Dr. Aditi Pashine & Dr. Abhishek Sankhla v. State of Chhattisgarh

Judgment

#1. PARTICULARS OF THE PETITIONER(S) : As shown in the cause title. 'f

#2. PARTICULARS OF THE RESPONDENTfS) : As shown in the cause title.

#3. PARTICULARS OF THE CAUSE/ORDER AGAINST WHICH THE PETITION IS MADE/ SUBJECT MATTER IN BRIEF: —g^: \ \.-(

HIGH COURTOF CHHATriSGARH AT B'lLASPUR DIVISION BENCH CORAM: HON'BLE SHRI YATINDRA SINGH, C.J. HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA, J. Petitioners Respondents Petitioners Respondents (FirstsetofWPs) I.Writ Petition (C) No.1216 of 2013 Dr Aditi Pashine and Another VERSUS State of Chhattisgarh and Others Z.Writ Petition (C) No.1225 of 2013 Richa Mishra VERSUS State of Chhattisgarh and Others Petitioners

#3. Writ Petition (C) No.1233 of 2013 Dr Vikas Chandra Agrahari and Others Respondents State of Chhattisgarh and Others VERSUS Petitioners (Second set of WPs) 4.Writ Petition (C) No.1267 of 2013 Chhattisgarh Dental College and Research Centre Respondents State of Chhattisgarh and Others VERSUS Petitioners S.Writ Petition (C) No.1268 of 2013 Rungta College of Dental Sciences & Research VERSUS Respondents State of Chhattisgarh and Others Writ Petitions under Article 226 of the Constitution of India Appearance :Shri Ashok Kumar Shukla, Shri Sourabh Dangi, Shri Anumeh Shrivastava and Shri Vaibhav Shukla, counsel for the Petitioners. Shri Kishore Bhaduri, Additionat Advocate General for the State of Chhattisgarh. Smt Fouzia Mirza, Assistant Solicitor General for Dental Council of India. •V ORDER (03rd0ctober,20l3)

#1. These writ petitions relate to the admission in the postgraduate classes in Master of Denfal Surgery (the MDS) in two private colleges, namely, Chhattisgarh Dental College & Research Centre, Rajnandgaon ~^ \<a •;:fis" ^ -i€y•vy \' (the Chhattisgarh-College) and Rungta College of Dental Sciences & Research, Bhilai (the Rungta-College). Both these colleges are also jointly referred to as 'the Colleges'. THE FACTS 2. The Chhattisgarh-College as well as the Rungta-College are managed by the Youth Foundation of India (the Chhattisgarh-Society) and Rungta Education Society (the Rungta-Society). These societies are registered under the Society Registration Act.

#3. The Dental Council of India (the DCI) does not grant permission to run a dental medical college, unless a hospital is attached to it. The Colleges do not have a hospital and in order to facilitate the approval of the DCI, the State attached the district hospital Rajnandgaon (the Rajnandgaon- Hospital) and district hospital, Supela, Bhilai (the Bhilai-Hospital) forever, and 30.10.2006, with the Colleges by letters dated 01.06.2001 respectively. The attachments were free of cost.

#4. The Colleges were granted approval as well as permission by the DCI to run: • The Bachelor of Dental Science (the BDS) course from the academic session 2002-03 and 2006-07, respectively; and • The MDS course from the academic session 2009-10 and 2010-11. The intake of students in the above-mentioned course was different in the different years.

#5. There are four private dental colleges in the State. They have formed their own entrance a consortium (the Consortium) and conduct examination for admission of students in the BDS as well as MDS courses.

#6. In the State of Chhattisgarh (the State), there are government dental the Central Government was conducting an colleges as well. Earlier, examination for 15% all India quota in the BDS cpurse and the State was \ conducting the examination for the students to be admitted in its own institutes in the BDS course. No government college had the MDS course and as such no examination for MDS course was being conducted by the State. Previous Litigation 7. In the academic session 2009-10, the State as well as the Consortium separately conducted entrance examination for the MDS course. The MDS seats in the Chhattisgarh-College were also filled from the merit list of the entrance examination conducted by the Consortium. The State nominated one student for admission in the MDS course in the Chhattisgarh-College from the meritlist ofthe MDS entrance examination conducted by it.

#8. The Chhattisgarh-College challenged the nomination by the State by filing Writ Petition (C)- 2724 of 2010 (WP- 2724/10). 23.02,2011 in the same terms as in the case of PA Inamdar and others It was allowed on Vs State of Maharashtra and others (2005) 6 SCC 537.

#9. In the academic Session 2010-11, initially the DCI had sanctioned only four seats in the Chhattisgarh-College, however, approval for two more seats was awaited. After the approval was received from the DCI, the Chhattisgarh-College admitted two more students, out of the merit list prepared in the entrance examination conducted by the Consortium.

