard being had to the special features of the case. Pursuant to the order passed by Apex Court the appeals being M.A.T. 661 of 2012, M.A.T. 681 of 2012, M.A.T. 688 of 2012, M.A.T. 793 of 2012, M.A.T. 840 of 2012 were decided vide judgment and order dated 18th October, 2012 and the admissions were accordingly given in compliance with the order passed by the Hon''ble Supreme Court on 20th October, 2012 as a special feature of the case.

The University of Health had issued a notification for admission test for Degree/Diploma/Post Graduate course on 22nd January, 2012 and for DPH/DIH on 29th January, 2012.

Notification was issued on 23rd November 2011 with respect to remote and difficult areas by the authorities so as to give weightage to the in-service candidates. It was set aside by Division Bench of this Court on 18.10.2012 In MAT 661 of 2012, M.A.T. 681 of 2012, M.A.T. 688 of 2012, MAT 793 of 2012 and MAT 840 of 2012, in which Division Bench of this Court had passed an interim order as against the order passed by the Single Bench. Same was questioned before the Hon''ble Supreme Court in Special Leave to Appeal (Civil) Nos. 17684-17688 of 2012 where the Hon''ble Supreme Court finally decided the same on 28th May, 2012.

Fact is also not in dispute that All India Quota of seats for second counselling was released by DGHS Government of India on 13th July, 2012.

The University sought for permission on 31st October 2012, from Medical Council of India for second counselling in respect of vacant seats, 62 in number, as the State was in need of Specialist Doctors in different Hospitals with MD/MS/Diploma.

On 24th November, 2012 the Medical Council of India replied to the letter dated 31st October, 2012 and informed that Medical Council of India has no power to extend the date but the University was directed to follow the orders and judgment passed by the High Court and the Hon''ble Supreme Court.

After admissions were over pursuant to the direction of the Hon''ble Supreme Court, several writ petitions were filed before the Single Bench. They have been heard and decided by the common judgment and order dated 7th March, 2013. The Single Bench has held that it was not permissible in the extra-ordinary circumstances to follow the schedule fixed by the MCI as large number of candidates had to forego their admission due to conducting second counselling though there were large number of vacancies. Writ petitions have been allowed with the direction to hold second counselling for the Medical Post the Graduate degree and diploma course in respect of medical officers covered by the 2008 Rules for the sessions 2012 and the vacancies be filled up. The candidates who would be called for the second counselling process would cover the admitted medical officers who may decide to change the course and they shall be informed in writing that in such a case they would have to sit in the examination which are normally scheduled to be held at the end of the course, to be held for them along with the examination of the candidates who enter such course in 2013 session. Thus, by the impugned order the session itself has been changed for such students meaning thereby instead of examination for 2012-13 session the students would appear in examination of 2013-14 session. University has been directed to "create a special schedule" for such students so that the minimum attendance requirement and programme participation as laid down by the MCI Regulations are complied with. It has also been ordered by the Single Bench that such "rescheduling shall be done in consultation with the MCI", and the MCI shall recognize the validity of the qualification of the candidates obtained as per the directions contained in this judgment. The second round of counselling was ordered to be held within four weeks. The MCI had preferred appeals against the judgment and order passed by the Single Bench.

Two of the appeals had been preferred by in-service candidates contending that the candidates who have already opted for the seats pursuant to the decision of this Court in October 2012, they could not have been permitted to change their seats and subjects. However, they are not questioning the holding of second counselling.

It transpires that pursuant to the second counselling in the various medical colleges, 90 in-service candidates had been permitted to change the course which they had opted for In October, 2012. They have undergone for a substantial period of course which they had joined on October 2012. The second counselling was held on 21 March, 2013 and out of the waiting list, fresh admissions had been given on 69 seats. Thus, total candidates who are given admission to the new seats are 159.

Shri, Saugata Bhattacharyya, learned Counsel appearing on behalf of Medical Council of India has submitted that the impugned order is passed in violation of the directive issued by the Hon''ble Supreme Court on 28.05.2012. The remedy, if any was before the Hon''ble Supreme Court only. As the Hon''ble Supreme Court has fixed the time in the special features of the case and which came to an end with the admission given pursuant to the Division Bench decision of this Court in M.A.T. 661 of 2012, the second counselling was held on 21.3.2013 after the decision of the Division Bench of this Court on 18.10.2012 was contrary to such directive of the Apex Court. Thus, it was not open to the Single Bench to direct the second round counselling and to create a new academic session. This would increase the intake capacity of the colleges which cannot be done. In exceptional circumstances, the Hon''ble Supreme Court in the case of discrimination etc. has ordered a particular student to be admitted against the quota of the next academic session. The intake capacity could not have been ordered to be increased. Apart from that, new special sessions could not have been ordered to be started from March, 2013. Thus, the directions issued by the Single Bench are contrary to the various decisions of the Hon''ble Supreme Court and no such exercise is permissible. This would upset the very calendar, which has been ordered to be strictly adhered to by the Hon''ble Supreme Court. General counselling could not have been ordered to be held as done in the instant case. The students could not have been permitted to change the seats once they have availed it in view of Regulations 5.8 of the West Bengal University of Health Sciences in 2012. Such kind of orders have been set aside by the Hon''ble Supreme Court and the order passed by the Single Bench is patently illegal and may be quashed.

