This two-part compendium comprises judgments of the Supreme Court of India and High Courts across the country that laid down one or the other important propositions of law, that became a benchmark in themselves. This compendium has been prepared after making an earnest effort in searching available judgments on online research portals, journals, etc. especially in the case of those of the High Courts.
Part I of this dual part compendium includes judgments in chronological datewise order from January to June 2022, whereas Part II which shall follow after a fortnight will be having judgments from July to December 2022. If the reader feels that any judgment has been left out, in our limited researching capabilities, may so provide the soft copy of the judgment at our official e-mail.1 The same shall be picked up in Part II of the compendium, even though missed out in Part I.
(1) Kshetrimayum Maheshkumar Singh v. Manipur University2
(Delivered on January 5, 2022)
Coram: 2-Judge Bench of HM Justices L. Nageswara Rao and Hima Kohli
Authored by: HM Justice Hima Kohli
The issue that arose before the Supreme Court was about the extent of reservation for SC category candidates post amending Act of Central Educational Institutions (Reservation in Admission) Amendment Act, 2012 to the Central Educational Institutions (Reservation in Admission) Act, 2006 (for short the “CEI Reservation Act”) and whether the Manipur University (that got converted from State to a Central University) was required to follow its own reservation hitherto followed prior to the introduction of the amendment for admissions to the University.
The Manipur University, which was a State University was converted to a Central University w.e.f. 13-10-2005, by virtue of which the CEI Act came to be applicable. The Manipur University prior to the applicability of the CEI Reservation Act, 2006 followed the reservation norm of 2% for SCs, 31% for STs, and 17% for OBCs, after the implementation of which, w.e.f. 2006 the reservation pattern as provided under Section 3 of the Act of 2006 came to be implemented viz. 15% for SCs, 7.5% for STs and 27% for OBSs. However, w.e.f. from the year 2012, in light of the amendment to the CEI Act, the reservation pattern was reverted to that previously followed of 2% for SCs, 31% for STs, and 17% for OBCs, which was put to assail before the High Court of Manipur and the dispute travelled to the Supreme Court. The principal contention of the appellant was that Manipur University was bound by the reservation pattern provided under Section 3, as was made applicable between 2006 and 2012, and that reversion to the original norm of reservation existing prior to 2006 of reserving 31% seats for STs was unconstitutional.
The court referred to Statements of Objects and Reasons of the amendment as also the report of the Parliamentary Standing Committee on HRD (for short the “Standing Committee”) in its 234th report that had suggested resolution of practical difficulties faced by CEIs situated in the North-Eastern States. Holding that reports and recommendations made by Parliamentary Standing Committees can always be resorted as “external aids” for interpreting any statutory provision and the background behind its enactment, Court held that for CEIs situated in tribal areas, especially the North-Eastern States, the reservation of SCs and STs was contemplated to be definite, with the OBC reservation varying from State to State. For reconciling the 50% ceiling for constitutional reservations, the purpose and object of Amending Bill was to remove existing ambiguities and difficulties for accommodating the aspirations of large tribal populations in the Sixth Schedule States, including the North-Eastern States, that included Manipur also. It was thus held that the purpose of Amending Act of 2012 must be given full effect and the prescription under Section 3 of definite percentage for SCs, STs, and OBCs cannot come in the way of its implementation but has to be interpreted harmoniously. The reservations for STs may vary and may be increased beyond the threshold provided under Section 3, whilst reducing correspondingly and proportionately the percentage of seats meant for OBCs candidates. Thus, the reference point for determining reservation quota for OBCs candidates must be the same as that of SCs and STs candidates for working out the reservation. A special arrangement was held to have been made by the Amending Act of 2012 for CEIs established in States falling under the definition of “Specified North-Eastern Region”. Thus, in view of the large STs population of Manipur, the Court held that reservation to the extent of 31% for STs, 2% for SCs, and 17% for OBCs was clearly justified and in consonance with the larger object, purpose, and spirit of Amending Act of 2012.
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(2) Neil Aurelio Nunes (OBC Reservation) v. Union of India3
(Delivered on January 20, 2022)
Coram: 2-Judge Bench of HM Justices Dr D.Y. Chandrachud and A.S. Bopanna
Authored by: HM Justice Dr D.Y. Chandrachud
The challenge in the batch of Article 32 writ petitions was reservation introduced for OBC and EWS in the all India quota seats (hereinafter referred as “AIQ seats”) for both UG as well as PG medical courses. In this regard, the notice issued by the Union of India dated 29-7-2021 providing 27% OBC reservation and 10% EWS reservation was put to challenge. Multiple issues arose before the court, broadly with the three principal ones as follows:
- Legality of EWS and OBC reservation per se in the AIQ seats, which were argued to be free from reservation and based only on merit, especially the PG courses.
- The reservation was introduced midway after commencement of the admission process for 2021-2022 and thus, introduction of reservation amounted to changing the rules of the game post its commencement.
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In AIQ seats of PG courses, there could not be reservation for SC, ST and OBC to such a large extent, which was against the mandate of a longline of judgments in Pradeep Jain v. Union of India,4, Jagadish Saran v. Union of India5.
The Supreme Court had an occasion to examine the binary concepts –“merit” and “reservation”; their correlation with each other. Relying upon the history of corelation between Articles 15(1), 16(1) with their corresponding Articles 15(4) and 16(4) respectively, the Court held that
Articles 15(4) and 16(4) are not exceptions to Articles 15(1) and 16(1) respectively, but are another facet of equality mentioned under Articles 15(1) and 16(1) therein. It would be a negation of constitutional precept and vision to read them as exceptions to the general principles of merit. The Court referred to the Constituent Assembly Debates (hereinafter referred as “CAD”) that went behind the drafting of Articles 15 and 16 as also the development of law of substantive equality over law relating to principles and concept of substantive equality over formal equality. Referring to a longline of judgments that started from the majority view of Supreme Court in State of Kerala v. N.M. Thomas,6 the Court held that Articles 15 and 16 are an extension of and give effect to the larger doctrine of equality of treating unequals differently. Thus, “merit” and “reservation” cannot be treated as opposed to each other, but are relatable in the larger canvas of Articles 15 and 16 of the Constitution of India. The court then examined the role and nature of common competitive-cum-entrance examinations as a basis and index of merit. It held that assessment must be in the larger social background, disadvantages and handicaps faced by the candidate concerned, for which reservation has been introduced. Scores in any examination are not the sole determinant of excellence or capability, but merit must be examined in the backdrop of equalisation of opportunities for candidates coming from different social backgrounds. The court traced the development and concept of AIQ seats starting from the judgments of Pradeep Jain v. Union of India7, Dinesh Kumar (1) v. Motilal Nehru Medical College8 and Dinesh Kumar (2) v. Motilal Nehru Medical College9, and the series of judgments that followed, mentioning that AIQ seats were introduced for providing opportunities to students to compete on a national level and take admission nationally in any State or college of their choice.
The court then examined whether the judgments of Pradeep Jain v. Union of India10 and the following judgments placed any restriction on reserving the seats for OBC and EWS category candidates and held that all these judgments were rendered in the backdrop of reservation for domicile/local resident candidates and cannot be treated as precedents for restricting the implementation of reservation on the AIQ seats.
On the aspect of changing of rules of the game midway, with the introduction of reservation, after holding of entrance examination, the Court held that as per Clause 11 of the brochure, the process of admission was formally to commence after notification of seat matrix by the counselling authority (GoI) and not before. Since, before the announcement of results itself, the notice under challenge dated 29-7-2022 was issued, therefore it could not be said that rules of the games were changed. In this regard, the law occupying the field right from the judgment of K. Manjusree v. State of A.P.11 was traced, to hold when it can be considered that rules of the game have been changed to the prejudice of participants and when they cannot be so inferred.
Accordingly, the challenge to the implementation of notice and the reservation in the AIQ seats of 2021-2022 was repelled by the court in view of the aforesaid findings.
