Abdul Ahad and Ors. v. Union of India and Ors.
B. R. GAVAI, J.
1. The review petitioners have approached this Court seeki ng
review of the order passed by this Court dated 20.7.20 20 thereby
dismissing the Special Leave Petition (Civil) Nos. 31037-31038 of 2016
filed by Glocal University, Glocal Medical College, Super Specialty
Hospital and Research Centre (hereinafter referred to as ‘Glocal Medical
College’) and Abdul Waheeb Education and Charitable Trust (hereinafter
referred to as ‘original writ petitioners’).
2. The review petitioners were not a party to the said pe titions.
They were admitted in 1 st year Professional MBBS course for the
ABDUL AHAD AND ORS. v. UNION OF INDIA AND ORS.
Academic Session 2016-2017 in Glocal Medical College, which was
affiliated to the Glocal University, a deemed University.
3. The bare necessary facts giving rise to the present revi ew
petitions are thus:
4.The review petitioners appeared in the National Eligibility-cum-
Entrance Test (hereinafter referred to as ‘NEET’), 2016 and qualified
the same. According to the review petitioners, therefore, t hey became
eligible to get admission in MBBS course.
5. Vide Notification dated 31.8.2016, the State of Uttar Pradesh
issued a direction for conducting centralized counselling for admission to
MBBS/BDS course in all colleges/universities in the Sta te of Uttar
Pradesh, including private colleges and minority institutions and further
prescribed the schedule and procedure for counselling, res ervation,
eligibility criteria for admission, etc.
6. Vide another Notification dated 2.9.2016, the State of Uttar
Pradesh directed that 50% of the sanctioned intake of private institutions
shall be reserved for students who had domicile of State of Uttar Pradesh.
The said direction was issued in respect of all the private institutions
(excluding minority institutions) after deducting the pool of 15% for All
India quota.
7. The said Notification dated 2.9.2016 came to be challenged
before the High Court of Allahabad by way of Writ Petition No.20575 of
2016 and other connected writ petitions. The said petitions were decided
on 15.9.2016 by the Division Bench of the Allahabad High Court. The
order dated 15.9.2016 passed by the Division Bench of the Allahaba d
High Court came to be challenged by the original writ petitioners before
this Court by way of Special Leave Petition (Civil) Nos. 31037-31038 of
2016.
8. It appears that in the interregnum, the original writ petitioners
had conducted their private counselling despite Notifications issued by
the State of Uttar Pradesh regarding common counselling. It further
appears that in the meantime, some petitions for special leave to appeal
also came to be filed by some of the students being SLP(C) No. 28886
of 2016. By a common order passed in the petitions for special leave to
appeal, including the one filed by Madhvi Goel & others [ SLP(C)
No.28886 of 2016] and the one filed by Glocal University & other s
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[SLP(C) No.31037-31038 of 2016], this Court passed the following order
on 20.3.2017:
“As an interim measure, it is directed that the students prosecuting
their studies in the petitioner-University in S.L.P. (C) Nos. 31037-
31038 of 2016, may appear in the examination, but their results
shall not be published. Needless to say, no equity shall be claimed
on the basis of the present interim order.”
9.It further appears that in the meantime, the Medical Council of
India (hereinafter referred to as ‘MCI’) issued a dischar ge letter dated
27.1.2017 to the Glocal Medical College and directed to discharge 67
students admitted by it, whose names did not figure in the list supplied by
the Director General of Medical Education & Training (her einafter
referred to as ‘DGME’).
10.The said order dated 27.1.2017 of MCI came to be challenged
by Glocal Medical College in this Court by way of Writ Petition (Civil)
No. 411 of 2017. This Court vide order dated 18.9.2017, while disposing
of the said petition with certain directions, observed thus:
“The students who have been admitted in pursuance of the letter
of permission granted for the year 2016-2017 shall be permitted
to continue their studies.”
