REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICITION

CIVIL APPEAL NOS.  8429-8430            OF 2010 (Arising out of S.L.P. (C) Nos.26164-26165 of 2010

R.D. Gardi Medical College & Anr. etc. …Appellants

Versus

State of M.P. & Ors. …Respondents

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.

2. These appeals  are directed against  an order dated 30th July,  

2010 passed by the High Court of Madhya Pradesh in Writ Petitions  

Nos. 6876 and 8979 of 2009 whereby a total of 15 seats in the 1st year  

MBBS  course  have  been  directed  to  be  reduced  from  out  of  the  

management quota of the appellant-college for the academic session  

2010-2011,  with  a  direction  to  the  Admission  and  Fee  Regulator  

Committee to ensure that the order passed by the Court is carried out  

in  letter  and  spirit.  The  facts  giving  rise  to  the  filing  of  the  writ

petitions may be summarized as under:

3. For  the  academic  session  2006-2007 the  appellant-M/s  R.D.  

Gardi  Medical  College,  Ujjain,  admitted  to  the  first  year  of  MBBS  

course as many as 19 students who had not secured 50% marks in  

the examination conducted by the Association of Private Medical and  

Dental College of M.P.  The legality of the said admissions came up for  

scrutiny before the High Court who declared the same to be illegal  

hence liable to be cancelled.  Aggrieved by the said order the affected  

students approached this Court in Civil Appeal Nos.5518-5521 of 2008  

which were disposed of by this Court by an order dated 4th September,  

2008 holding that the college was not justified in giving admission to  

students who were not eligible  in terms of the relevant rules.  This  

Court, however, permitted the students to continue their studies but  

directed  that  an equal  number  of  seats  shall  be  reduced  from the  

management  quota  of  the  college  for  the  academic  session  2009-

2010.  This Court said:

“The  management  of  the  R.D.  Gardi  Medical  college  was not justified in giving admission to these students.  Certainly,  they  must  be  aware  of  the  fact  that  the  candidates should have secured at least 50% marks in  the  entrance  examination  but  the  learned  senior  counsel appearing for the college says that they were  not aware of the marks secured by these candidates as  the  entrance  examination  was  held  by  a  different

association as the marks were not furnished to them by  the association.  However, as the admission is found to  be irregular, equal number of students shall be reduced  from the management quota for the year 2009-10.

The  appeals  are  disposed  of  accordingly.   No  costs.”  

(emphasis supplied)                     

4. By an order dated 22nd April, 2009 passed by the High Court in  

Writ Petitions No.5592 of 2008 and 5624 of 2008, on the analogy of  

the order of this Court extracted above two more seats against which  

the  said  petitioners  were  admitted  without  satisfying  the  essential  

condition  of  eligibility  were  also  directed  to  be  reduced  from  

management quota of the appellant-college for the academic session  

2009-2010 thereby taking the total  number of seats to be reduced  

from the quota of the management to 21.

5. On  the  receipt  of  the  orders  abovementioned  the  Medical  

Council  of  India  sent  a  communication  dated  26th May,  2009  

requesting  the  Principal  Secretary,  Government  of  Madhya  Pradesh  

and the Director of Medical Education, Madhya Pradesh to fill  up 21  

seats  (19  admission  as  per  the  Order  of  this  Court  dated  4th  

September, 2008 and 2 admission as per the order dated 22nd April,  

2009 passed by the High Court of Madhya Pradesh) through MPCET

entrance  test  for  the  academic  session  2009-2010.  Writ  Petition  

No.2732 of 2009 filed by the private educational  institutions before  

the  High  Court  of  Madhya  Pradesh  challenging  the  constitutional  

validity of what is known as “M.P.  Niji  Vyavsayik Shikshan Sanstha  

(Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007”  

was in the meantime disposed of by the High Court on 21st May, 2009,  

aggrieved  whereof  the  private  educational  institutions  filed  Civil  

Appeal  No.4060 of  2009 in  this  Court  by special  leave.  This  Court  

noticed that the common question of law that arose in the said batch  

of appeals was as to how far it was permissible under the Constitution  

for the State to control  and regulate admissions and fee in private  

unaided professional  educational  institutions in the State of Madhya  

Pradesh. Relying upon the decisions rendered by this Court in T.M.A.  