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(3) Abha George v. All India Institute of Medical Sciences12
(Delivered on February 2, 2022)
Coram: Single Judge Bench of HM Justice Prateek Jalan
Authored by: HM Justice Prateek Jalan
Challenge in the petition was made to the cancellation of admissions to PG nursing courses of the petitioner by the respondent Authorities. The petitioner applied for admission pursuant to the prospectus, in pursuance of which they were granted admission to AIIMS. After 2 months on the ground that discrepancies were found in the admissions, all the admissions were cancelled, including the ground of discrepancy relating to the eligibility of the candidates concerned. The students then knocked on the doors of the Delhi High Court. The question that arose was whether the eligibility was under the cloud of all the petitioners whose admission were cancelled and whether the cancellation of admission orders was valid and legal after the admissions were affected. Referring to the longline of judgments deprecating cancellation of admissions post-admission of the candidate concerned, even though ineligible at the onset, the Court held that the approach of the respondents was not proper and legal. The court in the process referred to the judgments of Rajendra Prasad Mathur v. Karnataka University13, Ashok Chand Singhvi v. University of Jodhpur14, including the judgments of the Coordinate Benches of the Delhi High Court, on the principal that even if the student is ineligible or not entitled to take admission, but given admission by the authorities due to some oversight, having been once admitted, their admission should not be disturbed and that they should not be thrown out after having commenced their studies. Accordingly, the cancellation of admission orders was set aside by the High Court.
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(4) Jagathy Raj V.P. v. Rajitha Kumar S.15
(Delivered on February 7, 2022)
Coram: 2-Judge Bench of HM Justices Ajay Rastogi and Abhay S. Oka
Authored by: HM Justice Ajay Rastogi
The challenge was put to the judgment of the Division Bench of Kerala High Court setting aside the judgment of the Single Judge, through which appointment of HoD was set aside on the ground that appellant being a senior Professor was ignored in consideration for the appointment to the said post. Under Section 39(1) of the University Act, the Government of Kerala framed Statute 18, describing the procedure for appointment of Director/HoD, to be appointed by the syndicate. The appellant when he became due for consideration for appointment as HoD being the seniormost Professor, which used to happen through the process of nomination by rotation, expressed his unwillingness to take up the said assignment in the first turn. Accordingly, the next Professor, immediately junior to him was nominated as Director/HoD for a period of three years. However, when the term of Dr Mavoothu D. (the one who was appointed in place of the appellant) expired, the appellant staked claim to the said post being the seniormost professor and showed interest to participate in the selection in the appointment process which was overlooked, not taken into consideration and junior professor to the appellant was appointed. The State Government justified the said decision on the ground that since the appellant had expressed his unwillingness once, therefore he had waived his right to be considered for appointment as HoD/Director and could not have been taken into consideration again,. It was argued that once the relinquishment was made, the appellant had forgone his right of consideration for all times to come and thus, the next seniormost Professor was picked up for the appointment. The Single Bench quashed the appointment being against the provisions of Statute 18, which judgment was set aside by the Division Bench.
The Supreme Court held that since every round of appointment is a fresh round of appointment, based and premised on seniority, therefore Statute 18 cannot be interpreted to read in any right or any possibility of waiver or relinquishment of any right by any professor, like in the case of the appellant. It was further held that since in the past, on multiple occasions professors who had shown their unwillingness at one point of time earlier were considered by the University in the subsequent second process of appointment when they got interested, the said benefit cannot be denied to the appellant. It was held that under Statute 18, there is no prohibition depriving the professor from consideration for appointment as HoD, when the second rotational term becomes due, only because he had shown his disinterest previously for the same. Seniority is the thumb rule, which has to be considered every time and cannot be waived. Relying on the judgment of N. Suresh Nathan v. Union of India16, the Court held that any past practice followed for a long time by a statutory authority, if not contrary to law but in consonant with the statutory provisions, gives it a colour of precedence and should not be lightly departed from by the authority. It should also be ordinarily respected by the courts and not interfered lightly in the exercise of powers of judicial review under Article 226 of the Constitution of India. Accordingly, the appeal was allowed and the appellant was directed to be appointed on the said post.
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(5) Shekhawati Shikshak Parsikshan Sansthan v. NCTE17
(Delivered on February 10, 2022)
Coram: Single Judge Bench of HM Justice Rekha Palli
Authored by: HM Justice Rekha Palli
Challenge was laid to the decision of the National Council for Teacher Education (for short “NCTE”) returning the application submitted by petitioner Institutes in 2008-2009 for grant of permission/recognition for various teacher training courses like B Ed, etc., in light of the ban that was imposed by the State of Rajasthan in the year 2009-2010. The ban was quashed and set aside initially by the Rajasthan High Court in January 2009 directing the NCTE to take a fresh final decision considering all the relevant factors for accepting and processing of applications. In a second round of challenge to this decision of ban, Rajasthan High Court again directed the NCTE to process the applications for the subsequent Academic Session of 2011-2012, since the session had been over by the time the writ petitions came to be decided. In the meanwhile, the NCTE processed the recognition applications of all those colleges, whose inspections were conducted, and show-cause notices issued for various deficiencies, relating to the year 2009-2010. Thus, the ban came to be relaxed for a certain category of institutions by the NCTE itself. However, one batch of writ petitions came to be dismissed in October 2018, holding that a subsequent State ban, imposed after returning of applications by the NCTE can be relevant criteria in consideration for rejecting the applications. This matter travelled up to the Supreme Court previously, wherein, the Supreme Court in Saraswati Deep College of Education v. NCTE18, in which it relied upon its earlier decisions of Kanya Gurukul College of Education v. NCTE19 and Gyan Deep College of Education v. NCTE20, held that rejection of applications based on the subsequent ban on new educational institutes by the NCTE fell foul of its earlier decisions, and thus NCTE was directed to process the applications on merits. This judgment of the Supreme Court, however, pertained to a specific category of colleges, whose applications were returned prior to the imposition of the ban.
The Court broadly held that applications for opening of new institutions received prior to a negative recommendation (for the imposition of the ban) from the State Government to the NCTE have to be considered on their own merits and cannot be returned unactioned on account of the subsequent State ban, imposed post receipt of the application. Since the admitted position was that applications in all the cases were filed and received prior to the imposition of the ban in the State of Rajasthan on the opening of new institutions, therefore they were entitled to be processed. Repelling the preliminary objection to the maintainability of the writ petition on the ground of delay and latches, the Court held that the longline of judgments by the Delhi High Court as also the Supreme Court of India on the same issue w.r.t. similar subject-matters, made it clear that applications received prior to subsequent State ban cannot be rejected relying on the ban. Thus, there cannot be a plea of delay and latches, taken by the NCTE, in the case of similar circumstanced institutions, in which a proposition of law in rem was laid down, binding on the NCTE for all prospective applications pending before it. Even the NCTE itself had been in a large number of cases taking the stand that applications received prior to issuance of subsequent State ban must be considered on merits and actually issued the approval in the said regard. Even the Supreme Court in Saraswati Deep College of Education v. NCTE21 had taken the very same view of the processing of applications on merits. Though for subsequent years, since the NCTE itself had accepted the aforesaid judgment and had selectively applied it to several institutions processing their applications and granting them approval, therefore, the judgments of the Supreme Court in Saraswati Deep College of Education22 ought to have been treated as binding law. Referring to the judgment of State of U.P. v. Arvind Kumar Srivastava23, the Court held that the exception to a particular set of petitioners being benefitted by the directions of the Supreme Court only will not apply in those cases where judgment pronounced by the court is a judgment in rem with the intention to give benefit to all similarly situated persons, whether they approach the court or not. If through any pronouncement an obligation is cast upon the authorities to itself extend the benefit thereof to all the similarly situated persons, then the judgment in its applicability should not be restricted only to the parties before it, but to all similarly circumstanced. Accordingly, in view of the aforesaid judgment, the High Court directed the NCTE to process the pending applications on merits for the grant of approval of teacher training courses.
