Reserved
Court No. - 39
Case :- WRIT - C No. - 13075 of 2019 Petitioner :- Megha Sharma And 6 Others Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Nisheeth Yadav,Sri C B Yadav(Senior Advocate) Counsel for Respondent :- A.S.G.I.,Avanish Mishra,C.S.C.,Mahendra Pratap,Prakash Chandra Tiwari
Hon' ble B. Amit Sthalekar,J. Hon' ble Piyush Agrawal,J.
(Delivered by Hon' ble B. Amit Sthalekar, J.) Heard Sri C.B. Yadav, learned Senior Counsel assisted by Sri Nisheeth Yadav, learned counsel for the petitioners, Sri Prakash Chandra Tiwari, learned counsel for the respondent no.1, learned Standing Counsel for the respondent no.2, Sri Mahendra Pratap, learned counsel for the respondent no.3 and Sri Avanish Mishra, learned counsel for the respondent no.4.
The petitioners, who are 7 in number, are seeking quashing of the order dated 04.04.2019 (Annexure-6 to the writ petition) whereby it has been held by the Director, General, Medical Education and Training, U.P. that the candidates who have cleared their M.B.B.S. Course from All India Quota, Aligarh Muslim University, Aligarh, Banaras Hindu University, Varanasi and Deemed University such as Santosh Medical College, Ghaziabad will not be eligible for applying against any seat in the State quota of Uttar Pradesh.
Briefly stated the facts of the case are that the petitioners no.1, 2 and 3 were enrolled for M.B.B.S. course in the Santosh Medical College, Ghaziabad in the academic year 2010-11 and cleared the academic examination in 2016. The petitioners no.4, 5 and 6 were enrolled for M.B.B.S. course in the academic year 2011 and they have passed out in the year 2017 whereas the petitioner no.7 was enrolled for M.B.B.S. course in the academic year 2011-12 and passed out in the year 2018. It is stated that Santosh Medical College, Ghaziabad has been declared to be a Deemed University under Section 3 of the University Grants Commission Act, 1956 (hereinafter referred to as the 'Act, 1956').
It is stated that in the year 2013 the Medical Council of India (hereinafter refereed to as the 'MCI') introduced an All India Entrance Examination for students who wished to study Graduate and Post Graduate Medical Courses (M.B.B.S., M.D., M.S. and (B.D.S., M.D.S.) in the Government or Private Medical Colleges or Dental Colleges in India known as 'National Eligibility-cum- Entrance Test (hereinafter referred to as 'NEET'). It is stated that the examination could not be held initially due to litigation but after clearance from the Court the examination was restored on 11.04.2016. It is stated that the NEET examination is held by the Medical Council of India. It is stated that the 'MCI' conducted 'NEET' for postgraduate seats in Medical & Dental Courses on 06.01.2019 and the result was declared on 31.01.2019. 75,000 students were declared passed as per the merit list. For purposes of admission in the MD/MS/DIPLOMA/MDS courses in the Government/Private Medical Colleges and Dental Colleges, Institutes and Universities the State of U.P. issued an Advertisement Brochure on 09.03.2019 (Annexure-2 to the writ petition). This Brochure known as the U.P. Counseling Brochure for the NEET PG-2019 categorized the candidates into two parts;