Pai Foundation v. State of Karnataka (2002) 8 SCC 481, Islamic  

Academy of Education  v.  State of Karnataka (2003) 6 SCC 697  

and P.A. Inamdar & Ors. v. State of Maharashtra & Ors. (2005) 6  

SCC  537  this  Court  prima  facie came  to  the  conclusion  that  the  

impugned  enactment  in  so  far  as  the  same  handovers  the  entire  

selection process to the State Government or the agencies appointed  

by it for under-graduate, graduate and post-graduate medical/dental  

colleges and fee fixation was contrary to the observations made by the

11-Judges Bench of this Court in T.M.A. Pai’s case (supra). This Court  

further observed that a literal interpretation of the Act would render  

the same unconstitutional.  An interim arrangement was accordingly  

made under which 15% seats were to be first excluded towards NRI  

quota to be filled up by the private institutions as per the observations  

made by this Court in Inamdar’s case (supra). Out of remaining 85%  

seats available for admission to the under-graduate and post-graduate  

courses  50% were to be given  to the State Government while  the  

remaining 50% were to be filled up on the basis of a selection process  

to  be  conducted  by  the  Association  of  Private  Medical  and  Dental  

Colleges who were to hold their own separate entrance examinations  

for the purpose. The following passage from the said order is, in this  

regard, relevant:

“We, therefore, direct that the admissions in the  private unaided medical/dental colleges in the State of  Madhya Pradesh will  be done by first  excluding 15%  N.R.I.  seats  (which  can  be  filled  up  by  the  private  institutions  as per  para 131 of  Inamdar’s  case),  and  allotting  half  of  the  85% seats  for  admission  to  the  under-graduate and post-graduate courses to be filled  in  by an open competitive examination by the State  Government, and the remaining half by the Association  of the Private Medical and Dental Colleges.  Both the  State Government as well as the Association of Private  Medical  and  Dental  colleges  will  hold  their  own  separate  entrance  examination  for  this  purpose.  As  regards the ‘NRI Seats’, they will be filled as provided  under the Act and the Rules, in the manner they were  done earlier.

We make it  clear  that the aforesaid directions  will  for  the  time  being  only  be  applicable  for  this  academic year i.e. 2009-10. We also make it clear that  if  there  are  an  odd number  of  seats  then  it  will  be  rounded off  in  favour  of  the  private  institutions.  For  example, if there are 25 seats, 12 will be filled up by  the State Government and 13 will  be filled up by the  Association  of  Private  Medical/Dental  Colleges.   In  Specialities in P.G. courses also half the seats will be  filled  in  by  the  State  Government  and  half  by  the  Association of Private Medical/Dental Colleges and any  fraction will be rounded off in favour of the Association.  In  other  words  if  in  any discipline  there are,  say,  9  seats,  then 5 will  be filled in by the Association and  remaining 4 will by the State Government.  Capitation  fee is prohibited, both to the State Government as well  as the private institutions, vide para 140 of Inamdar’s  case  (supra).  Both  the  State  Government  and  the  Association  of  Private  Medical/Dental  Colleges  will  separately  hold  single  window  examinations  for  the  whole State (vide para 136 of Inamdar’s case (supra).”

