Vibha Hans vs State of Haryana

K. Kannan, J.

I. The point of challenge in the writ petitions.

All the four petitions relate to admission to MDS courses in three private unaided Dental Colleges for the year 2010. The cases are the result of the acts of admissions made of the students in the year 2010 through a process otherwise than through written test by the privately managed Dental Colleges. The Union passed an order purporting to act on the communication from the Haryana Government and the Pt. B.D. Sharma University that the admissions were contrary to law and that the students who had been admitted otherwise than through the written test were to be discharged. This order of the Union came to be passed on 15.12.2010 which is put in challenge through various writ petitions. II. The scope of the respective writ petitions.

CWP No. 17171 of 2010 is at the instance of the students who had been admitted to MDS course. All the 32 students were admitted to the college without reference to the written test. Since the impugned letter dated 15.12.2010 directly affect their own status, the students have come with a challenge to the letter. CWP No. 2611 of 2011 is at the instance of the three colleges who face the consequences of the impugned order by the Union. The other two writ petitions viz. CWP No. 10911 and 114 of 2010 are at the instance of the persons who claimed that they had higher marks in their respective BDS courses and the admissions made by the Colleges in respect of the candidates who are lower in order of merit, if the marks in BDS alone were to be reckoned, are bad in law. Their prayer is, therefore, that they should be admitted. The students in CWP No. 17171 of 2010 would seek for regularization of their admission and the three colleges would seek for quashing of the order of discharge and to register the MDS course for the session 2010-2011 and allow for all the consequential relief of permitting them to take examination.

III. Commencement of appraisal of students for admission through exams-Association frames procedure and takes court''s imprimatur.

The saga of admission of MDS course brought at the instance of the private unaided dental colleges have been caught up in legal imbroglio right from the word go, as it would seen from the narration of facts. The private dental colleges have formed as an Association of Post Graduate Dental Colleges of Haryana (for short ''the Association''). They decided to conduct entrance test and informed the State of its decision on 7.4.2010. A general joint entrance test which was earlier scheduled for 9.5.2010 appears to have been postponed on the alleged failure of the State to lay down guidelines for appointment of a moderator, approval of the name of the printing agency, appointment of observers and approval of the name of the computer agency. There was a timeline before when the process must have been completed, since the statutory cut off date for the MDS courses was 31st May for each year. With the State not laying down the policy, the Association had filed CWP No. 9078 of 2010 to follow its own guidelines and make way for the examination process. The court had passed an order on 18.5.2010 issuing directions about the manner of conduct of selection and particularly by appointing a State Admission Committee to engage the agency for the purpose of conducting examination and evaluation. The admission, the court directed, was to be made in accordance with the guidelines on merits of the candidates in the entrance examination. A public notice had been issued for MDS counselling by the university referring to the fact that the counselling will be held at the specified place at Karnal on 29.5.2010 and that the candidates who had secured 50% or above in the entrance examination were eligible to appear in the counselling. The admitted case is that 96 candidates had taken the test for admission for 64 seats. Only 12 candidates got the qualifying marks of securing 50% and above. 2 dropped out and only 10 persons claimed admission. The Government of Haryana had conducted tests for admission to 4 seats in Government Dental College under M.D. University, now BDS University. 15 candidates who took the State exam but did not qualify to the 4 seats were permitted to be admitted. 7 seats reserved for NRI quota also joined. That took care of filling up 32 seats and 32 seats pertaining to management quota remained to be filled up but the candidates did not qualify through the test carried out by the Association.

IV Association drops unilaterally the admission criteria already laid down and carries out admission on its own newly evolved procedure Flurry of actions leads to impugned order.