A. students seeking post graduation seats in the Government Medical Colleges;
B. students seeking seats in the Government & Private Medical Colleges.
The candidates seeking admission under Part-A are required to deposit security fee of Rs.30,000/- and the candidates seeking admission under Part-B are required to deposit security fee of Rs.2,00,000/-. It is also stated that the candidates applying under Part-A for seats of Government Medical Colleges cannot appear or participate in the counseling for Private Medical Colleges. The important dates of the Brochure (Annexure-2 to the writ petition) reads as under:
It is stated that the petitioners no.2 and 3 deposited Rs.2,00,000/- and got themselves registered for counseling of Government & Private Medical Colleges in the State of U.P. All the petitioners submitted their online registration form alongwith the security fees which was accepted by the respondents, their forms were also accepted and they were waiting for participating in the first counseling which was to commence from 02.04.2019 but there were surprised when a Notification was issued by the Director General, Medical Education and Training, U.P. stating that in view of the order of the High Court (Lucknow Bench) in Writ Petition No.8616 (M/S)/ 2019 (Dr. Jitendra Gupta and Others Vs. State of U.P. Through Principal Secretary, Medical Education and Another) whereby the eligibility criteria prescribed in Clause-2 of the Uttar Pradesh Counseling Brochure, 2019 was quashed and it was provided that option would be taken only in respect of paragraph (1), (3), (4), (5) and (6) under the heading Eligibility For Admission under the NEET PG-2019 Brochure. The Notification further directed that those candidates who have deposited Rs.30,000/- towards registration fee for admission in State Medical Colleges/Institutions/Universities etc. would be eligible to apply for Private Medical Colleges/Institutions/Universities for counseling after depositing Rs.2,00,000/- by 12 Noon of 02.04.2019.
It is then that the petitioners came to know that Dr. Jitendra Gupta and others had challenged the State Government Notification dated 09.03.2019 which provided for admission in State Quota seats of Postgraduate M.D./M.S./M.D.S.
courses in various Government and Private Colleges/Dental Colleges/Institutes/State Universities and Post Graduate Diploma Courses in R.I.O. Sitapur and Private Medical Colleges/Institutes/State Universities.
The learned Single Judge by its judgment dated 01.04.2019 quashed the Clause-2 and Clause-3 (Kha) of the Government Order dated 09.03.2019 and Clause-2 of the eligibility criteria laid down in the Uttar Pradesh Counseling Brochure-2019. Para 48 of the judgment dated 01.04.2019 reads as under:
“48. The result after following the above judgment of the Hon'ble Supreme Court, is that the Clause 3 (Kha) of the Government Order dated 09/03/2019 and Clause 2 of the eligibility criteria as published in the Uttar Pradesh counseling brochure issued by respondent number 2 is quashed, and the parties are at liberty to proceed with the counseling of the candidates selected through NEET PG 2019 for admission to the State quota of seats of Postgraduate MD/MS/MDS courses in various Government and Private Medical / Dental Colleges / Institutions / State University and PG Diploma Courses etc. on the basis of merit list prepared as per Clauses (1), (3), (4), (5) and (6) of the Eligibility for Admission as per the schedule detailed in the Uttar Pradesh Counseling Brochure.”
It is stated that by the impugned Notification of the Director General, Medical Education & Training, U.P. Lucknow dated 04.04.2019 the petitioners who were passed students of the Santosh Medical College, Ghaziabad were declared not qualified to appear for seats of the Government Medical Colleges. On enquiries being made by the petitioners they were informed that as they had passed out from the Santosh Medical College, Ghaziabad which was a Deemed University notified under Section 3 of the Act, 1956 by the Central Government they were precluded from applying for seats under the State quota of Medical/Dental Colleges.
It is contended by the petitioners that after the selection has already been advertised rules relating to selection cannot be amended by the Notification dated 04.04.2019.
It is further claimed that there cannot be any discrimination on the basis of college or university from which the petitioners have done their M.B.B.S. course as subsequent to completing the course they have already been registered with the Medical Council of India. It is stated that in terms of the Brochure the petitioners no.1, 4, 6 and 7 had filled up the form to participate for the seats in Government Medical Colleges and had deposited Rs.30,000/- as security fee. It is also stated that two candidates, who were enrolled as M.B.B.S. students in the Santosh Medical College and had completed their Graduation in 2017, namely, Mohan Vashishtha was allotted a seat of M.D. Microbiology at Safai Medical College whereas Shadab Ahmad Siddiqui was allotted a seat of M.D. Physiology in the Gorakhpur Medical College.
It is stated that as per the Brochure-2019 there were 1182 seats for P.G. Courses including Government and Private Medical Colleges, out of which 456 seats are in Government Medical Colleges, whereas 725 seats are in Private Medical Colleges. It is therefore, stated that the petitioners have a right to participate in the counseling for seats of the Government Medical Colleges and it cannot be insisted that they should apply only against the seats available in the Private Medical Colleges.