6. The Government of Madhya Pradesh constituted a Counseling  

Committee comprising of nine bureaucrats and the Secretary of the  

Association. The said Committee undertook an exercise for distribution  

and  allocation  of  seats  in  the  appellant-college  for  the  academic  

session 2010-11 in compliance with order dated 4th September, 2008  

passed by this Court and that passed by the High Court of Madhya  

Pradesh on 22nd April, 2009.We shall presently deal with the allocation  

so made by the Committee but before we do so we need to point out  

that Writ Petition No.8979 was filed by Nidhi Ahankari and another in

public interest, inter alia, praying for a writ of certiorari quashing the  

allocation and distribution of seats made by the appellant-college and  

a mandamus directing that 46 seats of the said college and 21 seats of  

management  quota  making a total  of  67 seats  be filled  up by the  

State Government on the basis of the merit of the candidates in the  

PMT  quota.  The  writ  petition  alleged  that  the  allocation  of  seats  

between the management and the State was not proper nor was the  

reduction of 21 seats from the management quota given effect to as  

directed by this Court. The result, alleged the petitioners, was that the  

meritorious  candidates  entitled  to  said  quota  were  deprived  of  

admission to the appellant-college.   

7. By an interim order  passed by the High  Court  on 23rd July,  

2010 the appellant was directed to keep 10 seats vacant out of the  

seats filled by the APDMC of the appellant-college as the High Court  

was prima facie of the opinion that calculation and allocation of seats  

required to be surrendered by the college, was wrong and that the  

appellant had been permitted to fill  up the seats in violation of the  

orders  passed  by  this  Court.  That  order  was  followed  by  an order  

dated 30th July, 2010 impugned in the present appeal allowing the writ  

petitions  and  directing  10  seats  to  be  reduced  from  out  of  the  

management quota for the academic session 2010-11 in compliance

with  the  order  of  this  Court  dated  4th September,  2008  and  that  

passed by the High Court of Madhya Pradesh on 22nd April, 2009. The  

High Court took the view that 21 seats permitted to be reduced from  

the management quota had been erroneously reduced from the total  

of  100  seats  available  in  the  college  which  was  not  correct  

understanding of the order passed by this  Court  on 4th September,  

2008 and that passed by the High Court in Writ Petition No.6876 of  

2009 dated 31st August, 2009. The High Court observed:

 “What was proposed by the State Government  

in its return had the effect of reducing 21 seats out of  total available 100 seats which included a seat of the  State quota also whereas there was clear direction of  the  Apex  Court  in  its  order  dated  4.9.2008 and  the  order of  this  Court  in Writ  Petition Nos.5592/2008 &  5654/2008  decided  on  22.4.2009  to  reduce  the  management  quota  seats  only.  The  State  initially  wanted to benefit  the management by its action and  wanted to proceed on the basis of what was proposed  by  the  College.   There  was  no  room  to  violate  the  aforesaid order also passed on 31.8.2009.

There was absolutely no room to entertain any  doubt  whatsoever  as  the  orders  passed  by  the  Supreme Court and this Court clearly indicate that the  seats  were  to  be  reduced  out  of  the  management  quota. But seats were reduced from State quota also  resulting in filling of 10 seats than permissible by D.  MAT by College.”

8.  In so far as NRI seats for the session 2009-10 were concerned, the  

High Court noticed that 10 seats had remained vacant in the State

quota as only 5 of such seats were filled up. Unfilled NRI seats had,  

therefore, to be shared between the State and the appellant-college in  

equal proportion. The High Court rejected the contention that the said  

seats had to be filled up entirely by the management of the college.  It  

observed:

 “It is submitted by Shri Rajendra Tiwari senior  

counsel  appearing on behalf  of the Management that  the  Supreme Court  has  mentioned that  the  seats  of  NRI  quota  have  to  be  filled  in  as  used  to  be  done  earlier.   Thus,  the  Supreme  Court  meant  the  seats  were to be filled in by APDMC.   

The aforesaid  submissions  cannot be accepted  in  view  of  the  order  passed  by  the  Supreme  Court.  There was no direction issued by the Supreme Court  that the unfilled NRI seats are to be filled in by the  students  on  the  basis  of  the  DMAT  examination  conducted  by  APDMC.  The  intention  of  the  order  is  clear  that out of  the available  seats,  50% are to be  filled  in  by  the  State  quota  and  50%  by  DMAT  examination.”  