The point of contention was when there were not enough number of eligible candidates who could be enlisted for admission by reference to the marks obtained in the test, the Association proceeded to admit the vacant seats of 32 on their own from the persons who had gathered at a different venue at some resort (how the candidates were informed is not disclosed) which, according to the Association, was on the basis of merit in BDS exam marks. The Registrar of the University took notice of these admission as being irregular and served notices on the Principals of the colleges stating that the State Admission Committee had never allowed the Association to fill up the unfilled seats and further that the admissions have been made without the presence of any observer deputed by the University. The notice was to the effect that the admissions made of 32 candidates were not as per the University norms and under the circumstances, the University would not register the candidates. The Chairman of the State Admission Committee shot off a communication on 17.6.2010 referring to the communication made on 4.6.2010, where the Council had been requested to take appropriate action against the alleged illegal and unauthorized admission into the MDS courses even from amongst the candidates who had failed in the entrance examination. The Dental Council had engaged the colleges in a communication on 1.7.2010 to inform that in order to maintain the standards of the dental education and in the best interest of the students, who had been admitted without reference to the entrance examination, they should be immediately discharged and if there was a breach of compliance, action would be initiated for derecognition in the manner contemplated in 16A of the Dentists Act, 1948. With no immediate response to these notices, the Financial Commissioner and Principal Secretary to the Government had also informed the Ministry of Health and Family Welfare on 27.10.2010 about the alleged unauthorized admissions and for taking appropriate action for cancellation of all the admissions made by the Association. The action for cancellation was issued on 15.2.2010 referring to the fact that there had been a breach of the norms laid down for admission which the Association had opted voluntarily by way of appraisal of merit through entrance test and the act of making admission from out of the failed candidates on their own without taking the concurrence from the University. The impugned letter states that the Government had informed that the candidates were from different Universities and before admitting the students on the basis of the BDS courses, the colleges had not followed the proper procedure of inviting the details of marks from the eligible candidates through the print or electronic media and made haste in preparing the merit list on the basis of the marks obtained in the BDS and filled up vacant seats from out of the list of unsuccessful candidates at the entrance test pointing out these lapses as procedural lacunae and directing the colleges to discharge the students who had been illegally admission to the MDS courses.

V Grounds of challenge by the Colleges

The Association of the colleges would challenge this action on the ground that the results were announced on 23.5.2010, the same day after the examination was conducted. As per university public notice, counselling was to be held on 29.5.2010, it had to fill up the vacant seats within two days and there was no time to engage in any sort of communication with the University or the Government and when it decided to grant admission to fill up the vacant seats, it took care to ensure that the admission was done only on the basis of the merit viz., assessment made from the marks secured in the BDS examinations. The Colleges would state that there had been no breach of any of the regulations, for, the Dental Council Regulation itself provided for three modes for admission to MDS courses, namely, (i) on the basis of the merits as determined by a competitive test; (ii) on the basis of the merits as determined by a central competitive test held at the national level and (iii) on the basis of individual cumulative performance at the first, second, third and final BDS examinations, if such examinations have been passed from the same university. The Admission on the basis of the performance in the BDS examination was, therefore, a permissible mode of selection for postgraduate students and the selection, therefore, could not be faulted. The Colleges would contend that even such a practice was not without precedent, for, both before and after the year 2010, the vacancies had always been allowed to be filled up on the basis of academic performance in BDS, whenever there were not enough candidates who had qualified in the entrance test after filing up of all the vacancies. The Colleges would also have another serious objection that the decision to discharge the students had been taken by the University without issuing any show cause notice against such serious action of disqualifying the admission process.

VI The students'' additional grounds

The students who have gained admission and who have themselves challenged the impugned communication through CWP No. 17171 of 2010, have a case to advance that at various stages orders have been taken from the court for legitimizing their continuance in the courses and examinations for each year had been directed to be held by the orders of the court and they have all completed their three years of MDS course. There is a prayer that the result shall be announced and the mark sheet be given, which, according to the petitioners, would show that they have passed in the examinations and qualified to have the post-graduate degree. A passionate plea on behalf of the students was also that they have parted with large amounts and they have allowed their lucubration to deserve the fruits of their labour of completion of the examinations and they shall not be victimized in the cross fire between the colleges and the state authorities. They had not themselves indulged in any activity which could result in disqualification and dis-entitlement to the postgraduate degrees.

VII The justification for impugned order as preferred by State Agencies.

The contention on behalf of the respondents are channeled through the submissions made on behalf of the Dental Council which would point out at a fundamental level that the mode of selection of postgraduate students in three ways obtain in alternation and the choice, which is exercised by the colleges and approved by the University could not be dropped midway. If the Association had, therefore, opted to regulate its admissions through qualification in the entrance test and secured the court intervention therefor, it had perforce to follow to a T of what the court directed. If, therefore, the court had on 18.5.2010, directed that the admissions shall be made in accordance with the guidelines on merits in the entrance examination, no deviation was possible to allow for admission through marks obtained in the BDS courses.

Learned counsel appearing on behalf of the respondents would also point out that the Association that declared to the public that the counselling would be made at a particular place on the basis of the marks secured at the entrance examination did not think it necessary, which it should have, when it was deviating from the charted path and was allowing to itself a procedure of admission through a counselling to take place in some other location and in the absence of any university representative, the colleges had been at all times been apprised about the State perspective as illegal the nature of admissions made and only when it elicited no response from the colleges, that the final decision of the Union came to be made on 15th December, 2010 by issuing the impugned order. The two principal objections taken for a direction to discharge the students were that the admission had been made without reference to the performance in the entrance test and without looking for the essential eligibility that had already been set forth. The second deviance was even the candidates who had been selected were not from the same University and it was not in accordance with even the regulations.

