DENTAL COUNCIL OF INDIA versus SAILENDRA SHARMA AND OTHERS on 21 October 2022

1. Feeling aggrieved and dissatisfied with the impugned commonjudgment and order dated 20.08.2018 passed by the High Court ofChhattisgarh at Bilaspur in Writ Petition No. 1649/2018 and other alliedwrit petitions, by which the High Court has allowed the said writ petitionspreferred by the respondents – students and has quashed and set asidethe communication dated 6.6.2018 of the State of Chhattisgarh annulling/cancelling the admissions of the respective respondents – original writpetitioners in the Postgraduate Dental Course, the Dental Council ofIndia has preferred the present appeals.

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A2. The facts leading to the present appeals in a nutshell are asunder:

The National Board of Examination conducted NEET MDS 2018for admission in various Postgraduate Course in Dental Sciences. Theresult of the NEET MDS 2018 was published on 31.01.2018. A merit listBwas prepared for the State of Chhattisgarh. The admissions in thePostgraduate Course in Dental Sciences were to be made throughcounselling by the State Government. The admission process was requiredto be completed on or before 31.05.2018 before 4:30 p.m.

2.1 As per the procedure and the relevant rules and regulations,Cnamely, Chhattisgarh Dental Medicine Postgraduate Admission Rules,2017 and the provisions of the Dentists Act, 1948 and MDS CourseRegulations, 2017, the particulars of the seats were required to beintimated to the State Government and Directorate of Medical Education,Raipur, Chhattisgarh and as observed hereinabove the admissions wereto be given on merits on the basis of the counselling made by the StateDGovernment. As per the procedure, after the first round of counselling,there shall be second round of counselling and thereafter the mop upround of counselling. In the present case, the dispute is with respect tothree Dental Colleges, namely, New Horizon Dental College ResearchInstitute, Bilaspur (for short, ‘New Horizon College’), Maitri College ofEDentistry and Research (for short, ‘Maitri College’), Anjora Durg andRungta College of Dental Sciences and Research, Bhilai (for short,‘Rungta College’). New Horizon College intimated seven seats to beincluded in the mop up round, Maitri College intimated nine seats to beincluded in the mop up round and Rungta College intimated fifteen seatsto be included in the mop up round.F

2.2 The Directorate of Medical Education notified the vacant seatsincluding the vacant seats in the aforesaid three colleges on 29.05.2018to be filled up in mop up round of counselling on the basis of intimationprovided by the private colleges including the above three colleges. Thevacant seats of the above three colleges were notified in the notice byGthe Directorate of Medical Education.

2.3 74 candidates appeared for mop up round of counsellingbefore the Directorate on 30.05.2018 including the original writpetitioners, seven in numbers. Out of 74 candidates, 43 candidateswere allotted seats. In the mop up round after counselling, New HorizonHCollege was allotted seven seats against seven vacant seats available in the college. Maitri College was allotted nine students against ninevacant seats available in the college and Rungta College was allottedthirteen students against fifteen seats available in the college and twoseats remained vacant.

At this stage, it is required to be noted that total number of vacantseats for all five colleges were 46 and out of 46, 43 seats were allottedto students in various colleges including the above three colleges. Out ofallotment of 43 seats, 35 candidates joined and 8 seats remained vacantdue to non-joining. Thus, only three seats remained unallotted after mopup round of counselling. One seat remained vacant in Chhattisgarh DentalCollege and two seats remained vacant in Rungta College. TheDirectorate, on receiving the information of the above vacant seats fromthe colleges, immediately sent list of 30 students for filling three vacantseats in the ratio of 1:10 according to merit list of the students to theprincipal of two Dental Colleges where seats were unallotted.

2.4 The names of the respondents – original writ petitioners werenot included in the list of thirty-five candidates as they were not allottedseats by the Directorate. It appears that the students allotted to theabove three colleges, who were allotted seats after the mop up round ofcounselling, some of them did not join the course and those seats remainedvacant on 31.05.2018. Without any intimation to the Directorate aboutthe vacant seats remained vacant on 31.05.2018, the above three collegesunilaterally granted admission to the original writ petitioners on 31.05.2018after 4:30 p.m. That thereafter the above colleges intimated theDirectorate on 31.05.2018, after the admissions were granted to theoriginal writ petitioners, that they had filled the vacant seats.

