MADAN, J. - (1.) MAHATMA Gandhi National Institute of Medical Sciences (MGNIMS) (for short, petitioner institute) has sought an appropriate writ inter alia for (1) setting aside order dated 7. 11. 2001 (Ann. 17) having been passed upon counselling conducted on 2. 11. 2001 and thereby further directing the respondents to fill up remaining vacancies as per waiting list prepared after conducting admission exercise on 28. 9. 2001; (2) declaring that Principal of the petitioner Institute is entitled to be included in the Central UG Admission Board for admission in the medical colleges in future courses and (3) holding that the University, State Government so also Central UG admission Board are bound to follow the Medical Council of India Regulations (for brevity declaring cut off date as laid down in Unni Krishnan's case (1), and consequently for directing the respondents to complete all Central UG admission exercise with three months after declaration of the result so as to complete medical courses within four & half years in future.
(2.) THE petitioner is a Mahatama Gandhi National Institute of Medical Sciences (for brevity "petitioner Institute") and is a first private medical college in Rajasthan. Only by letter dated 24. 8. 2001 (Ann. 1) sent by the Director Ministry of health & Family Welfare Government of India New Delhi conveying approval of the Central Government to the Chairman & Managing Director Indian Education Trust Jaipur as to the establishment of a new medical college in the name & style of the petitioner Institute with an intake of 100 (one hundred) students with prospective effect from the academic year 2001-02 under Section 10a of the Indian Medical Council Act, 1956 (for short "mci act" ). This permission u/sec. 10a of the MCI Act was accorded by the Central Government for establishment of the College and admission of students initially for one year subject to renewal on yearly basis on verification of achievement of annual targets set out in the project report. It was also made clear in the permission letter that the college shall not admit more than one batch of students against this permission and the college should apply to Medical Council of India (MCI) for renewal of permission well before commencement of next academic session; and that next batch of students shall not be admitted unless renewal of permission is granted by the Central Government. A copy of this permission letter was sent to the Secretary Health & Family Welfare Government of Rajasthan (respondent No. 1) and the Registrar University of Rajasthan, jaipur (respondent No. 3 ). Pursuant to this permission, the Government of Rajasthan by its letter dated 27. 8. 2001 (Ann. 4) directed the Principal SMS Medical College (convenor of the Admission Board) respondent No. 2 & 4) for allotting 100 students to the petitioner Institute for their admission in MBBS course for academic session 2001-02 as the permission granted by the Central Government by letter dated 24. 8. 2001 (Ann. 1 ). On 30. 8. 2001 the Registrar (respondent No. 3 University) conveyed permission (Ann. 5) of the Vice Chancellor to allot provisionally one hundred students on 1st MBBS course in the petitioner Institute for academic year 2001-02 subject to grant of affiliation to it by the University subsequently according to the normal procedure & prevalent rules & regulations. It is pertinently to state at the very outset that for the academic year 2001-02, though permission to the petitioner Institute for establishment of Medical College was granted by the Central Government on 24. 8. 2001 & the State Government on 27. 8. 2001 and by the University on 30. 8. 2001 but process of admission to this academic year in Five State Medical Colleges had already began much before it on 21st to 24. 05. 2001 when Pre-medical Tests were held and its result was declared on 15. 7. 2001 and notification was issued on 9. 8. 2001 (Annr. 2) notifying counselling dates in between 27th to 31. 08. 2001. Naturally for admission & allotment of 100 students in the petitioner Institute, notification was issued after having received grant of permission to it only after 27th of 30th August 2001. Hence notification was issued on 15. 9. 2001 (Ann. 6) notifying date of counselling for admission & allotment of students in the petitioner Institute. On a careful perusal of this counselling Notification of 15. 9. 2001 (Ann. 6) it is clear that to all the successful students who have joined & continuing allotted MBBS/bds course 2001 in different categories in all State Medical Colleges were given another opportunity by way of inviting their application & choice for admission in the petitioner Institute by way of reallotment/reshuffle and it was made specific that the petitioner Institute was having 50 free seats for being filled up among SC/st/obc & General categories while 35 payment seats and these both the seats (free & Payment) were notified to be filled up on merit cum priority as per Ordinance 272 of the University of Rajasthan. A series of dates of events which had happened before the grant of permission (24. 8. 2001) have also been stated in the petition, viz. that consent of affiliation was given by the respondent No. 3 on 14. 11. 2000 (Ann. 18a) subject to grant of permission by the Government of India u/sec. 10a of the MCI Act on the prescribed form; that he informed the Governor of Rajasthan by his letter of 26. 7. 2001 (Ann. 18) that the MCI had already inspected & compliance report was given by the Institute and therefore it should be provided students from the first counselling so as to give fair chances to students to choose new medical college; that similar request as repeated in Ann. 18 was also made to the respondent No. 2 to include the petitioner Institute alongwith other State Medical Colleges; that the MCI sent a letter on 3. 