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(6) Kamni Tripathi v. State of M.P.24
(Delivered on March 30, 2022)
Coram: 2-Judges Bench of HM Justices Sujoy Paul and Dwarka Dhish Bansal
Authored by: HM Justice Sujoy Paul
Writ petitions were filed challenging the cancellation of allotted seats under the second round of counselling to various students of nursing course. The said allotment was cancelled on the ground that the reservation roster was not properly followed in the allotment of seats. The grievance of the petitioner was that, after allotment of the seat, it cannot be cancelled unilaterally, without hearing the student concerned as it is also violative of Article 21 of the Constitution of India, petitioners possessing the right to livelihood. Reference was made to the judgment of Sanatan Gauda v. Berhampur University25, that allotment of seats cannot be cancelled post-admission on the same and that the principle of estoppel applies. Reliance was made on the MP Online Counselling and Admission Procedure Rules and Government BSc Nursing College Selection Rules, to contend that the cancellation is contrary to the statutory provisions provided under the said Rules. This was all the more when the petitioner had prosecuted studies for a few months, and this would affect their prospects. The court relied upon a beautiful saying quoted in Neelima Misra v. Harinder Kaur Paintal26 by the Supreme Court, which read thus:
“…even God himself did not pass [a] sentence upon Adam before he was called upon to make his defence. Adam (says God), where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat?….”
The Court referring to a longline of judgments, specifically Rule 17 of the Counselling Procedure Allotment Rules held that the mandatory procedure to be followed prior to cancellation of any admission has not been followed in its letter and spirit, and thus, even though the reservation roster was not followed, it was no ground to have cancelled the admission of the candidate unilaterally and arbitrarily. Accordingly, the High Court quashed the cancellation order and restored the admissions of all the candidates.
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(7) Gambhirdan K. Gadhvi v. State of Gujarat27
(Delivered on March 3, 2022)
Coram: 2-Judge Bench of HM Justices M.R. Shah and B.V. Nagarathna
Authored by: HM Justice M.R. Shah
The petition was filed under Article 32 seeking a writ of quo warranto challenging the appointment of Respondent 4 as Vice Chancellor of Sardar Patel University (for short “SPU”) and setting aside of notification appointing him so. The writ petition was filed before the Supreme Court as the previous appointment of the very same petitioner on being challenged before the Gujarat High Court was repelled and direction was issued to the University to State to make suitable amendments to the Act and the Rules framed thereunder providing for to bring them in conformity with the UGC Regulations 2010/2018 for incorporating the eligibility pertaining to the appointment of Vice-Chancellor of the University.
Section 10 of the SPU Act, 1955 did not provide any qualification whatsoever for appointment to the post of Vice-Chancellor and the question arose whether the UGC Regulations, 2018 are binding at all upon the University (SPU) for appointment of the Vice-Chancellor.
Answering the issue of maintainability, the Court held that the writ of quo warranto lies and can be issued only when the appointment is contrary to the statutorily framed rules. If the rules of statutory provisions are silent on the aspect of eligibility, then the writ of quo warranto cannot be issued. Referring to the judgments of Rajesh Awasthi v. Nand Lal Jaiswal28 and Armed Forces Medical Assn. v. Union of India29, Court held that the strict requirement of locus standi stands relaxed in quo warranto proceedings, which afford a judicial remedy to any person for challenging the appointment or holding of office by its incumbent. However, at the same time, the writ of quo warranto is an extremely limited one, that can be issued only when the person does not fulfil the eligibility criteria for holding any office.
The question thus arose was that, in the absence of any statutory provisions prescribed in eligibility under the SPU Act, whether the provisions of Section 26(1) of the UGC Act, 1956 read with UGC Regulations 2010/2018 can be resorted to for testing the eligibility of the VC of SPU. The UGC Regulations are specific and strict about the eligibility for the appointments to the post of Vice-Chancellor and since the financial assistance was being offered by the Central Government to the extent of 80% in lieu of the scheme adopted by the State of Gujarat for payment of salaries to the teaching faculty in view of the Sixth Central Pay Commission (“CPC”), therefore the State of Gujarat was bound by the UGC Regulations. Relying upon Section 12(b) of the UGC Act, Court held that in view of the fact that SPU was receiving central financial assistance, despite being the State University and having adopted the UGC scheme, it automatically got bound by the UGC Regulations, 2010 and thus eligibility laid down therein was binding on the State University for appointment of Vice-Chancellor. The State Government failed to incorporate necessary amendments to the enactment adopting and imbibing the eligibility of admissions for appointment to the post of Vice-Chancellor, which was lamented being extremely unfortunate by the Supreme Court. However, in view of UGC Regulations, 2018, the appointment of Respondent 4 (Vice-Chancellor) was held to be illegal, being subject to the issuance of a writ of quo warranto in the said regard. The provisions of the State of the SPU Act as well the rules framed thereunder were held to be repugnant to Section 26(1) of the UGC Act read with the UGC Regulations, 2018 and thus repugnant in view of Article 254 of the Constitution of India. Accordingly, the appointment of Vice-Chancellor was struck down by the court.
Paras 55 and 56 of the judgment are worth quoting, which read as follows:
“55. Discussing the situation in the backdrop of principle of governance quoted by Chanakya in his Nitishastra ‘Yatha Raja Tatha Praja’, the sense of morality must begin from the door of the leader who preaches it.”30
“56. Thus, universities are autonomous, and the Vice-Chancellor is the leader of a higher education institution. As per the norm, he/she should be an eminent academician, excellent administrator and someone who has a high moral stature. The aforesaid reports of the Radhakrishnan Commission, Kothari Commission, Gnanam Committee and Ramlal Parikh Commission, have highlighted the importance of the role of Vice-Chancellor in maintaining the quality and relevance of universities, in addition to its growth and development, keeping in view, the much-needed changes from time to time. Further, these committees have also made suggestions and recommendations for identifying the right person for the said position. At this stage, it is correct to say that a Vice-Chancellor is the kingpin of a university’s system and a keeper of the university’s conscience.”31
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(8) Mandeep Kumar v. State (UT of Chandigarh)32
(Delivered on March 9, 2022)
Coram: 2-Judge Bench of HM Justices Indira Banerjee and J.K. Maheshwari
Authored by: HM Justice J.K. Maheshwari
The appellants were all waitlisted candidates, who had approached the court for filling up of unfilled posts of elementary trained teachers (for short “ETT”), from the waitlist, instead of being re-advertised again for filling of the same through the fresh round of selection. The Punjab and Haryana High Court dismissed the writ petition holding that the employer is always entitled to go for a fresh round of selection after exhausting the main list and not compelled to resort to or exhaust the waitlist. The appellants belonged to reserved OBC category candidates, who were staking claim over the posts belonging to SCs/STs category remaining unfilled on account of non-availability of SCs/STs category candidates, which would have been surrendered to the OBCs category as per the applicable policy of the reservation/interchangeability of the posts from SCs/STs category to OBCs category in the event of non-availability of the category candidates concerned. The State took a specific stand that they were not inclined to interchange or dereserve the vacant post of SC/ST category to the OBC category, for that reason fresh advertisement with a fresh selection process was initiated.
The court referring to Section 7 of the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006 held that the satisfaction of the State Government not to dereserve/interchange the seat belonging to SC/ST to OBC was duly demonstrated in the matter to be existing in larger public interest against dereservation. In such circumstances, even though the interchangeability/dereservation of the vacant unfilled posts of SC category may be statutorily permissible and possible, but if the State Government had demonstrated to be not desirable, the fresh selection process and the fresh advertisement for filling up all the vacant SC/ST posts of ETT is not liable to be interfered. The appeal was accordingly dismissed.
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(9) Santosh Trust v. National Medical Commission33
(Delivered on March 15, 2022)
Coram: Single Judge Bench of HM Justice Rekha Palli
Authored by: HM Justice Rekha Palli
The petition was filed challenging the disapproval letters issued by National Medical Commission (for short “NMC”) rejecting the grant of permission for an increase in seats of the MBBS course as also the PG courses in the petitioners’ medical college. The rejection order was issued essentially on two grounds; first, the insufficient number of patients in the hospital; second, the pendency of criminal cases and recovery proceedings at the instance of secured creditors and lenders/financial partners to the society/trust running the medical college.
The rejection orders were challenged on the fundamental ground that the assessing-cum-inspection team during inspection had not found any deficiency or shortcoming in the institution, but the same was brought on record by way of counter-affidavit before the court, which was originally neither mentioned in the rejection letter nor in the inspection report prepared by the inspecting team. The rejection order was further challenged on the ground that the FIRs and criminal proceedings were stayed by the High Court, in relation to which, without hearing the petitioners, the rejection letters were issued. The medical college hospital was a COVID hospital for serving COVID patients during the pandemic duration, owing to which the other patients of other ailments were not allowed to be hospitalised, for which the college was even awarded by multiple authorities on different occasions.
