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CASE NO.: Writ Petition (civil)  306 of 2004

PETITIONER: Mridul Dhar (Minor) & Anr.

RESPONDENT: Union of India & Ors.

DATE OF JUDGMENT: 12/01/2005

BENCH: Y.K. Sabharwal, D.M. Dharmadhikari & Tarun Chatterjee

JUDGMENT: J U D G M E N T

[With W.P. (C) Nos.308 and 345/2004]

Y.K. Sabharwal, J.

About two decades ago, on June 22, 1984 in Dr. Pradeep Jain &  Ors. v. Union of India & Ors. [(1984) 3 SCC 654], it was directed that  admissions in medical colleges or institutions run by the Union of India or  State Government or a Municipal or other local authorities for MBBS and  BDS courses to the extent of at least 30% shall be granted on the basis of  All India Entrance Examination and 50% in respect of post graduate  courses.  The percentage of seats to be allotted on All India basis was  modified in  Dr. Dinesh Kumar & Ors. (II) v. Motilal Nehru Medical  College, Allahabad & Ors. [(1985) 3 SCC 22] and in Dr.Dinesh Kumar &  Ors. (II) v. Motilal Nehru Medical College, Allahabad & Ors. [(1986) 3  SCC 727].  For MBBS/BDS courses, the All India Quota was directed to be  15% of the total number of seats and 25% of total number of seats for  post-graduate courses.  The percentage of post-graduate courses has  been increased to 50% {Saurabh Chaudri & Ors. v. Union of India &  Ors. [(2003) 11 SCC 146]}.  The higher percentage would be operational  from the academic year 2005 {[ Dr.Saurabh Chaudri & Ors. v. Union of  India & Ors. [(2004) 5 SCC 618]}. The question whether the All India Quota of MBBS/BDS courses  shall be increased from its present 15% is one aspect but the real and  main aspect to be considered is about giving full effect to 15% quota by  including all seats while working out 15% quota and by strictly adhering to  the time schedule by the State colleges and institutions. The aforesaid aspects come to light when this petition was filed on  10th July, 2004 by two students through their father, as legal guardian, they  being minors, apprehending that they may be deprived of seat in All India  Quota despite having secured fairly high ranking on merits in All India  Entrance Examination taken by about 2,00,000 students.  It was, inter alia,  brought to the notice of the Court that various States had not complied with  the time schedule for completion of the admission process and had not  given full information to DGHS besides not taking into consideration many  seats while working out 15% All India Quota.  On 29th July, 17  States/Union Territories through their Chief Secretaries and Secretaries of  their Health Department were directed to supply to the Director General  Health Services (DGHS), the requisite information as to the date of the  tests conducted by the States, the dates of first counseling and the dates  of joining of the candidates.  This information was of paramount  importance as the second counseling for the allotment of 15% All India  Quota was to commence from 1st August.  In absence of the requisite  correct information, meritorious students looking for admission in this  category on the basis of All India Entrance Examination could be seriously  prejudiced.  The importance of the time frame has been noticed in brief in  the order dated 2nd August, 2004 which reads as under : "In Regulations (Graduate Medical Education

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(Amendment) Regulations, 2004 published in the  Gazette of India dated 1st March, 2004, a time  schedule for the completion of the admission  procedure for the First MBBS Course has been  provided for (Appendix \026 E).  The said time  schedule provides that the second round of  counseling for allotment of seats from waiting list  from All India Entrance Examination shall be filled  by the Central Government by 8th August.  It also  provides that first round of counseling/admission  of seats filled up by the state/governments/union  territories/institutions shall be over by 25th of July  of each year.  The time gap of two weeks  between the first round of counseling/admission  of seats by the State Governments/Union  Territories and second round of counseling for  allotment of seats from the All India quota seems  to have been provided for so that such of the  students who, in the first instance may have got  admission out of the allocation by the Central  Government, may change over to the seat  allotted by the state government/union territory so  that seats becoming available would be known by  the time the second counseling by the Central  Government is over.  It appears that the second  round of counseling for allotment of Central  Government seats have already commenced with  effect from 30th July.  It further appears that many  of the State Governments/Union Territories have  not even commenced the first counseling which  was required to be over by 25th of July.  We direct  the State Governments/Union Territories to file  affidavits giving details of the dates of counseling  and the reasons for delay.  We may note that  ordinarily the 15% seats of the quota under All  India Entrance Examination cannot be permitted  to be made ineffective and many of the seats  therefrom reverted back to the States/Union  Territories.  The affidavits shall also be filed by  the Director General of Health Services, Ministry  of Health, Government of India as also by the  Medical Council of India.  The petitioners are also  given opportunity to file additional affidavits.  The  affidavits shall be filed within four days.         We wish and hope that at least by the next  date of hearing the first counseling by the State  Governments/Union Territories would be  completed."