#10. The admission of the aforesaid two students was cancelled by the State on 14.06.2011. They filed Writ Petition (C)-3460 of 2011. The (C)-3458 of 2011 Chhattisgarh-College filed Writ Petition (WP- 3458/11) against the cancellation.

#11. The aforesaid two writ petitions were consolidated and were allowed on 08.05.2012. The cancellation order passed by the State Government was set aside. ~s

#12. In the academic session 2011-12, the number of the MDS seats in the Chhattisgarh-College was increased to 17. The Consortium as well the State conducted their own entrance examinations. The Chhattisgarh-College admitted 17 students, out of the merit list of entrance examination conducted by the Consortium.

#13. The State also sent five students to the Chhattisgarh-College for admission in the MDS course out of the merit list prepared by it. They were admitted thus increasing the number to 22.

#14. The DCI wrote a letter to the Chhattisgarh-College on 11.07.2012 with a copy to the Director of Medical Education ofthe State (the DME) that: • The Chhattisgarh-College was granted permission for 17 seats only; • It had wrongly admifted five extra students; and • The admission of extra students should be cancelled.

#15. In pursuance of the letter of the DCI, the DME wrote a letter dated 18.07.2012 to the Chhattisgarh-College asking it to cancel admission of the five extra students.

#16. The Chhattisgarh-College cancelled admission of the five students sent by the State Government and refunded the fees deposited by them. These five students filed the Writ Petition (C)-1356 of 2012 (WP-1356/12).

#17. During the pendency of the afqresaid writ petition, one student out of the five namely Dr Vidhi Rathod left the college and has also en-cashed the cheque. She was no longer interested in prosecuting WP-1356/12. it was treated only on behalf of the four remaining In view of this, PetitiQners. ^

#18. The Chhattisgarh-College also filed two civil contempt applications, namely, Contempt Case (C) 358 of 2011 and 412 of 2012 for wilful disobedience of the orders dated 23.02.2011 and 08.05.2012 in WP- 2724/1 OandWP-3458/11.

#19. The aforesaid contempt applications were consolidated with the WP- 1356/12 and were disposed of on 20.11.2012. The relevant part of the observations and directions are as follows: (a) The question regarding minority status of the Chhattisgarh-College It may be decided on merits without is pending before the State. being influenced by any observations made in thatjudgement or in the earlier two judgements dated 23.02.2011 and 08.05.2012, WP- 2724/1 OandWP-3460/11; (b) The State is not entitled to nominate students in an unaided professional college; (c) The Chhattisgarh-College is utilising the services of the District- three dentists to the is providing services of Hospital, but Rajnandgaon-Hospital and is paying to the Jeewan Deep Society of the district (the JD-Society) that looks after the Rajnandgaon- Hospital. This is in lieu of the attachment of the Rajnandgaon- Hospital to it. It cannot be said that the Chhattisgarh-College is an aided professional college; (d) It is open to the State Government or the JD-Society to: • Re-adjust the services of the dentists to be taken from the Chhattisgarh-College or fix the amount of contribution for maintenance of the District-Hospital in lieu of the attachment of the District-Hospital to the Chhattisgarh-College; • Partly take services and take the amount in lieu of attachment of the Distf-ict-Hospital and partly get nominate students in the Chhattisgarh-College. (e) It will also open to the State to: • Continue to hold entrance examination for its colleges and for the aided colleges; ^ • Hold entrance examination for the MDS course for Chhattisgarh-College, if the entrance examination held by the Consortium is held to be unfair or non-transparent or exploitative in an enquiry after opportunity to the Consortium.

#20. The aforesaid order was passed in respect of Chhattisgarh-College but the situation in the Rungta-College was the same. It was also paying money to the JD-Society of the District running the Bhilai-Hospital and was offering services of the dentists.

#21. In view of'the decision in WP- 1358/12, the State was not entitled to nominate students in the Colleges unless the arrangement mentioned in the order was varied by the State. FirstSetofWPs

#22. In the academic sessions 2013-14, the Chhattisgarh-College and the Rungta-College were permitted intake of 18 and 27 students, respectively in the MDS course. These were distributed over 7 and 9 disciplines in the Colleges on the criteria of two students per Professor and one student per Reader.

#23. The Consortium conducted their entrance examination for MDS course on 24.04.2013. According to the Colleges, as there was no information by the State Government changing the arrangement made previously, they filled up 15 out of 18 seats in the Chhattisgarh-College and all the seats in the Rungta-College.