The Court held that the general principle is that the reasons for the rejection must be spelled out and discerned in the rejection letter itself in view of the landmark judgments of Mohinder Singh Gill v. Election Commr.34 However, the exception to this general principle exists as laid down in All India Railway Recruitment Board v. Shyam Kumar35 and Prp Exports v. Govt. of T.N,36 that subsequent facts can be relied upon and referred to by the court for adjudicating the rejection order so pleaded in the counter-affidavit if public interest is involved and demonstrated to be existing.
On the aspect of insufficient and inadequate number of patients, the Court held that since the petitioner’s hospital was a COVID notified hospital, therefore they were restrained from giving admissions to patients with other ailments, and for this, they cannot be saddled with adverse consequences when other patients could not have been treated alongside COVID patients.37
On the other ground of rejection, the Court held viz. pending criminal cases, and recovery proceedings against the medical college, the Court held that the college has been running for almost two decades and was one of the oldest colleges in the State of Uttar Pradesh. The criminal proceedings were stayed by the High Court, a fact which was never before the NMC, as, no opportunity of hearing or show cause was given nor the material being used against the petitioner was not provided to them. Such criminal cases and complaints could not have been considered, more so when all the FIRs were stayed. The recovery proceedings were pending and there was no final outcome of the same, for which the statutory remedies were available before the higher forums to the management of the medical college, and mere pendency of such recovery proceedings cannot lead to or be a ground per se to infer that institution is not meeting the eligibility criteria under Section 29 of the NMC Act. This was even more important when the institution was not seeking fresh permission but only an increase in the number of seats on the basis of available infrastructure, which was to be found satisfactory in the inspection carried out by the assessing-cum-inspecting team of the NMC itself. Accordingly, the court quashed the decision of the NMC and directed the NMC to issue the approval letter granting approval for the aforesaid MBBS courses and inclusion of the said seats in the ongoing counselling process for medical admissions.
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(10) North Eastern Indira Gandhi Regional Institution of Health and Medical Sciences v. Bisakha Goenka38
(Delivered on March 25, 2022)
Coram: 2-Judge Bench of HM Justices Sanjib Banerjee and W. Diengdoh
Authored by: HM Justice W. Diengdoh
The challenge was placed to the order passed by the Single Judge through which the petitioner was permitted to participate in the counselling process for admissions to MBBS course, who was denied the same on the ground that she did not participate in the initial counselling, which was an e-counselling process. The case of the petitioner was that the e-mail sent by the counselling authority viz. North Eastern Indira Gandhi Regional Institution of Health and Medical Sciences (for short “NEIGRIHMS”) was sent through e-mail, that landed in the spam box of her e-mail, which she discovered late. Due to the e-mail landing into the spam box, she could not participate in the counselling. The Division Bench held that since the counselling authority had sent the intimation timely through e-mail to the candidate, the candidate was at fault of not being more vigilant and diligent in discovering the e-mail. However, the Division Bench disagreed with the view taken by the Single Bench but held however that element of interference with the discretion already exercised when a plausible view seems to have been taken and that substitution of view by the Division Bench is extremely restricted. It further held that a right always inheres in a waitlisted candidate for the candidature to be considered if the original list is not filled up or somebody opting out from the original list midway. Thus, in the case of the writ petitioner, the possibility was extremely scant, that she would have deliberately acted to her prejudice by ignoring the e-mail sent to her by the counselling authority, especially when the admission process was e-counselling, the possibility of the candidate waving off the intimation and the chance to participate in the counselling to her detriment. Thus, the judgment of the Single Bench was affirmed by the Divisional Bench, albeit with reservations on the finding given by the Single Judge. The writ petition was accordingly disposed of.
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(11) State of Kerala v. C. Sreenivasan39
(Delivered on March 28, 2022)
Coram: 2-Judge Bench of HM Justices Alexander Thomas and Viju Abraham
Authored by: HM Justice Viju Abraham
Applicants before the court were all Assistant Professors (for short “AP”) of Mathematics in various Government institutions, (originally nomenclature as lecturers), appointed on the advice of the Kerala Public Service Commission. The issue agitated before the High Court was about inclusion of the period of service rendered by them in self-financing colleges not taken into consideration for the grant of said benefit of career progression under the UGC Scheme. Thus, the court was called upon to decide whether the prior service rendered in the self-financing unaided colleges could be reckoned as eligible service for being considered for career advancement promotion, which was decided by the Kerala Administrative Tribunal in favour of the APs. The primary contention of the Government, which had challenged the KAT order before the High Court was that since the Government and the State Universities have no administrative financial control over the unaided self-financing institutions, therefore the services rendered in the said cannot be treated as eligible service for the said benefit of career progression. However, the court referring to various Government orders and resolutions, held that there is no nexus between the classification of the services rendered in Government colleges and the self-financing private colleges, when the career advancement scheme does not make any such distinction so issued by the UGC. When the said benefit was extended even to teachers working in autonomous, Government-aided institutions, there was no reason why the said should not include within its ken the self-financing private institutions as well. Accordingly holding the said classification to be unreasonable and violative of Article 14 of the Constitution of India, the High Court affirmed the judgment of KAT holding all the original applicants as entitled to the benefit of the career advancement/progression scheme.
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(12) M.K. Shah Medical College & Research
Centre v. Union of India40
(Delivered on April 1, 2022)
Coram: HM Justice Rekha Palli
Authored by: HM Justice Rekha Palli
Challenge was laid to the communications issued by the National Medical Commission (for short “NMC”), through which the approval/permission for various PG courses was declined by the NMC and Government of India (for short “GoI”). The approval was denied on the ground of non-production of an essentiality certificate from the State Government concerned to start a new medical college, as also on the ground that the existing PG courses of the petitioner were yet to be recognised. The permission for other courses was allowed in part, meaning thereby that only half of the seats out of the full applied intake were approved, and the full applied intake was denied on a presumptive suspicious ground that the principal of the college must have produced exaggerated disclosures.
The court initially dealt with the preliminary objection about the maintainability of the writ petition, in the face of an alternative remedy of statutory appeal under Sections 28(5) and 28(6) of the National Medical Commission Act 2019, not being exhausted prior to approaching the writ court.
On the aspect of preliminary objection,the Court held that since the counselling process was underway and there were purely legal questions involved, the court writ petition without availing the alternative remedy is maintainable.It further held that the petitioner was denied the opportunity of hearing and principles of natural justice were violated in the case, where the assessors/inspectors’ report was completely in favour of the petition institution, but the NMC acted contrary to the same, without hearing the institution concerned. Thus, on this Court also the writ petition was maintainable.
The court in the process of reasoning relied upon the judgment of Index Medical College Hospital & Research Centre v. Union of India41, holding that where the counselling process had already commenced by the time the final order came to be passed by the NMC, the remedy of appeal can be treated as an efficacious one. Accordingly, the preliminary objection was overruled. The Court further held that since no deficiency was found in the inspection report prepared by the assessors/inspectors who had physically inspected the medical institution, and that everything was found in order in the said inspection, without giving due opportunity of hearing and compliance of principles of natural justice, or pointing out new deficiencies or shortcomings in the institution, the petitioner’s application could not have been rejected or lesser applied intake approved instead of the actual applied intake. When no discrepancies were found in the inspection report, and the petitioner was not given any opportunity to explain the same, merely on presumptive apprehensions and suspicions, the seats could not have been reduced whilst granting approval to the medical college concerned against the actual intake applied for by them. It was further held that the Medical Assessment and Rating Board (“MARB”) under the NMC Act, 2019 is expected to prima facie show some justification for its decision, whenever the impugned orders are assailed before the court, especially when assessors found the requisite criteria prescribed under the regulations to have been duly met. Relying on the judgment of Medical Council of India v. Vedanta Institute of Academic Excellence (P) Ltd.42, the courts cannot question the inspection report issued by an expert team of assessors or sit an appeal of the same. The said logic shall apply to the NMC as well, which cannot arrive at its own arbitrary conclusions. Thereafter referring to the judgments of Rajiv Memorial Academic Welfare Society v. Union of India43 and Santosh Trust v. National Medical Commission44, Court held that no fruitful purpose would be served in remanding the matter back to the NMC, when admittedly there are no deficiencies in the inspection report of the petitioner accordingly. The petitioner was granted permission to participate in the ongoing counselling for admissions instead of being remanded back for issuance of a fresh letter of approval/permission by the NMC by the court. The petition was accordingly allowed.