       On 9th August, 2004, it was directed that in whichever State, the first  counseling of the State quota seats in Government Medical Colleges is not  complete, it shall positively be completed by 20th August and latest by 21st  August, 2004, the seats of all India 15% that may become available as a  result of such counseling, shall be intimated to the DGHS, further directing  that all India 15% quota would not revert back to the State quota till further  orders, despite the fact that the second counseling of the all India 15%  quota may have been already over, its last date being 8th August, 2004.   On 31st August, 2004, it was noticed that out of 93 medical colleges  participating and contributing to 15% all India Medical quota, 15 colleges  had not supplied the requisite information and likewise out of 25 dental  colleges, five colleges had not supplied the said information.  These  colleges were directed to supply the requisite information on that very day  by 9.00 pm to the DGHS.  The requisite information was supplied as  noticed in the order dated 1st September, 2004.  Out of 1550 MBBS seats,

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122 seats had fallen vacant and out of 144 seats in dental colleges, 38  seats had fallen vacant.  As a special case and without it being treated as  a precedent, the court permitted a limited continuation of the second  counseling so as to minimize the hardship to the students but not  permitting the continued second counseling to everyone but limiting it in  the manner stated in the order as under : "The continued second counseling would be  confined to only those, as per merit, who have not  already been admitted in MBBS Course in any of  the Government Medical College in the country.   If a student has already been admitted there  would be no question of such a student being  permitted counseling again so as to change the  medical college with a view to get admission in  some other medical college.  The students who,  as a result of the counseling already held, have  taken admission in Dental Colleges would,  however, be permitted to participate in the  counseling for getting a chance for admission in  the MBBS on their merit position.  Further, as a  consequence, certain seats in Dental Colleges  may fall vacant.  They would be given as per  merit in the ranking in the All India Quota.  We  make it clear that those admitted in MBBS would  not be permitted to change the college.  Those  who have taken admission in Dental College  would also not be permitted to change one Dental  College to another Dental College.  The  information about continued counseling would be  given to all concerned by publication in electronic  and print media by DGHS.  The continued  counseling must be over by 8th September, 2004.   The students must join by 13th September, 2004.   It is necessary to adhere to this  schedule so that  the remaining unfilled seats can revert and be  filled by the State and only bare minimum number  of seats may lapse.  The States shall also take  timely action so that the seats to a great extent  may not lapse and all the admissions and joining  by students are over by 30th September, 2004.         We make it clear that under no  circumstances, we are inclined to extend the date  beyond 30th September, 2004.  The order shall  not be treated as a precedent so as to open  floodgates of litigation in other cases in the  country.         To consider the issue of further directions  for the next academic year, list the matter on 5th  October, 2004."

The aforesaid direction did not undo injustice to all the students  because we permitted only limited counseling but it was necessary to  adopt that course in larger interests of students and medical education as  by reopening the entire counseling, there would have been considerable  amount of delay in commencement of course in various colleges.  The  admission process could have gone on till end of the year and that is why  permission was granted for only limited counseling.   Having regard to the utter chaos and confusion mainly on account of  non-adherence of the time schedule, we permitted parties to file  suggestions so that directions could be issued to streamline admissions  from the next year.  The suggestions have been filed by the Ministry of  Health, Government of India, Medical Council of India and some individual  parents.  We have heard Mr. Mohan Parasaran, learned Additional  Solicitor General, appearing for the Central Government, Mr. Vivek

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Tankha, Advocate who placed before us the point of view of students and  medical colleges, Mr. Maninder Singh, Advocate representing Medical  Council of India (MCI), Mr. A.K. Ganguly for West Bengal Government and  Mr.Minocha-in-person.   It is a matter of anguish that despite various decisions of this Court  and laying down of time schedule for completion of admission process, the  time schedule has not been adhered to at various stages by various  authorities resulting in otherwise avoidable discontentment and hardship to  the candidates.  The observance of the time schedule is paramount for  effective utilization to All India Quota of medical and dental seats.  The  denial of a seat in college of choice on the basis of one’s merit position  leads to frustration and results in injustice to the young students.  The  admission to a professional course based on merit position is paramount  for the career of a student.  The omission and commission in respect of  admissions this year, as is evident from orders aforenoted, adversely  affected the career of meritorious students in their not getting admission in  the college of their choice.  Any frustration and feeling of injustice at an  impressionable age at which the students compete in All India Competition  is neither desirable from the point of view of either the young students nor  for country’s future.  We are concerned with the career of those bright  candidates who compete in a tough all India competition.  In this  background, it is necessary to examine the acts of omission and  commission at various levels, the suggestions that have been made and  submissions put forth, to consider the issuance of directions for  streamlining admissions from the next academic year in MBBS/BDS  courses.         In Medical Council of India v. Madhu Singh & Ors. [(2002) 7 SCC  258], while making it clear that no admissions can be granted after the  scheduled date, which essentially should be the date for commencement  of the course, MCI was directed to ensure that the examining bodies fix a  time schedule specifying the duration of the course, the date of its  commencement and the last date for admission.  It was further directed  that different modalities for admission can be worked out and necessary  steps like holding of examination if prescribed, counseling and the like  have to be completed within the specified time and no variation of the  schedule so far as admissions are concerned shall be allowed.  In case of  any deviation by the institution concerned, action as prescribed shall be  taken by MCI.         The Ministry of Health of Family Welfare, Government of India  convened a meeting of the State Health/Medical Education Secretaries  and the Vice-Chancellors of the universities of health sciences and as a  result of discussion issued a directive dated 14th May, 2003 to the  Secretaries of Health and Medical Education in all the States and Union  Territories and to all universities awarding medical/dental degrees laying  down the policy guidelines on admission of students and other allied  matters, inter alia, having regard to the decision in Madhu Singh’s case  (supra), laying down the schedule for completion of the various stages of  admission process, commencing of academic session and closure of  admissions in courses of medicine and dentistry to be applicable to all  medical and dental colleges in the country from the academic session  2003-04 onwards.  All State Governments, universities, medical and dental  institutions in the country and any other authorities concerned were  directed to strictly abide by the time frame for completion of each of the  stages of admission process indicated in the time schedule.  It also  directed that neither any student shall be admitted in any course of  medicine or dentistry after expiry of the last date prescribed for course of  admission in that course nor any university shall register any such  admission sought to be made.  The State Governments were directed to  take all necessary steps to prevent deviation from the prescribed schedule.         The directive dated 14th May, 2003 also stipulates the cancellation of  admission granted after the last date of closure of admission and warns  the candidates of the consequences of taking admission after the last date  for closure of admissions.  Paragraphs 8.4 and 8.5 of the directive read as  under : "8.4    In exercise of the powers conferred by the

