Punjab Private Unaided Medical And Dental Colleges Association And Other v. State Of Punjab And Other

Hemant Gupta, J.

1. (3rd April, 2012) - This order shall dispose of the above noted three writ petitions filed by either the Private Unaided Medical and Dental Colleges or their Association, claiming autonomy to the Private Unaided Medical and Dental Colleges, regarding admission of the students under the Management/Non Resident Indian Category to the Graduate and Post Graduate Courses. The grievance of the petitioners is that Baba Farid University of Health Sciences is filling up all the seats of Management/NRI quota of its own in terms of the Punjab Government notification dated 10.1.2011. As per the said notification, the admission application forms are to be submitted to the University along with the prescribed fee and other enclosures on or before the due date and the time. The University makes admission on the basis of such applications.

2. Learned counsel for the petitioners have referred to The Punjab Private Health Sciences Educational Institutions (Regulation of Admission, Fixation of Fee and Making of Reservation) Act, 2006 (Act No. 6 of 2006), enacted for the regulation of admission and fixation of fee and making the reservation in the Private Health Sciences Educational Institutions in the State of Punjab. The said Act was amended vide Punjab Act No. 24 of 2006, wherein amongst others, Section 2(e) defining the Management Category and sub-section (3) of Section 3 was substituted.

3. The provisions originally enacted and the provisions as amended need to be extracted before the arguments raised by the learned counsel for the parties is considered. It read as under:-



4. The petitioners are claiming right of admission, independent of University, on the basis of the merit determined by the Common Entrance Test for qualifying examination to the undergraduate and post graduate courses in the Medical and Dental Sciences.

5. In terms of the amended Section 2(e) of the Act, the Management Category seats are allocated to the Management, which are to be filled up by that institution in a fair and transparent manner on the basis of interse merit determined by the Common Entrance Test. It is thus contended that in terms of Section 2(e) of the Act, it is the management which has to fill up the seats on the basis of merit in the Common Entrance Test, but in the presence of the representative of the authority, therefore, the University cannot take up the process of admission against the Management Category Seats.

6. To a Court question, learned counsel for the petitioners could not point out as to what special rights accrues to the petitioners in admitting students by the Management as the fee under the Management Category Seats is fixed as also the admissions are to be made on the basis of Common Entrance Test. The response was that the petitioners receive the fee realized by the University after gross delay of many months and that large numbers of seats remain unfilled, which jeopardize their financial planning. It is contended that since the Act has conferred a right of admission upon the institutions alone, therefore, the admission process notified and regulated by the University is in contravention of the statutory provisions.

7. Shri Anupam Gupta, learned counsel for the respondent-University has pointed out that the Honble Supreme Court judgment in P.A. Inamdar v. State of Maharashtra, : (2005) 6 S.C.C. 537, has observed that having regard to the larger interest and welfare of the student community and to promote merit, achieve excellence and curb mal-practices, it would be permissible to regulate admissions by providing a centralized and single-window procedure. It has further been held that such a procedure, to a large extent, can secure grant of merit based admissions on a transparent basis. Shri Gupta also relies upon the recent judgment of the Honble Supreme Court reported as Indian Medical Association v. Union of India, : (2011) 7 S.C.C. 179, wherein the non-minority unaided institutions, including professional educational institutions, are found go be neglecting the condition of social justice. It is contended that in terms of Section 3(3) of the Act, as amended, the State Government has to ensure that admissions in a Private Health Sciences Educational Institutions is made in fair and transparent manner on the basis of merit in the Common Entrance Test, in terms of the procedure notified by the State Government in the Official Gazette. Therefore, a Centralised Admission Process has been devised by the State Government in exercise of the powers conferred by Section 3(3) of the Act. Reference is also made to a Full Bench Judgment of this Court in Desh Bhagat Dental College and Hospital Kotkapura Road, Muktsar and others v. State of Punjab and others, (CWP No. 839 of 2003 decided on 12 November, 2003), wherein the Management Category Seats were filled up by an institute itself without keeping in view merit. In the said judgment, it was concluded as under:-

Having dealt with the submissions advanced by the rival parties, we have arrived at the following conclusions:-

Firstly, it is not open to petitioner-college, conducting a professional course, to make submissions thereto, in a manner other than on merit determined through a common entrance test held by an agency nominated by the State Government.

Secondly, admissions claimed to have been made by the petitioner-college in furtherance of communications issued by the State Government dated 14.11.2002, 20.11.2002 and 17.12.2002, cannot be approved.