8. 2001 to the Central Government recommending to issue letter of Intent for the new medical college (petitioner institute) which was issued by the Central Government on 14. 08. 2001 and consequently the petitioner Institute on 18. 08. 2001 again reiterated its claim for providing students, but curiously enough once out of 100 intake students, allotted by grant of permission of the Central Government on 24. 8. 2001 and by State Government on 27. 8. 2001 only after notification of 19. 8. 2001 notifying 1st counselling, the petitioner Institute has already admitted 81 students except vacant seats upon having been allotted by the respondent No. 2 these series of events do not render any help to the petitioner Institute in advancing its case for the controversy at issue in respect of 12 seats allotted under impugned order of 7. 11. 2001 (Ann. 17 ). Rather I do not deem it appropriate to enter into these events of dates earlier to the grant of permission as to the controversy at issue involved herein and suffice is to say that unless permission is granted by the Central Government u/sec. 10a of the MCI Act, no private medical college can be held and/or deemed to have established its Institute, nor such an Institute can either be allowed to run or allot students for admission in the academic session. Admittedly 81 students (50 free seats 31 payment seats as against total notified 85 seats) were allotted for admission in the petitioner Institute. Though as against four payment seats having remained vacant under Notification of 15. 9. 2001 (Ann. 6) the petitioner Institute has made allegation of malafide against the respondent NO. 2 & 4 but in reply it has been contended that since the petitioner Institute is a private medical college and vacancy is of payment seats causing enormous fees chargeable by it, the students were only interested in getting themselves admitted in six State Medical Colleges and once the respondents have no candidates opting for payment seats for admission in the petitioner Institute, therefore, the respondent Convenor had no option to allot no students on payment seats to it.
(3.) THE petitioner Institute in its letter of 20. 10. 2001 (Ann. 11) intimated categorywise vacancy position and out of total seven seats, five were free and two were payments seats. THE Convenor (respondent No. 2) issued Notification of 23. 10. 01 notifying one free seat of OBC male category, three free seats of General category and six payment seats as vacant in the petitioner Institute due to non-joining of the students within stipulated time, for being filled up on reallotment/reshuffling, to which the petitioner Institute protested by sending its requests one after the other (Ann. 13, Ann. 16 ). Though one of requests (Ann. 14) of the petitioner was that as per Ordinance 272 of the University, the principal of the petitioner Institute be also allowed to participate in the counselling to be held by the UG admission Board on 2. 11. 2001 but the respondent No. 2 in his letter of 31. 10. 2001 (Ann. 15) respondent as under:- " Please refer to the Ordinance of University of Rajasthan Jaipur Education 2001-02 at page No. 10 under Heading, "interview by Admission Board and Allotment of Place of Study", which reads as (i) selection will be done by the Undergraduate Admission Board consisting of all the Principals/representatives of the State Medical Colleges with Principal of SMS Medical College, Jaipur as its Convenor" and accordingly the members of the UG Admission Board have been invited to attend the UG Admission Board meeting to be held on 2. 11. 2001 and for which letters have already been sent to them. This is for your information. " The dispute arose when the respondent No. 2 issued order of 7. 11. 2001 (Ann. 17) by which six payment seats were filled up by allotting six students whose names find place at S. No. 17 & 19 to 23 whereas six students of different category were allotted free seats out of which one was of SC student as fresh allotment while other five free seats of different categorywise (whose names find place at S. No. 1 to 6) were allotted by reshuffling their course from BDS JP to MBBS course. Now the decks are clear that this petition raises a dispute on allotment of 12 seats (six each of free & payment seats, ibid) to the petitioner Institute by order of 711. 2001 (Ann. 17) only. Hence this writ petition. Not only in the reply to the writ petition but also at the threshold of arguments during the course of hearing, much stress was laid to the preliminary objection as to the maintainability of the petition, itself, for want of impleadment of necessary party viz. the students allotted or reshuffled under the impugned order of 7. 11. 2001 (Ann. 17 ). These students had also applied for imploding them as necessary party to the petition but this Court by its order dt. 6. 12. 2001 dismissed an application moved by Shri Virendra Lodha Keeping in view the fact that the petitioner Institute firstly admitted these 12 students provisionally inasmuch as their fees charged had already been refunded back and their admission was made by the respondent No. 2 subject to the decision of this petition. However, the applicants were given liberty to advance their arguments. Their rights had not created for admission by reshuffling or reallotment of the college rather the impugned order of admission was made subject to the outcome of this petition, hence the question of imploding these students as party respondent to this petition does not arise being not affected, inasmuch as their merit position was being shown only on the basis of documents annexed by them to their application for admission to medical course under the PMT 2001 by the respondents herein. ;