11. According to the review petitioners, they appeared for First
Year Professional MBBS examination and cleared the same. However,
Glocal Medical College did not conduct the examination for the 2nd year
MBBS and further the classes and practicals were also su spended by
the College. According to the review petitioners, this gave them a cause
of action to file Writ Petition No.19399 of 2019 before the All ahabad
High Court. According to the review petitioners, only during the hearing
of the said petition, they came to know about the discharge order dated
27.1.2017 issued by MCI.
12.The review petitioners therefore filed writ petition being Writ
Petition No.26367 of 2019 before the Allahabad High Court assailing
the order of MCI dated 27.1.2017. The Allahabad High Court disposed
of the said writ petition with liberty to approach this Court.
13. The review petitioners therefore filed Writ Petition (C ivil)
No.1287 of 2019 before this Court challenging the discharge order, but
the same was dismissed with liberty to file an application for intervention
ABDUL AHAD AND ORS. v. UNION OF INDIA AND ORS.
[B. R. GAVAI, J.]
in the pending Special Leave Petition (Civil) Nos. 31037-31038 of 2016
filed by the original writ petitioners, as stated abo ve. The review
petitioners therefore filed Intervention Application being I.A. No. 183249
of 2019 in the said Special Leave Petition (Civil) Nos. 31037-31038 of
2016. By the order under review dated 20.7.2020, the Special Leave
Petition (Civil) Nos. 31037-31038 of 2016 as well as Intervention
Application being I.A. No. 183249 of 2019 came to be dismissed by this
Court.
14.Seeking review, the present Review Petitions are filed by the
review petitioners. This Court on 6.10.2020 passed the following order
in the present Review Petitions:
“After carefully examining the Review Petitions we are of
the considered view that the application for hearing in th e open
Court deserves to be allowed.
Delay condoned.
Issue notice.
List the Review Petition in Court.”
15.Accordingly, we have heard the learned counsel for the parties
in the Court.
16.We have extensively heard Shri Neeraj Kishan Kaul, learned
Senior Counsel appearing on behalf of the review petitioners, Shri Dhawal
Mohan, learned counsel appearing on behalf of MCI and Shri Anki t
Goel, learned counsel appearing on behalf of the respondent – State of
Uttar Pradesh.
17. Shri Neeraj Kishan Kaul, learned Senior Counsel appearing
for the review petitioners would submit that the review petitioners were
duly qualified to be admitted inasmuch as, they had cleared the NEET
examination. He further submitted that the review peti tioners were
admitted through the counselling conducted by the Glocal Medical
College. Not only that, but they have also cleared the 1 st year and 2 nd
year examination. It is therefore submitted that it will not be in the interest
of justice to throw the review petitioners at this point of time.
18. As against this, learned counsel for MCI as well as learned
counsel for the State of Uttar Pradesh submitted th at the review
petitioners were admitted by backdoor entry. It is submitted that their
1013
admission is the result of collusion between the Glocal Medical College
and the review petitioners. It is further submitted that Glocal Medical
College, being very well aware about the Notification dated 22.8.2016,
had conducted private counselling, which was not permissible in law and
as such, the review petitioners, who entered through backdoor entry, are
not entitled to any equitable relief.
19. It will be relevant to refer to the following paragrap h of
Notification dated 22.8.2016:
“1. After due consideration and in continuation to the aforesaid
notification dated 20.08.2016, decision has been taken for
getting conducted counselling of universities of private
sector/minorities universities of private sector/deem ed
university of private sector through combined counselling
board constituted according to above.”
20.The said Notification dated 22.8.2016 came to be challenged
by various petitioners including Glocal University before a Division Bench
of the Allahabad High Court. The Allahabad High Court by an elaborate
judgment dated 15.9.2016 found no fault with the Notification issued by
the State of Uttar Pradesh prescribing centralized counsel ling for all
institutions for admission to MBBS/BDS course in the State, based on
NEET 2016. It will be relevant to refer to the following observations in
the operative part of the judgment of the Allahabad High Court dated
15.9.2016, which read thus:
“(i) Subject to what has been held hereinabove, the impugne d
orders prescribing a Centralized Counselling for al l
institutions for admission to MBBS/BDS medical courses
in the State based on NEET 2016, do not suffer from any
error.