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Hon’ble Supreme Court, the Medical Council of  India or the Dental Council of India may direct  that any student identified as having obtained  admission after the last date for closure of  admission be discharged from the course of  study; or any medical or dental qualification  granted to such a student shall not be a  recognized qualification for the purpose of the  Indian Medical Council Act, 1956 or the Dentist  Act, 1948, as the case may be.  The Institution  which grants admission to any student after the  last date prescribed for the same shall also be  liable to face such action as may be prescribed by  MCI or DCI. 8.5     The Time Schedule for completion of the  admission process as in the Annexure shall also  be printed in the Bulletin of Information for the  candidates or the Prospectus for admission to the  concerned course.  The candidates shall be  clearly warned of the consequences of taking  admission in any institution after the last date for  closure of admissions."

       The time schedule for completion of the admission process for  medical and dental courses is as under :

"Schedule for  Admission First MBBS/BDS Course Postgraduate Courses Super  Speciality  Course

All India  Quota State  Quota All India  Quota State Quota

Conduct of Entrance  Examination: Month of  May Month of  May 2nd Sunday  of January Mid Jan. To  Mid-Feb. May-June Declaration of Result of  Qualifying Exam.  /Entrance Exam. By 5th June By 15th June 3rd Week of  Feb. By 28th  February By 30th June 1st round of counseling/

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admission: 20th to 29th  June To be over  by 17th  July 5th March to  22nd March To be over  by 25th April To be over by  25th July Last date for joining the  allotted College and  Course: 18th July @ 29th July 7th April 1st May 31st July 2nd round of counseling  or allotment of seats  from Waiting List: 01st August  to 08th  August 25th to 28th  August No 2nd  Counseling No 2nd  Counseling No 2nd  Counseling Last date for joining for  candidates allotted  seats in 2nd round of  Counseling or from the  Waiting List: 22nd August  (Seats  vacant after  this date will  be  surrendered  back to the  State/ Colleges) 30th  August After 7th  April,  vacant  seats will  stand  surrendered  back to the  States/  Colleges Not  applicable Not  applicable Commencement of  academic session:

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Between 01st August to  31st August 02nd May 01st August Last date up to which  students can be  admitted against  vacancies arising due  to any reason : 30th September 31st May 30th  September

NOTE :  @ Head of the Colleges should intimate the vacancies existing  after 18th July in respect of the All India Quota of seats to the  DGHS latest by 25th of July."

       Reference may also be made to notification dated 25th February,  2004 issued by the Medical Council of India in exercise of the powers  conferred by Section 33 of the Indian Medical Council Act, 1956 (for short,  ’the Act’) with the approval of the Central Government, making the  "Graduate Medical Education (Amendment) Regulations, 2004, laying  down the time schedule for completion for admission process for first  MBBS course.  It is on same lines as the aforequoted time schedule.  Time  schedule (Appendix-E) to the regulation reads as under : "APPENDIX-E TIME SCHEDULE FOR COMPLETION OF THE ADMISSION PROCESS FOR FIRST MBBS COURSE

Schedule for Admission  Seats filled up by Central      Seats filled up by         Govt. through All India The State Govts./         Entrance Examination    Institutions

Conduct of Entrance Examination Month of May    Month of May Declaration of Result of Qualifying Exam./ Entrance Exam.  By 5th June     By 15th June 1st round of counseling/admission :     To be over by 30th June To be over by 25th July Last date for joining the allotted College      Within 15th days from the       31st July And Course :    date of allotment of seats 2nd round of counseling for allotment of        To be over by 8th August        Up to 28th A ugust seats from Waiting List :