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(13) Preethika C. v. State of T.N.45
(Delivered on April 7, 2022)
Coram: 2-Judge Bench of HM Justices M.N. Bhandari and D. Bharatha Chakravarthy
Authored by: HM Justice D. Bharatha Chakravarthy
The challenge in the writ petition was to the reservation/preference made for the students of the government schools to the extent of 7.5% made in admissions to undergraduate medical/dental courses, as also challenge to constitutionality of various provisions of the Tamil Nadu Admissions to Undergraduate Courses in Medicine, Dentistry, Indian Medicine and Homeopathy on Preferential Basis to Students of Government Schools Act, 2020. The grounds of assailing were broadly as follows:
- The reservation was outside the purview of Articles 15, 16, and 21 of the Constitution of India.
- The amended provisions excluded the students of Government-aided schools in Tamil Nadu for being provided preference at power with the students of Government schools and thus the distinction between the two classes was unintelligible.
- The overall reservation is crossing the upper limit of 50% and thus violative of the ceiling of 50% as let down in Indra Sawhney v. Union of India46.
- There is already horizontal reservation for certain communities in the SC quota as also the backward classes and the most backward classes.
-
There was a legitimate expectation amongst all the students at the time of appearing for the senior secondary examination the percentage for the reservation is fixed and thus the percentage of reservation cannot be altered to their prejudice, till and until the student are known in advance. Thus, the legitimate expectation of students was shattered, resulting in a violation of Article 14.
Referring to the judgments of Sejal Garg v. State of Punjab47, Nupur v. Punjab University48, and Monnet Ispat & Energy Ltd. v. Union of India49, Court held that there cannot be a legitimate expectation as to the continuity of the same scheme and state of things in the matter of admission on the part of students. The principle of just expectation cannot be invoked when public interest demands a change of policy, which can never be barred by principles of promissory estoppel. Thus, since the matter relates to admissions to professional courses and the impugned enactment is an outcome of legislative policy made in consideration of overriding public interest, principles of legitimate public interest under Article 46 of the Constitution of India, the same could not have been challenged.
The Court relied upon the expert reports to state that economic backwardness combined with rural, and social backwardness can be criteria for students for being given preference/reservation in medical admissions. The court found that the State had followed the process of appointing a Commission to study the relevant factors, data, and statistics, and only based on the same had the impugned legislation been enacted. Impugned legislation toward ensuring “proportional equality” is being enacted.
Relying on the recent most judgment of Neil Aurelio Nunes v. Union of India50, Court held that on account of the socioeducational economical background, the cognitive gap shall always be there, which requires positive discrimination by the State. Accordingly, the amended provisions were held to have a nexus with the objective of providing opportunities to government students with a socially and economically weaker background to make them overcome disadvantages for the full utilisation of their physique, character, and intelligence and thus not violative of Article 14 of the Constitution of India. The Court held that the impugned legislation is not including any person in the quota provided but introducing a new criterion altogether by way of horizontal reservation. Thus, since the nature of reservation was horizontal, one being dealt with extensively in the earlier judgments of Indra Sawhney v. Union of India51, the argument of ceiling of 50% would not apply and it becomes a permissible reservation provided to “socially and educationally backward class” under Articles 15(4) and 15(5) read with Article 46 of the Constitution of India.
The challenge therefore was to the constitutionality of various amended provisions of the Government Schools Act, 2020 and the official memorandums issued on the basis thereof was repelled by the High Court in the given circumstances and constitutionality affirmed.
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(14) Central Council for Indian Medicine v. Karnataka Ayurveda Medical College52
(Delivered on April 11, 2022)
Coram: 2-Judges Bench of HM Justices L. Nageswara Rao and B.R. Gavai
Authored by: HM Justice B.R. Gavai
The question arose before the court about the permission for new course of study of Bachelor of Ayurvedic Medicine and Surgery (for short “BAMS”) course and whether the said benefit of such permission would enure in respect of previous year also. The Karnataka High Court took the view that if recognition/permission for the previous academic year was not granted, but subsequently in the next academic year the said approval has been issued, then the said permission would relate to the previous academic year as well.
Examining the scheme of Sections 13-A, 13-B of the Medicine Central Council Act, 1970 (for short “IMCC Act, 1970”), Court held that approval/permission on a scheme from the Central Government is a precondition for starting Ayurveda course and that no scheme can be started dehors the same. Specific factors as laid down under Section 13-A Clause 8 are to be taken into consideration prior to grant of approval of this scheme, which is a complete proposal in itself, for commencement of the Ayurveda course. The legislature itself has taken care of Ayurveda medical colleges established prior to the commencement of the IMCC (Amendment) Act, 2003 and thus the High Court was held to have failed to take into consideration the entire scheme under Section 13-A of the IMCC Act. In order to be eligible for grant of permission for undertaking admissions in any particular academic year, the institution must fulfil the requirements of minimum standards as on 31st December of the previous year. In such circumstances, the finding that permission granted for subsequent academic year would also enure to the benefit of earlier academic year is totally erroneous and the view of the Karnataka High Court was accordingly set aside. The court in the process of reasoning adopted the law laid down by it in Ayurved Shastra Seva Mandal v. Union of India53, to hold that such a conclusion is clearly impermissible, and the judgment of the Division Bench was set aside.
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(15) Dental Council of India v. Biyani Shikshan Samiti54
(Delivered on April 12, 2022)
Coram: 2-Judges Bench of HM Justices L. Nageswara Rao and B.R. Gavai
Authored by: HM Justice B.R. Gavai
The Rajasthan High Court had quashed and declared the provisions of Regulation 6(2)(h) of the DCI (Establishment of New Dental Colleges, Opening of New or Higher Course of Study or Training and Increase of Admission Capacity in Dental Colleges) Regulations, 2006 as unconstitutional, as amended by 2012 Notification. Through Regulation 6(2)(h), a condition was imposed for all new dental colleges for having exclusive affiliation with a private/Government medical-cum-dental hospital situated within a periphery of 10 Kms (subsequently increased to 20 Kms) which do not have any medical or dental colleges affiliated to them. Rajasthan High Court declared the said provision to be unreasonable, arbitrary, and unconstitutional on three essential grounds which are as follows:
- That it is violative of Article 19(1)(g) of the Constitution of India.
- That it is beyond the scope of the powers of the Council to make delegated legislation as provided under sub-section (7) of Section 10-A of the said Act.
-
That it is violative of Article 14 of the Constitution of India, inasmuch as the dental colleges established prior to impugned notification would be permitted to run without attachment with medical colleges, whereas the dental colleges established after the impugned notification will be compelled to have such an attachment with the medical colleges.
The Supreme Court setting aside the said judgment held that subordinate legislation can always be tested on the grounds of unreasonablity, arbitrariness or proportionality, but the same must be “manifestly arbitrary/unreasonable”. Relying on the judgments of State of T.N. v. P. Krishnamurthy55, Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India56, Shri Sitaram Sugar Co. Ltd. v. Union of India57, the Court held that mere perception of unreasonability or arbitrariness is not enough, but something more must be forthcoming on the ground of challenge as not meeting the essential and basic parameters of reasonableness. If the rulemaking authority is able to demonstrate a differential treatment for differential classes with sound and plausible justification for the same, then the rule shall not be manifestly arbitrary. Accordingly, after examining the justification offered by the Central Government and Dental Council of India, Court held that reason for not permitting more than one dental college to be attached to existing recognised medical college within the prescribed radius is that if one dental college is permitted to be attached to a recognised medical college, which is already having 500-750 students, then it will lead to overcrowding of students in the medical hospital, which may affect their clinical studies. Thus, the amended Regulation cannot be said to be manifestly arbitrary, so as to warrant interference by the court. Accordingly, the judgment of Rajasthan High Court was set aside, holding the amended Rules 6(2)(h) to be intra vires.