It was submitted by Shri Saptangshu Basu, learned Senior Counsel appearing on behalf of the respondents/petitioners that it is a case where interim stay passed by the Court came to an end with the decision of the M.A.T. 661 of 2012 on 18th October, 2012. The Apex Court dealt with the matter on 28th May, 2012 and question of second counselling was not germane before the Hon''ble Supreme Court. The Hon''ble Supreme Court has dealt with the first counselling only. As such, it was open to the Single Bench to direct holding of the second counselling which is mandatory under the Regulations and appendix as framed by the Medical Council of India. He has also relied upon the decision of the Hon''ble Supreme Court in Asha Vs. Pt. B.D. Sharma University of Health Sciences and Others, Such Post Graduate/Diploma seats are national wealth, cannot be permitted to go waste. Considering the readiness of the University as well as the State Government, the impugned directions had been issued by the Single Bench. He has submitted that in the facts and circumstances of the case, the directions issued are appropriate and considering large number of students who had been admitted pursuant to the counselling held on March, 2013 interference may not be made, as by now for further 3/4 months, the course has been pursued by the students. The change of course is permissible even in second counselling in case seats remain vacant in first counselling. He has relied upon the provisions of the Regulations of the Medical Council of India of 2000 and the appendix framed thereunder. He has also relied upon the provisions contained in Regulation 5.9 of the West Bengal University of Health Sciences. Due to the act of the Courts the seats cannot be permitted to go vacate and requisite directions have been issued by the Single Bench. Hence, the appeal has been preferred. No case is made out for interference of the appeal.

Shri Rajarshi Halder, learned Counsel appearing on behalf of the appellant candidates has submitted that once the candidates have pursued the course for several months after joining in October 2012 in view of Medical Council of India Regulations 2000 as well as the provisions contained in the Regulations of 2012 of the University, the change of course could not have been permitted. However, he has supported the holding of the counselling but after exclusion of the candidates who have already joined the course in October, 2012.

The Medical Council of India has framed the Regulations of Post Graduate Medical Education Regulations, 2000. Regulation 9 has been amended in the year 2006 to the effect that there shall be no admission of the students in respect of any academic session beyond 31st May for postgraduate courses and 30th September for super specialty courses under any circumstances. Following is the amendment made in Regulation 9 by way of Postgraduate Medical Education (Amendment) Regulations, 2006:

In the Postgraduate Medical Education Regulations, (2000 In Regulation 9, after sub-regulation (2), the following sub-regulation shall be inserted:

(i) The Universities and other authorities concerned shall organize admission process in such a way that teaching in postgraduate courses starts by 2nd May and by 1st August for super specialty courses each year. For this purpose, they shall follow the time schedule indicated in Appendix-III.

(ii) There shall be no admission of students in respect of any academic sessions beyond 31st May for postgraduate courses and 30th September for super specialty courses under any circumstances. The Universities shall not register any student admitted beyond the said date.

(iii) The Medical Council of India may direct, that any student identified as having obtained admission after the last date for closure of admission be discharged from the course of study, or any medical qualification granted to such a student shall not be a recognized qualification for the purpose of the Indian Medical Council Act, 1956.

The institution which grants admission to any student after the last date specified for the same shall also be liable to face such action as may be prescribed by MCI Including surrender of seats equivalent to the extent of such admission made from its sanctioned intake capacity for the succeeding academic year.

In Appendix III attached to the aforesaid amendment containing time schedule for admission is also relevant. The same is also quoted below;

Appendix-III

Time Schedule for Completion of Admission Process for Postgraduate Medical Courses.

NOTE: @ Head of the Colleges should intimate the vacancies existing after the last date for joining the course by the candidate concerned in respect of the All India Quota of seats to the DGHS within seven days and latest by 6th April for postgraduate course and 23rd July for super-specialty courses.