Last date for joining for candidates allotted   Within 15 days from the 31st August Seats in 2nd round of counseling from the       date of allotment of seat Waiting List    (Seats vacant after 22nd         August will be surrendered         Back to the States/Colleges) Commencement of academic session :                                      1st of August Last date up to which students can be admitted                          30th September" Against vacancies arising due to any reason :

       In various States, the first counseling and admissions in respect of  State quota seats was not over, many States had not even commenced  the process even though second round of counseling for allotment of seats  from waiting list for All India Quota becoming vacant, as a result of  candidates getting admission under State quota, was to commence on 1st  August, to be completed by 8th August.  The effect of the aforesaid inaction  and also not sending timely intimation to DGHS is to deprive those who are  high up in the merit list of All India Entrance Examination and waiting to get  admission in such vacated seats which otherwise would revert back to the  State quota.  The result is to effectively reduce 15% All India Quota and

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increase State quota seats.  Directions that were issued to get requisite  information from various States in respect of holding of counseling, and  reporting of vacant seats to DGHS for admissions for 2004-05 have been  earlier noticed.  As stated above, despite such directions full and complete  justice could not be meted out to all meritorious students regarding college  of their choice as per their position in the merit list, on account of the time  frame and its all India consequences on admissions and the possible result  of extending the admissions much beyond the schedule date contrary to  the aforesaid statutory regulations and resulting in grant of midstream  admissions.  To an extent possible, the seats of All India Quota should not  revert to State Quota.  It was brought to our notice that in some cases  deliberately the time schedule is not adhered to so that more number of  seats may revert to State Quota.  If that be so, we deprecate the practice  with a fond hope that such a practice would be discontinued failing which  persons responsible therefor will have to face the consequences.  The total  impartiality is the need of the time and not the so-called loyalty to the  State.         The academic session commences between 1st August and 31st  August and the last date for joining MBBS/BDS courses is 30th August.   However, students can be admitted against vacancies arising due to any  reason by 30th September.  The date 30th September is not for normal  admission but is to give opportunity to grant admissions against stray  vacancies.  The adherence to the time schedule by everyone is paramount  for the timely grant of admissions, commencement of academic session  and for closure of the admissions after 30th September each year.  In fact,  the timely holding of 10+2 examination and declaration of its results is also  of paramount importance for the entire admission process.  If the results of  CBSE or other equivalent examination are not declared well before the  commencement of first round of counseling/admission of All India Quota  seats, i.e., 20th June, it is likely to adversely affect the candidates who may  otherwise be toppers in the All India Entrance Examination.  A candidate  may be in the first 200 position, out of about 2,00,000 candidates in the  merit ranking but if the results of his qualifying examination of CBSE or its  equivalent are not available to him or to DGHS responsible for counseling,  the candidate would lose chance to get admission in college of his choice  despite his merit position.         Government of India has suggested that for effective implementation  of scheme for allotment of 15% all India seats for medical and dental  colleges, it is imperative that all participating State and Union Territory  Boards of Secondary Education must declare 10+2 result well in advance,  at least one week before start of first round of counseling.  This suggestion  was given as West Bengal Secondary Education Board did not declare  10+2 examination result of their candidates before start of first round of  counseling of 15% All India Quota during 2003 and 2004.  Due to non- declaration of result, a couple of candidates qualifying in CBSE merit list  could not appear in the first round of counseling.  In this competitive world,  real struggle of students for their career, in almost all the fields, starts after  passing 10+2 examination.  The results of this examination is important for  almost all competitions.  Therefore, the timely holding of these  examinations and timely declaration of result is of utmost importance, in  particular, by all participating States and Union Territories in All India  Entrance Examination for medical and dental seats.  It is imperative that  the CBSE or equivalent results are declared and the mark-sheets are  made available to the candidates not later than five days before the  commencement of first round of counseling.  In other words, the mark- sheet shall be made available to the candidates by 15th June.  A candidate  may have to travel long distance to participate in the counseling which  commences at Delhi from 20th June.  In response to directions of this Court  suggesting timely holding of 10+2 examination by all States/Union  Territories so that the results thereof are not delayed beyond 10th June, at  least from the year 2005, the only State Government which has put forth  difficulties in so doing is the State of West Bengal.         The West Bengal Council of Higher Secondary Education has stated  that Schedule for 2005 examinations has already been announced on 27th  July, 2004, according to which, the theory examination for higher

