Sushriya Sachdeva vs State of Punjab and Another

Rakesh Kumar Jain, J.—A batch of 19 writ petitions bearing CWP Nos. 15517, 14745, 15102, 15450, 15391, 15498, 15502, 15526,

15530, 15535, 15558, 15869, 15924, 15938, 16104, 16243, 16249, 16721, 16942 of 2013 are being decided by this common order because

identical facts and question of law are involved in all these cases. The facts, however, are being extracted from CWP No. 15517 of 2013. The

petitioners in all these cases are Non-Resident Indians (NRI) seeking admission in the MBBS Course in the State of Punjab.

As per case set up by the petitioner, the Department of Medical Education and Research, Punjab, issued notification dated 31.03.2008

regarding admissions to MBBS/BDS Courses in Medical and Dental Institutes 2008 onwards. Clause 6 of the said notification deals with the seats

meant for NRI students, which reads as under:-

FOREIGN INDIAN STUDENT (NRI) SEATS

6.1 Seats- 15% seats in all private Institutes/University College and specified number of seats Government Institutes shall be earmarked for the

Non Resident Indians in the following order of priority to the exclusion of next category below:

Category I: NRIs who originally belonged to the State of Punjab.

Category II: NRIs who originally belonged to an Indian state other than Punjab.

The institute wise details of seats under this quota can be downloaded from the website of BFUHS. The NRI quota in private institutes will be part

of the management quota.

6.2 The candidates for NRI seats in Medical/Dental Colleges will be admitted on merit determined on the basis of marks obtained in the qualifying

examination equivalent to 10+2 examination of PSEB/CBSE/ICSE in physics, chemistry, biology and English (PCB) taken together. The

equivalence, merit and eligibility of the candidates will be determined by the Baba Farid University of Health Sciences, Faridkot, who will issue an

eligibility certificate to each such candidate. They are not required to take the entrance test. For admission to State/University Medical/Dental

Colleges, against NRI seats the candidate shall apply to the Baba Farid University of Health Sciences, Faridkot on the prescribed form for NRI

seats. (Para amended vide corrigendum no. 5/3/08-3HBIII/2616 dated 22.04.2008 and no. 5/3/08-3HBIII/3389 dated 30.05.2008).

In partial modification of Punjab Government Notification No. 5/3/08-3HBIII/1934-54 dated 31.03.2008. The Governor of Punjab is pleased to

issue the following amendments regarding minority quota seats in the SGRD Inst. of Medical Sciences and Research and SGRD Inst. of Medical

Sciences and Research, Amritsar:-

The NRI seats shall be divided equally in government quota and Minority quota.

The Principals of Shri Guru Ram Dass Institute of Medical Sciences and Research and Shri Guru Ram Dass Institute of Dental Sciences and

Research, Amritsar will be full-fledged members of the respective counselling committees in regard to the seats of respective institute and the

representative of the Government and Baba Farid University of Health Sciences, Faridkot will be observer for the smooth conduct of the

counselling of minority/NRI seats. (Para amended vide corrigendum No. 5/3/08-3HBIII/3890 dated 24.06.2008).

Note:

(a) If sufficient number of candidates under first category are eligible and available then they will be admitted first even if students under subsequent

category are higher in merit.

(b) The NRI students will have to give a bank guarantee/surety bond for the balance of fee, if they opt to pay the fee installment as provided.

(c) Any seats remaining vacant under NRI quota till last date of admission in State Colleges shall go to general pool and in the Private colleges shall

go to the special management/minority quota. Under special Management Quota seats first priority shall be given to PMET ranking and residual

seats, if any, shall be filled in accordance with inter-se merit of eligible candidates.

Para amended vide Corrigendum NO. 5/3/08-3HBIII/4206 dated 08.07.2008.

(d) N.R.I. Unfilled seats under special management seats will be filled by management itself, Para amended vide Corrigendum No. 5/3/08-

3HBIII/4206 dated 08.07.2008 and in light of Notification No. 5/3/2010-3HBIII/5238 dated 25.07.2010.