2.5 Having come to know about the above illegality in givingadmission to the original writ petitioners without any intimation and/orwithout disclosing the vacant seats to the State Government, videcommunication dated 6.6.2018, the Directorate/State Governmentcancelled the admissions given to the original writ petitioners.Communication dated 6.6.2018 annulling/cancelling the admission of theoriginal writ petitioners, which were illegally given on 31.05.2018 after4:30 p.m., was the subject matter of writ petitions before the High Court.The High Court by way of interim order stayed communication dated6.6.2018 and directed to continue the admission of the original writpetitioners. That thereafter, by the impugned judgment and order, theHigh Court has allowed the writ petitions by quashing and setting aside A

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Athe communication dated 6.6.2018 and has directed that the respectivewrit petitioners will be allowed to complete their course by observing inparagraph 21 as under:

“This Court can only observe that may be in absence of propercommunication or some vaccum subsisting in the directive or theBrules the same has been utilised or exploited by the colleges inquestion but since these admissions have already been grantedand courses have begun and when these writ applications wereinitially taken up, interim protection was granted in favour of thepetitioners, holding that there was a strong prima facie case intheir favour in continuance of their education in the respectiveCcolleges, this Court holds in favour of the petitioners.”

2.6 Feeling aggrieved and dissatisfied with the impugned commonjudgment and order passed by the High Court, the Dental Council ofIndia has preferred the present appeals.

D3. Shri Gaurav Sharma, learned counsel appearing on behalf ofthe Dental Council of India has vehemently submitted that in the presentcase the High Court has seriously erred in quashing and setting asidecommunication dated 6.6.2018 issued by the Directorate/StateGovernment annulling/cancelling the admission of the private respondentsherein – original writ petitioners.E

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3.1 It is submitted that by quashing and setting aside communicationdated 6.6.2018 protecting the admission of the respondents, the HighCourt has perpetuated the illegality committed by the concernedinstitutions/colleges in admitting the students/original writ petitionersillegally.F

3.2 It is submitted that the respective original writ petitioners wereadmitted in the respective private institutions/colleges de hors the policy,rules, regulations and the procedure to be followed for the purpose ofadmission in postgraduate. It is submitted that the admissions wererequired to be given only through the counselling by the Directorate. It isGsubmitted that in the present case, without intimating the StateGovernment/Directorate about the vacant seats, unilaterally the privateinstitutions/colleges granted admissions to the original writ petitioners bybackdoor. It is submitted that therefore the High Court has materiallyerred in directing that the original writ petitions be allowed to completetheir course.H

3.3 It is submitted that as soon as the State Government/Directorate came to know about such an illegality and the illegaladmissions granted by the private institutions/colleges, immediately theState Government acted and cancelled/annulled the admissions videcommunication dated 6.6.2018. It is submitted that thereafter therespective original writ petitioners continued to study pursuant to theinterim order passed by the High Court. It is submitted that continuationof the course/study of the original writ petitioners pursuant to the interimorder passed by the High Court cannot be a ground to allow them tocontinue to complete their course subsequently.

3.4 Making the above submissions and relying upon the decisionof this Court in the case of Abdul Ahad and Others v. Union of Indiaand Others, 2021 SCC OnLine SC 627 and the recent decision of thisCourt in the case of Board of Governors in Supersession of MedicalCouncil of India v. Dr. Priyambada Sharma & Others (Civil AppealNos. 7533-7534/2011 arising out of Special Leave Petition (Civil)Nos.3507-3508/2020, decided on 17.10.2022), it is prayed to allowthe present appeals.

4. Learned counsel appearing on behalf of the State has adoptedthe submissions made by the learned counsel appearing on behalf of theDental Council of India and prayed to allow the present appeals andquash and set aside the impugned judgment and order passed by theHigh Court directing the original writ petitioners to continue/completetheir postgraduate course, who were given admissions illegally by theprivate institutions/colleges.