The respondents would also point out that the colleges were undertaking an adventurous course which was against the regulations and the norms that the courts had laid down and there were no bonafides in their actions. The counsel would argue that their own conduct had been appraised as not above board, when the courts'' directions were secured in a public interest litigation filed in CWP No. 6401 of 2007, as was brought to the notice of the court about their manoeuvres of in indulging in admissions in a manner not approved and about some illegal admission said to have been made by the colleges of the Association. The attempt was, therefore, to show that the conduct of the colleges was in brazen defiance of the regulations and the court orders and there could be no sympathy for the cause of the students, merely because they ran through the whole gamut of three years period of postgraduate course to commence from the shady process of admission made of the candidates without any form of advertisement. They had been admitted by throwing to winds of all norms of admission by merit only.

VIII The rejoinder to the State''s arguments

Joining issues on the objection taken by the respondents, the learned Senior Counsel appearing on behalf of the colleges would state that there was hardly any time left for the colleges to be engaging in any communication with the State or the University, since the time line has settled through the decision of the Supreme Court in Mridul Dhar (Minor) and Another Vs. Union of India (UOI) and Others, . The University or the Government ought to have no reason to complain, for that there was literally the manner in which the vacancies have been allowed to be filled up in the subsequent years, as well. The prospectus itself did not contemplate a situation of the manner of filling up of the vacancies if the entrance examination results did not yield to throwing up sufficient number of eligible candidates and consequently, when the colleges chose to admit students, who were literally in the management quota, it had a right to admit students without reference to the entrance test. The counsel would place a reliance on the judgment of the Supreme Court in Modern Dental College and Research Institute v. State of M.P. (2004) 8 SCC 213 where the Court allowing for admissions to be made without reference to participation in exams for filing up seats out of management quota, even when there had been a common entrance test conducted by Professional Examiner Board. The observation of the Supreme Court was in the context of whether the management was bound to fill up seats only out of the listed candidates who have partaken in the common entrance test and the court held--

"having regard to the totality of the circumstances and the law laid down by this court in T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others, , we are of the view that the suggestion on behalf of the colleges that the management quota seats shall be allowed to be filled on the basis of the marks obtained in CBSE/equivalent Board exam deserves to be accepted. It would give a wider choice to the management of the colleges."

This is to justify their own conduct of admitting the students who did not take the entrance test and who had showed up for being considered for admission. Even the contention raised by the respondents that there was no advertisement for filing up of the balance of vacant seats, the senior counsel Sh. Rajiv Atma Ram would bring in support in his arguments the decision of the Supreme Court in Vikram Dhillon Vs. State of Haryana and Others, . The Supreme Court was considering the challenge brought to the admission to the BDS course by a candidate who was higher in rank and who had grievance that the persons beneath his merit had been admitted. The case was with reference to offer of admissions to the candidates who had been present at the place to accept admissions and the court was holding when the counselling Committee was filling up the available seats in the colleges and there was a compulsion that all the admissions should be completed before 30th September, 2004 in that case, the petitioner who was not present at that time could not have a cause to complain when even the persons lower in the order of merit were present and obtained admission. This is a manner of explaining that the want of advertisement could not be taken to be material and the Association was entitled to grant admission to such of those earnest candidates who were present at that time and obtained admission.

IX Association''s admission procedure (i) conflicted with High Court directions; (ii) defied Dental Council norms and (iii) unilateral and secretive that were against law laid down by the Supreme Court

The crucial question that would require to be resolved is the legitimacy of the action of the colleges in opting for a particular manner of appraisal for admission and dropping it midway to admit 32 students without reference to the entrance test. If the management could fill up the seats without reference to the entrance test that should have been the norm that was declared at the time when the game began, as it were. If the Association was approaching this court in CWP No. 9078 of 2010 and taken a direction for admission, they knew what they had to do to legitimize their actions. The orders passed on 18.5.2010 itself admitted of no exceptions and stated that the admission shall be in accordance with the guidelines on merits of the candidates in the entrance examination. The learned Senior Counsel for the petitioners would down play this reference by the words occurring in the earlier paragraph, where it observed that the State Admission Committee shall adhere to the guidelines "as far as it was practical", subject to the above directions.