Opposing the claim of the petitioners Sri Avanish Mishra, learned counsel appearing for the respondent no.4 referring to the affidavit of respondent no.4 submitted that the petitioners are eligible to apply and seek admission through counseling for only 50% of the seats in the State Medical Colleges/Institutions and referred to the judgment of the Supreme Court reported in (1984) 3 SCC 654 (Dr. Pradeep Jain and Others Vs. Union of India and Others) and submitted that it was constitutionally permissible for the States to have reservation of seats on the basis of institutional preference in postgraduate medicine courses for students who have passed MBBS course from the same University. However, such institutional reservation should not exceed the outer limit of 50% and the percentage of reservation of seats may be revised from time to time depending upon the prevailing situation. Relevant extract of paragraph 22 of the judgment reads as under:
“22..................We are therefore of the view that so far as admissions to post-graduate courses, such as M.S., M.D. and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference. But, having regard to border considerations of equality of opportunity and institutional continuity in education which has its own importance and value, we would direct that though residence requirement within the State shall not be a ground for reservation in admissions to post graduate courses, a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed M.B.B.S. course from a medical college or university may be given preference for admission to the post-graduate course in the same medical colleges or university but such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats available for admission to the post- graduate course. This outer limit which we are fixing will also be subject to revision on the lower side by the Indian Medical Council in the same manner as directed by us in the case of admissions to the M.B.B.S. course.”
The judgment in the case of Dr. Pradeep Jain (supra) was reiterated by the Supreme Court in (2003) 11 SCC 186 (Magan Mehrotra and Others Vs. Union of India and Others) . The judgment of Dr. Pradeep Jain (supra) was again reiterated by a Constitutional Bench of the Supreme Court in (2003) 11 SCC 146 (Saurabh Chaudri and Others Vs. Union of India and Others) which has affirmed the 50% outer limit for institutional reservation laid down by the Supreme Court in Dr. Pradeep Jain (supra) and Magan Mehrotra (supra). While reiterating the view of Dr. Pradeep Jain (supra) and Magan Mehrotra (supra) the Supreme Court in (2013) 10 SCC 237 (Nikhil Himthani Vs. State of Uttarakhand and Others) and in (2014) 11 SCC 456 (Vishal Goyal and Others Vs. State of Karnataka and Others) and following the Constitution Bench judgment of Saurabh Chaudri (supra) has held that institutional reservation is a matter of State Policy and is permissible under the Constitution. However, the institutional reservation should not be disguised as domicile reservation and should conform to the Principle of Equality provided under Article 14 of the Constitution of India. Paragraphs 10 and 15 of the judgment reads as under;
“10. Mr. Rakesh Dwivedi cited the Constitution Bench judgment of this Court in Saurabh chaudri v. Union of India for the proposition that giving institutional preference is a matter of State policy which can be invalidated only in the event of being violative of Article 14 of the Constitution of India. He submitted that the State of Uttarakhand was, therefore, entitled to make its own policy with regard to institutional preference in Clauses 1,2 and 3 of the eligibility criteria.
…..............
12. Article 14 of the Constitution guarantees to every person equality before law and equal protection of laws. In Jagadish Saran v. Union of India [(1980) 2 SCC 768] , Krishna Iyer, J., writing the judgment on behalf of the three Judges referring to Article 14 of the Constitution held that equality of opportunity for every person in the country is the constitutional guarantee and therefore merit must be the test for selecting candidates, particularly in the higher levels of education like postgraduate medical courses, such as MD. In the language of Krishna Iyer, J.: (SCC pp. 778-79, para 23) “23. Flowing from the same stream of equalism is another limitation. The basic medical needs of a region or the preferential push justified for a handicapped group cannot prevail in the same measure all the highest scales of speciality where the best skill or talent, must be handpicked by selecting according to capability. At the level of PhD, MD, or levels of higher proficiency, where international measure of talent is made, where losing one great scientist or technologist in-the-making is a national loss, the considerations we have expanded upon as important lose their potency. Here equality, measured by matching excellence, has more meaning and cannot be diluted much without grave risk.”