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(16) NCTE v. Om College of Education58
(Delivered on April 20, 2022)
Coram: 2-Judge Bench of HM Justices Vipin Sanghi and Navin Chawla
Authored by: HM Justice Navin Chawla
The letters patent appeal before the Division Bench was preferred was against the judgment of the Single Bench, through which National Council for Teacher Education (for short “NCTE”) was directed to process and decide the pending applications for grant of approval of the teacher training courses, like D El Ed. The State of Rajasthan took a policy decision of not permitting the opening up of new colleges in the State of Rajasthan and declined to nominate an expert to participate in the Screening Committee on the ground that, in the year concerned there was a ban operative on the opening up of new colleges. The court examining the longline of judgments on the specific role of the State Government in declining to grant permission/NOC/consent for opening of new institutions held that if the Central Government has the power and authority to decide upon the grant of approvals to private unaided teacher training institutions, then the State cannot decline the same and has a very limited role to play. In the said regard, the Court referred to the judgments of Bhartia Education Society v. State of H.P.59, Maa Vaishno Devi Mahila Mahavidyalaya v. State of U.P.60, wherein the court specifically referred to Regulation 7(13) of the NCTE Regulations, to hold that the State Government cannot refuse to appoint an expert in the Selection Committee for appointment of an expert member creating hindrances in the consideration of application of the institutions for grant of recognition/permission. If the State refuses to nominate any expert in the Selection Committee, then NCTE cannot wash off its hands, but must proceed without any nomination by the State. NCTE must proceed with the application of the applicant institution concerned in exercise of powers available under Section 12 (power to relax) of the regulations, being unhindered by the refusal of the State Government to participate in the selection process. The power to relax in such a situation is to be invoked and that the role of the State is extremely limited to bring forth its concerns and considerations before the NCTE, so that they can be adequately addressed and redressed. The State must forward its report supported by entire material justifying the imposition of ban in the State, which the NCTE is duty-bound to consider, but the NCTE cannot withhold the consideration and processing of applications, just because the State declines to do so. Accordingly, the appeal was disposed of with directions to the NCTE for processing the applications so filed by various private applicants, to their logical conclusion within a time-bound period.
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(17) Apurv Shankar v. Union of India61
(Delivered on April 20, 2022)
Coram: Single Judge Bench of HM Justice V. Kameswar Rao
Authored by: HM Justice V. Kameswar Rao
The petitioner had approached the High Court challenging the decision of denying them the permission to appear in the screening test conducted by Respondent 1 (National Medical Commission), for the fundamental reason that the petitioner had obtained only 47.83% in Physics, Chemistry, and Biology taken together in the 10+2 examination and would have never been granted the eligibility certificate at the outset. The petitioner contended that the B.P. Koirala Institute of Health Sciences, Dharan, Nepal, from where he had completed his MBBS is a recognised institution under Section 12 read with Schedule II of the Indian Medical Council Act, 1956 (for short “IMC Act, 1956”).
The court traced the statutory history of Sections 12 and 13 of the IMC Act, 1956, whereunder Sections 13, 4-A, 4-B, and 4-C were inserted, providing about the requirement of clearing a screening test and obtaining an eligibility certificate for students, who have obtained medical qualification from outside India, for enrolment as a medical practitioner in any State of the country. Various regulations were framed under the enactment in pursuance thereof by the MCI, titled as Foreign Medical Institution Regulations, 2002, (hereinafter, “Eligibility Regulations”) and Screening Test Regulations, 2002 (hereinafter, “Screening Test Regulations”) mandating the requirements of clearing of screening test as a precondition for registration as a medical practitioner.
The question arose about the interpretation of the press note issued by MCI in October 2008, about the applicability of the aforementioned screening test regulations and eligibility regulations to the case of the petitioner. The Court held that the amending provisions and the regulations framed thereunder must be interpreted purposively in the background of which they were introduced and incorporated. The said Acts and Regulations were traced to have been necessitated, owing to medical scams of illegalities and irregularities that took place in admissions and passing out of students from such foreign medical institutions, thereby not meeting the domestic standards in the country. Thus the press note of October 2008 clarifying the applicability of screening test and eligibility was fully applicable to the petitioners and the petitioner was expected to possess atleast 50% marks in aggregate of Physics, Chemistry, and Biology for being issued eligibility certificate to sit in the screening test of a foreign medical institution to get himself registered in India under the provisions of the IMC Act, 1956. Referring to the judgment of Yash Ahuja v. Medical Council of India62, Court held that the very same issue was already settled by the Supreme Court therein. The Court held that even dehors the press note, the amended provisions of Section 13 and various regulations framed thereunder on their own are applicable on the institutions and thus, the press note cannot change the position any further. Accordingly, the petitioners were held to be ineligible for want of possessing appropriate minimum benchmark of marks in Physics, Chemistry, and Biology taken together for being issued eligibility certificate for sitting in the screening test and the petition was dismissed.
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(18) Ashutosh Singh v. University of Delhi63
(Delivered on April 21, 2022)
Coram: Single Judge Bench of HM Justice Rekha Palli
Authored by: HM Justice Rekha Palli
The challenge was made to the rejection of “spot admission” round to be held for admissions to the LLM programme for the Session 2021-2022 on account of the non-production of OBC caste certificate of the current financial year by the petitioner before the counselling authorities. Spot admission/college level counselling.
The petitioner approached the High Court challenging the rejection of his participation and admission in the university, on the fundamental ground that he was not given the time to procure the OBC non-creamy layer caste certificate for the Financial Year 2021-2022, which he was admittedly issued later but for at the time of counselling. Thus, the eligibility and entitlement of the petitioner for the admission against the OBC quota seat was not under any kind of dispute or doubt, despite which the same was rejected. On the question of delay in the procurement of the caste certificate on the ground of a few days delay and last-minute procurement of the caste certificate by the petitioner, Court held that the petitioner must have reasonable and sound anticipation of being granted admission against the OBC quota seats, which arose only when the seats were going vacant in the third round of counselling, otherwise there was no anticipation of admission for him. It was only when the reasonable anticipation and probability of admission arose, that the petitioner proceeded to apply for the said certificate and took the same. Thus, the delay in applying or procurement of the said caste certificate cannot be a ground for rejecting the admission.
Court held that the respondent Authorities never placed any condition of not accepting undertakings relating to production of caste or any reservation related certificates, then respondents cannot take the plea of not permitting candidates like the petitioner who produced the eligibility certificates later.
It was further held that insofar as benefits of reservation to the reserved categories like OBC, SC/ST are concerned, the authorities must always facilitate the candidates to take the advantage of reservation by being accommodative of production of the certificates, if otherwise, the candidate makes a claim that he is eligible for the entitlement of said certificate. By adopting a hypertechnical approach, reservation benefits to eligible meritorious candidates should not be denied.
On the question of granting relief after the commencement of academic session, the Court observed that the delay in disposal of the writ petition had occurred because of time and adjournments being sought repeatedly by the respondent University/admission granting authority and the petitioner had approached the court immediately well in point of time. Since there was no delay on part of the petitioner in approaching the court, even though the academic session had commenced, if the petitioner was entitled for grant of relief, then the court may pass appropriate orders directing for admission of the petitioner to the course in question if the seats are vacant. Accordingly, the writ was allowed.
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(19) Sumandeep Vidyapeeth v. Union of India64
(Delivered on April 22, 2022)
Coram: Single Judge Bench of HM Justice Rekha Palli
Authored by: HM Justice Rekha Palli
The application of the petitioner for starting of new ayurveda college with Bachelor of Ayurveda Medicine and Surgery (for short “BAMS”) degree from Academic Year 2021-2022 was rejected, which was affirmed by the appellate orders dated 24-2-2022 and 31-3-2022. The Letter of Intent was issued to the petitioner after a plenary inspection and issuance of essentiality certificate by the State Government in their favour. However, the final approval was denied to the college essentially on the grounds of non-availability of teaching staff, functioning hospital with proper OPD and IPD and the hospital staff. The court examined the inspection report to discover that teaching and non-teaching staff was found to be fully present during physical inspection by the assessing inspecting team. However, the AYUSH denied their employment on the ground that in the same academic session, the teachers were previously engaged in other institutes of the academic session and had joined the institution recently as full-time salaried teachers.