(e) Para amended in compliance of Hon''ble Punjab & Haryana High Court''s order dated 25.05.2011 in CWP No. 5989 of 2011 titled as

Nehpreet Kaur Vs. State of Punjab and other connected petitions being CWP NO. 6420 of 2011 and 7169 of 2011 (O & M). the relevant

modification is as under subject to the final decision of the Hon''ble Punjab & Haryana High Court:-

NRI quota can be filled up only by genuine NRI. If no NRI is available, seat in the said quota cannot be filled up by charging NRI fee. Filling up of

seats has to be consistent with the Rules as may be applicable.

Para amended vide Corrigendum No. 5/3/2008-3HBIII/4363 dated 09.06.2011.

The aforesaid notification is the part of prospectus of Punjab Medical Entrance Test-2012 (PMET-2012) in which it has been provided that the

prospectus contains two parts out of which Part-I concerns conduct of PMET-2012 and allocation of ranks and Part-II concerns the rules for

admissions to MBBS and BDS courses in medical and Dental Institutes which shall be strictly in accordance with the Punjab Government

Notifications. As per Clause 6.2 of the prospectus-cum-notification dated 31.03.2008, the NRI seats were to be filled up as per the merit

determined on the basis of marks obtained in the qualifying examination equivalent to 10+2 examination of PSEB/CBSE/ICSE in Physics,

Chemistry, Biology and English taken together. The equivalence, merit and eligibility of the candidates will be determined by the respondent no. 2-

University, who will issue an eligibility certificate to each such candidate. It is particularly mentioned in Clause 6.2 that the NRI candidates are not

required to take the entrance test.

It is further pleaded that by notification dated 21.12.2010 issued u/s 33 of the Indian Medical Council Act, 1956, the Regulations on Graduate

Medical Education (Amendment), 2010 (Part-II) were enforced. In Chapter II, Clause 5, sub-clause-5, under the Heading ""Procedure for

selection to MBBS Course shall be as follows"", the following was substituted as under:-

There shall be a single eligibility cum entrance examination namely ''National Eligibility-cum-Entrance Test for admission to MBBS course'' in

each academic year. The overall superintendence, direction and control of National Eligibility-cum-Entrance Test shall vest with Medical Council

of India. However, Medical Council of India with the previous approval of the Central Government shall select organization/s to conduct `National

Eligibility-cum-Entrance Test for admission to MBBS course.

II. In order to be eligible for admission to MBBS course for a particular academic year, it shall be necessary for a candidate to obtain minimum of

50% (Fifty Percent) marks in each paper of National Eligibility-cum-Entrance Test held for the said academic year. However, in respect of

candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes, the minimum percentage marks shall be 40% (Forty

Percent) in each paper and in respect of candidates with locomotory disability of lower limbs, the minimum percentage marks shall be 45% (Forty

Five Percent) in each paper of National Eligibility-cum-Entrance Test:

Provided when sufficient number of candidates belonging to respective categories fall to secure minimum marks as prescribed in National

Eligibility-cum-Entrance Test in any academic year for admission to MBBS Course, the Central Government in consultation with Medical Council

of India may, at its discretion, lower the minimum marks required for admission to MBBS Course for candidates belonging to respective categories

and marks so lowered by the Central Government shall be applicable for the said year only.

III. The reservation of seats in medical colleges for respective categories shall be as per applicable laws prevailing in States/Union Territories. An

all India merit list as well as State-wise merit list of the eligible candidates shall be prepared on the basis of the marks obtained in National

Eligibility-cum-Entrance Test and candidates shall be admitted to MBBS course from the said lists only.

IV. No Candidate who has failed to obtain the minimum eligibility marks as prescribed in Sub Clause (ii) above shall be admitted to MBBS

Course in the said academic year.

V. All admissions to MBBS course within the respective categories shall be based solely on marks obtained in the National Eligibility-cum-

Entrance Test.

Vide a subsequent notification dated 15.02.2012, the regulations governing the MBBS course were further amended by the Medical Council of

India, inter alia, authorizing the Central Board of School Education (CBSE) to conduct the National Eligibility-cum-Entrance Test-2013 (NEET-

UG-2013) and providing that admissions to the MBBS course from academic year commencing from 2013-14 shall be made on the basis of

NEET-2013.

On the basis of aforesaid notification, the CBSE published the admission notice dated 01.12.2012 inviting applications for NEET-UG-2013.

The last date for submission of application for NEET-UG-2013 was 31.12.2012 and the date of examination was fixed as 05.05.2013.