#24. The Medical Council of India (the MCI) as well as the Dental Council oflndia (the DCI) decided to hold one examination for all the medical/ dental colleges in the country for the year 2013. This is known as 'National Eligibility-cum-Entrance Test' (NEET). It was also held for the postgraduate courses. It is referred to as 'the NEET-PG 2013'. ^

#25. The NEET-PG 2013 examination was conducted on 13.01.2013. Its result was declared on 18.05.2013. From this merit list for the MDS, the State nominated Dr. Aditi Pashine, Dr. Abhishek Sankhla, Dr. Richa Mishra and Dr. Vikas Chandra Agrahari in the Chhattisgarh- College; Dr. Kulkesh Kumar Rathore and Dr. Subhash Chandra Pankaj were nominated to the Rungta-College. These six are referred to as the State-Nominees.

#26. However, the merit list dated 18.05.2013 was cancelled by the Government of India on 31.05.2013. With this cancellation, nominations also lapsed..

#27. After caneellation of the merit list by the Centrat Gbvernment on

31.05.2013, the State-Nominees along with some other nominees filed Writ Petition (C)- 926 of 2013 against Government dated 31.05.2013 cancelling the merit list. This writ petition was dismissed on 18.07.2013. the order of the Central

#28. A fresh merit list was prepared on 19.07.2013. developments, the Supreme Court extended the last date of admission In view of these up to 31.07.2013. The State again made the same nominations on

19.07.2013.

#29. All seats in the Colleges were filled up except three seats in Oral Pathology in the Chhattisgarh-College. The State-Nominees were allotted disciplines other than the Oral Pathology by the State. The State- Nominees approached the Colleges before 31.07.2013 f'e the date extended by the Supreme Court but the Colleges refused to give admission to them on the ground that all seats in the discipline allotted to them by the State have been filled up.

#30. The State-Nominees have filed Writ Petition (C)-1216 of 2013, Writ Petition (C)- 1225 of 2013 and Writ Petition (C)- 1233 of 2013 for admission in the Colleges (thefirst set of WPs). ^ 8 Second Set of WPs 31. The State had written a letter dated 23.05.2013 to the JD-Societies of the districts not to accept ahy money from the Colleges as it would like this letter was not sent to the to nominate the students. However, Colleges and according to them, they had no information that the State has changed the arrangement and would nominate the students.

#32. The Colleges are also supposed to give yearly donation and for this purpose the Chhattisgarh-College and Rungta-College sent a cheque of ^1,80,000/- and ^1,11,000/- for the session 2013-14 on 21.06.2013 and on 15.07.2013. These cheques were not accepted and returned on 22.06.2013 and.15.07.2013, respectively.

#33. A letter was also written on behalf of the JD-Sodeties on 24.06.2013 and 15.07.2013 that the services of the dental surgeons/ dentists will not be taken in the district hospitals.

#34. According to the Colleges, • It is only when the donations were refused and the letters were written by the JD-Societies that they came to know that the State Government would not accept donations in lieu of exercise of their right to nominate the students; • It was too late as they had already filled up the seats from the merit list of the entrance examination held by the Consortium; • They could not admit the State-Nominees in the discipline allotted to them as they were already filled up.

#35. According to the State, * It had already expressedJts intention that it will nominate the students; • The Colleges refused to come and settle the matter; V. Q^ • It had refused donation to the JD-Societies as well as the services of the dental surgeons as already expressed and the Colleges became aided institutes; • They were bound to accept the nomination;

#36. The State detached the district hospitals from the Colleges on

06.08.2013 as they had refused nomination of the State and wrote letters to the Universities to de-affiliate them.

#37. The Colleges have filed Writ Petitions (C)- 1267 and 1268 of 2013 against the af&resaid order detaching the district hospitals (the second setofWPs). THE DECISION 3&. We have heard counsel for the parties. The counsel for the Colleges submit that: • Earlier, a writ petition was filed by the Chhattisgarh-College and it It was held that the Chhattisgarh- was decided on 20.11.2012. College was an unaided college as the JD-Society was receiving money and also taking the services of the Dental Surgeons and liberty was granted to the State to redetermine the question; • The State never informed the Colleges that it wanted to change the arrangement and instead of receiving any donation or services of the Dental Surgeons, it would prefer to nominate the Students; • The position of the Rungta-College is one and the same; • The last date for admission of the students by the order of the Supreme Court in Mridul Dhar (minor) and Another vs. Union of India and Others (2005) 2 SCC 65 (the Mridul Dhar case) was 31.05.2013; • As there was no intimation from the State regarding the change of pattern, the Colleges admitted their own students. Otherwise, the seats would have been left vacant; / ^ 10 • The Colleges were informed for the first time on 22.06.2013 and

15.07.2013 that the State instead of accepting any donation would prefer to nominate the Students but by that time, the seats were filled and no admission could be granted.