The play in the joints, if it existed, it was with reference to the directions which had been set forth in sub-paragraphs as (i) to (v) in the judgment in CWP No. 9078 of 2010. Sub para (i) refers to communication of details of arrangement for the conduct of examination; (ii) was with reference to the nomination of the members of the Admission Committee; (iii) to the observer appointed by the State Admission Committee; (iv) to the evaluation of the answer sheets and (v) the preparation and declaration of the result. I cannot understand as to how the practicability would allow for diluting a standard what the court had laid down as requirement of assessment of merit in the entrance examination.

The reference to the decision of the Supreme Court in Modern Dental College (supra) is in such a context not even relevant or appropriate for the manner of filling up vacant seats. A private college which had perforce to admit the students qualified through entrance examination for filing up what was understood as State quota, there was no exception to the management quota as well as by the option that is exercised to be governed actions through a decision taken on 7.4.2010 and for which approval was taken from this Court. The Supreme Court was laying down that it was possible to take admission even without reference to the entrance test if the entrance test itself was not taken to be as initially as relevant for filing of management quota. This judgment cannot apply to a situation where the management solicited the assistance of the court to secure what the State was not prepared to do, namely, of the issuance of guidelines for the conduct of the test. The test was never at any time stated to be only to fill up the ''free seats'' of State quota. When the colleges had opted for the test also for the management quota, they could not have abandoned the test as irrelevant. If the Association had been earnest about filing of seats on the basis of the merit, all that would have been required to be done was to advertise in such manner as it was surely possible. With the advent of technology and what it could secure for immediate dissemination of information through electronic and print media, it would be puerile to urge that there was no sufficient time to allow for candidates to be informed of an altered admission procedure for the management quota. If there was an advertisement which had been released on 29.5.2010 and it did not enlist enough number of candidates to fill up all the vacant seats, the sure option was to impress upon the University to carry through an immediate advertisement to be released for the day, setting out the process of selection that was contemplated for the vacant seats. Even here, there was a regulation of the Dental Council that the cumulative performance in the 1st, 2nd and the 3rd years examination shall be reckoned if the degrees were from the same university. If there had been such practice in the past, the minimum that colleges must have done was to ensure presence of the representative of the University and the observers of the State Admission Committee that had been approved by this court in its order dated 18.5.2010. An admission in a place not advertised, in a manner that was opaque and at a speed which was questionable even within the limited space of time available surely betrayed that all the norms of enlistment on merit of candidates were thrown to winds.

I am not impressed by an argument of Shri R.K. Malik, the learned Senior Counsel appearing on behalf of the candidates that they had written exams, they have passed over a period of time and they should be declared passed by issuance of degrees, I cannot but feel bad that the candidates who have paid through their nose must come to a stage that their own academic life for three years of learning in colleges have come to a naught. The students must have known what they were bargaining for. If they could chase the college representatives to an unknown destination, they surely allowed themselves to be led by their sneaky noses with reckless abandon. They have allowed the colleges to inveigle them to a questionable bargain that was not above board. What perhaps, we could apply to minors or quondam minors who enter into the college after their pre-university classes or schools could not be easily applied to postgraduate students. One expects a greater level of maturity and understanding from them.

Education through private unaided colleges has filled a large inadequacy in the arena of education. The State ought to play an important role for shaping a country''s future through a steady stream of educated professionals. Where the State failed, the private initiative filled up in some measure but what started through establishment of Kasturba Medical College at Manipal in Karnataka in 1953 to the time when the case in Miss. Mohini Jain Vs. State of Karnataka and others, came through the dispensation of the Supreme Court, a lot of things have changed. What was seen to be a boon was suddenly seen to be realized as a festering malady. Mohini Jain (supra) lamented the commercialization of education and Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., brought the problem of capitation fee to center stage. Even while it elevated the right to education as a fundamental right, that was truly a harbinger to a later constitutional amendment of recognition of such a right by introduction of Article 21-A, the expectation of philanthropy through individual initiative in the judgment was perhaps a little too much and that is how the subsequent decisions of the Supreme Court commencing from the quartet of Institute of Human Resources Development and others etc. Vs. T.R. Rameshkumar and others etc., decisions have shown. The courts have attempted to balance the interest of private management and the minority institutions with State duty to provide education. The important area of attention at all stages had been to sustain the quality of education and the affordability of education, both of which took a serious beating, with the private management looking for more returns on their investments and the regulatory bodies sinking their teeth as it were, to secure what is otherwise a desperate situation of surrendering an important public duty to the private hands. Perhaps, all is not bad. We have several institutions of excellence that have come in the area of privately established professional colleges. But it is in the inability to balance the commercial element of education through privately managed institutions with fair admission procedure which is transparent and fair that eludes, as always. The belief was that by allowing for societies to run the institutions with the sole object of charity, the commercial exploitation will stop. It is common experience that capitation fee of what every State has attempted to abolish through legislation takes different colours and secures diverse hues, mostly through unreceipted payments and some by attractive monikers such as welfare fee, recreation fee and several types of pretentious expression that gives a cloak of respectability but every student is forced to cough up large rums.