13. Relying on the aforesaid reasons in Jagadish Saran v. Union of India [(1980) 2 SCC 768] a three-Judge Bench of this Court in Pradeep Jain case held that excellence cannot be compromised by any other consideration for the purpose of admission to postgraduate medical courses such as MD/MS and the like because that would be detrimental to the interests of the nation and therefore reservation based on residential requirement in the State will affect the right to equality of opportunity under Article 14 of the Constitution but: (Pradeep Jain case, SCC p. 693, para 22) “22.… a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed MBBS course from a medical college or university, may be given preference for admission to the postgraduate course in the same medical college or university….”
This view expressed in Pradeep Jain case has been reiterated by another three-Judge Bench of this Court in Magan Mehrotra v. Union of India [(2003) 11 SCC 186] after a reconsideration and independent examination..”
It is further stated on behalf of the respondent no.4 that the decision in the Constitution Bench of the Supreme Court in Saurabh Chaudri (supra) has been referred to a Larger Bench by the Supreme Court in the case of Yatinkumar Jasubhai Patel & Others Vs. State of Gujarat & Others, SLP (C) No.7003/2017 vide order dated 12.09.2018 and therefore the present writ petition was not maintainable.
Sri Mahendra Pratap, learned counsel appearing for the respondent no.3, on the other hand relying on certain directions dated 09.05.2017 passed by the Supreme Court in Writ Petition (c) No.267 of 2017 (Dar-us-Slam Educational Trust and Others vs. Medical Council of India and Others) submits that the direction no.1 therein was that counseling for admission for all-India quota seats in Government Medical Colleges shall be conducted by the Director General, Health and Services, Ministry of Health, Government of India and that the counseling conducted by Director General, Health and Services will also include deemed universities as they have an all-India character. It is also stated that the direction no.2 of the Supreme Court relates to counseling for State Quota seats in Government as well as Private Medical Colleges, Institutions affiliated to State Universities, which shall be conducted by the State Government or the Authority designated by the State Government. Paragraphs 23.1, 23.2, 23.3, 23.4, 23.5, 23.6, 23.7, 23.8, 23.9 and 23.10 read as under:
“23.1 Common counselling for admission to all-India quota seats in government medical colleges shall be conducted by DGHS. The counselling conducted by DGHS will also include deemed universities as they have an all-India character. The deemed universities mentioned above shall also include deemed universities run by religious and linguistic minorities.
23.2 Common counselling for State quota seats in government as well as private medical colleges including colleges/institutions run by religious and linguistic minorities affiliated to State Universities shall be conducted by the State Government or the authority designated by the State Government. The notification issued by the State Government intimating the students about the common counselling must specify that at the time of counselling the students belonging to minority community will be required to furnish the necessary proof regarding their minority status and submit in writing about their willingness to take admission in the minority college/institution concerned.
23.3. As per the judgment of this Hon'ble Court in Ashish Ranjan v. Union of India, there shall be only two rounds of common counselling each conducted by the DGHS/State Government or authority designated by the State Government for all-India quota (including deemed university) and State quota seats respectively.
23.4. After the second round of counselling for all-India quota seats, the students who take admission in all-India quota seats should not be allowed/permitted to vacate the seats. This would ensure that very few seats are reverted to the State quota and also all-India quota seats are filled by students from all-India merit list only. The students who take admission and secure admission in deemed universities pursuant to the second round of counselling conducted by DGHS shall not be eligible to participate in any other counselling.
23.5 The notification to be issued by DGHS and the State Government notifying common counselling should also provide the fee structure of deemed universities and private medical colleges. DGHS/State Government should also obtain the consent of the students regarding their willingness to pay the fees provided in the notification and take admission in the deemed universities and private medical colleges.
23.6 The students who secure admission in MBBS course pursuant to the common counselling conducted by the State Government, at the time of common counselling itself, should be made to deposit with the Admission/Counselling Committee the demand draft towards the fees payable to the institution/colleges/university. The Admission/Counselling Committee shall forthwith forward the demand draft to the respective institution/colleges/university. The necessity for including the abovementioned requirement has arisen as it has been time and again noticed that when students report to the college after the counselling they are refused admission by the colleges on some pretext or the other and it is shown by the college as if the student never reported to the college for admission. If the demand draft is deposited by the Admission/Counselling Committee then there would be no scope for colleges to refuse admission to any student.