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secondary conclude on 11th April, 2005 and it takes three months  therefrom to publish the results.  As per this schedule, the results would be  declared by 11th July, 2005.  It also states that if the dates for board  examination for class XII are advanced, the students will face mental  trauma due to lack of preparation.  We are not suggesting the  advancement of the date for the year 2005 for holding board examination  for class XII.  By maintaining the dates already fixed, if not the result of all  students, at least the results of those who participate in the All India  Entrance Examination and are in high merit ranking can be declared and  mark-sheets made available to them by 15th June so as to enable them to  participate in the first counseling in All India Quota.  Going by the past  figures, the candidates requiring such facility may be only about 100.  Only  the candidates in the merit list up to 2500 may need such a facility and  cooperation from the State Authorities.  From the year 2006, the State  Government/West Bengal Council of Higher Secondary Education shall  arrange its affairs in such a manner that the examinations are held timely,  results are declared by 10th June and mark sheets made available to the  students by 15th June.  The other States/Union Territories would ensure  declaration of result by 10th June and availability of mark sheet to the  students by 15th June from the academic year 2005.         Another connected aspect is declaration of result of qualifying  Examination/Entrance Examination for State quota seats.  The State  Governments, as per the time schedule are required to declare the said  results by 15th June of every year.  The timely declaration of result will  enable the students to take a decision about participation in All India  counseling or State counseling.  The Central Government has rightly  pointed out that due to late declaration of result of State level entrance  examination, candidates and their parents travel from all over the country  to participate in All India Quota Counseling which is conducted in Delhi and  then travel to allotted medical/dental colleges.  Later on, if the candidates  get admission in the colleges of their choice in their respective States  through State counseling, they have to travel back to the college allotted  through All India Quota to get their college leaving certificate and other  documents which are deposited with allotted college before joining the  State college.  By timely declaration of the results of the State level  entrance examination i.e. by 15th June, which is before the start of All India  Quota counseling, candidates and their parents can be saved from facing  undesirable hardships.         We see no reasons for non-observance of the time schedule which  has been provided after discussion with all the States’ functionaries.  The  Chief Secretaries and Head of concerned Ministries/Departments in  participating States/Union Territories shall file affidavits before this Court  within four weeks placing on record time table in regard to holding of State  examination and declaration of results thereof on or before 15th June,  2005.         For utilisation of All India Quota to its fullest extent, another vital  stage of admission process is timely reporting to DGHS by Deans or any  other authority whatever be the designation responsible for giving  information as to the joining and/or non-joining of students after first round  of counseling/admission of the State quota seats.  The counseling for  allocation of seats of All India Quota is conducted by DGHS at Delhi.  The  reporting to be made to DGHS has to be sincere and accurate as wrong  reporting has chain reaction.  As per time schedule, the first round of  counseling for State Quota is to be over by 17th July.  There is no reason  why this time schedule shall not be adhered to.  After this counseling, the  last date for joining the allotted college and course under State Quota is  29th July.  The object of the admission and last date of joining college in  State Quota before the start of second round of counseling or allotment of  seat from waiting list in All India Quota clearly is that the correct factual  position as to the availability of the seats ought to be known to the DGHS  before start of second round of counseling.  If it is not done, number of  seats would be lost to the merit ranking candidates from All India Entrance  Examination.  They, though otherwise entitled, would be deprived of those  seats and to that extent All India 15 per cent quota would stand reduced.    Such seats get reverted to State quota for no fault of the candidates on All

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India Quota, thus, reducing the All India Quota and increasing the State  Quota.  The Head of the Colleges are required to intimate their vacancies  existing after 18th July in respect of All India Quota seats to the DGHS by  25th July.  This gives about a week to the DGHS before it starts second  round of counseling on 1st August.  This year (2004) it was found that the  time schedule in this regard by most of the States, was not complied.  As  per Appendix-E to the notification dated 25th February, 2004, the first round  of counseling/admission of seats filled up by State Governments/Institution  is to be over by 25th July.  For State Quota seats, one week after  completion of first round of counseling to join the allotted college is  sufficient.  The date 29th July, mentioned in the time schedule attached to  the directive dated 14th May, 2003 shall be suitably changed and the date  25th July shall be mentioned to make it consistent with the date mentioned  in the notification dated 25th February, 2004.  The intimation is required to  be sent to the DGHS well before the commencement of second round of  All India Quota counseling by it.  The details about the vacancy position  shall be signed/counter signed by three top functionaries responsible for  admission of State Quota seats.         To an extent possible, all possible facilities shall be afforded to  students and their parents.  Due advantage can be taken of advanced I.T.  technology.  In respect of counseling of All India Quota seats conducted by  the DGHS at Delhi, with the advancement of IT technology, it should be  feasible to conduct counseling of outstation students by availing the  facilities of video conferencing, It seems that every State capital has the  facility of video conferencing.   The use of this facility would save time and  money of not only the candidates and their parents but in the long term, it  may be beneficial to the DGHS as well.  Counseling by the video  conferencing can commence from the year 2005, making a beginning from  20th June, 2005.  Before issue of directions in this regard, we deem it  proper to direct that this aspect be examined first by the Ministry of Health,  the DGHS and the States/Union Territories officers in consultation with the  officers of National Informatics Centre (NIC) and a report filed thereafter in  this Court.  Final directions will be issued on consideration of the report.         We may also note suggestions of Mr. Arun Minocha, father and legal  guardian of one of the students that intake of All India Quota shall be  increased from 15% to 20% and the number of candidates to be placed on  waiting list deserves to be increased from present 70% to 100% so that in  case of availability of seats, the same may not go waste and the  candidates on merit list are in a position to utilize the All India Quota to the  fullest extent.  According to him, having regard to the fact that many seats  in medical and dental course, though existing as having been enhanced  many years earlier, were not taken into consideration while working All  India Quota of 15% and the original direction in Dr. Pradeep Jain’s case  (supra) was of 30% reduced later to 15% in case of Dr. Dinesh Kumar’s  case and Post-graduate seats having been increased from 25% to 50%  and two decades having passed, the All India Quota deserves to be  increased.  We have no difficulty in accepting the suggestion regarding  increase of waiting list from 70% to 100%, since its only effect is a little  additional paper work for the DGHS, without any adverse effect on  anybody and possibly the advantage may be to more number of  candidates as per their merit position depending upon the availability of  seats.  Regarding the suggestion for the increase of intake from 15% to  20%, we are of the view that it deserves to be first examined by the Central  Government and the DGHS in consultation with States/Union Territories  and report filed in this Court within four months so that the issue can be  examined with reference to admissions to be made for All India Quota from  the academic year 2006-07.         Yet another issue is about not taking into consideration, for  determining All India Quota, those seats which are created under Section  10-A of the Act.  In the writ petition, number of seats which were not taken  into consideration have been mentioned.  According to MCI, only seats  recognized under Section 11 are taken into consideration and not seats  which are permitted under Section 10-A of the Act.  For deciding this issue,  it is necessary to examine the provisions of the Act and the Regulations  issued thereunder.  Another connected issue also is regarding the