These are not meant to be expressions of despair but a record of what is real in a market where the demand for seats has far outstripped the supply. Private colleges that have invested large money have a justifiable expectation that no seat goes a waste. Filling up seats is a manner of redeeming what is invested. It would have served no one by keeping the seat vacant, if there was an occasion that the embraces test did not yield enough productive results to fill up all the vacant seats. Fair play demanded of any educational institution that it allowed for a reasonable transparency in the manner in which the vacant seats were filled up. The fair procedure is charted through judicial pronouncements. The manner of working out the principles of admissions against ''free seat'' and ''payment seats'' as well as mode of reckoning of the claims of management quota in non-minority private college (non-aided) have been explained in two important pronouncements following TMA Pai viz. in Islamic Academy of Education and Another Vs. State of Karnataka and Others, and P.A. Inamdar and Others Vs. State of Maharashtra and Others, . In the former, among the two, the Supreme Court declared that in each State, a committee headed by a retired High Court Judge would fix the fees. More importantly, it held that a private management college shall select students of their quota either on the basis of the common test conducted by the State or on the basis of common entrance test by the Association of Management Colleges. The option was to be exercised before issuing the prospectus. In P.A. Inamdar (supra), while reiterating T.M.A. Pai, it held that minority unaided and non-minority unaided private institutions could legitimately carry out admission in fair, transparent and non-exploitative way. Till regulations were framed by State the Supreme Court approved of a centralized single window procedure through an admission committee constituted with observers from State/University to oversee the admissions.

There ought to have been a sure method of securing who was best amongst the persons who competed for entry. The students came in the dark and they suffer now. They will not carry the burden of a slur that they are recipients of postgraduate degree under a cloud. A different day will come and a better dispensation will be that they will enter in all glory in a spirit of contest after appropriate appraisal and secure what they deserve. As of now I can do no more than state that they came through a process which was not appropriate and they cannot have a remedy what they are seeking for through the writ petition. Every procedure recommended in the Supreme Court decision referred in the previous paras was breached and it is difficult to persuade my judicial conscience to allow this brazen deviance to be legitimized.

How the petitioners are going to compensate themselves in their lives for what they have gone through is still not within my judicial discourse through this judgment. The colleges will know how they shall conduct themselves within the confines of law and without the society''s support, they cannot exist even for one day. If they learn a lesson in this case, the lesson is that they shall not indulge in any activity which is beyond the purview of law and it shall be a lesson for the other private institutions as well. A co-ordination with the State machinery cannot at all times be understood as an evil. It is essential that all the institutions flourish under the State patronage and that would require a subordination to what the law dictates and how the regulations and judicial pronouncements provide for conduct of professional courses.

Conclusion

I find that the grounds spelt out in the impugned letter disapproving of the admission process carried through by the colleges, in the absence of representative of the State/university and without adhering to the norms of selection as laid down by this Court in its order, to be tenable. The State has done what it was bound to do. I find no justifiable reason to interfere with the same. CWP No. 2611 of 2010 at the instance of the colleges is dismissed. There are two other writ petitions, CWP No. 11429 of 2010 and 2611 of 2011 at the instance of the students who have claimed themselves to be more meritorious in terms of the marks secured and seek for admission on that basis. Since I have found the selection of the candidates other than through the test was not permissible and that the selection in the absence of representatives from the university/State was not fair and transparent, the petitioner in the said writ petitions can also secure no relief. The said two petitions are also dismissed. Before parting, I must observe that the educational institutions can not retain the tuition money collected from the students. In Controller, Vinayak Mission Den. Col. and Another Vs. Geetika Khare, , the Supreme Court directed the college which had collected the admission fee to refund the same, when it transpired that the course offered was not recognized. In Buddhist Mission Dental College and Hospital Vs. Bhupesh Khurana and Others, , a false advertisement of affiliation and spoiling the career of students for two years gave place to a direction for refund of admission expenses with interest at 12%, Rs. 20,000/- for purchase of books, Rs. 1 lac as compensation for mental suffering and Rs. 1 lac as litigation expenses was granted. Here the students are partly to be blamed in securing admission in a questionable way. Therefore, I direct only the refund of the admission fee and tuition fees for all the three years to the petitioners by the respective colleges within a period of four weeks and deny any damages. CWP No. 17171 of 2010 is disposed of with the above directions, while dismissing their prayer for regularizing their admissions.