23.7 In order to ascertain the number of seats that still remain vacant after the counselling the State Government or the authority designated by the State Government shall conduct manual counselling for allotment of students. After the completion of counselling, the State Government shall determine the number of seats that are still vacant and thereafter shall forward a list of students in order of merit, equalling to ten times the number of vacant seats to the medical college so that in case of any stray vacancy arising in any college the said seat may be filled up from the said list.
23.8 In the applications submitted by the students belonging to the minority community they should confirm their minority status as well as the fact that they fulfill other conditions which may be prescribed by the minority institutions. Accordingly, DGHS as well as the State Government shall prepare a separate list of minority students seeking admissions in the respective minority institutions in order of merit. The competent authorities of the college present during counselling shall check/verify the minority status of the candidate. This arrangement is only meant for the State quota.
23.9 During the common counselling conducted by the State Government, the representative of the medical colleges particularly representative of minority institutions should be a part of the Admission/Counselling Committee as the case may be.
23.10 Common counselling conducted by the DGHS/State Government will not in any manner effect the rights of minority institutions to admit students of their respective minority community. The minority quota seats, if any, in institutions run by minorities will be filled up by minority students only. Therefore, the rights of minority institutions are fully protected.”
Learned counsel submits that the petitioners joined Santosh Medical College, Ghaziabad in 2011 onwords on the basis of written examination conducted by the University itself. It is stated that the process of preparing merit list is done by the University; fixation of fee is also done by the University. The fees for other Medical Colleges, Government or Private (except Minority Institutions) are fixed by the State Government. It is also stated that the Aligarh Muslim University, Aligarh and Banaras Hindu University, Varanasi also conducted their own entrance examination for admission in MBBS/BDS courses and benefit of admission in State Quota is given to students, who complete their MBBS/BDS courses from these Universities.
It is stated that there are 891 seats for Post Graduate Medical Courses in Government Institutions in the State of U.P. and 32 Dental seats. 434 seats in Post Graduate Medical Courses and 16 seats in Dental have been surrendered by the State of U.P. for All India Quota. Rest of the seats i.e. 457 and 16, respectively are to be filled up from the State Quota. So far as the Private Medical Colleges are concerned, it is stated that there are 725 seats for PG Medical and 634 seats for Dental and counselling for admission on these seats is done by the State of U.P. in which candidates who have obtained their medical degrees from the State of U.P. or from outside the State of U.P. are eligible for admission. It is, therefore, stated that the petitioners and students who have obtained qualifying degrees from Santosh Medical University are eligible to apply against 434 seats of the all India quota, 725 seats of private medical colleges and 634 seats in Dental in the State of U.P. As for as Mohan Vashishth and Shadab Ahmad Siddiqui are concerned, it is stated that though they were allowed admission in Aligarh Muslim University and Banaras Hindu University respectively their admission has been canceled by the Director General, Medical Education vide order dated 16.4.2019 when it was discovered, on enquiry, that they had obtained their MBBS degrees from Santosh Medical University (a deemed University).
A supplementary counter affidavit has been filed on behalf of the respondent no. 3 i.e. Director General, Medical Health Education and Training in which it is stated that the online counseling software was prepared by the National Informatics Centre (NIC) and counseling for Deemed University was also uploaded though erroneously. However, later on it was released that the counseling for Deemed University can only be conducted by the Director General, Health Services, Government of India and not by the State Universities and therefore allotment of seats regarding candidates of Deemed Universities has been canceled and consequently seats allotted to the petitioners no. 1 and 6 have also been canceled vide order dated 2.5.2019. It is however stated that the non applicability of counseling for admission to the State Universities and Santosh Medical University could not be uploaded and due to this factor allotment of six candidates was displayed by the NIC. The respondents have also placed on record the gazette notification dated 31.7.2017 as Annexure-2 to the supplementary counter affidavit whereby clause 9A(2) has been introduced in the Post Graduate Medical Education Regulation 2000. Clause 9A(2) is being reproduced below:
“9A(2) The Designated Authority for counselling for the 50% All India Quota seats of the contributing States, as per the existing scheme for Diploma and M.D./M.S. Courses shall be the Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India. Further, the Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India shall conduct counselling for all postgraduate courses (Diploma, M.D./M.S. D.M./M.Ch.) in Medical Educational Institutions of the Central Government Universities established by an Act of Parliament and the Deemed Universities, Furthermore, the Directorate General of Health Services shall conduct the counselling for all Superspecialty courses (D.M./M.Ch) in Medical Educational Institutions of the Central Government Medical Educational Institutions of the State Government, Deemed Universities, Universities established by an Act of Parliament, Universities established by an Act of State/Union Territory Legislature, Medical Educational Institutions established by Municipal Bodies, Trust, Society, Company or Minority Institutions.”