5. Shri Yatinder Singh, learned Senior Advocate appearing onbehalf of the private institutions/colleges has submitted that as by31.05.2018 at 4:30 p.m., the seats remained vacant and therefore theprivate institutions granted admissions to the students so as to see thatthe seats are not wasted.

5.1 It is submitted that all the students who were granted admissionswere all meritorious students and therefore the merits have not beengiven go bye.

5.2 It is submitted that in fact the particulars of the vacant searswere displayed and only thereafter admissions were given.

5.3 It is submitted that now as the students have completed theircourse, they may be permitted to complete their course and the resultsbe declared.

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A6. Learned counsel appearing on behalf of the original writpetitioners – students has also prayed to permit them to complete theircourse and declare their results by submitting that by now they havealready completed their course.

7. In rejoinder and on the submission made on behalf of the privateBinstitutions/colleges that the respective students – original writ petitionerswere granted admission on the seats remained vacant on 31.05.2018 at4:30 p.m. and therefore to see that the seats are not wasted, the admissionswere given, it is vehemently submitted by the learned counsel appearingon behalf of the Dental Council of India that merely because the seatsremained vacant cannot be a ground to grant admissions de hors andCwithout following the due procedure and even go bye to merits. Relianceis placed on the decision of this Court in the case of Dr. Astha Goel andOthers v. The Medical Counselling Committee & Others (WritPetition (Civil) No. 409 of 2022 and other connected petitions,decided on 10.06.2022), by which it is observed and held that evenDafter the seats remained vacant, the deadline to grant admissions inpostgraduate cannot be extended.8. We have heard learned counsel for the respective parties atlength.

At the outset, it is required to be noted that the respective originalEwrit petitioners were granted admissions by the private institutions/colleges in the postgraduate course illegally. Their admissions can besaid to be backdoor. The admissions in the postgraduate course wererequired to be made only through counselling by the Directorate andthe counselling was to be done with respect to number of seats intimatedFby the concerned institutions/colleges. The admissions in the concernedinstitutions/colleges were required to be given/granted as per the meritonly. As per the procedure and regulations, if after the first counsellingthe seats remained vacant, there shall be second round of counsellingand then mop up counselling to fill up the vacant seats intimated. Everytime the institutions/colleges were required to intimate the DirectorateGthe particulars about the vacant seats and those vacant seats wererequired to be filled in on merits by the Directorate through counselling.The last date and the time for granting admission was 4:30 p.m. on31.05.2018. In the present case, in the mop up round of counselling,the original writ petitioners did participate but could not secure admissionHon merits in the respective colleges/institutions in which subsequently they got admissions through backdoor. If the original writ petitionerswere so much meritorious, they would have got admissions in therespective colleges/institutions on merits through mop up roundconducted by the Directorate. During the mop up round, they couldnot get admissions in the respective private institutions/colleges, thatitself is suggestive that they were not having merit to get admissions inthe institutions/colleges in which subsequently they got admissions.Therefore, the submission on behalf of the private institutions and eventhe students that they were meritorious students and the merit is notgiven go bye cannot be accepted.

9. In the present case, though required, the private institutions/colleges did not intimate to the Directorate/State Government with respectto seats remained vacant. Without any intimation to the Directorate/State Government, the private institutions/colleges unilaterally grantedadmission to the original writ petitioners on 31.05.2018 after 4:30 p.m.,which was not permissible at all. No admission could have been givenafter 4:30 p.m. on 31.05.2018. It is required to be noted that nothing is onrecord that any other students were given any opportunity to apply foradmissions in the respective institutions/colleges for admission on theseats remained vacant. It is not appreciable how the original writpetitioners came to know that at 4:30 p.m. on 31.05.2018, the seats haveremained vacant in the institutions/colleges. The only inference can bethat the institutions and the students were hands in glove and the studentsgot admissions illegally.