It is not in dispute that for such Courses normally the session commences from 1st May and ends on 30th April of the succeeding year. As the criteria of giving weightage in remote and difficult area was questioned in this Court, the Single Bench has dismissed the writ application and in appeal being M.A.T, 661, of 2012, etc. interim order was passed considering the situation which arose as Court was not able to decide the matters within the fixed time and the schedule of the M.C.I., the interim matter travelled to the Hon''ble Supreme Court. The Hon''ble Supreme Court, treating it as a special case, has passed by the following order on 28th May, 2012 in SLP (Civil) Nos. 17684-17688/2012.

Upon hearing counsel the Court made the following

ORDER

Heard learned counsel for the parties and perused the record.

In view of the fact that the admissions are going to be closed on 31.05.2012 as has been pointed out by Mr. Amit Kumar, learned counsel appearing for Medical Council of India, we can quite see the urgency in the matter. It is therefore, requested to the writ Appeal Court to hearing the matter as early as possible Immediately after re-opening.

For that purpose, we request Hon''ble the Chief Justice of the High Court to place the Matter before a Bench for expeditious hearing and the concerned Bench'' is requested to decide the appeal within three weeks.

In the meanwhile, as the counseling is In continuance, eligible candidates of both Categories shall be allowed to participate in the counseling. The incentive marks may be awarded to the carved out category as in the notification to the in-service candidates which shall be placed in a sealed cover before the Division Bench hearing the matter. After the matter is decided on merits, the High Court may implement its order giving effect to the admission.

The admissions shall take place only after the order of the Division Bench of the High Court hearing the writ appeal. The time for giving admission is extended regard being had to special features of the case.

With these observations, the Special Leave petitions stand disposed of.

M.A.T. 661 of 2012 and other appeals were decided on 18th October, 2012. In our considered opinion the admissions came to an end as soon as the order passed by the Division Bench of this Court in the writ appeal was complied with as ordered by Apex Court and time for giving admission had been extended by Apex Court as regards to the special features of the case. The admissions so ordered were not confined to the first or second counselling but in regard to all the admissions., But for the order of Hon''ble Supreme Court extending time for admission, it was not open to give admission in October 2012. Thus, in our considered opinion in view of the specific order passed by the Hon''ble Supreme Court, it was not within the jurisdiction of this Court to extend the period for admissions and for holding of the second round of counselling vide impugned order dated 7th March, 2013 to hold the counselling in March, 2013.

The impugned order suffers from various illegalities. Firstly, the Single Bench was very much aware of the fact that it was creating a new session. It is not at all permissible to create a new session from March, 2013. The jurisdiction of the Court only confined in appropriate cases to issue direction for giving admission in the, next academic session in case whereof hostile discriminations are made out. Thus, the creation of new academic session from March, 2013 is not only in violation of the Regulations of 2000 of the Medical Council of India and no such direction could have been issued by the Single Bench as seats had elapsed and were not available for allotment in March 2012. It also passes comprehension how there could be direction issued in the so called extra ordinary circumstances of the caste as projected by the Single Bench to direct the students to sit in the examination of the next academic session i.e. 2013-2014. The order has the effect of increase of the intake capacity of various colleges. The intake capacity is fixed by the Medical Council of India and the same cannot be ordered to be increased by judicial decision making as done in instant case. In appropriate cases, equities can be adjusted on beginning of admission afresh for next academic session but not by directing increase of the intake capacity which is the direct effect of the impugned judgment and order has the effect of increasing intake capacity which is not permissible.

The University has been directed by Single Bench to create a special schedule and such schedule has been ordered to be worked out in consultation with the Medical Council of India. Rescheduling of the academic course is not at all permissible when the academic session is fixed. No such venture is permissible. In the circumstances, the second counselling which has been ordered is patently illegal and could not have been ordered to create the chaotic situation. As many as 90 students had been permitted to change the course by the implementation of the impugned judgment and order and fresh admissions have been given to 69 students. Virtually, 159 students have started new course in 14 medical colleges pursuant to counselling held on March, 2013. Such kind of exercise is not envisaged at all as per regulations and settled propositions of law by the various decisions of the Hon''ble Supreme Court.

The decision in Medical Council of India Vs. Madhu Singh and Others, has been relied upon by the learned Counsel appearing on behalf of the M.C.I. in which the Apex Court has laid down that if a student is admitted after commencement of the course, it would be against the intended objects of fixing a time schedule, as the factual position goes to show the inevitable result is increase in the number of seats for the next session to accommodate the students who are admitted after the commencement of the course for the relevant sessions. The suggestion for extra classes cannot be taken to be acceptable. Apex Court held that the students also need rest and the continuous taking of classes with an object of fulfilling the requisite number of days would be harmful to the students. The Apex Court has also laid down that even if the seats are vacant that cannot be a ground for making mid session admissions.