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establishment/renewal granted to medical and dental colleges including  grant of permission to increase intake of the students.  There is also the  issue about the allocation of seats in respect of which, the letter granting  permission is issued as per time schedule by the Central Government by  15th July.   Section 10(A) of the Act which was inserted by the Indian Medical  Council (Amendment) Act, 1993 (Act 31 of 1993) with effect from 27th  August, 1992, makes it imperative to seek permission for establishment of  a new medical college, new course of study.  In view of this Section, with  effect from 1st June, 1992 prior permission is necessary. Section 10(A),  inter alia, provides that notwithstanding anything contained in the Act or  any other law for the time being in force\027

       (a)     no person shall establish a medical college; or         (b)     no medical college shall\027 (i)     open a new or higher course of study or  training (including a postgraduate course of  study or training) which would enable a  student of such course or training to qualify  himself for the award of any recognized  medical qualification; or

(ii)    increase its admission capacity in any  course of study or training (including a  postgraduate course of study or training),  except with the previous permission of the  Central Government obtained in  accordance with the provisions of this  section.

Section 10-A (2) (a) provides that every person or medical college  shall, for the purpose of obtaining permission under sub-section (1) submit  to the Central Government a scheme in accordance with the provisions of  clause (b) and the Central Government shall refer the scheme to the  Council for its recommendations. Along with Section 10-A, clause (fa)  was also inserted in Section 33  to empower MCI to make regulations to provide for the form of the  scheme, the particulars to be given in such scheme, the manner in which  the scheme is to be preferred and the fee payable with the scheme under  clause (b) of sub-section (2) of Section 10-A. Section 11(1) of the Act, inter alia, provides that medical  qualifications granted by any University or medical institution in India which  are included in the First Schedule  shall be recognised medical  qualifications for the purposes of this Act.  Section 11 (2) provides that any  University or medical institution in India which grants a medical  qualification not included in the First Schedule may apply to the Central  Government to have such qualification recognised, and the Central  Government, after consulting Council, may, by notification in the Official  Gazettee, amend the First Schedule so as to include such qualification  therein, and any such notification may also direct that an entry shall be  made in the last column of the First Schedule against such medical  qualification declaring that it shall be a recognized medical qualification  only when granted after a specified date.

In exercise of the powers conferred by Section 10-A read with  Section 33 of the Act, the MCI made the establishment of new medical  colleges, opening of higher courses of study and increase of admission  capacity in Medical College Regulation, 1993.  The Regulations, inter alia,  provided as a qualifying criteria that the eligible organization shall abide by  Indian Medical Council Act, 1956 as modified from time to time and the  regulations framed thereunder and shall qualify to apply for permission to  establish new medical colleges only if the conditions therein are fulfilled.   One of the conditions is that Essential Certificate regarding the desirability  and feasibility of having the proposed medical college at the proposed

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location has been obtained and that the adequate clinical material is  available as per Medical Council of India requirements has been obtained  by the applicant from the respective State Government or the Union  Territory Administration.    It also provides that the applicant owns and  manages a hospital of not less than 300 beds with necessary  infrastructural facilities and capable of being developed into a teaching  institution as prescribed by the Medical Council of India, in the vicinity of  proposed medical college.  The MCI has also made the Establishment of  Medical College Regulations, 1999 in exercise of powers conferred by  Section 10-A  and Section 33 of the Act, inter alia, prescribing the form of  Essentiality Certificate as a qualifying criteria to make application for  permission to establish a medical college.  These Regulations stipulate  that Essentiality Certificate in Form-2 regarding No objection of the State  Government/Union Territory Administration for the establishment of the  proposed medical college at the proposed site and availability of adequate  clinical material as per the council regulations, have been obtained by the  person from the concerned State Government/Union Territory  Administration.  The Form of Essentiality Certificate requires a Certificate  from the Competent Authority to the following effect :

"It is certified that:- (a)     The applicant owns and manages a 300  bedded hospital which was established in  \005\005\005\005\005

(b)     it is desirable to establish a medical college  in the public interest.