The respondents have also brought on record the Medical Council of India notification dated 20.2.2018 describing the admission schedule for the academic year 2018-19 onwards for postgraduate courses and a perusal of the same shows that the last date for joining of candidates is 31.5.2019.
The submission of the learned counsel for the petitioners referring to the submission of Shri Avnish Mishra, learned counsel for the respondent no. 4- Medical Council of India is that the petitioners herein are also claiming nothing more than being permitted for counseling against 50% seats allotted under the State Quota. The respondents have also placed reliance upon a judgement of the Supreme Court reported in (2017) 8 SCC 627 Christian Medical College Vellore Association Vs. Medical Council of India and others/Dar-Us- Slam Educational Trust and others Vs. Medical Council of India and others and submitted that it has been held by the Supreme Court that the counseling conducted by the Director General, Health Services for admission to all India quota seats in Government Medical Colleges shall also include Deemed Universities as they have an All India character and the Deemed University mentioned therein shall also include the Deemed University run by religious and linguistic minorities. In paragraph 23.2. it is stated that the common counseling for State quota seats in Government as well as private Medical Colleges including Colleges/Institutions run by religious and linguistic minorities affiliated to State University shall be conducted by the State Government or the authority designated by the State Government.
In paragraph 23.1. to 24, referring to the judgement of the Supreme Court in the case of Ashish Ranjan Vs. Union of India reported in (2016) 11 SCC 225, it is stated that there shall be only two rounds of common counseling each conducted by DGHS/State Government or authority designated by the State Government for All India Quota including Deemed University and the State Quota seats respectively.
Learned counsel for the petitioners submitted that the direction given by the Supreme Court in its order dated 9.5.2017 was further clarified in paragraphs 61, 62 and 63 of the judgement of Dar-us-Slam (supra) and it is stated that referring to the vacancies and the postgraduate courses, the Supreme Court clarified that the State Government shall determine the number of seats that are still vacant and thereafter to forward a list of students in the order of merit, equalling to ten times the number of vacant seats to the Medical College so that in case of any stray vacancy arising in any college, the said seat may be filled up from the said list. In admission to the Postgraduate courses both merit and preference of candidates are to be examined. The Supreme Court in the case of Dar-Us-Slam (supra) clarified that had the court vide direction 7 of the order dated 9.5.2017 intended the sending of ten times the number of vacancies of each postgraduate courses, there would have been a further elaboration pertaining to discipline and drawing of inter se merit. It was held that the order dated 9.5.2017 does not relate to admission to Postgraduate courses but is confined to admission in undergraduate courses. Referring to the circular of the Ministry of Health and Family Welfare, Government of India dated 26.5.2017 which was issued on the basis of the Supreme Court's Order dated 9.5.2017 passed in Dar-Us-Slam (supra) it was held that the said circular was issued under a misconception that the order of 9.5.2017 is applicable to admission to the postgraduate courses when infact the order of 9.5.2017 is itself not applicable to Postgraduate courses and therefore the circular dated 26.5.2017 itself become ineffective. Paragraphs 61, 62 and 63 of the said judgement read as under:
“61. There is one more reason for coming up to the aforesaid conclusion. In order dated 9.5.2017, the State Government has been directed to determine the number of seats that are still vacant and thereafter is to forward a list of students in order of merit, equalling to ten times the number of vacant seats to the Medical College so that in case of any stray vacancy arising in any college the said seat may be filled up from the said list. In admission to the postgraduate courses both merit and preference of candidates are looked into. Had the Court vide Direction 7 of the order dated 9.5.2017 intended the sending of ten times the number of vacancies of each postgraduate courses, there would have been further elaboration pertaining to discipline and drawing of inter se merit.