In the instant case, admissions have been ordered to be given at the fag end of the session when hardly one month remained for completion of academic session though the academic session commenced effectively in this case from 20th October, 2012 as ordered by Apex Court on 28.05.2012, but that should not have been a ground to direct mid stream admission. The Apex Court has laid down that no variation of schedule so far as admissions are concerned shall be allowed. In case second counselling was to be held, the permission of the Apex Court was necessary in the instant case. The Apex Court in Madhu Singh''s case (supra) has held as follows:

It is to be noted that if any student is admitted after commencement of the course it would be against the intended objects of fixing a time schedule. In fact, as the factual position goes to show, the inevitable result is increase In the number of seats for the next session to accommodate the students who are admitted after commencement of the course for the relevant session. Though, it was pleaded by learned counsel for Respondent 1 that with the object of preventing loss to the national exchequer such admissions should be permitted, we are of the view that the same cannot be a ground to permits midstream admission which would be against the spirit of governing status. His suggestion that extra classes can be taken is also not acceptable. The time schedule is fixed by taking Into consideration the capacity of the student to study and the appropriate spacing of classes. The students also need rest and the continues taking of classes with the object of fulfilling the requisite number of days would be harmful to the students physical and mental capacity to study. In fact such a suggestion was held to be grossly inappropriate in Dr. Dinesh Kumar case., In para 15, It was observed as under:

The next question is as to when should the examination be held. Learned counsel for the Union of India as also the Indian Medical Council suggested that it could be done in October this year so that the candidates selected at the entrance examination could join the 1987-88 session from November. In most of the colleges, admission in respect of 85 percent seats has been completed and actual teaching has either begun or is about to begin. By November a substantial part of the course would have been read. To meet the situation, learned counsel for the Union of India suggested that we should direct the colleges and institutions to have a supplementary course for the students admitted against the 15 percent vacancies. In the absence of consent from the institutions, it would be difficult to work out that. As it is, there exists a lot of confusion in the field and we do not propose to add to it by giving a direction of the type proposed. On the other hand it would be appropriate to bring the scheme into operation from the coming year so that all the preliminaries can be properly conducted and in regular course the students can seek admission to the 1988-89 session. We accordingly direct the authorities to hold the examination In the manner directed, in June (sic May) 1988. The Union of India, the Medical Council, the Dental Council, the several States Universities and Medical Colleges or institutions who are covered by the scheme are directed to comply with these orders in time so as to give full effect to what has been said here.

(italicized for emphasis)

There is, however, a necessity for specifically providing the time schedule for the course and fixing the period during which admissions can take place, making it clear that no admission can be granted after the scheduled date, which essentially should be the date for commencement of the course.

In conclusion

(i) there is no scope for admitting students midstream as that would be against the very spirit of statutes governing medical education.

(ii) even if seats are unfilled that cannot be a ground for making mid session admissions;

(iii) there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year;

(iv) MCI shall ensure that the examining bodies fix a time schedule specifying the duration of this course, the date of commencement of the course and the last date for admission; (v) Different modalities for admission can be worked out and necessary steps like holding of examination If prescribed, counseling and the like have to be completed within the specified time;

(vi) No variation of the schedule so far as admissions are concerned shall be allowed;

(vii) In case of any deviation by the institution concerted, action as prescribed shall be taken by MCI.

Another decision in Mridul Dhar (Minor) and Another Vs. Union of India (UOI) and Others, has been relied upon by the learned Counsel appearing on behalf of the Medical Council of India. After quoting the schedule, the Apex Court having regard to the professional courses, has emphasised that all concerned authorities are required to strictly adhere to the time schedule. There should not he any midstream admissions. The Hon''ble Supreme Court held in para 32 of the judgement as follows:

Having regard to the professional courses, it deserves to be emphasised that all concerned including Governments, State and Central both, MCI/DCI colleges-new or old, students, Boards, universities, examining authorities, etc. are required to strictly adhere to the time schedule wherever provided for; there should not be midstream admissions; admissions should not be In excess of sanctioned intake capacity or In excess of quota of anyone, whether State or management. The carrying forward of any unfilled seats of one academic year to next academic year it also not permissible.

The Apex Court has issued various directions also in para 35 of the aforesaid judgement, which are as follows:

Having regard to the aforesaid, we issue the following directions:

1) All participating States and Union Territories'' Boards of Secondary Education shall declare 10+2 result by 10th June of every year and make available the mark-sheets to the students by 15th June.

The aforesaid condition would not apply to West Bengal for the year 2005. As already noticed, West Bengal would make available to the students concerned the mark-sheets by 15.6.2005.

Heads of Boards would be personally liable to ensure compliance.

