IMPORTANT POINT
When there is conflict between decisions of two Benches, the matter should be referred to larger Bench.

Judgment :

1. Heard the learned counsel for the appearing parties. The applicants in these interlocutory applications have prayed that the NRI seats in medical colleges lying unfilled be permitted to be filled in by the applicants.

2. We are of the opinion that there appears to be some conflict, prima facie, between the observations made in para 28 of the judgment of the two-Judge Bench rendered in

R.D. Gardi Medical College v. State of M.P. (2010 (10) SCC 225), quoted below : (SCC p.233, para 28).

“28. A plain reading of the above leaves no manner of doubt that unfilled NRI seats had to be transferred to the general pool to be filled up on the basis of the merit of the candidates in the State-level common entrance test conducted by the Madhya Pradesh Vyavsayik Pariksha Mandal or by any other agency authorized by the State Government for that purpose. The unfilled seats in the NRI quota were, therefore, to be treated as a part of the general pool and once that was done the share of the college in terms of the order passed by this Court would be 50% out of the said seats. The High Court has, in that view, rightly held that while the management was justified in filling up 5 unfilled seats in NRI quota, the remaining 5 could not have been filled up otherwise than on the basis of the entrance test referred to in Rule 8.”

And the observations made in para 27(1), quoted below, of T.M.A. Pai Foundation v. State of Karnataka (1995 (5) SCC 220) which is a three-Judge Bench decision: (SCC p.230, para 27)

“(1) So far as NRI quota is concerned, it is fixed at fifteen per cent for the current academic year. It shall be open to the management to admit NRI students and foreign students within this quota and in case they are not able to get the NRI or foreign students up to the aforesaid specified percentage, it shall be open to them to admit students on their own, in the order of merit, within the said quota. This direction shall be a general direction and shall operate in the case of all the States where admissions have not been finalized. It is, however, made clear that by virtue of this direction, no student who has already been admitted shall be disturbed or removed.”

(emphasis supplied)

3. In view of the above, let the matter be referred to a larger Bench to resolve this issue. Since, the admissions are about to start shortly, the Registry is directed to place the papers before the Hon’ble the Chief Justice forthwith and we would request the Hon’ble the Chief Justice to constitute a larger Bench at a very early date.