Wangkheirakpam Sujata Devi and Another vs State of Manipur and Others

W.A. Shishak, J.—These 2 (two) writ Petitioners who appeared in the Common Entrance Test held in July. 1998 for selection of candidates for State nominations to undergo M.B.B.S./B.D.S. Courses in various Colleges in India securing 161 and 153 marks have questioned the validity of the re-admission of Respondents 5 to 8 into the First M.B.B.S. Course for the Session 1998-99 as per order issued on 16th April, 1999 by the Director. Regional Institute of Medical Sciences, RIMS in pursuance to letter dated 13.4.99 received from the North Eastern Council, on the ground that nominations of said Respondents 5 to 8 had earlier been quashed by this Court by order dated 9.2.1999 passed in W.P. (C) 62/99 and W.O. (C) 67/99. on the ground that nominations issued in favour of Respondents 5 to 8 were illegal. Writ Appeal was filed by Respondents 5 to 8 but the writ appeal was dismissed. Special Leave Petitions were also filed before the Supreme Court, but the same were also dismissed on 22nd March, 1999.

After nominations earlier issued by the State Government in favour of Respondents 5 to 8 had been cancelled, fresh nominations were made by the State Government in places of Respondents 5 to 8 at RIMS. In terms of this Court''s direction, fresh nominations were issued on merit strictly on the basis of the

result of Common Entrance Test held in July, 1998. It may be stated that in the said Common Entrance Test, Respondent No. 5 secured 148 marks, Respondent No. 6 secured 82 marks, Respondent No. 7 secured 56 marks and Respondent No. 8 secured 82 marks, whereas many of the writ Petitioners in the aforesaid writ petitions had secured much higher marks ranging from 152 to 163.

It may further be stated that earlier Respondents 5 to 8 were given admission against 4 (four) M.B.B.S. seats which were released to the State Government by North Eastern Council out of additional 15 (fifteen) seats released by the Central Government for the session 1998-99. The nominations of Respondents 5 to 8 were cancelled on the ground that such nominations were not made on merit on the basis of the results of Common Entrance Test.

Out of the 15 (fifteen) additional seats released for RIMS, 11 (eleven) seats were left unutilised as these 11 seats were not distributed or allocated to any of the constituent sister States of North East India for the session 1998-99.

After admissions were cancelled pursuant to the directions of the court, Respondents 5 to 8 approached this Court by filing writ petition No. W.P. (C) 332/1999 asking for an appropriate writ or direction so that another 4 (four) seats out of the 11 (eleven) remaining M.B.B.S. seats may be given to them by giving ex post facto with effect from 15.12.1998, on the grounds that otherwise the remaining 11 seats would remain un-utilised. This Court issued notice on 5.4.99. On the same day it was stated at the bar that a representation have been sent to the Chairman of NEC for releasing 4 (four) seats in their favour out of the 11 (eleven) seats undistributed/unallocated M.B.B.S. seats. As prayed for on behalf of the Petitioners the following order was issued:

Issuance of notice and pendency of this writ petition shall not preclude the Respondents 2 and 3 consider the representation Annexure-A/3 dated 5th March, 1999.

On 20th April, 1999 Mr. A. Nilamani, learned Sr. Counsel appearing for the 4 Petitioners (Respondents 5 to 8 herein) stated that in view of an order dated 16.4.99 issued by the Director, RIMS the writ petition would not be pressed. The court then proceeded to pass the following order:

Heard Mr. A. Nilamani, learned Counsel for the Petitioners.

In view of the order issued by the Director RIMS, Imphal on 16.4.99 this petition is not pressed. Accordingly this writ petition is disposed of as not pressed in terms of the aforesaid order. Copy of the order is placed on record.

As stated above order dated 16th April, 1999 was issued in pursuance to NEC letter dated 13.4.99. Letter written by Director (S&T) and in charge Adviser (TE) NEC, Shillong dated 13th April, 1999 addressed to the Director RIMS reads:

With reference to letter (DO) No. GS/NEC/99 of the Chairman, NEC dated 7th April, 1999 and Hon''ble Gauhati Court Order No. WP (C) No. 332 of 99 dated 5.4.99, I am directed to convey that the NEC has no objection to allow the following students-- (a) Miss Julie Laishangthem, (b) Miss Momita Lairellakpam, (c) Miss Tamphamani, Th. (d) Miss Tingjahet Hangsing to continue the M.B.B.S. course in the 2nd Semester during the session 1998-99 at RIMS, Imphal on purely humanatarian ground and as a very special case in order to prevent from getting their career jeopardised.