(ii) Minority institutions shall be allowed to admit the studen ts
of their community based on Centralized Counselling held
by the State on the basis of NEET 2016, to the extent
permissible, but, without deviating from the merit of such
students as reflected in the NEET list 2016, so as to sub-
serve their minority status under Article 30(1) of the
Constitution of India.”
21.It could thus clearly be seen that though minority institutions
were allowed to admit the students of their communi ty based on
ABDUL AHAD AND ORS. v. UNION OF INDIA AND ORS.
[B. R. GAVAI, J.]
Centralized Counselling held by the State on the basis of NEET 2016,
the same was to be done without deviating from the merit of the said
students.
22.Though Shri Neeraj Kishan Kaul, learned Senior Counsel, tried
to submit that the Notification dated 22.8.2016 is only an administrative
instruction and therefore not binding, we are unable to accept the same.
23.It will be relevant to refer to the following observations of this
Court in the case of Modern Dental College and Research Centre
and others v. State of Madhya Pradesh and others 1:
“168. Having regard to the prevailing conditions relating t o
admissions in private professional educational institutions in the
State of Madhya Pradesh, the legislature in its wisdom has taken
the view that merit-based admissions can be ensured only through
a common entrance test followed by centralised counselling either
by the State or by an agency authorised by the State. In order to
ensure rights of the applicants aspiring for medical courses under
Articles 14, 15 and 16 of the Constitution of India, legislature by
the impugned legislation introduced the system of c ommon
entrance test (CET) to secure merit-based admission on a
transparent basis. If private unaided educational institutions are
given unfettered right to devise their own admission procedu re
and fee structure, it would lead to situation where it would impinge
upon the “right to equality” of the students who aspire to tak e
admissions in such educational institutions. Common entrance test
by State or its agency will ensure equal opportunit y to all
meritorious and suitable candidates and meritorious candidat es
can be identified for being allotted to different institutions depending
on the courses of study, the number of seats and other rele vant
factors. This would ensure twin objects:
(i) fairness and transparency, and
(ii) merit apart from preventing maladministration.
Thus, having regard to the larger interest and welfare of the student
community to promote merit and achieve excellence and curb
malpractices, it would be permissible for the State to r egulate
admissions by providing a centralised and single-wi ndow
1 (2016) 7 SCC 353
1015
procedure. Holding such CET followed by centralised counselling
or single-window system regulating admissions does not ca use
any dent on the fundamental rights of the institutions in running
the institution. While private educational institutions have a “right
of occupation” in running the educational institutions, equally they
have the responsibility of selecting meritorious and su itable
candidates, in order to bring out professionals with excellence.
Rights of private educational institutions have to yield to the larger
interest of the community.
169. By holding common entrance test and identifying meritorious
candidates, the State is merely providing the merit list of the
candidates prepared on the basis of a fair common entrance test.
If the screening test is conducted on merit basis, no loss wil l be
caused to the private educational institutions. There is neith er
restriction on the entry of the students in the sanctioned intake of
the institutions nor on their right to collect fees from the students.
The freedom of private educational institutions to establish and
run institution, impart education, recruit staff, take discipl inary
action, admit students, participate in fixation of fees is in no way
being abridged by the impugned legislation; it remains intact.”
24. It will further be apposite to note that some private medical
colleges had conducted their own counselling for admitting students in
their respective colleges and as such, the State of Madhya Pradesh had
filed a contempt petition. The said contempt petition was decided by this
Court in State of Madhya Pradesh v. Jainarayan Chouksey and
others2. It will be relevant to refer to paragraphs 5 and 6 in Jainarayan
Chouksey (supra), which read thus:
“5. We have heard the learned counsel for the parties at length.
We observe that mandate of our judgment [ Modern Dental
College and Research Centre v. State of M.P. , (2016) 7 SCC
353:7 SCEC 1] was to hold centralised entrance test followed by
centralised State counselling by the State to make it a one
composite process. We, therefore, direct that admission t o all
medical seats shall be conducted by centralised counselling only
by the State Government and none else.
2 (2016) 9 SCC 412
ABDUL AHAD AND ORS. v. UNION OF INDIA AND ORS.
[B. R. GAVAI, J.]
6. If any counselling has been done by any college or university
and any admission to any medical seat has been given so far, such
admission shall stand cancelled forthwith and admission shall be
given only as per centralised counselling done by th e State
Government.”
25. It could thus clearly be seen that the private counselli ng by
Glocal Medical College was conducted contrary to the Notification issued
by the State of Uttar Pradesh, which Notification, in turn, was based on
the judgment of this Court in the case of Modern Dental College and
Research Centre (supra), which was decided on 2.5.2016. Not only
that, but this Court by order dated 22.9.2016 had further clarified t he
position.
26. It will further be pertinent to note that the Division Bench of
the Allahabad High Court vide judgment dated 15.9.2016 had negated
the challenge to the Notification dated 22.8.2016.
27.In the light of this position, it was not at all permissible for the
Glocal Medical College to have conducted private counselling . The
admissions which were conducted through the said private counselling
cannot be termed as anything else but per se illegal.
28.Though we have all the sympathies with the students, we will
not be in a position to do anything to protect the admissions, which were
done in a patently illegal manner.
29.It will be apposite to refer to the following observations made
by this Court in the case of Guru Nanak Dev University v. Parminder
Kr. Bansal and others 3.
“In the present case, the High Court was apparently moved by
sympathy for the candidates than by an accurate assessment of
even the prima facie legal position. Such orders cannot be allowed
to stand. The courts should not embarrass academic authorities
by themselves taking over their functions.”
30. It will further be appropriate to refer to the f ollowing
observations of this Court in the case of Gurdeep Singh v. State of J &
K and others 4.
3 (1993) 4 SCC 401
4 1995 Supp (1) SCC 188
1017
“12. What remains to be considered is whether the selection of
Respondent 6 should be quashed. We are afraid, unduly lenient
view of the courts on the basis of human consideration in regard
to such excesses on the part of the authorities, has serve d to
create an impression that even where an advantage is secured by
stratagem and trickery, it could be rationalised in courts of law.
Courts do and should take human and sympathetic view of matters.
That is the very essence of justice. But considerations of judicial
policy also dictate that a tendency of this kind where advantage
gained by illegal means is permitted to be retained will jeopardise
the purity of selection process itself; engender cynical disrespect
towards the judicial process and in the last analysis emb olden
errant authorities and candidates into a sense of complac ency
and impunity that gains achieved by such wrongs could be retained
by an appeal to the sympathy of the court. Such instances reduce
the jurisdiction and discretion of courts into private benevolence.
This tendency should be stopped. The selection of Respondent 6
in the sports category was, on the material placed before us,
thoroughly unjustified. He was not eligible in the sports category.
He would not be entitled on the basis of his marks, to a se at in
general merit category. Attribution of eligibility long af ter the
selection process was over, in our opinion, is misuse of power.
While we have sympathy for the predicament of Respondent 6, it
should not lose sight of the fact that the situation is the result of
his own making. We think in order to uphold the purity of academic
processes, we should quash the selection and admiss ion of
Respondent 6. We do so, though, however, reluctantly.”
31. Similar observations have been made by this Court in K. S.
Bhoir v. State of Maharashtra and others 5.
32. The facts in the present case are somewhat similar with the
facts, which fell for consideration in the case of Mahatma Gandhi
University and another v. GIS Jose and others 6.
33. In the said case, the admissions were given for M.Sc.
Computer Science course in violation of admission rules. The High Court
had directed to declare the withheld result of such students. Reversing
the judgment of the High Court, this Court observed thus:
5 (2001) 10 SCC 264
6 (2008) 17 SCC 611
ABDUL AHAD AND ORS. v. UNION OF INDIA AND ORS.
[B. R. GAVAI, J.]
“10. The misplaced sympathies should not have been shown in
total breach of the rules. In our opinion, that is precisely what has
happened. Such a course was disapproved by this Court in CBSE
v. Sheena Peethambaran [(2003) 7 SCC 719]. In para 6 of the
judgment, this Court observed as follows: (SCC p. 724)
“6. This Court has on several occasions earlier
deprecated the practice of permitting the students to purs ue
their studies and to appear in the examination under the interim
orders passed in the petitions. In most of such cases, it is
ultimately pleaded that since the course was over or the result
had been declared, the matter deserves to be conside red
sympathetically. It results in very awkward and diff icult
situations. Rules stare straight into the face of the plea of
sympathy and concessions, against the legal provisions.”
11. In the present case, the college where the student was admitted,
in breach of all possible rules allowed her not only to complete the
course but also to write the examination which was totally illegal.”
34.It will further be relevant to refer to the following observations
of this Court in the case of National Council for Teacher Education
and another v. Venus Public Education Society and others 7.
“3. It is to be clearly stated that an institution that is engaged or
interested in getting involved in imparting a course for training has
to obey the command of law in letter and spirit. There cannot be
any deviation. But, unfortunately, some of the institutions flagrantly
violate the norms with adamantine audacity and seek indulgence
of the court either in the name of mercy or sympathy for the
students or financial constraint of the institution or they have been
inappropriately treated by the statutory regulatory bodies. None
of these grounds justify deviation. The case at hand graphically
depicts deviations but the High Court, putting the blame on t he
statutory authority has granted relief to the respondent institution
which is impermissible.”
35. In the backdrop of this legal position laid down in vari ous
judgments of this Court, it will not be possible to consider the cases of
the review petitioners sympathetically. The Notification i ssued by the
State of Uttar Pradesh on the basis of the law laid down by this Court
7 (2013) 1 SCC 223
1019
clearly provided that the admissions were to be done only throu gh the
centralized admission process. Glocal Medical College in contravention
of the said Notification conducted private counselling, which was not at
all permissible in law. The students cannot be said to be ignorant about
the Notification issued by the State of Uttar Pradesh.
36. In such a situation, no sympathies can be shown to such
students who have entered through backdoor. Apart from that, MCI
vide order dated 27.1.2017 had discharged the said students, who were
not admitted through centralized admission process. It is pertinent to
note that 25 students admitted in the same college, who were admitted
through the centralized admission process, were very much absorbed by
the DGME in other colleges. As such, the contention of the review
petitioners that they came to know about the discharge or der dated
27.1.2017 issued by MCI only when they had filed a petition in the High
Court in 2019 does not stand to reason.
37.Insofar as the contention with regard to the interim order passed
by this Court dated 20.3.2017 is concerned, the same would clearly show
that though the students were permitted to appear in the exa mination,
their results were directed not to be published. There is no other order
modifying the said order.
38.It is difficult to appreciate as to how the results of the students
were declared for the 1 st year MBBS examination, how they were
admitted in the 2 nd year MBBS course and how they cleared the 2 nd
year MBBS examination, despite the fact that MCI had discharged the
students vide order dated 27.1.2017.
39. Insofar as the observations of this Court in orde r dated
18.9.2017 in the writ petition filed by Glocal Medical College challenging
the discharge order is concerned, the observation could not be construed
to have vacated or modified the specific directions issued by this Court
on 20.3.2017.
40. In the result, the Review Petitions are without merit a nd as
such dismissed. Consequently, all pending applications, including t he
application(s) for intervention/impleadment shall stand disposed of.
Nidhi Jain Review petitions dismissed.
ABDUL AHAD AND ORS. v. UNION OF INDIA AND ORS.
[B. R. GAVAI, J.]