62. We are, thus, of the considered view that the order dated 9.5.2017 does not relate to admission into postgraduate courses and is confined to admission in undergraduate courses as note above.
63. Coming to the circular issued by the Government of India, Ministry of Health and Family Welfare date3d 26.5.2017 the said circular has been issued on the strength of the order of this Court dated 9.5.2017 in Dar-Us-Slam Educational Trust V. Medical Council of India Ministry of Health and Family Welfare in misconception that the order dated 9.5.2017 is applicable to the admission to the postgraduate courses. When the order dated 9.5.2017 is itself not applicable to postgraduate courses, the circular dated 26.5.2017 is not effective.”
Learned counsel for the petitioners therefore submits that the direction given by the Supreme Court in its order dated 9.5.2017 does not relate to admission to the postgraduate courses and is confined to admission in undergraduate courses only. He therefore submits that the directions contained in the NEET PG 2019 Brochure under the heading of Eligibility for Admission, clause (1) thereof would clearly apply to Deemed Universities and the petitioners would be entitled to appear in the counseling to be held by the State Government for admission in State quota seats in the State Government Medical Colleges/Institute/Universities and recognized private Medical/Dental Colleges/Universities of U.P. Clause (1) of the Eligibility for Admission of the Brochure reads as under:
“Eligibility For Admission 1. Candidates who have passed MBBs/BDa course from the State Govt. Medical Colleges/Institutes/Universities and recognized Private Medical/Dental Colleges/Universities of U.P. are eligible for admission in State Quota Seats in Govt. Medical Colleges/Institutes/Universities of U.P. through NEET UP PG-
2019/NEET-MDS-2019 Counselling and also eligible for admission in Private Medical/Dental Colleges/Universities of U.P.”
So far as the direction given in clause (2) of Eligibility For Admission of Brochure, 2019, it is submitted that the same have already been quashed by the Lucknow Bench of this court in Misc. Single No. 8616 of 2019 Dr. Jitendra Gupta and others Vs. State of U.P. and others vide judgement dated 1.4.2019 and the High Court has infact given a direction to the State Government to proceed with the counseling of the candidates selected through NEET PG 2019 for admission to State quota seats of P.G. MD/MS and MS. Courses in various Government and private medical colleges/dental colleges/Institute/State Universities and P.G. Diploma courses on the basis of the merit list prepared as per Clause (1)(3)(4)(5) and (6) of the Eligibility for Admission of the U.P. counseling Brochure, 2019. Paragraph 48 of the judgement reads as under:
“48. The result after following the above judgment of the Hon'ble Supreme Court, is that the Clause 3 (Kha) of the Government Order dated 09/03/2019 and Clause 2 of the eligibility criteria as published in the Uttar Pradesh counseling brochure issued by respondent number 2 is quashed, and the parties are at liberty to proceed with the counseling of the candidates selected through NEET PG 2019 for admission to the State quota of seats of Postgraduate MD/MS/MDS courses in various Government and Private Medical / Dental Colleges / Institutions / State University and PG Diploma Courses etc. on the basis of merit list prepared as per Clauses (1), (3), (4), (5) and (6) of the Eligibility for Admission as per the schedule detailed in the Uttar Pradesh Counseling Brochure.”
From a perusal of the documents on record we find that the petitioners are seeking admission through counseling in P.G. courses in the quota of seats allotted for the State Government in the various PG/MD/MS courses in various Government and Private Medical Colleges/Dental Colleges/Institute/State Universities and P.G. Diploma courses. Such admission can only be to the extent of 50% of the seats reserved by the State Government in view of the judgement of the Supreme Court in the case of Dr. Pradeep Jain (supra) and Madan Mehrotra (supra) both judgments being affirmed by the Constitution Bench of the Supreme Court in the case of Saurabh Chaudari (supra) but the dispute in the present case stands clarified by the Christian Medical College Vellore (supra) and the Supreme Court has itself clarified that the direction given in the order of 9.5.2017 by the Court are not applicable to admission to P.G. courses.