After the NEET-UG-2013 examination was held on 05.05.2013, the result thereof was declared on 05.06.2013 and on the same day,

respondent no. 1, vide its notification dated 05.06.2013, prescribed that the admission to the MBBS/BDS courses in all of the categories including

NRI will be based on the percentile merit obtained in NEET-UG-2013 to be conducted by the CBSE. The University uploaded prospectus of

2013 prescribing last date for depositing the fees for NRI candidates as 22.07.2013. It was categorically provided in the prospectus that ""the NRI

candidates in Medical/Dental Colleges will be admitted on percentile merit obtained in the NEET-UG-2013. The eligibility of the candidates will be

determined by the Baba Farid University of Health Sciences, Faridkot, who will issue an eligibility certificate to each such candidate"".

Learned counsel for the petitioner has submitted that as per the Medical Council of India Regulations on Graduate Medical Education, 1997

[for short ''the 1977 Regulations''], admissions in the MBBS was on the basis of competitive entrance examination. As per Clause (2) to (4) of the

1977 Regulations, the candidates must have passed in subjects of Physics, Chemistry, Biology and English individually and must have obtained a

minimum of 50% marks taken together in Physics, Chemistry & Biology at the qualifying examination but the category of NRI was always

exempted. In the notification dated 31.3.2008 issued by the Department of Medical Education, Punjab, part of the prospectus of 2012 issued by

Baba Farid University of Health Sciences, Faridkot, there was no such condition of passing the NEET exam which has been made compulsory

now by way of notification dated 5.6.2012. It is further submitted that even in the admission notice dated 1.12.2012, in the eligibility criteria, it has

been provided that Indian Nationals and Overseas Citizens of India (OCI) are eligible for appearing in the NEET-UG. The advertisement dated

19.12.2012 and 27.11.2012 are also silent that the NEET exam which is going to be conducted by the CBSE on 5.5.2013 is also to be taken by

the NRI students. It is further submitted that this notification dated 5.6.2013 is prospective in nature and cannot be applied retrospectively because

the NEET-UG has already been conducted on 5.5.2013 and the petitioner cannot be asked to do the impossible on the principal ""lex non cogit ad

impossibilia"" i.e. law does not compel to do the impossible. It is further argued that the admission process was started in December 2012 for the

Academic Session 2013-14 and once the process has been started it cannot be changed in mid stream. In this regard reliance has been placed

upon a decision of this High Court in the case ""Medical Entrance Problem Redressal Forum (Regd.) Vs. State of Punjab"" 1991(1) SCT 255 and

judgment of the Supreme Court in the case of "" Parmender Kumar and Others Vs. State of Haryana and Others, . It is further argued that most of

the students, who have filed the writ petitions, are the citizens of other countries, have passed their qualifying examination from USA, Australia,

Canada, New Zealand, Italy etc., have studied different curriculum than the syllabus which is taught in India, are not exposed to the examination

system of this country and have been getting admission in the past on the basis of equivalence of their degree.

Learned counsel for the petitioner has further argued that as per the information of the petitioner, the respondents are proposing to hold the test

on 2.9.2013 for which they have neither been authorized by the respondent/State nor any syllabus has been disclosed. It is further argued that as

per the decision in the case of Priya Gupta Vs. State of Chhatishgarh and Others, , the procedure for admissions to the MBBS has to be adopted

by 30th April of the concerned year and the said procedure cannot be changed thereafter. It is also submitted that the notification dated

21.12.2010 has even been quashed by the Supreme Court in TC(C) No. 98 of 2012 titled as ""Christian Medical College Vellore and others Vs.

Union of India and others"" decided on 18.7.2013. In the end, it is stated that the notification dated 5.6.2013 cannot be relied upon as a force of

law as it has not been published in the official gazette.

In reply, although the objections on delay and latches have been taken but fairly it has not been pressed during the arguments. It is submitted

that since the notification laid down the NEET exam has been struck down by the Supreme Court in the case of Christian Medical College Vellore

and others (Supra), therefore, the issue involved with regard to NEET exam is for this academic year 2013-14 only. It is argued that there must be

a test for the NRI students because allowing them only on the basis of their qualifying degree would be an act of discrimination with Indian

students. It is further submitted that even our Nation has a sovern right to regulate its education system and holding of entrance test has been

acknowledged to be a legal mode in the case of "" State of Andhra Pradesh and Another Vs. Lavu Narendranath and Others etc., which has been

reiterated in the case of State of Uttar Pradesh and others Vs. Dr. Anupam Gupta, etc., , in which cut off marks was imposed on the entrance

exam. It is further submitted that while passing an interim order in the transferred cases, in which the Apex Court has struck down the 2012

regulations providing for holding the NEET exam, it has been ordered that the Medical Council of India, the Dental Council of India, as well as the