The timetable mentioned in notification dated 25.2.2004 shall be strictly adhered to by all concerned including States and Union Territories and results of State medical/dental entrance examination shall be declared before 15th of June.

The States/Union Territories shall complete the admission process of first round of State-level medical/dental college admission by 25th July i.e. a week before start of second round counselling or allotment of seats under all-India quota. The correct vacancy position shall be intimated by the Chief Secretary of the State/Union Territory to the DGHS by 26th July. It shall be verified by the Head of the institution/or Head of the medical institution/Health Department of the State.

It shall be the responsibility of all concerned including Chief Secretaries of each State/Union Territory and/or Health Secretaries to ensure compliance with the directions of this Court and requisite time schedule as laid down in the Regulations and non-compliance would make them liable for requisite penal consequences.

All seats In all-India quota must be fully disclosed giving details of the date of recognition/renewal to DGHS before a date to be notified by DGHS and the same shall be duly published.

By 31st October, the States, through the Chief Secretaries/Health Secretaries shall file a report in regard to admissions, with the DGHS giving details about the adherence to a time schedule and admission granted as per the prescribed quota. The recalcitrant States, particularly officers personally will have to face the consequences for violation.

The DGHS shall file by 31.1.2005 report in regard to feasibility of conducting counselling through the process of video-conferencing.

The DGHS shall file report within three months on the aspect of Section 10A seats being subjected to 15 percent all-India quota and about the increase of the quota from 15 percent to 20 percent.

The DGHS shall also file a report within three months on the aspect of constitution of High-Powered Committee/ombudsman.

The seats allotted upto 15th July, shall also be subjected to the respective state quotas.

If any private medical college in a given academic year for any reason grants admission in its management quota In excess of Its prescribed quota, the management quota for the next academic year shall stand reduced so as to set off the effect of excess admission in the management quota in the previous academic year.

The time schedule for grant of admission to postgraduate courses shall also be adhered to.

For granting admission, the merit determined by competitive examination shall not be tinkered with by making a provision like grant of marks by mode of interview or any other mode.

Time schedule for establishment of new college or to increase intake in existing college, shall be adhered to strictly by all concerned.

Time schedule provided in the Regulations shall be strictly adhered to by all concerned failing which the defaulting party would be liable to be personally proceeded with.

Copy of the judgement shall be sent to the Chief Secretaries of all the States/Union Territories proceeded with.

In Priya Gupta Vs. State of Chhatishgarh and Others, , the Hon''ble Apex Court has considered similar question and considered the irregularities in the prescribed schedule relying upon Mridul Dhar''s case (supra) and has observed that there should be strict adherence of the time schedule of the Medical Council of India. The Apex Court has also referred to State of Bihar and others Vs. Dr. Sanjay Kumar Sinha and others, , in which it has been laid down that the order of the Hon''ble Apex Court and Regulation issued by the Medical Council of India must be strictly followed, it has been re-emphasised that the midstream admissions should not be permitted and secondly, the practice of compassion in review of such admission even just "four months after beginning of the classes" cannot be permitted. The Hon''ble Apex Court has also examined the adverse consequences of non-adherence to the prescribed schedule and has laid down that there is no power with the authority to violate the schedule. It has been declared that none of the authorities are vested with the power of relaxing, varying or disturbing the time schedule or the procedures of admission as provided in the judgments of this Court and M.C.I.''s Regulations. The Apex Court has laid down thus:

In the case of State of Bihar and others Vs. Dr. Sanjay Kumar Sinha and others, a Bench of this Court took exception to the non-adherence to the time schedules and reiterated that the admissions to medical colleges and postgraduate courses were governed by the orders of this Court and the regulations issued by the Medical Council of India, which must be strictly followed. This Court issued a warning, that if there was any violation in future, the same shall be treated as default and viewed very seriously. Further, in the case of Medical Council of India Vs. Madhu Singh and Others, this Court declared two very important principles. Firstly, it declared that mid-stream admissions should not be permitted and secondly, noticing the practice of compassion in review of such admissions, this Court also held that late or mid-stream admission, even just four months after beginning of the classes, cannot be permitted.

Now, let us examine the adverse consequences of non-adherence to the prescribed schedules. The schedules prescribed have the force of law, in as much as they form part of the judgments of this Court, which are the declared law of the land in terms of Article 141 of the Constitution of India and form part of the regulations of the Medical Council of India, which also have the force of law and are binding on all concerned. It is difficult to comprehend that any authority can have the discretion to alter these schedules to suit a given situation, whether such authority is the medical Council of India, the Government of India, State Government, University or the selection bodies constituted at the college level for allotment of seats by way of counseling. We have no hesitation is clearly declaring that none of these authorities are vested with the power of relaxing, varying or disturbing the time schedule, or the procedures of admission, as provided in the judgments of this Court and the medical Council of India Regulations. Inter alia, the disadvantages are:--

(1) Delay and unauthorized extension of schedules defeat the principle of admission on merit, especially in relation to preferential choice of colleges and courses. Magnanimity in this respect, by condoning delayed admission, need not be shown by the Courts as it would clearly be at the cost of more meritorious students. The principle of merit cannot be so blatantly compromised. This was also affirmed by this Court In the case of Muskan Dogra & Ors. v. State of Punjab & Ors. [(2005) 9 SCC 186].

(2) Mid-stream admissions are being permitted under the garb of extended counseling or by extension of periods for admission which, again, is impermissible.

(3) The delay in adherence to the schedule, delay In the commencement of courses etc., encourage lowering of the standards of education in the Medical/Dental Colleges by shortening the duration of the academic courses and promoting the chances of arbitrary and less meritorious admissions.

(4) Inequities are created which are prejudicial to the interests of the students and the colleges and more importantly, affect the maintenance of prescribed standard of education. These Inequities arise because the candidates secure admission, with or without active connivance, by the manipulation and arbitrary handling of the prescribed schedules, at the cost of more meritorious candidates. When admissions are challenged, these students would run the risk of losing their seats though they may have completed their course while litigation was pending in the court of competent jurisdiction.

(5) The highly competitive standards for admission to such colleges stand frustrated because of non-adherence to the prescribed time schedules. The admissions are stretched to the last date and then admissions are arbitrarily given by adopting impermissible practices.

(6) Timely non-inclusion of the recognized/approved colleges and seats deprives the students of their right of fair choice of college/course, on the strength of their merit.

(7) Preference should be. to fill up all vacant seats, but under the garb that seats should not go waste, it would be impermissible to give admissions in an arbitrary manner and without recourse to the prescribed rule of merit.

The Apex Court has also laid down the need of the binding regulations to be enforced. Violation of the directions issued by the Hon''ble Supreme Court by any process shall tantamount to indiscipline, insubordination, misconduct and being unworthy of becoming a public servant. Such defaulting authority, member or body shall also be liable for action by and personal liability to third parties who might have suffered losses as a result of such default of the violation of M.C.I. Regulation of the directions of the Hon''ble Supreme Court. Besides, liability for contempt of Court and recognition of the institution can also be withdrawn in case any illegality is committed. The Apex Court has held in State of Bihar & Ors. v. Dr. Sanjay Kumar Sinha & Ors. (supra):

All these directions shall be complied with by all concerned, including Union of India, Medical Council of India, Dental Council of India, State Governments, Universities and medical and dental colleges and the management of the respective universities or dental and medical colleges. Any default in compliance with these conditions or attempt to overreach these directions shall, without fail, invite the following consequences and penal actions:--

a) Every body, officer or authority who disobeys or avoids or fails to strictly comply with these directions stricto sensu shall be liable for action under the provisions of the Contempt of Courts Act. Liberty is granted to any Interested party to take out the contempt proceedings before the High Court having jurisdiction over such Institution/State, etc.

b) The person, member or authority found responsible for any violation shall be departmentally proceeded against and punished in accordance with the Rules. We make it clear that violation of these directions or overreaching them by any process shall tantamount to indiscipline, insubordination, misconduct and being unworthy of becoming a public servant.

c) Such defaulting authority, member or body shall also be liable for action by and personal liability to third parties who might have suffered losses as a result of such default.

d) There shall be due channelization of selection and admission process with full co-operation and co-ordination between the Government of India, State Government, Universities, Medical Council of India or Dental Council of India and the colleges concerned. They shall act in tandem and strictly as per the prescribed schedule. In other words, there should be complete harmonisation with a view to form a uniform pattern for concerted action, according to the framed scheme, schedule for admission and regulations framed in this behalf.

e) The college which grants admission for the current academic year, where its recognition/approval is granted subsequent to 15th July of the current academic year, shall be liable for withdrawal of recognition/approval on this ground, in addition to being liable indemnify such students who are denied admission or who are wrongfully given admission in the college.

f) Upon the expiry of one week after holding of the second counseling, the unfilled seats from all quotas shall be deemed to have been surrendered in favour of the respective States and shall be filled thereafter strictly on the basis of merit obtained in the competitive entrance test.

g) It shall be mandatory on the college and University to inform the State and the Central Government/competent authority of the seats which are lying vacant after each counseling and they shall furnish the complete details lists of seats filled and vacant in the respective States, immediately after each counseling.

h) No college shall fill up its seats in any other manner.

Reliance has also been placed on Faiza Choudhary Vs. State of Jammu and Kashmir and Another, in which it has been laid down that a "Medical seat has life only in the year it falls that too only till the cut off date" fixed by this Court i.e. 30th September in the respective year. Carry forward principle is unknown to professional courses, like medical, engineering, dental etc. The Apex Court considered the question of sanctioned capacity. It has also been laid down that there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year. The Supreme Court on Faiza Choudhury''s case has laid do thus:

A medical seat has life only in the year it falls that too only till the cut-off date fixed by this Court i.e. 30th September in the respective year. Carry forward principle Is unknown to the professional courses like medical, engineering, dental etc. No rule or regulation has been brought to our knowledge conferring power on the Board to carry forward a vacant seat to a succeeding year. If the Board or the Court indulges in such an exercise, in the absence of any rule or regulation, that will be at the expense of other meritorious candidates waiting for admission in the succeeding years.

The Medical Council of India Act provides that admission can be made by the medical colleges only within the sanctioned capacity for which permission u/s 10A/recognition u/s 11 (2) has been granted. This Court in State of Punjab and others Vs. Renuka Singla and others, ), held that the High Court or the Supreme Court cannot be generous or liberal In issuing such directions which in substance amount to directing authorities concerned to violate their own statutory rules and regulations, In respect of admissions of students. In Medical Council of India Vs. State of Karnataka and Others, , 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 Vs. Madhu Singh and Others, 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 and Others Vs. State of Orissa and Others, ) has reiterated that it would not be possible to increase seats at the expenses of candidates waiting for admission in the succeeding years.

The decision of the Single Bench is squarely against the aforesaid dicta of the Hon''ble Supreme Court in Faiza Choudhury''s case (supra).

It has been laid down in the case of Dr Preeti Srivastava and Another Vs. State of M.P. and Others, and in the case of Medical Council of India Vs. State of Karnataka and Others, hat the regulations of the Medical Council of India have a binding effect.

Coming to the decision in the case of Asha v. Pt. B. D. Sharma University of Health Sciences & Ors. (supra), which was heavily relied upon by Mr. Saptangshu Basu, learned senior Advocate appearing on behalf of the petitioners/respondents, in which the apex court considered the question of admission in medical course. In that case, the appellant''s pleading was that her name was not called for counselling, though she was present. On knowing that less meritorious candidates had been admitted, she immediately raised claim before the authorities, but the same was ignored. The appellant''s representation being not considered by the authorities, the writ petition was filed without any delay, wherein it was decided that the admission was denied to the appellant arbitrarily. In the aforesaid context, the apex court has held that cut-off date fixed for admission cannot be used as technical instrument to deny admission to the appellant, when she was arbitrarily denied the same. The apex Court further held that the appellant was entitled to relief of admission in current academic session, that is, the next academic session.

Mr. Basu has relied upon paragraph 31 and 36 of the aforesaid decision which read thus:--

There is no doubt that 30th September is the cut-off date. The authorities cannot grant admission beyond the cut-off date which is specifically postulated. But where no fault is attributable to a candidate and she is denied admission for arbitrary reasons, should the cut-off date be permitted to operate as a bar to admission to such students particularly when It would result in complete ruining of the professional career of a meritorious candidate, is the question we have to answer. Having recorded that the appellant is not at fault and she pursued her rights and remedies as expeditiously as possible, we are of the considered view that the cut-off date cannot be used as a technical instrument or tool to deny admission to a meritorious students. The rule of merit stands completely defeated in the facts of the present case. The appellant was a candidate placed higher in the merit list. It cannot be disputed that candidates having merit much lower to her have already been given admission In the MBBS course. The appellant had attained 832 marks while the students who had attained 821, 792, 752, 740 and 731 marks have already been given admission in the ESM category in the MBBS course. It is not only unfortunate but apparently unfair that the appellant be denied admission. Though there can be rarest of rare cases or exceptional circumstances where the Courts may have to mould the relief and make exception to the cut-off date of 30th September, but in those cases, the Court must first return a finding that no fault is attributable to the candidate, the candidate has pursued her rights and legal remedies expeditiously without any delay and that there Is fault on the part of the authorities and apparent breach of some rules, regulations and principles in the process of selection and grant of admission. Where denial of admission violates the right to equality and equal treatment of the candidate, it would be completely unjust and unfair to deny such exceptional relief to the candidate. [Refer Miss Arti Sapru and Others Vs. State of Jammu & Kashmir and Others, Chhavi Mehrotra (Miss) Vs. Director General Health Services, and Arvind Kumar Kankane. Vs. State of U.P. and Others,

Now, we shall proceed to answer the questions posed by us in the opening part of this Judgment.