(c)     Establishment of a medical college at  \005\005\005\005\005\005. by (the name of  Society/Trust) is feasible.

(d)     Adequate clinical material as per the  Medical Council of India norms is available.

       It is further certified that in case the  applicant fails to create infrastructure for the  medical college as per MCI norms and fresh  admissions are stopped by the Central  Government, the State Government shall take  over the responsibility of the students already  admitted in the College with the permission of the  Central Government."                                           The time schedule for the receipt of applications for establishment of  new medical colleges and processing of the applications by Central  Government and the Medical Council of India is fixed under the schedule  to 1999 Regulations.  The said schedule is as under:-

"SCHEDULE FOR RECEIPT OF APPLICATIONS FOR  ESTABLISHMENT OF NEW MEDICAL COLLEGES AND  PROCESSING OF THE APPLICATIONS BY THE CENTRAL  GOVERNMENT AND THE MEDICAL COUNCIL OF INDIA

Stage of Processing Last  date 1. Receipt of applications by the Central Govt. From 1st August to  31st August (both  days inclusive) of  any year 2. Receipt of applications by the MCI from Central

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Govt. 30th September 3. Recommendations of Medical Council of India to  Central Government for issue of Letter of Intent 31st December 4. Issue of Letter of Intent by the Central Government 31st January 5. Receipt of reply from the applicant by the Central  Government requesting for Letter of Permission 28th February 6. Receipt of Letter from Central Government by the  Medical Council of India for consideration for issue  of Letter of Permission 15th March 7. Recommendations of Medical Council of India to  Central Government for issue of Letter of  Permission 15th June 8. Issue of Letter of Permission by the Central  Government 15th July

Note: (1)       The information given by the applicant in Part-I of  the application for setting up a medical college  that is information regarding organization, basic  infrastructural facilities, managerial and financial  capabilities of the applicant shall be scrutinized by  the Medical Council of India through an inspection  and thereafter the Council may recommend issue  of Letter of intent by the Central Government. (2)     Renewal of permission shall not be granted to a  medical college if the above schedule for opening  a medical college is not adhered to and  admissions shall not be made without prior  approval of the Central Government."

According to Regulation 8 (3) of 1999 Regulations, the permission to  establish a medical college and admit students may be granted initially for  a period of one year and may be renewed on yearly basis subject to  verification of the achievements of annual targets.  It shall be the  responsibility of the person to apply to the Medical Council of India for  purpose of renewal six months prior to the expiry of the initial permission.   This process of renewal of permission will continue till such time the  establishment of the medical college and expansion of the hospital  facilities are completed and a formal recognition of the medical college is  granted.  Further admissions shall not be made at any stage unless the  requirements of the Council are fulfilled.  The Central Government may at  any stage convey the deficiencies to the applicant and provide him an  opportunity and time to rectify the deficiencies. It cannot be doubted that proper facilities and infrastructure including  teaching faculty and Doctors is absolutely necessary and so also the  adherence to time schedule for imparting teaching of highest standards  thereby making available to the community best possible medical  practitioners.  It cannot be said that such facilities are not insisted upon for  Section 10-A seats.  No instance has been brought to our notice where  Section 10-A seat in a Government college has not been recognized under  Section 11.  The All India Quota seats are applicable only to Government  colleges.  In many colleges, full-fledged seats for all intent and purposes in  so far as medical education is concerned, whether in a new medical

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college or increase intake in an existing college, are continuing as 10-A  seats.  Prima facie, we see no reason why such seats shall not be taken  into consideration for calculating 15% share of All India Quota.  The 15%  quota seats get substantially reduced by not taking into account Section  10-A seats.  We direct the Central Government, DGHS and MCI to  examine this aspect in detail and submit a report, on consideration whereof  we would finally decide the matter regarding inclusion of Section 10-A  seats for working out 15% All India Quota. The time schedule for post-graduate and superspeciality course  admissions may also be noted as under : "TIME SCHEDULE FOR POSTGRADUATE AND SUPERSPECIALITY COURSES ADMISSIONS

Schedule for admission Postgraduate Courses Super-speciality  Courses

All India Quota State Quota

Conduct of entrance  examination 2nd Sunday of  January Mid-Jan Mid-Feb. May- June Declaration of result of  qualifying exam. 3rd week of Feb. By 28th  February. By 30th June 1st round of  counseling/  admissions 5th March to 22nd  March. To be over by  25th April. To be over by  25th July Last date for joining  the allotted college  and course 7th April. 1st May. 31st July. 2nd round of  counseling or  allotment of seats from  waiting list. No 2nd counseling  No 2nd  counseling No 2nd  counseling Last date for joining for  candidates allotted  seats in 2nd round of  counseling or from the  waiting list. After 7th April

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vacant seats will  stand surrendered  back to the  states/colleges Not applicable Not applicable Commencement of  academic session 2nd May 1st August Last date up to which  students can be  admitted against  vacancies arising due  to any reason 31st May. 30th September"

Having regard to the professional courses into consideration, it  deserves to be emphasized that all concerned including Governments,  State and Central both, MCI/DCI, colleges, new or old, students, Boards,  universities, examining authorities etc. are required to strictly adhere to  time schedule wherever provided for; there should not be mid-stream  admission; admission should not be in excess of sanctioned intake  capacity or in excess of quota of any one, whether Stare or Management.   The carrying forward of any unfilled seats of one academic year to next  academic year is also not permissible  Before we come to matter of issue of directions, some other small  aspects may also be considered.  All seats under All India Quota deserve  to be fully disclosed and published by a date to be specified by the DGHS  so that at a glance, if required, it may be possible to verify whether the said  quota has been correctly worked out or not.  The States shall file  compliance report in regard to admission with the DGHS about annual  admissions indicating adherence to the schedule and the seats taken into  consideration for working out All India Quota and giving details of other  seats.  The compliance report shall give details of filling up of seats with  names of students admitted and dates of admission.  It shall be signed by  the Principal/Director or Head of the medical institution by whatever name  called and by Vice-Chancellor.  The recalcitrant States, particularly officers  personally will have to face consequences.

It was suggested by Mr.Tankha that MCI/DCI and also colleges shall  be made answerable to a high-powered Committee which may be directed  to be constituted for not following a fair and transparent procedure in its  duties and obligation including carrying out inspections and sending  reports by MCI/DCI to the Central Government on the basis whereof the  requisite recognition is granted and to also look into other medical  admissions related matters and matters relating to establishment of  medical colleges and increase of intake etc.  Various petitions are pending  in this Court where grievance have been made in regard to inspections  carried out by MCI/DCI and other aspects pointed out by learned senior  counsel.  The suggestion made about constituting a body like Ombudsman  to which above authorities may be answerable deserves to be examined in  depth by Ministry of Health and a report submitted to this Court.

Having regard to the aforesaid, we issue the following directions:-                       

1.      All participating States and Union Territories, Board of Secondary  Education shall declare 10 + 2 result by 10th June of every year and  make available the marksheet to the students by 15th June.          The aforesaid condition would not apply to West Bengal for the year  2005.  As already noticed, the West Bengal would make available to  the concerned students the marksheets by 15th June, 2005

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Heads of Boards would be personally liable to ensure compliance. 2.      The time table mentioned in Notification dated 25th February, 2004  shall be strictly adhered to by all concerned including States and  Union Territories and results of State Medical/Dental Entrance  Examination shall be declared before 15th of June. 3.      The States/Union Territories shall complete the admission process  of first round of State Level Medical/Dental College admission by  25th July i.e. a week before start of second round counseling or  allotment of seats under All India Quota.  The correct vacancy  position shall be intimated by the Chief Secretary to the DGHS by  26th July.  It shall be verified by the Head of the Institution/or Head of  the Medical Institution/Health Department in the State. 4.      It shall be the responsibility of all concerned including Chief  Secretaries  of each State/Union Territories and/or Health  Secretaries to ensure compliance of the directions of this Court and  requisite time schedule as laid down in the Regulations and non- compliance would make them liable for requisite penal  consequences. 5.      All seats in All India Quota must be fully disclosed giving details of  the date of recognition/renewal to DGHS before a date to be notified  by DGHS and the same shall be duly published. 6.      By 31st October, the State through Chief Secretaries/Health  Secretaries shall file a report in regard to admissions with the DGHS  giving details about the adherence to a time schedule and admission  granted as per the prescribed quota.  The recalcitrant States,  particularly officers personally will have to face consequences for  violation. 7.      The DGHS shall file by 31st January, 2005 report in regard to  feasibility of conducting counseling through the process of video  conferencing.  8.      The DGHS shall file report within three months on the aspect of  Section 10-A seats being subjected to 15 per cent All India Quota  and about the increase of the quota from 15 per cent to 20 per cent. 9.      The DGHS shall also file a report within three months on the aspect  of constitution of high-power Committee/Ombudsman.  10.     The seats allotted upto 15th July, shall also be subjected to  respective State Quotas. 11.     If any private medical college in a given academic year for any  reason grants admission in its management quota in excess of its  prescribed quota, the management quota for the next academic year  shall stand reduced so as to set off the effect of excess admission in  the management quota in the previous academic year. 12.     The time schedule for grant of admission to postgraduate courses  shall also be adhered to. 13.     For granting admission, the merit determined by competitive  examination shall not be tinkered with by making a provision like  grant of marks by mode of interview or any other mode.  14.     time schedule for establishment of new college or to increase intake  in existing college, shall be adhered to strictly by all concerned. 15.     Time schedule provided in Regulations shall be strictly adhered to by  all concerned failing which defaulting party would be liable to be  personally proceeded with. 16.     Copy of the judgment shall be sent to Chief Secretaries of all  States/Union Territories for compliance.  List the case in 3rd week of February, 2005.