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2015 Supreme(MP) 838
MADHYA PRADESH HIGH COURT
Sheel Nagu and Rohit Arya, JJ.
Shraddha Varshney and others v. Union of India and others
Writ Petition No.6637 of 2015 (Gwalior); Decided on 6.10.2015.
Shashank Shekhar for petitioners;
Vivek Khedkar, Assistant Solicitor General for Union of India;
Vishal Mishra, Deputy Advocate General for respondent/State.
Headnote:Constitution of India -- Art.226 -- BDS Course Regulations, 2007 -- Rr.1(1)(3) and 11(5) -- M.P. Niji Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Evam Shulk Ka Nirdharan) Adhiniyam, 2007 -- Ss.6 and 7 -- Admission Rules, 2008 -- R.8(2) -- discharge of all students admitted in BDS Course in Academic Session 2014-15 -- on ground of admission made on basis of marks obtained in Class XII Exam -- none of petitioners passed mandatory National Eligibility-cum-Entrance Test before granting admission -- liberty given to college authorities to fill-up unfilled seats based on marks obtained in qualifying examination -- circumscribed by limiting its application to certain types of courses -- college authorities have no jurisdiction to fill-up unfilled seats on basis of Class XII qualifying examination -- admission of petitioners is in contravention of mandatory statutory provision -- grant of relief shall encourage unscrupulous and undeserving elements -- no case made out -- petition dismissed.
Held : A bare perusal of the above said rule 8(2) makes it clear that if contingency arises where seats are left unfilled even after two rounds of centralized counselling based on the merit, list prepared pursuant to Common Entrance Test (NE and ET) then the college authorities are extended liberty to fill these seats based on the marks obtained in qualifying examination (Class XII Examination). However, this liberty is circumscribed by limiting its application to certain type of courses. However this very provision in express terms excludes the course of MBBS and BDS from its application.
Thus, in regard to the course of MBBS and BDS, the college authorities have no jurisdiction to fill up the unfilled seats on the basis of Class XII qualifying examination.
The admission of the petitioners being in contravention of the mandatory statutory provisions, the same do not give them any right to continue or to appear in examination and therefore the said ground is untenable. (2000)7 SCC 529 and (2012)7 SCC 433 followed. (2015)8 SCC 519 and (1971)1 WLR 1578 referred to. Writ Petition No.6140 of 2015; dated on 7.9.2015 distinguished.
[Paras 18, 19 & 20
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bl izdkj dkWyst izkf/kdkjhx.k ,e ch ch ,l rFkk ch Mh ,l ikB~;Øeksa ds laca/k esa d{kk 12oha vgZrk ijh{kk ds vk/kkj ij fjDr LFkku Hkjus dh vf/kdkfjrk ugha j[krs gSaA
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Nagu, J. -- 1. The present petition under Article 226 of Constitution of India assails the Annexure P-1 dated 21.9.2015, by which the Dental Council of India in its executive meeting held on 5.8.2015 in Delhi decided to discharge all 100 students (which includes 67 petitioners herein) admitted in the BDS Course in the academic Session 2014-2015.
2. The reason assigned for passing the said impugned order is that admissions of these petitioner students was made solely on the basis of the marks obtained by them in the Class 12th Examination under the 10+2 pattern, without the students appearing and qualifying in the competitive exam which is mandatory as per the selection procedure prescribed in the revised BDS course Regulations amended w.e.f. 1.6.2012 (date of publication in the Gazette of India [Extraordinary]) and made applicable from academic session 2013-14.
3. The learned counsel for the petitioner primarily contends thus :
(i) No opportunity of any kind was afforded to the petitioner students before canceling their admissions.
(ii) Despite the admissions of petitioner students having been made in accordance with law, the same are being termed as unlawful.
(iii) At the fag end of the 1st year of BDS Five year course, when petitioner students are due to appear in the 1st year examination scheduled for 30th September,2015, the present impugned order has been passed.
(iv) Reliance is placed on the interim order passed on 7.9.2015 in Writ Petition No. 6140/15 by a Coordinate Bench of this Court at Indore, in a petition involving similar facts and circumstances.
4. The learned counsel for the respondent on the other hand supporting the impugned order contends that admissions to the BDS course could not have been made solely on the Class 12th Examination. Drawing attention of this Court to the Dental Council of India’s revised BDS Course Regulations 2007, it is submitted that appearing and passing in the competitive exam is mandatory for being eligible for admission to the BDS five years course. For not having done so, the petitioners are back door entrants and therefore are not entitled to any relief.
5. The learned counsel for the petitioner students does not dispute that the admission of the petitioners to 5 year BDS Course was made by way of allotment of seats by Association of Private Dental and Medical Colleges of M.P. solely based on marks awarded to petitioner students in Class 12th Examination, without the petitioners appearing or qualifying in the competitive examination.
6. The above said fact which is not disputed by the petitioners which gets reinforced by mention of the term “Exam Type:10+2” mentioned at the top left corner of the allotment slips issued to all the petitioners by the said Association which are cumulatively marked as Annexure P-2 from pg. 28 to pg 94 of this petition.
7. Thus, the only controversy involved herein is as to whether the admission to 5 year BDS Course could be made solely on the marks awarded in examination of Class 12th without appearing and qualifying in the prescribed competitive examination.
8. The Dental Council of India is the supreme authority which inter alia lays down the standard and yardsticks for admission to the courses recognized by it including the Five years course of Bachelor in Dental Surgery (BDS). The Council has been created by ‘The Dentist Act 1948' and has framed the Dental Council of India’s revised BDS Course Regulation 2007 (Regulation for brevity).
9. The Regulations underwent wide spread amendment vide notification dated 31.5.2012 published in the official gazette of India whereby securing minimum of 50 per cent marks by unreserved candidate, 40 percent marks for reserved category candidate and 45 percent marks by physically challenged candidate in the “National Eligibility Entrance Test” became mandatory. These amendments were brought into effect from the academic session 2013-2014. The relevant sub-regulation (2) of regulation I and sub-regulation (5) of regulation