9. The  High  Court  accordingly  directed  5  seats  which  were  

wrongly filled up by the management of the college for the session  

2009-10 to be reduced from out of the management quota taking the  

total number of seats to be reduced for the session 2010-2011 to 15.  

The Court observed:

        “Thus, we direct 5 seats in addition to the 10  seats  which  have been  agreed to  be  reduced in  the

aforesaid  part  of  the  order  total  15  seats  be  surrendered by the Institution to the State quota for  the  year  2010-2011.  The  management  quota  shall  stand reduced by further 15 seats for the year 2010- 2011.”

10. The present appeals, as noticed earlier assail the correctness of  

the above directions.

      11. We have heard learned counsel for the parties at considerable  

length and gone through the record including the orders passed by  

this Court and those passed by the High Court of Madhya Pradesh.  

These appeals, in our opinion, are an abuse of the process of law. We  

say so for two precise reasons. Firstly, because the order passed by  

the High Court has on more than one occasions recorded the consent  

of  the  appellant-institution  to  the  reduction  of  10  seats  from  the  

management quota during the session 2010-2011.  The High Court  

has in para 12 observed:

“In writ petition No.6876/2009, relief has been  prayed with respect to the ten seats which were filled  in  by  the  College  out  of  APDMC.  The  College  has  agreed to surrender 10 seats which were illegally filled  by  it  in  2009-2010  out  of  available  seats  for  the  academic  sessions 2010-2011 out of the management  quota seats.”

         (emphasis supplied)

12. Again in para 25 of the order, the High Court has recorded the  

agreement  of  the  institution  to  the  reduction  of  10  seats  from its  

quota  for  the  academic  session  2010-2011  so  that  the  directions  

issued by this Court on 4th September, 2008 and those issued by the  

High Court of Madhya Pradesh on 22nd April, 2009 were complied with.  

The High Court has observed:

 “Accordingly, the Writ Petition is allowed.  We direct 10  seats as agreed by the – College to be reduced of the  management  quota  for  the  academic  session  2010- 2011 in order to comply with the order passed by the  Supreme Court on 4.9.2008 in SLP (Civil) Nos.17990- 17991/2008 and the order dated 22.4.2009 passed by  this Court in Writ Petition Nos.5592/2008 & 5654/2008  which has been agreed to the Institution. In addition,  we direct 5 more seats are to be reduced out of the  management quota for  2010-2011 as 5 excess seats  which remained vacant out of NRI quota were filled by  the  management  of  2009-2010  though  they  were  required to be filled in by the State quota on the basis  of  PMT.   Thus,  further  5  seats  of  the  management  quota  shall  stand  reduced  on  this  count  for  the  academic sessions 2010-2011.”             

       (emphasis ours)

13. We  find  it  difficult  to  appreciate  how  the  institution  can  

question  the  direction  issued  by  the  High  Court  regarding  the  

reduction of 10 seats after having agreed to such reduction before the  

High Court.

       14. That apart, a plain reading of the order of this Court dated 4th

September,  2008 and  the  orders  passed by  the  High  Court  in  the  

connected matters dated 22nd April, 2009, leave no manner of doubt  

that the reduction of the seats had to be from out of the management  

quota alone. The interim order passed by this Court in Civil  Appeal  

No.4060 of 2009 on 27th May, 2009 clearly specified that the NRI seats  

to  the  extent  of  15% of  the  total  number  of  seats,  shall  be  first  

reduced  from the  total  and  the  balance  85% shared  half  and  half  

between college and the State. Instead of doing so, the Counseling  

Committee  and  the  govt.  officials  adopted  a  wrong  method  of  

calculating the seats by reducing 21 seats from the total number of  

100  seats.   The  above  method  of  calculation  was  not  the  correct  

method to be adopted in the matter.  The Committee allocated the  

seats in the following manner :