States and Universities and other Institutions, would be entitled to conduct their respective examinations for the MBBS, BDS and Post Graduate

Courses but would not declare the results of the same, until further orders of the Apex Court. Since, this order was passed on 13.12.2012,

therefore, NEET was conducted by CBSE on May 2013 for making admissions to the MBBS/BDS courses and similarly NEET for Post

Graduate Courses was also held by National Board Examination. It is further submitted that while deciding the case of transferred cases in the case

of Christian Medical College Vellore and others (Supra), the Supreme Court has held that ""the Transferred Cases and the Writ Petitions are,

therefore, allowed and the impugned Notifications Nos. MCI-31(1)/2010-MED/49068, and MCI. 18(1)/2010-MED/49070, both dated 21st

December, 2010, published by the Medical Council of India along with Notification Nos. DE-22-2012 dated 31st May, 2012, published by the

Dental Council of India and the amended Regulations sought to be implemented thereunder along with Notification Nos. DE-22-2012 dated 31st

May, 2012, published by the Dental Council of India, are hereby quashed. This will not, however, invalidate actions so far taken under the

amended Regulations, including the admissions already given on the basis of the NEET conducted by the Medical Council of India, the Dental

Council of India and other private medical institutions, and the same shall be valid for all purposes"".

On the strength of the aforesaid order, it is submitted that as the notification was issued on 5.6.2013 and order was passed by the Supreme

Court on 18.7.2013, it would not in validate the action so far taken under the amendment Regulations. It is also submitted that opportunity is being

given to the NRI students to appear in the exam which is scheduled to be held on 2.9.2013 and if they are successful, their inter se seniority would

be determined and accordingly the admissions would be made.

The petitioner also filed a rejoinder to the reply filed by respondent No. 2.

I have heard learned counsel for the parties and perused the record.

There is no dispute that in the 1977 Regulations and in the notification dated 31.3.2008, the NRI students are kept as a separate category,

who are offered admissions on the basis of marks obtained in the qualifying examination equivalent to 10+2. It was in the notification dated

21.12.2010 issued u/s 33 of the Indian Medical Council Act, 1956, the Regulations on Graduate Medical Education (Amendment) Act, 2010

(Part-II) was enforced as per which single eligibility cum entrance test namely, NEET was prescribed for admissions to MBBS course in each

academic year. With the subsequent notification dated 15.2.2012, the Regulations further amended authorizing CBSE to conduct NEET-UG-

2013. In the prospectus of 2012 under which the process of admission had been started, as admitted by the answering respondent, in para 2 of its

reply in which it is mentioned that ""it is submitted that process of admission to MBBS/BDS course for session 2013-14 started in December 2012

when the Central Board of Secondary Education issued online notice as well in newspaper for conducting NEET"". Since no NEET exam was

prescribed for the NRI students, therefore, they did not apply for the same which was conducted on 5.5.2013 as their eligibility was to be

determined only on the basis of their qualifying marks in 10+2. When on 5.6.2013, the result of NEET was declared, on the same day, the

notification was issued in which NEET exam was also made compulsory for the NRI students. The question thus arises ""as to whether the

petitioners could be asked to appear in the entrance exam to be held by the State of Punjab on 2.9.2013 when the admission process has already

started?"" In this regard, in my considered opinion, the Rules of the game cannot be changed in the mid stream i.e. after the process of admission

has been started and for that reliance could be placed upon the judgment of the Supreme Court in the case of Parmender Kumar and others

(Supra) and a Division Bench Judgment of this Court in LPA No. 1328 of 2013 titled as ""Panjab University Vs. Riteash Bindal"" decided on

30.7.2013. The relevant paragraph of the decision of the Supreme Court in the case of Parmender Kumar and others (Supra) reads as under:-

the only question which emerges for decision in these appeals is whether the State Government had any jurisdiction and/or authority to alter the

conditions relating to admission in the Post-Graduate or Diploma Courses in the different disciplines in medicine which had earlier been indicated in

the prospectus, once the examination for such admission had been conducted and the results had been declared and a select list had also been

prepared on the basis thereof. In other words, once the process of selection had started on the basis of the terms and conditions included in the

prospectus, was it within the competence of the State Government to effect changes in the criterion relating to eligibility for admission, when not

only had the process in terms of the prospectus been started, but also when counselling was to be held on the very next day, which had the effect

of eliminating many of the candidates from getting an opportunity of pursuing the Post-Graduate or Diploma Courses in the reserved HCMS

category.

Even otherwise, as per the letter of the Government of Punjab addressed to the Registrar of the University dated 29.7.2013, applications have

been ordered to be invited from NRI students for their appearance in a special test to be conducted which cannot be equated with the NEET

exam.

I am in agreement with the arguments raised by learned counsel for the petitioner that he cannot be compelled to do the impossible, meaning

thereby the NEET exam which had already been held on 5.5.2013 and its result was declared on 5.6.2013 whereas they have been asked to

appear in special test to be held by the State Government. If this process is to be adopted, it could have only prospective effect and would not

apply to the process of admission which has already been started in terms of the 2008 Notification which is a part and parcel of the prospectus

2012 and as per their own averment in the reply, the process of admission had started for the Session 2013-14 in December 2012 when the

CBSE had issued online notice as well in the newspaper for conducting NEET exam which came to an end with the declaration of result on

5.6.2013.

Insofar as the judgments relied upon by learned counsel for the respondents in the cases of State of Andhra Pradesh and another (Supra) and

State of Uttar Pradesh and others (Supra) are concerned, in the case of State of Andhra Pradesh and another (Supra), the question was as to

whether the entrance test prescribed under the notification of the Government for selection of candidates in the Medical College was justified in law

because it was opposed by the students that holding the entrance test and making selection on the basis thereof is in utter disregard of the marks

obtained at the public examinations held by the University. However, it was further held that the entrance test can be held, which is not disputed in

the present case as well, but the question is whether the entrance test could be held at this stage. Similarly in the case of State of Uttar Pradesh and

others (supra), the issue was with regard to the eligibility for admission at a particular percentage of cut off marks was valid or not. It was held that

prescription of cut off minimum marks is valid and constitutional. This is also not the dispute in the present case. As regards, the interim order

passed by the Supreme Court in the transferred cases, there is no quarrel with the arguments of learned counsel for the respondents that vide order

dated 13.12.2012, the Medical Council of India, the Dental Council of India and the States and Universities and other Institutions were held

entitled to conduct their respective examinations to the MBBS, BDS and Postgraduate Courses. On the basis of this interim arrangement, NEET

exams were held which were ultimately struck down vide order dated 18.7.2013. Now since, the exams are yet to be held on 2.9.2013, it cannot

be said that it is protected under the notification dated 21.12.2010 and 15.2.2012 which are already struck down and if arguments of learned

counsel for the respondents is accepted that the decision dated 18.7.2013 does not invalidate actions so far taken under the amended Regulations

are concerned, for which it has been averred that the process had started for admission in December, 2012, then the decision in the case of

Parminder Kumar (Supra) would apply with full force as it provides that the rule of the game cannot be changed in the mid stream.

I am also not at all impressed with the arguments raised by learned counsel for the respondents that admissions offered to the NRI students on

the basis of their qualifying examination and admissions offered to the Indian students on the basis of entrance exam is an act of discrimination. As a

matter of fact, till the year 2013 no NEET exam was ever held despite the fact that notification in this regard was issued in 2010 and authority to

hold the NEET exam was prescribed vide notification of 2012. NRI has been kept as a separate category with 15% seats and their eligibility is

assessed only by judging the equivalence of their qualifying marks as prescribed in the 1997 Regulations and 2008 Notification, which is a part and

parcel of prospectus of 2012.

Thus, looking from any angle, the action of the respondents for asking the NRI students/petitioners to appear in a special test, which is stated

to be held on 2.9.2013, as a qualifying exam for the purpose of admission in the MBBS/BDS course is patently illegal and is declared as such. The

petitioner is to be offered admission on the basis of eligibility criteria as provided in the notification dated 31.3.2008 which is silent with regard to

any entrance test. In view of the aforesaid discussions and observations, all the writ petitions are hereby allowed though without any order as to

costs.