Thirdly, a breach in the process of regulating admissions whereby less meritorious candidates have been allowed admissions superseding the claims of numerous candidates possessing higher marks cannot be approved.

Fourthly, the interim order passed by the Apex Court on 27.1.2003 will have the effect of restraining the Medical University from conducting fresh counselling in furtherance of the public notice dated 9.1.2003, till the decision by the Apex Court in furtherance of the judgment rendered by this Court in Hemlatas case (supra).

8. Learned counsel for the respondents has relied upon on another Full Bench judgment of this Court reported as Navdeep Kaur Gill and others v. State of Punjab and others, (CWP No. 17752 of 2005, decided on March 29, 2011), wherein the validity of the Act has been upheld.

9. We have heard learned counsel for the parties and find no merit in the present writ petition. The reliance of the petitioner is on the definition of the "Management Category" contained in Section 2(e) of the Act. The State Government has been given power to regulate admission in terms of Section 3(3) of the Act, so that admissions are made in a fair and transparent manner on the basis of inter-se merit as notified in the Official Gazette. The fair and transparent manner is what is defined in P.A. Inamdars case (supra), wherein it has been held as under:-

138. It needs to be specifically stated that having regard to the larger interest and welfare of the student community to promote merit, achieve excellence and curb mal-practices, it would be permissible to regulate admissions by providing a centralised and single-window procedure. Such a procedure, to a large extent, can secure grant of merit-based admissions on a transparent basis. Till regulations are framed, the Admission Committees can oversee admissions so as to ensure that merit is not the casualty.

The Honble Supreme Court in a judgment reported as Indian Medical Association (supra) observed as follows:-

229. Our non-minority unaided educational institutions, including professional educational institutions, in claiming to be engaging in a charitable occupation, and yet claiming the right to ignore the conditions of social injustice and inequality that have a bearing on academic accomplishments of students at a young age, which are the indicia of oppression, would necessarily perpetuate the conditions of lack of access to knowledge that can transform the praxis of socially and educationally disadvantaged groups. The occupation they would be engaging in would be imbued with "false charity". For the past two decades, this country has been in the throes of early "amour" with the false but mesmerizing promises of laissez-faire tree markets, liberalisation, privatization and globalisation. The State, in the throes of that false passion, believed that it would lead to generation of such wealth, that it could then take on the task of providing access to higher education to hitherto excluded classes and groups. However, that promise has turned out to be false and a mirage. It is now apparent to the State that denial of access to higher education, to the Socially and Educationally Backward Classes, and the Scheduled Castes and the Scheduled Tribes, would potentially be dangerous to the ship of our nation, the Constitution.

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233. In light of the above, we hold that the claimed rights of non-minority educational institutions to admit students of their choice, would not only be a minor right, but if that were in fact a right, if exercised in full measure, that would be detrimental to the true nature of education as an occupation, damage the environment in which our students are taught the lessons of life, and imparted knowledge, and further also damage their ability to learn to deal with the diversity of India, and gain access to knowledge of its problems, so that they can appreciate how they can apply their formal knowledge in concrete social realities they will confront.

10. The Private Unaided Institutions are claiming a right to admit students against the management category seats. Such right would be exercised by the Management in its campus, meaning thereby that a student has to move from one institute to another for seeking admission. Such admission process has the possibility of alluring the management to admit the students otherwise than on the basis of merits picking up a student down below in the common entrance test. The possibilities of any infraction of the merit has been addressed by the State Government by regulating admission at a centralized place, wherein students will be admitted in order of merit and allowed to deposit the fee. Therefore, at one place, all the aspirants will be able to seek admission without any difficulty and ensure that merit is not given a go by. If there is delay in sending fee, the process can be streamlined, but the action of the University in regulating admission at one place is in the interest of all students, who can seek admission On the basis of merits in a private institution of their choice at one place only. On the other hand, apart from the harassment of the students, the possibility of admitting students otherwise than on merit cannot be ruled out as the students as per the merit will not be able to reach the institutes located throughout the State. In fact, such process finalized by the University will be able to meet the apprehension and challenges noticed by the Supreme Court in Indian Medical Associations case (supra).

11. Section 3(3) of the Act, empowers the State Government to notify procedure for admission in a Private Health Sciences Educational Institute in a fair and transparent manner on the basis of inter-se merit determined by common entrance test. Thus the notification dated 10.1.2011 achieves said legislative intent. In view of the above, we do not find any merit in the present writ petitions. Hence, the same are dismissed. However, the University shall make an attempt to transmit the fee received by it, expeditiously preferably within four weeks of admission of the students.