The court repelled the contention of AYUSH about teachers being fake teachers on the ground that there is no statutory bar over teachers changing their place of employment in the same academic year or joining a new one after leaving the previous institution of employment and that merely because in the same session, a teacher leaves previous employment to join a new institution, he gets debarred from being counted in the regular faculty of the new institution. Therefore, the plea of AYUSH was rejected on the legality of teachers working in the said institution. Referring to the judgments of Medical Council of India v. Kalinga Institute of Medical Sciences,65 and Medical Council of India v. S.R. Educational & Charitable Trust66, Court held that since there was admittedly no deficiency in the teaching staff of the institution, therefore, plea of AYUSH is untenable. Holding further that it is need of the hour to encourage AYUSH institutions, the Court held that it would be against public interest to deny permission to such ayurveda colleges. The AYUSH was directed to issue letter of permission to the petitioner for participating in the remaining rounds of counselling of the BAMS course for Session 2021-2022.
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(20) Srinivasan Medical College & Hospital v. Union of India67
(Delivered on April 29, 2022)
Coram: Single Judge Bench of HM Justice Dr Anita Sumanth
Authored by: HM Justice Dr Anita Sumanth
The issue that arose before the High Court was about the requirement of affiliation of a private university imparting MBBS and medical education courses (UG and PG) with the State University (TNMGR Medical University, Chennai) as a precondition for granting admissions in its medical courses. The private university was established under Tamil Nadu Private Universities Act, 2019 (for short “TNPU Act, 2019”). The petitioner University was granted approval for 150 seats of the MBBS course by the National Medical Commission. When the admission process was to commence, a notification was issued mandating all the private, self-financing medical and dental colleges of the State to get themselves affiliated with the State Medical University, and the petitioner, being the private university itself, was denied participation in the State counselling for want of affiliation from the State university. The writ proceedings were initiated for twin purposes, firstly, for the inclusion of the 65% seats in the State counselling and secondly, for the inclusion of 35% seats in the centralised counselling conducted by the Directorate General of Health Services (for short “DGHS”).
The court whilst examining the provisions of the TNPU Act, 2019 held that the act is an expression of the State’s interest in promoting private players in the field of university education and that the Act ensures appropriate, adequate, and proper control and supervision on the management of private universities at the behest of the State authorities. In the said view of the statutory arrangement, it would be unnecessary and superfluous to require the petitioner, being a private university to claim affiliation from a third State university. The purpose of seeking affiliation from the State medical university is to retain and maintain appropriate control over the examinations of the medical college concerned, which control is indirectly maintained by the Government over the private university, especially through the establishment of a regulatory body viz. private University Regulatory Commission. Referring to the judgment of Maharishi Markandeshwar University v. State of H.P.68 of the Supreme Court of India, the Court held that it is only the constituent colleges of the State university that would require affiliation, and not the private universities established under the private university enactment of the State. Imposing the condition for affiliation on such a university is clearly an inroad into the autonomy of the institution concerned, which cannot be permitted. Accordingly, the notification of the State insofar as it mandated the university concerned to procure affiliation from State medical university was quashed qua the private universities established under TNPU Act, 2019.
On the second issue of inclusion of 35% seats in the all India counselling process, Court held that referring to Regulation 3 of the Graduate Medical Education Regulations, 1997 (GME Regulations), the Court held that a university established under the State enactment viz. the TNPU Act, 2019 shall be deemed to be a University established by the State enactment, referring to a longline of judgments of S.S. Dhanoa v. MCD69. When the colleges affiliated to TNMGR medical University can be included in the all India counselling, there is no hindrance for ingredient colleges of the private university of the petitioners being covered by Clause 3 of the GME Regulations. However, the court lamented the absence of any mechanism or framework through which all AIQ counselling can be extended and convened for private Universities in the State of Tamil Nadu, for which purpose the center and the State authorities were directed to immediately come out with such a framework. Accordingly, the writ petition was allowed, and the seats approved by the NMC of the medical course of the petitioner institution were directed to be included in the counselling process.
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(21) National Medical Commission v. Pooja Thandu Naresh70
(Delivered on April 29, 2022)
Coram: 2-Judges Bench of HM Justices Hemant Gupta and V. Ramasubramanian
Authored by: HM Justice Hemant Gupta
The challenge was laid to the judgment of Madras High Court, which quashed the circular issued by Tamil Nadu Medical Council, that imposed the requirement of compulsory rotatory residential internship, followed by one year of internship before granting permanent registration under IMC in India. It was argued on behalf of the candidate that since she was declared qualified by the foreign institute after undertaking online teaching courses during the COVID-19 Pandemic, no additional requirement could be imposed by either the State Medical Council or the National Medical Commission as a precondition for registration as a medical practitioner. The only requirement that could be imposed is qualifying and clearing the screening test, imposed vide Screening Test Regulations of 2002.
The court extensively referred to eligibility regulations and screening regulations published in the GoI Gazette on 18-2-2002, which required the candidate concerned to undergo and clear the screening test. The admitted fact before the court was that the student had not undergone the practical and clinical training in the physical form, but only through online mode for the entire duration. Referring to Regulation 4(3), the Court held that since the candidate had not completed the mandatory clinical training as part of a curriculum, the course cannot be said to have been completed properly. The necessity of completing the entire duration of the course, including the clinical training is mandatory when the eligibility eegulations are read along with Graduate Medical Education Regulations, 1997. The candidate concerned may be eligible and entitled to practice in a foreign country, but he/she cannot be allowed to practice in India. Referring to the judgment of Orissa Lift Irrigation Corpn. Ltd. v. Rabi Sankar Patro71, the Court held that practicals and clinicals form the backbone of the education with a hands-on approach involving actual application of principles taught in theory and thus without practical training, there cannot be any doctor expected to take care of the citizens of our country. Further screening examination is no proof of the clinical experience gained by the students, nor can it be its substitute. Accordingly, the decision of the High Court was held to be improper as an interference with expert opinion. Directions were issued to the NMC for providing one-time relaxation to all such students who were not able to complete their clinical training during the COVID pandemic.
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(22) Aravinth R.A. v. Union of India72
(Delivered on May 2, 2022)
Coram: 2-Judge Bench of HM Justices Hemant Gupta and V. Ramasubramanian
Authored by: HM Justice V. Ramasubramanian
Challenge was made to the constitutionality of various provisions of National Medical Commission (Foreign Medical Graduate Licentiate) Regulations, 2021, (for short “Licentiate Regulations”) and the provisions of National Medical Commission (Compulsory Rotating Medical Internship) Regulations, 2021, (for short “CRMI Regulations”), published in November 2021. The provisions were challenged by various students, who had undertaken their studies from various foreign universities and were unable to complete the course during the pandemic years of 2020, 2021 and 2022. The provisions of Licentiate Regulations provided for a minimum duration of the medical course being undertaken abroad; minimum duration of internship so undertaken abroad; registration with the regulatory body, etc. in the same vein, the provisions of CRMI Regulations provided for compulsory internship in recognised medical colleges as a precondition for permanent registration as a medical practitioner in India; undertaking of national exit test; registration with the regulatory body both prior and post commencement of the medical course with the competent regulatory authority in the countries where the course is being undertaken, as also in India. The challenge was mounted on various grounds, fundamentally being arbitrary, and violative of Part III rights of the Constitution of India. However, the court repealed the challenge, quoting many past experiences (mostly in the form of scams), that dropped the medical education sector in the late 1990s and early decade of 2000 on fake doctors completing education courses from abroad and then seeking registration in India. The necessity of “time”, which warranted the experts in the field of education to introduce rigorous, protective, and stringent measures for verification of all those students undertaking medical education abroad, so that those who do not undertake the course genuinely are segregated from those who have undertaken it so.
In its reasoning, the court traced the origin of statutory provisions governing foreign medical education right from the year 1916, when such provisions were being introduced, especially under Medical Degrees Act, 1916, followed by Indian Medical Council Act, 1933. The Court held that pre-admission and post-completion of the medical course concerned, the expert body has full authority to determine the eligibility of any candidate who wants to study abroad, as he shall be utilising the skill obtained abroad to the citizens of the country, for the purposes of which the checks and restrictions can be imposed. The court also referred to a longline of judgments, which was delivered by the Supreme Court in the petitions filed by students who had pursued medical education from abroad seeking regularisation of their degrees from time to time and how courts were constrained to grant them relief in the absence of appropriate regulatory restrictive provisions. Reference in this respect was made to Medical Council of India v. Indian Doctors from Russia Welfare Associations73, Sanjeev Gupta v. Union of India74, Rohit Naresh Agarwal v. Union of India75.