#39. The counsel for the State as well as the State-Nominees submit that: • The Colleges were already given notice to come and settle the terms but they purposely did not do so; • The State had nominated students on 18.05.2013 and the Colleges knew that the State will nominate students. They could not take. admission- earlier as the merit list was cancelled by the Central Government; • The merit list of NEET-PG 2013 was not out and everyone knew that the MCI and DCI will request the Supreme Court to extend the date; • The Colleges have been granted recognition only on the benefit given by the State by attaching the district hospitals, yet they are not sharing the seats with the State; • The Colleges cannot take advantage of attachment with the district hospitals run by the State and yet deny the State quota.

#40. The counsel for the DCI submits that: • The students more than the sanctioned strength cannot be admitted without the approval of the DCI; • The Colleges do not have sufficient infrastructure for grant of approval for the additional seats; • Six extra students cannot be admitted in the mid-session.

#41. The submissions raised by the counsel are weighty and require serious consideration. However, in view of the reasons indicated hereinafter, there is no necessity of deciding it. r ^ 11

#42. The Colleges are offering BDS as well as MDS courses. The BDS course is for four years and the MDS course is for three years. The total number of students in the Colleges is roughly 500 each. Some of these students are also nominated by the State.

#43. In case the district hospitals are detached from the Colleges, then the recognition of the Colleges will be withdrawn by the DCI. This will cause irreparable loss not only to the students but to the Colleges as well as the residents of the State. They will be deprived of the services of the dentists in the State. It is a fit case where hospitals should not be detached.

#44. The Colleges have admitted their own students before the last date of admission under the impression that same pattern as applicable earlier will continue. The session has started from 01.06.2013 and four months two months have passed since last date as have already passed; extended by the Supreme Court. Even if the admission given by the Colleges is not correct and the State-Nominees are wrongly being denied admission, they cannot be admitted in the session 2013-14 as more than four months have already passed.

#45. The fault is either of the State in not informing the Colleges within the time, or of the Colleges in not settling the terms after the decision given in the earlier writ petition or ignoring the intimation given to them. Suffice to say that there is no fault on the part of the State-Nominees. THE ORDER

#46. In view of above, we decline to go into the submissions raised by dlspose of the writ petitions with the for the parties, counsel following directions: (a) The order dated 06.08.2013 detaching the district hospitals is set aside. The district hospitals will continue to be attached with ^ 12 the Colleges. All consequential actions pursuance of detachment order will not be given effect to; (b)The State Government had already clarified to the JD-Societies that they should not accept any donation from the Colleges and should not take the services of the dentists in the district hospitals. In view of this, the Colleges will be treated as aided institutions and the following arrangement is made till it is varied: • The State Government is entitled to nominate 50% of the students in the BDS and MDS courses for the academic session 2014-15. The State quota seats will not be filled-up by the Colleges unless the State release those seats; • The last date for admission according to the Mridul Dhar case in BDS course is 30th September and MDS course is 31st May. The State Government may nominate the students or intimate the Colleges about releasing of the seats prior to these dates, so that no seat is wasted; (c) Considering that there was no fault of the State-Nominees, they may inform the Colleges within two weeks whether they are interested in taking admission in the Colleges in the discipline allotted to them in the session 2014-15; (d) In case, any application is made, the Colleges will also make arrangements for increasing the infrastructure and will request the DCI to increase the number of seats for which the State-Nominees submit their applications for taking admission in the discipline. This request may be sent through the Director, Medical Education (the DME) with the advance copy to the DCI; (e) The DME may also recommend the DCI to increase the seats and the DCI may take a decision expeditiously at an early date, possible, within three months from the date of receiving of the recommendation. (f) In case, the DCI grants approval for increase of the seats then the State-Nominees (namely Dr. Aditi Pashine, Dr. Abhishek Sankhla, Dr. Richa Mishra, Dr. Vikas Chandra Agrahari, Dr. Kulkesh Kumar Rathore and Dr. Subhash Chandra Pankaj), the Petitioners in the •n- ''< 13 first set ofWPs, will be admitted against those seats. It is clarified that in case the Petitioners (in the first set of WPs) fail to appear in the first round of counsetling then, the Colleges will be free to allot the seats, as per quota, accordance with law; to any other eligible candidate in (g) In case the DCI does not increase or the College do not apply to increase the number of seats then the aforesaid persons will be admitted in the Session 2014-15 in the discipline which were allotted to them by the State. However, as the Colleges have utilised the seats of the State quota, they will be treated to be in the management quota; (h) It is further clarified that irrespective of their mode of admission, they will be liable to pay the same fees and other expenses as are being paid by the other State-Nominees for the session 2014-15.

#47. With the aforesaid directions, the writ petitions are disposed of. Sd/- Chief Justice Sd-/ Manindra Mohan Shrivastava Judge