ANSWERS

a) The rule of merit for preference of courses and colleges admits no exception. It is an absolute rule and all stakeholders and concerned authorities are required to follow this rule strictly and without demur.

b) 30th September is undoubtedly the last date by which the admitted students should report to their respective colleges without fail. In the normal course, the admissions must close by holding of second counseling by 15th September of the relevant academic year [in terms of the decision of this Court in Priya Gupta (supra)]. Thereafter, only in very rare and exceptional cases of unequivocal discrimination or arbitrariness or pressing emergency, admission may be permissible but such power may preferably be exercised by the Courts. Further, it will be in the rarest of rare cases and where the ends of justice would be subverted or the process of law would stand frustrated that the Courts would exercise their extraordinary jurisdiction of admitting candidates to the courses after the deadline of 30th September of the current academic year. This, however, can only be done if the conditions stated by this Court in the case of Priya Gupta (supra) and this judgment are found to be unexceptionally satisfied and the reasons therefor are recorded by the Court of competent jurisdiction.

c) & d) Wherever the Court finds that action of the authorities has been arbitrary, contrary to the judgments of this Court and violative of the Rules, regulations and conditions of the prospectus, causing prejudice to the rights of the students, the Court shall award compensation to such students as well as direct initiation of disciplinary action against the erring officers/officials. The Court shall also ensure that the proceedings under the Contempt of Courts Act, 1971 are initiated against the erring authorities irrespective of their stature and empowerment. Where the admissions given by the concerned authorities are found by the Courts to be legally unsustainable and where there is no reason to permit the students to continue with the course, the mere fact that such students have put in a year or so into the academic course is not by itself a ground to permit them to continue with the course.

In the aforesaid case, the apex Court has considered the case of discrimination and not the case of extension of time limit; The incumbent was discriminated with and had been carried admission unjustly as in Asha''s case. Obviously, the equities are to be adjusted by the Court by issuing appropriate direction.

In the instant case, the facts are totally different. The second counselling could not have been ordered to he held in violation of the decisions of the Hon''ble Supreme Court and in violation of the cut-off date, particularly, the order of the Hon''ble Supreme Court passed on May 28th 2012 in Special Leave to Appeal (Civil) Nos. 167684-88 of 2012.

it was open to the students, when the seats were the Medical Council of India in the month of July 2012, to approach the Hon''ble Supreme Court for relaxation of admission suitable for second counselling, but that was not done. They waited for decision of the appeal here decided on 18.10.2012. Thereafter, they had filed the writ application. Nothing prevented them to take steps in accordance with law in the month of July 2012 itself praying for holding second counselling, if they so desired large number of them were not given admission in counselling of which result was kept in a sealed cover. No action was taken by them diligently. It was only at the fag end of the months of October and November 2012 that the writ petitions had been filed in this Court. The situation created by the Court''s order was not such so as to direct second counselling.

It was submitted that the additional seats were not available, at the time when apex Court had passed the order on 28.05.2013. It was open to the candidates to pray for extension of time and the subsequent change of event ought to have been brought to notice of the apex Court for extension of time. That having not been done, this Court could not have entered into the said venture of direction of second counselling and fresh course to be commenced from the month of March 2013. Such exercise is impermissible in view of the aforesaid decision of the Hon''ble Supreme Court.

The decision not to hold the second counselling could not be said to be illegal and arbitrary. Obviously, the authorities could not have resorted to holding of the second counselling until and unless the time was extended by the Hon''ble Supreme Court.

Resultantly, we have no hesitation in setting aside the judgment and order impugned before us. As such, we set aside the same and allow the appeals. The consequence is that the admissions granted pursuant to the second counselling are hereby quashed. However, the students, who have joined in the month of October 2012 after the decision of the appeal being M.A.T. 661 of 2012 shall be permitted to pursue their course in the subjects they joined in October 2012. The bonds executed by them stand discharged, as agreed, and the certificates are to be returned to the candidates.

It was submitted by Mr. Rajarshi Halder, learned Advocate appearing for some of the writ petitioners/appellants, that some in service candidates have opted for their tests for the session 2013-14.

As we have quashed the counselling held earlier, obviously, the in service candidates, who have opted in tests for the seats in session 2013-14, are at liberty to participate in the next round of counselling to be held.

Mr. Supradip Roy, learned senior Advocate appearing on behalf of some of the writ petitioners/respondents, prays for stay of operation of the order for 7(seven) days. Such prayer is considered. Let status quo, as of today, be maintained for seven days from today.

Xerox certified copy of this order, if applied for, will be made available to the applicant within a period of seven days from the date of putting in the requisites.