The submission of the learned counsel for the respondents that the judgement of Saurabh Chaudari has been referred to a larger Bench judgement in the case of Yatinkumar Jasubhai Patel (supra) and therefore the judgement of Saurabh Chaudari Constitution Bench judgement has no application to the case of the petitioners and the writ petition itself is not maintainable is a thoroughly misconceived submission. Though the judgement of Saurabh Chaudari (supra) has been referred to the Constitution Bench judgement but as of today the law laid down therein still holds good and therefore we cannot ignore the law or the direction laid down therein.
The submission of the learned counsel for the respondents that clause (1) of the Eligibility for Admission mentions that State Government Medical Colleges/Institution/University and recognized Private Medical/Dental Colleges/Universities of Uttar Pradesh shows that it refers only to the College and Institution established by the State Government and the language is not Institution or Colleges or Universities in Uttar Pradesh and, therefore, a Deemed University declared as such, by the Central Government in exercise of power under section 3 of the University Grant Commission Act, 1956 including Santosh Medical University cannot be said to be an Institution “of Uttar Pradesh”.
In our opinion the submission of the learned counsel for the respondents is thoroughly misconceived for the reason that though the Santosh Medical University may have been declared a Deemed University by the Central Government in exercise of powers under section 3 of the Act, 1956 but in view of the U.P. Counseling 2019 Brochure and the interpretation of the law laid down by the Supreme Court in the case of Dar-us-Slam (supra), the petitioners have a right to seek counseling against 50% of seats allotted by the State Government in the P.G .course of MD/MS courses and they are eligible to seek admission in the State Quota seats.
The Lucknow Bench of this court in the case of Dr. Jitendra (supra) has also directed the State Government to proceed with the process of selection in respect of clauses (1)(3)(4) (5) and (6) of the Eligibility for Admission of U.P. Counseling Brochure 2019. Therefore we are of the view that the petitioners cannot be restrained from appearing in the counseling for 50% seats in the State Quota against a Government Medical College.
We further find that the restriction in the notification of the Director General, Medical Education and Training U.P. dated 4.4.2019 is in the teeth of the judgement of the Constitution Bench of the Supreme Court in the case of Saurabh Chaudhari (supra) and is wholly illegal and arbitrary.
Shri Mahendra Pratap, learned counsel for one of the respondents submitted that so far as the Deemed Universities are concerned, Santosh Medical University herein, the counseling has to be done by the DGHS and not by the State Government. In our opinion it is quite immaterial as to whether counseling has to be done by the DGHS or by the State Government. The crux of the matter is that the petitioners are entitled to seek admission in the State Quota seats of the State Government as per clause (1) of the Eligibility of Admission of U.P. Counselling Brochure PG-2019.
In the supplementary counter affidavit the petitioners have filed the notification issued by the Medical Council of India dated 20.2.2018 which has prescribed the schedule of counseling known as academic schedule for the academic year 2018-19 onwards for P.G. courses. The schedule provides the last date of joining as 31.5.2019. The petitioners had already appeared and cleared the counseling but their admission was later on canceled on the ground that they were not entitled for applying against the State Quota of the State Government Medical Colleges or Private Medical/Dental Colleges/Institutes/Universities.
We find that once the petitioners had already been considered against the Government Medical Colleges and also deposited Rs. 30,000/- as fees they could not have been directed to apply against a private Medical College and pay security fee of Rs.2,00,000/-.
So far as the relief No.II regarding quashing of the result of the counselling issued on 08.04.2019 is concerned, the learned Senior Counsel for the petitioners states that it does not concern the petitioners and the petitioners do not press the said relief. The writ petition is therefore dismissed so far as the relief No.II is concerned.
Therefore, on a conspectus of facts and the law laid down by the Supreme Court we quash the order dated 4.4.2019 and allow the writ petition and direct the respondents to conduct fresh counseling and consider the petitioners' claim against a Government Medical College without insisting that they are only eligible to apply against private Medical Colleges.
Order Date: 30 th May, 2019 N.Tiwari/o.k.