In future, this admission will not be treated as precedence. Manipur Govt. may be requested to nominate the candidates on merit on Entrance Test conducted by the State Govt.

Though letter dated 7th April, 1999 of NEC Chairman is referred to, despite this Court''s insistence to make all relevant documents available, copy of such letter has not been made available.

On 29.4.99 when this petition was moved before this Court, notice was accepted on behalf of the State by Mr. A. Mohendra. Mr. N.P.C. Singh, learned Advocate accepted notice on behalf of Respondents 5 to 8 and Mr. B.P. Sahu on behalf of Respondent No. 4 and Mr. C. Komol for Respondent No. 2. As prayed for the matter was posted as second item for motion on 3rd May, 1999. This Court ordered "Relevant record shall be made available by Mr. B.P. Sahu on Monday."

On 3.5.99 all the counsel appearing for the parties to this petition were heard, Mr. B.P. Sahu produced copy of the letter dated 13th April, 1999 written by the Director In-Charge NEC to the Director RIMS. This Court ordered on that day that copies of the said letter be made available to the counsel representing other parties. As prayed for Mr. Sahu was allowed to contact Respondent No. 3 and seek necessary instructions. It was stated in this Court''s order that:

Such instructions would include as regards the 4 (four) seats which have been made available in respect of 4 (four) students mentioned in the above letter, particularly this Court would like to know as to which State these four seats were allocated. This information is pertinent inasmuch as obviously there are no further seats available as far as the State of Manipur is concerned for the sessions 1998-99 as on earlier occasion 4 (four) seats out of fifteen additional seats released by the Central Govt. had already been allocated to the State of Manipur.

Order dated 3.5.99 was passed by this Court after hearing learned Counsel representing the parties at some length.

On 6.5.99 Mr. B.P. Sahu, learned Counsel representing NEC submitted a copy of FAX Message received from Dr A.K. Verma In-Charge Technical Education, NEC Secretariat at Shillong dated 4th May, 1999. After hearing counsel of the parties and on perusal of the aforesaid FAX Message it was clear that the 4 (four) MBBS seats released in favour of Respondents 5 to 8 by NEC were out of the additional 15 seats released by the Central Government against RIMS. In other words, the 4 (four) seats released by NEC in favour of Respondents 5 to 8 were out of the 11 (eleven) remaining MBBS seats not allocated to any of the constituent States. On the same day, in view of above, this Court passed the following order:

Though it seems very clear that the four seats in question were released by NEC on humanitarian ground, it is nowhere stated under which provision of law/regulation or authority such power could have been exercised by the NEC. I would request Mr. B.P. Sahu to seek further clarification on this because some information in this regard would be of assistance to me before I pass final order. Further, Mr. B.P. Sahu should contact the Director RIMS to enlighten this Court as regards the basis for admitting students. In other words some information as to the authority on which basis admissions are to be allowed by the Director should also be furnished to this Court.

Furnish copy of this order to Mr. B.P. Sahu today itself.

The matter was again heard on 7.5.99. After hearing the counsel of the parties for sometime the following order was passed:

Mr. Sahu, learned Counsel prays that this matter may be posted on Tuesday, the 11th May, 1999 to enable him to have specific and definite instruction/information from N.E.C. office. I am aware that in this petition, primarily the action of N.E.C. is questioned. Therefore, it will only be fair to allow some further time so that this Court can pass effective orders after hearing the parties on Tuesday (11.5.99).

A copy of the order was furnished to Mr. B.P. Sahu.

As ordered earlier the matter was heard on 11.5.99 but as hearing could not be concluded it remained part heard. The matter has been heard finally on 12.5.99.

The re-admission of Respondents 5 to 8 on the basis of letter issued by the NEC has been assailed inter alia on the grounds that since the admissions of Respondents 5 to 8 had already been considered by this Court and since the admissions were already quashed, it would be contrary to the judgment of this Court and would frustrate and defeat the judgment if re-admission is simply allowed without considering this aspect of the matter and also the fact that the seats have not been allotted on the basis of merit but only on humanitarian grounds and that too without any authority to do so inasmuch as power to nominate students to study at any Institute is not at all vested in NEC, inasmuch as nominations have to be done only by the respective constituent/member States of NEC after seats are allocated to respective States, that the action of NEC in allowing MBBS seats to be utilished in a manner sought for to be done in the present case would be contrary to the provision of Para 5 of the Regulation framed and published u/s 33 of the Indian Medical Council Act, 1956 which clearly lays down that selection of candidates should be through a competitive entrance examination. It may be stated that in the State of Manipur in terms of Rules made in this regard in 1993, Common Entrance Test is conducted every year for the purpose of making selection on the basis of merit This was done for the academic session 1998-99 sometime in July, 1998.

The claim of the present writ Petitioners is that if out of the remaining 11 (eleven) additional MBBS seats which have not been allocated to the constituent States of North East India are at all to be released in favour of the State of Manipur, then they are entitled to get nominations against such seats, inasmuch as they had secured in the Common Entrance Test 161 and 152 marks respectively. This claim is made on the ground that in order to get nominations from the State of Manipur the only yardstick is the merit of the candidates on the basis of the result of Common Entrance Test as prescribed in 1993 Rules. In support of this contention, Mr. Ashok Potsangbam, learned Counsel for the writ Petitioners refers me to the provision relating to the admission to the MBBS Course as is prescribed in the prospectus of Regional Medical College. It may be stated that Regional Medical College, RMC was established in 1972. In 1995 it was re-named as Regional Institute of Medical Sciences, RIMS. It is stated that the method of selection has not undergone change. From its inception the constituents States had their respective quotas of seats allocated to them at the RMC and now RIMS. Under the Head "Admission to the M.B.B.S. Course" it is stated:

The candidates for the above seats are selected by the respective State Governments either by competition or on the basis of marks obtained in qualifying examination and are admitted solely on recommendation of those states.

The conditions are prescribed by the Medical Council of India and adopted by Manipur University Regulations determine the eligibility of admission to this course.

On close scrutiny of the latters written to the Director, RIMS by the Director in-charge Adviser (TE) dated 13th April 1999 and also letter dated 4th May, 1999 it is now amply clear that the 4 (four) seats against which admissions were granted on 16th April, 1999 by the Director, RIMS are out of the 11 (eleven) un-distributed/un-allocated additional MBBS seats from the Central Government. Letter dated 4th May, 1999 states in para 1 that the 4 (four) seats for MBBS course were allotted to Manipur Government for 1998-99 session only as temporary arrangement against 15 (fifteen) additional seats allotted by the Ministry of Health and Family Welfare. The letter further states:

�Since this order was issued few days before the last date of admission to 1st year MBBS Course of 1998-99, the distribution to the regular allocation of seats to the other beneficiary states was not decided. Hence, the remaining 11 seats are not distributed to any beneficiary state. The four students were admitted against these allotted seats to the Government of Manipur.

The above para refers to the four seats earlier released out of the 15 (fifteen) additional seats sometime in December, 1998. The question that is raised now in the present petition is as regards 4 (four) seats out of the remaining 11 (eleven) seats which have not been distributed to the beneficiary States. It may be stated that the Respondents 5 to 8 whose admissions were cancelled pursuant to this Court''s direction have now again been given 4 (four) fresh seats out of the 11 (eleven) un-distributed seats and these four students were granted admissions as late as on 16th April, 1999. Para 2 of letter dated 4th May, 1999 of NEC further states:

In persuance of Hon''ble Gauhati High Court order WP (C) 332 of 1999 dated 5.4.1999, NEC had conveyed its ho objection to which the continuance of 4 students admitted in the 1st year of MBBS Course of RIMS on purely humanitarian ground and as a special case in order to prevent from getting their carrier jeopardised vide letter No. NEC/TE/15/92 dated 13th Apr''99 due to the following:

(a) The students admitted in 1st Semester of RIMS successfully completed the 1st Semester and promoted to 2nd Semester MBBS Course at RIMS;

(b) 11 seats available at RIMS will not be utilised for any admission in the 1st Semester of MBBS Course because the last date of admission was over on 17th December ''98 and students admitted in the 1st Semester already completed the 1st Semester;

(c) the Chairman, NEC also inclined to consider the case for continuance in RIMS based on sympathetic & humanitarian ground.

Para 3 of the letter states:

The aforesaid decision to adjust the seat was taken after the Hon''ble Gauhati High Court gave the liberty to dispose of the representation filed by the 4 (four) students in WP (C) No. 332 of 1999 dated 5th April, 1999.

At this stage it may be stated that this Court had simply stated as quoted above that the representation made on behalf of the 4 students be disposed of. However, it should be made clear that how the seats are to be adjusted or to be allocated to the different beneficiary States is entirely a different issue. In the said letter it has also been made clear that regular distribution of 15 (fifteen) additional seats are to be finalised by NEC only for 1999-2000 onwards and that NEC has not released any seats to other beneficiary States for 1998-99. It shall also make one thing abundantly clear at this stage that out of the additional 15 (fifteen) seats, 8 (eight) seats have already been released to the students of Manipur and altogether there are now 7 (seven) seats which have not been released in favour of any of the students of the beneficiary States. Para 6 of the said letter states:

Since the last date of admission for 1998-99 session was over by 17th December, 1998. question of fresh admission for 1998-99 does not arise and the next admission for 1999-2000 session will start only after finalisation of the allotment of seats to constituent States.

One thing needs to be clearly understood in the present case is that admissions granted in favour of Respondents 5 to 8 in December, 1998 against the four additional seats out of the 15 additional seats released by the Central Government, came to be quashed by this Court as stated earlier. Therefore, question of continuance against the said admission and against the said seats released in December, 1998 by Respondents 5 to 8 would not at all arise inasmuch as consequent to the direction of this Court the 4 (four) seats against which admissions were granted in December, 1998 have now been occupied by fresh nominees issued in this regard pursuant to the direction of this Court. Therefore, Respondents 5 to 8 were granted fresh admissions to 1st year MBBS Course only on 16th April, 1999. Therefore, if I am to accept the contention of NEC that the last date of admission for 1998-99 session was over by 17th December, 1998, then granting fresh admissions to Respondent 5 to 8 on 16th April, 1999 and that too against fresh additional 4 (four) seats released by NEC cannot arise inasmuch as such admission made in April, 1999 would certainly run counter to the stand taken by the NEC in this regard. I am, therefore, of the opinion that there can be no doubt that admissions granted to Respondents 5 to 8 were fresh admissions against fresh seats released by the NEC.

I have also perused letter dated 5th March. 1999 addressed by the Chairman, NEC Shri Mata Prasad, Governor of Arunachal Pradesh addressed to the Secretary NEC. The said letter was written with reference to the application dated 5.3.99 submitted by 4 (four) students and also another application dated 5.3.99 filed by Dr L. Chandramani Singh. The letter states:

it is clear from the application of the four MBBS students that their nominations to the 1st year MBBS for the session 1998-99 are to be cancelled as per the directives of the Gauhati High Court.

At present there are 11 (eleven) seats for MBBS for academic session 1998-99 in RIMS which are not filled up as new students could not be admitted according to the Regulations framed by MCI. Instead of keeping all eleven seats unutilized and unfilled, 4 MBBS students already admitted to RIMS may be adjusted against these seats in the larger public interest. Eleven seats are not yet allocated to five beneficiary states as the last date for admission of the new students in the 1st year MBBS for the session 1998-99 was 16.12.98.

Take necessary action for immediate consideration for adjustment of the four already admitted MBBS students in RIMS against eleven unutilized seats.

It is evident that the applications filed by the 4 (four) students and Dr. Chandramani Singh were of 5.3.99 and the Chairman took action on the same day i.e. 5th March, 1999. Though it has been mooted on behalf of the writ Petitioners as to how letters sent from Imphal on 5th march, 1999 would reach Arunachal Pradesh on the same day and as to how the Chairman would have taken action and had written a letter on the same day i.e. 5th March, 1999 to the Secretary, NEC, I feel it would not be very fair on my part to comment on that. However, on careful perusal of letter written by the Governor/Chairman, it appears to me that the Chairman had simply given direction to the Secretary, NEC to take action for immediate consideration for adjustment of the 4 (four) additional seats out of the 11 (eleven) un-distributed seats. That would mean that before additional seats were released in favour of Manipur students, the question of adjustment would have to be clearly made inasmuch as these 11 (eleven) seats in any case would not have been allocated to the State of Manipur as 4 out of the 15 additional seats had already been allocated to the State of Manipur as early as in the 3rd week of December, 1998. It appears, to me that the Secretary, NEC failed to discharge his duty to take action as regards adjustment to be made against 4 (four) additional seats out of the 11 (eleven) un-distributed seats. In other-words, in my view, what the Governor had stated in his latter would not have meant the NEC should have released 4 (four) seats out of the un-distributed 11 (eleven) seats straightway in favour of the 4 (four) applicants.

One pertinent issue that may be discussed now is as regards the authority which could nominate students to undergo studies in MBBS Course. In other-words, the question is whether NEC can also issue nominations in favour of students by utilising the seats released by the Central Government. In this regard I have perused relevant provision of the North Eastern Council Act, 1991, Constitution and Bye-Laws of the Regional Institute of Medical Sciences and in feat Mr. N.P.C. Singh, learned Counsel appearing for Respondents 5 to 8 has taken me through the relevant provisions of the act and the Constitution and Bye-Laws as stated above.

Para 6 of the Constitution of RIMS is as regards the constitution of the Board of Governors. The Chief Minister of Manipur is the Chairman and the Secretary, NEC is the member and there are several other members drawn from constituent States and also of the Government of India. Para 9 of the Constitution speaks of the Executive Council of RIMS, of which Secretary, NEC is the Chairman. The powers and functions are described in para 12 of the Constitution of RIMS. Mr. N.P.C. Singh emphasises that the function of the Council is supervisory and the Executive Council is to decide as to the allocation of seats of MBBS. According to the learned Counsel 4 (four) seats out of the 11 (eleven) undistributed seats have been released in favour of Respondents 5 to 8 in exercise of powers under Para 11(a)(i) of the Constitution. Though some of the officers of NEC are members of the Executive Council of RIMS and in fact though Secretary, NEC is the Chairman of the Executive Council of RIMS, on careful perusal of the representations made by these 4 (four) students and also by Dr Chandramani Singh and the other correspondences that followed on receipt of the said representations would clearly go to show that no request of releasing additional seats in favour of Respondents 5 to 8 was ever made to the Executive Council of RIMS. Request was made to NEC. 4 (four) seats were released and fresh admissions were granted on 16th April, 1999 to the Respondents 5 to 8 cut and out at the instance and direction of NEC.

It is now clear in my mind that out of the additional 15 (fifteen) seats released by the Central Government in December, 1998, 8 (eight) seats have gone in favour of the students of Manipur. However, no nominations have been issued in respect of 4 (four) seats against which Respondents 5 to 8 have been given admission. In other-words, the question is whose nominees are Respondents 5 to 8.1 have carefully perused relevant Rules/Regulations as regards distribution of seats and nominations to be issued in favour of students to study at RIMS. Only one yardstick is available for issuance of nominations. That power to nominate students is vested in the beneficiary States of Norm East India and not in any other authority, including NEC. In fact, there can be no two yardsticks in the matter of nomination of students to undergo MBBS Course at RIMS. I am unable to accept the submission of Mr. N.P.C. Singh that under exceptional circumstances NEC thought it fit to request the Director of RIMS to limit Respondents 5 to 8. There is no such discretionary power given to NEC, nor is there any special quota reserved for distribution of seats by NEC directly. If such practise is allowed, a time will soon come when the powers vested in the constituent States for selection of candidates and nomination of State candidates would be wholely usurped by NEC. That is unthinkable. In my view, if NEC at all thought that it would be in the larger interest of the society to release un-utilised seats in favour of Manipur, then the State of Manipur should have been given the right to select deserving candidates to undergo studies at RIMS, inasmuch as Common Entrance Test was held in July, 1998 and about 2000 students competed in the Entrance Test. There are many more deserving candidates then Respondents 5 to 8.

Further if I am to accept the contention of NEC as contained in its letter dated 4th May, 1999 that the last date of admission for 1998-99 session was over by 17 December, 1998, it is not open to NEC or for that matter to any authority to say that an exception can be made in respect of Respondents 5 to 8 whose admissions were cancelled after discussing all aspects of laws and facts in earlier writ petition. The citizens of this country must be treated equally and fairly. To exhibit too much interest in a few persons by such a high Body like NEC does not speak well of such an important statutory body established by the Government of India There is demand for justice everywhere. Justice must be done. No doubt in a given situation justice may be done coupled with mercy. However, mercy cannot be done out of the way.

Mr. N.P.C. Singh submits that the writ Petitioners have no right to claim seats out of the 11 (eleven) undistributed seats, inasmuch as the 4 (four) seats released have not been released in favour of the State of Manipur, but in favour of Respondents 5 to 8 as individual candidates. According to Mr. N.P.C. Singh NEC has exercised this power in a very peculiar situation. The question is whether exercise of such power is at all authorised under any provision of law/regulation. Referring to AIR (1992) SC 1044 and also The State of Orissa Vs. Madan Gopal Rungta, Mr. N.P.C. Singh submits that existence of right is the foundation to seek remedy under Article 226 of the Constitution and since the writ Petitioners cannot satisfy the Court that their constitutional or other legal rights have been infringed, no remedy is at all available to them. May be this submission is correct. Since he is making this submission on the ground that the 4 (four) seats against which Respondents 5 to 8 have been admitted at RIMS on 16th April, 1999 as fresh nominees from NEC cannot be said to be seats already allocated the State of Manipur. If mercy is to be the basis for giving fresh admission against undistributed seats, then who should exercise this power of mercy, whether it would be the concerns constituent States or the NEC?

Mr. B.P. Sahu, learned Counsel submits that the Director, RIMS had exercised power under para 6.1 of the bye-laws of RIMS in re-admission the Respondents 5 to 8 consequent to the direction of NEC. Bye-laws para 6.1 is to be exercised under the general direction and control of the Executive Council of RIMS and it has nothing to do with any order to be issued directly from NEC.

At the time of hearing copies of letter written by the Chief Minister of Arunachal Pradesh and Nagaland dated 8th may, 1999 have been made available to me. The said letters support the action of NEC. I feel it is not necessary for me to say much about these two letters. However, this much may be said that these are belated attempts to support the action of NEC and they are of no consequence whatsoever as far as the action of NEC is concerned. It is not a case wherein they had given nominations in favour of Respondents 5 to 8 against seats allocated to the respective States.

It is now abundantly clear that these 4 (four) seats out of the additional 11 (eleven) un-utilised seats have not been allocated to the State of Manipur and they have been utilised by NEC in favour of Respondents 5 to 8. It is about time another Common Entrance Test is to be conducted by the State of Manipur for the academic session 1999-2000. It seems we are running behind time to be talking of admissions against un-utilised seats of 1998-99 even in the month of May, 1999.

Looking to the entire facts and circumstances and after giving serious thought to all the aspects of the matter, I have made up mind to say that justice and the Rule of Law must be the order of the day. In the result this petition is disposed of as follows:

(1) Since the 4 (four) seats against which fresh admissions were granted to Respondents 5 to 8 have not been allocated to the State of Manipur, it seems the writ Petitioners cannot claim those seats on merit on the basis of the result of Common Entrance Test conducted by the State of Manipur in July, 1998, though the writ Petitioners claim these seats since they had also made representation before the NEC to release seats in their favour.

(2) Admissions secured by Respondents 5 to 8 in December, 1998 having been quashed, question of continuance against their seats would not arise.

(3) Fresh admissions granted to Respondents 5 to 8 on 16th April, 1999 cannot be sustained as they were not nominated by any of the constituent States.

(4) Granting fresh admission on 16th April 1999 is also bad, inasmuch as it is the case of NEC that the last date for admission for the academic session 1998-99 was 17 December, 1998.

(5)Fresh admissions granted to Respondents 5 to 8 on 16.4.99 for 1st Year MBBS Course are quashed, inasmuch as admissions were given on the basis of order/nomination issued by the NEC which has no jurisdiction to do so.

(6) If admissions are still possible and if further seats are released in favour of the State of Manipur, selection and nomination shall be done by the State of Manipur strictly on merit on the basis of result of Common Entrance Test held in July, 1998.

With the above observations and directions this writ petition is disposed of.