Thus, accordingly referring to Sections 15, 35 and 36 of the NMC Act, Court held that no unreasonability or arbitrariness can be attributed to the Licentiate or CRMI Regulations, affirming the constitutionality of the same in view of the existence of laudable objectives behind it attending to the public health concerns of the country.
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(23) K. Ragupathi v. State of U.P.76
(Delivered on May 12, 2022)
Coram: 2-Judge Bench of HM Justices L. Nageswara Rao and B.R. Gavai
Authored by: HM Justice B.R. Gavai
The appellant challenged the termination order issued by Gautam Buddha University, Greater Noida, U.P. without holding an enquiry submitting that he could not have been suddenly relieved, which in effect was a punitive termination and passed in a mala fide manner. The appellant was appointed following the same mode and manner, which was being followed for appointment of permanent and regularly employed teaching employees but on a purely contractual basis. The appointment was affected from amongst the applicant candidates by the Selection Committee and thus even though the nomenclature of the appointment was contractual, for all intended purposes, they were required to undergo the entire selection process, which was born out from the affidavit of the university itself filed before the High Court. The terms and conditions are almost like a regular employee, including maintenance of annual performance assessment report (APAR) and grading of performance of the employee in the same including his reputation and integrity.
The High Court had dismissed the writ petition holding the appellant to be a contractual employee, setting aside which direction, the Court held that since the employment was partaking the character of a regular employee, he could not have been terminated without following the due principles of natural justice, especially when the services were discontinued plausibly on account of stigmatic allegations made against him by the Dean of the said University relating to his performance in the services. Accordingly, the termination order was set aside with due reinstatement of the appellant.
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(24) Dr.Vikas R.S. v. State of Kerala77
(Delivered on May 26, 2022)
Coram: 2-Judge Bench of HM Justices S. Manikumar and Shaji P. Chaly
Authored by: HM Justice Shaji P. Chaly
Challenge was put to the judgment of a learned Single Judge, through which dismissed the writ petitions of the petitioners, who were all government doctors holding that the provisions of Regulation 9 (IV) of the Medical Council of India Postgraduate (for short “MCIPG”) Medical Education Regulations, 2000 do not confer any right on the Government Medical Officers serving in rural areas to get weightage in the marks as incentive for the services rendered by them. The State of Kerala had a service quota in the PG medical course seats. Vide this service quota, the Government doctors, who had served in rural, remote, and difficult areas were entitled for being included in the said service quota along with grant of incentive marks. However, doctors working in rural areas were demanding to be given special reservations in the PG degree seats. The Single Judge held that a writ of mandamus cannot be issued for providing incentives or reservation to the Government medical doctors, nor can the existing provisions of the prospectus/brochure be challenged as arbitrary and violative under Article 14 of the Constitution of India. The Division Bench affirmed the judgment of the Single Bench, holding that no such directions can be issued and that splitting up of seats between the three departments viz. medical education service, health service, and insurance medical service in the ratio of 45:45:10 of the service quota cannot be treated as unjustifiable. No right is conferred on medical officers in the services of Government/public authorities to get weightage in the marks as an incentive for service in notified rural areas in such circumstances. Therefore, the court was handicapped in issuing any such direction to the government for incorporating the said provisions to the advantage of the appellants. Accordingly, the appeals were dismissed.
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(25) Pranati Aguan v. State of W.B.78
(Delivered on June 10, 2022)
Coram: Single Judge Bench of HM Justice Moushumi Bhattacharya
Authored by: HM Justice Moushumi Bhattacharya
The petitioners who were all aspiring to be appointed on the post of headmaster/headmistress challenged the amendments made to the West Bengal School Service Commission (Selection for Appointment to the Posts of Headmaster/Headmistress in Secondary or Higher Secondary and Junior High Schools) Rules, 2016, through which enhanced qualifications for selection on the post of headmaster/headmistress in schools were imposed. The qualifications were enhanced from 45% to 50%, which were challenged essentially on two grounds; firstly, on treating equals as unequals and creating a class between the existing appointed headmaster/headmistress serving the institutions (with lower qualification) and those to be appointed subsequently. Secondly, that the other departments of the State running schools are following and adhering to the qualification requirement of 45% and not 50% within the State and thus employees of one department are being unfairly treated by being subject to higher qualifications, after having served continuously for more than 10 years at various schools on the post of teachers/assistant teachers.
Court held that the petitioner cannot have any legitimate expectation, much less any vested right of being recruited to the post of headmaster/headmistress, which is always subject to eligibility criteria being determined by the employer. Thus, if the employer chooses to adopt the norms and standards laid down by the National Council for Teachers Education (for short “NCTE”), which is the apex authority governing the eligibility qualifications of the teachers, teaching in schools and pre-primary, primary, upper primary, secondary, and senior secondary education, then such a decision cannot be interfered with. It was further held that even though other departments of the State are following and adhering to lower qualification criteria, it cannot be a ground for striking down the higher qualification imposed by one department as progressive measures towards enhancement and improvement of educational standards must always be respected and revered by the courts. Maybe higher qualifications laid down by one department become a measure worth being emulated by other departments. On the aspects of treating equals as unequals, the Court held that there cannot be any comparison as prospective aspirants for the post of headmaster/headmistress standing on a different footing than existing post holders of headmaster/headmistress. The violation of the guarantee of equality can be alleged only if there is iniquitous treatment of persons falling within the same bracket despite their homogenous characteristics. Thus, the prospective aspirant for the post of headmaster/headmistress cannot be treated at par with those already serving on the said post. Higher educational qualifications are in consonance with Article 21-A of the Constitution of India for ensuring the excellence in academic standards through the excellence of teachers and staff as also pronounced in the landmark judgment of State of Orissa v. Mamata Mohanty.79
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(26) Bhat Ab. Urban Bin I Aftaf v. UT of J&K80
(Delivered on June 27, 2022)
Coram: Single Judge Bench of HM Justice Sanjeev Kumar
Authored by: HM Justice Sanjeev Kumar
The challenge was laid by a BDS candidate, who had qualified the Pre-PG NEET entrance examination for admissions to the master of dental surgery course (PG seat). The Court held that denial of seat was unfair, but the question arose about adjustment of the candidate as the counselling process was already over and the last date of admission had expired. In the aforesaid context, Court held that under Article 226, the High Court has plenary powers to do justice for any petitioner candidate, who would be entitled to relief on being treated unfairly and unreasonably by the counselling and admission authorities. Referring to the judgment of S. Krishna Sradha v. State of A.P.81, the Court held that if a meritorious candidate has been denied admission by the counselling authorities illegally or irrationally for no fault of his/her, then the court can direct for increasing of seats even after expiry of the deadline for accommodating and effecting admissions to such deserving candidates. Court may also direct the private medical college concerned to keep the equivalent number of seats vacant in the subsequent years to enable them to complete their education timely. Relying on the aforesaid judgment, Court held that since in the present case, the petitioner had been denied unjustly and irrationally the benefit of reservation by the State authorities, therefore he should be accommodated in the current year by increase of one seat and the said seat should be adjusted in the next academic year for the overall intake. Accordingly, using its extraordinary inherent powers available under Article 226, the High Court granted relief to the petitioner.
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†Partner, SVS Attorneys. Expert in constitutional, civil and securitisation laws and practising advocate at the Supreme Court of India.
†† 4th year Student at Dr B.R. Ambedkar National Law University, Sonepat.
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24. WP No. 2487 of 2022, decided on 30-3-2022 (MP HC).
30. Gambhirdan K. Gadhvi v. State of Gujarat, (2022) 5 SCC 179.
31. (2022) 5 SCC 179, 209.
37. Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405.
41. 2019 SCC OnLine Del 11964.
45. WP No. 20083 of 2020, order dated 7-4-2022 (Madras HC)
47. CWP. No. 16886 and 17072 of 2019, decided on 17-7-2019 (P&H HC)
67. WP Nos. 1392 and 9236 of 2022, decided on 29-4-2022 (Madras HC)
77. WA No. 219 of 2022, decided on 26-05-2022 (Kerala HC)
80. CM 2064 of 2022 in WP (C) No. 2020 of 2021, decided on 27-6-2022 (J&K HC, Srinagar Bench).