10. The submission on behalf of the institutions that the seatsremained vacant and therefore the same could have been wasted andtherefore admissions were given cannot be accepted. In the case of Dr.Astha Goel (supra), it is observed and held that even after some seatsremain vacant on the last date of admissions, the date for admissionscannot be extended. In the said decision, this Court considered its earlierdecisions in the case of Supreet Batra and Others v. Union of Indiaand Others, (2003) 3 SCC 370 and in the case of Education PromotionSociety for India v. Union of India, (2019) 7 SCC 38. In paragraphs10.2 and 10.3, it is observed and held as under:

“10.2 At this stage, the decisions of this Court in the case of SupreetBatra and Ors. (supra) and Education Promotion Society for Indiaand Anr. (supra) are required to be referred to.

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In the case of Supreet Batra and Ors. (supra), it is observed andheld that even if some seats remain vacant, the students cannotbe admitted mid-term. In paragraph 7, it is observed and held asunder: -

“7. When a detailed scheme has been framed through ordersof this Court and the manner in which it has to be worked outis also indicated therein, we do not think that if in a particularyear there is any shortfall or a certain number of seats are notfilled up, the same should be done by adopting one more roundof counselling because there is no scope for the third round ofcounselling under the Scheme. It would not be advisable to goon altering the Scheme as and when seats are vacant. What isto be borne in mind is that broad equality will have to beachieved and not that it should result in any mathematicalexactitude. Out of about 1600 seats, if 200 seats are not filledup for various reasons and such not filled-up seats were muchless in the earlier years, we do not think it should result in thethird round of counselling. If that process is to be adopted thenthere will be again vacancies and further filling up of the seatsfalling vacant will have to be undertaken. In that process, itwill become endless until all the seats under the all-India quotaare filled up. That is not the object of the Scheme formulatedby this Court. The object was to achieve a broad-based equalityas indicated by us at the outset and we do not think that anysteps have to 13 be taken for altering the Scheme. We havetaken identical view in the decision in Neelu Arora v. Union ofIndia [(2003) 3 SCC 366] and connected matters disposed ofon 24-1- 2003. Moreover, this Court in Medical Council ofIndia v. Madhu Singh [(2002) 7 SCC 258] has taken the viewthat there is no scope for admitting students midstream as thatwould be against the very spirit of statutes governing medicaleducation. Even if seats are unfilled that cannot be a groundfor making mid-session admissions and there cannot betelescoping of unfilled seats of one year with permitted seatsof the subsequent year. If these aspects are borne in mind, wedo not think any reliefs as sought for by the petitioners can begranted under these petitions. These writ petitions shall standdismissed.”

DENTAL COUNCIL OF INDIA v. SAILENDRA SHARMA ANDOTHERS [M. R. SHAH, J.]

10.3 In the case of Education Promotion Society for India andAnr. (supra), the writ petitioners like the petitioners in the presentcase prayed for extension of time schedule and prayed for theadditional counselling. This Court negated the same. This Courtalso took the note of the fact that every year large number ofnon-clinical seats remain vacant because many graduate doctorsdo not want to do postgraduation in non-clinical subjects.Thereafter, it is observed and held that merely because the seatsare lying vacant, is not a ground to grant extension of time andgrant further opportunity to fill up vacant seats. It is observed thatthe schedule must be followed. While holding so, it is observed inparagraph 6 as under: -

“6. In this case the petitioners want a general extension oftime not on account of any particular difficulty faced by anyindividual college or university but generally on the ground thata large number of seats for the PG courses are lying 14 vacant.It is stated that more than 1000 seats are lying vacant. In theaffidavit filed by the UOI it is mentioned that as far as deemeduniversities are concerned there are 603 seats lying vacant.However, it is important to note that out of 603 seats lyingvacant only 31 are in clinical subjects and the vast majority(572) that is almost 95% of the seats are lying vacant in non-clinical subjects. There is no material on record to show as towhat is the situation with regard to the remaining 400-500 seats.This Court however can take judicial notice of the fact thatevery year large number of non-clinical seats remain vacantbecause many graduate doctors do not want to dopostgraduation in non-clinical subjects. