- (1.) INITIALLY, this Court intended to hear the case finally, but the respondents No.1,2 and 5 have filed reply / counter affidavit today i.e. 27.5.2011 during the court hours. However, the respondent No.6 - Dental Council of India has filed reply on 23.5.2011 but the same was not on record, therefore, the case was passed over and all the aforesaid replies/counter affidavit were called from the Registry and taken on record and thereafter, the case was taken up for hearing,in the second round. In these circumstances, counsel for the parties were asked to address the Court finally either on 30th or 31st May, 2011 i.e. the next working days just before the summer vacations or on any other date during the summer vacations but as the Pre-entrance Test for admission to MBBS/BDS has been scheduled to be held on 29.5.2011, therefore, Mr.Ashok Gaur, Sr.Advocate appearing for the petitioner Institution has expressed urgency for consideration of the interim relief today.
(2.) AFTER careful perusal of the writ petition, reply / counter affidavit of the respondents, the case was heard for consideration of the interim relief. The petitioner NIMS University Rajasthan (in short `the petitioner Institution') has filed an application for staying operation of the order dated 4.3.2011 (Anx.1) passed by the respondent No.2 whereby, on account of not giving option for admission in MBBS / BDS either through PCPMT or RPMT, the petitioner Institution has violated the judgment of the Supreme Court, therefore, it was directed to ensure that the admissions in MBBS and BDS in academic session 2011-2012 be given through RPMT,2011. Submission of counsel for the petitioner Institution is that in the letter dated 4.3.2011 (Anx.1) as well as the explanation letter dated 16.9.2010 (Anx.2), the respondent No.2 has referred extract of para 16 of the judgment of Islamic Academy of Education V. State of Karnataka (2003) 6 SCC 697 (5 Judges' Bench) which has been watered down in the later judgment of the Supreme Court in P.A.Inamdar V.State of Maharashtra (2005) 6 SCC 537 (7 Judges' Bench judgment) but the judgment in P.A.Inamdar has been ignored. Mr.Gaur then submits that the petitioner Institution is entitled to prescribe its own admission procedure as per Para 137 and 138 of P.A.Inamdar as the petitioner Institution satisfies the triple test of fairness, transparency and non-exploitation of the students. Mr.Gaur appearing for petitioner Institution has also placed reliance on the example of 24 other institutions affiliated to different Universities which have been allowed to conduct their own examinations, along with one paragraph of DB Special Appeal No.257/2010 Director,Geetanjali Medical College V. State of Rajasthan decided on 3.9.2009, which permitted the examinations either by the State agency or through the Federation. Mr.Gaur summed up his submissions that the petitioner Institution also fulfills all the three tests of fairness, transparency and non-exploitative, as referred to in Para 137 of Pai Foundation and has earlier been allowed to conduct its separate Pre Entrance Test,2010 for MBBS/BDS, and further relied on in para No.32 of the counter affidavit filed by the M.C.I., therefore, the petitioner Institution being a University imparting medical education is entitled to hold separate entrance examination.
(3.) MR.N.A.Naqvi, Addl.AG submits that although the judgment of Islamic Academy of Education (supra), has been referred to in the Explanation as well as the order dated 4.3.2011, which is under challenge, but the same has not been diluted even in P.A.Inamdar as regards holding of the Common Entrance Test (CET) in Para 136, and there is no illegality in the order dated 4.3.2011. Counsel for the State further submits that the petitioner Institution has neither opted for the RPMT nor PCPMT by joining of other Institutions imparting same or similar professional education, for holding a Common Entrance Test (CET) with the further satisfaction of the triple tests of fairness, transparency and non-exploitative, as directed by the Supreme Court in P.A.Inamdar in Paras 136 and 137, therefore, the State has rightly issued order dated 4.3.2011 (Anx.1) directing the petitioner Institution to ensure admission in the MBBS for the academic session 2011-2012 through RPMT,2011. Counsel further submits that the RPMT, 2011 has been held on 22.5.2011, the result of which has been declared on 26.5.2011 and further the seats of the petitioner Institution have been included in the RPMT, 2011 therefore, there are chances that the students who are desirous of getting admission in the petitioner Institution have also applied for RPMT, 2011, looking to the large number of seats, and for seats of the private colleges, PCPMT for all other private unaided medical institutions will be held on 29.5.2011 for which the petitioner Institution has not opted and further the students who stand in merit in RPMT,2011 may get admission in the petitioner Institution also in case the petitioner Institution is now allowed to hold its independent separate examination then it will create further complications. Mr.Naqvi then submits that there are several private un-aided medical institutions in the State of Rajasthan and in case every such institution is allowed to hold its independent pre entrance examination, then from the month of May of the respective year, i.e. the month of holding of the examination of RPMT to the date of declaration of the result i.e. 15th June of the respective year, as per the calendar prescribed by the Supreme Court in MCI V. Madhu Singh ((2002) 7 SCC 258), there will be pre entrance examination on every alternate day, if not on each day and that will cause great hardship and mental agony to the students, therefore, the Supreme Court has emphasized the need of common entrance examination in para 16 of the Islamic Academy of Education and in paras 136 and 137 of P.A.Inamdar, the aforesaid principle of Islamic Academy of Education has not been deviated although in certain circumstances, in Para 137 it has been held that where there is a single Institution imparting a particular type of education which is not being imparted by any other institution or all institutions imparting same or similar professional education can join together for holding a common entrance test subject to the satisfaction of triple test of fairness, transparency and non-exploitation of the students. In Rajasthan, PCPMT for all other private medical unaided institutions, who have opted for the same, is to be held on 29.5.2011, for which also, the petitioner Institution has not given any option despite notice dated 16.9.2010 and 20.12.2010, therefore, the action of the State of inclusion of the seats of the petitioner Institution in the RPMT is not contrary to the aforesaid law laid down by the Supreme Court. ;