Name  of  Institution

Total Seats

NRI Pvt. Quota

State  Quota

PH UR ST SC OBC Total

R.D.  Gardi  Medical  College,  Ujjain

100 -21 =79

15 32 32+21 =  53

2  UR

OBC

26 10 8 7 51

15. The direction of this Court that 15% seats towards NRI will be  

first reduced from the total has been ignored by the authorities. By  

doing so the reduction of 21 seats has taken place vis-à-vis not only

the  management  quota  but  even  the  State  quota.  This  Court  had  

never  directed  reduction  of  any  seat  from  the  State  quota.  The  

reduction had to be only from the management quota, for it was the  

management who had committed an irregularity which it was directed  

to correct by surrendering an equal number of seats to the State.  

       16. It was contended by learned counsel for the appellants that the  

direction regarding reduction of 21 seats from management quota was  

issued by this Court at a time when the management had 100 seats to  

its  share  which  position  had  changed  on  account  of  the  interim  

direction of this Court in Civil Appeal No.4060 of 2009. There is, in our  

opinion, no merit in that contention. So long as the order of this Court  

directing reduction from out of the management share of seats was  

capable of being implemented and enforced and so long as there were  

enough  number  of  seats  from  out  of  which  it  could  be  made  to  

surrender  the  requisite  number  of  seats,  it  did  not  make  any  

difference whether the management had 100 seats available to it or a  

lesser number. Even after the interim order passed by this Court, the  

management had at least 43 seats in its quota for the session 2009-

2010 to comply with the direction of this Court.  In as much as the  

management failed to do so with or without the support or connivance  

of the State authorities who were charged with the duty of complying

with the direction of this Court it committed a mistake which could be  

corrected by directing surrender of the requisite number of seats to  

the State for the session 2010-2011.  The direction, therefore, by the  

High Court to that effect was perfectly justified.   

17. Coming then to the question whether the direction regarding  

surrender of 5 unfilled NRI seats for  the session 2009-2010 to the  

State  was justified  we need only  mention  that  the High  Court  has  

correctly  interpreted  the  order  of  this  Court  and  rightly  held  that  

unfilled NRI seats to be shared equally between the college and the  

management.  Inasmuch  as  the  appellant-college  had  utilized  the  

unfilled  NRI  seats  all  by  itself  it  had  committed  clear  irregularity  

justifying reduction of the excess seats during the session 2010-2011.

18. This  Court  had  directed  the  NRI  seats  to  be  filled  up  in  

accordance with  the Act  and the Rules.  Rule  8 of  Admission  Rules  

2008 in this regard relevant may be extracted:  

“Rule 8: For remaining vacant seats the sequence of  admission shall be as under:

1) “Firstly 15% seats shall be filled by management  of  the  respective  institution  by  NRI  candidates  only  they are available.   If  sufficient  number  of  NRI candidates are not available remaining vacant  seats shall be merged into general pool. Seats in  general pool shall be filled on the basis of merit of

state  level  common entrance  test  conducted  by  Madhya  Pradesh  Vyavasyik  Pariksha  Mandal  or  may  other  agency  authorized  by  the  state  government for this purpose.

2) Secondly  remaining  seats  shall  be  filled  on  the  basis of merit of National level test as decided by  the State Government.

3) Thirdly remaining seats shall be filled on the basis  of marks obtained in the qualifying examination.

4) All  these  admissions  shall  be  done  through  centralized  counseling  conducted  by  counseling  authority  declared  by  the  State  Government  Committee  for  this  purpose.   The  detailed  procedure for the counseling shall  be notified by  the counseling authority from time to time.”  

19. 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  Madhya  Pradesh  Vyavasyik  

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 (supra).           

20. In the result there is no merit in these appeals which fail and  

are hereby dismissed with costs assessed at Rs.50,000/-.  The costs  

shall be paid to the writ petitioners in equal proportion.       

……………………………J. (MARKANDEY KATJU)

……………………………J. New Delhi (T.S. THAKUR) September 30, 2010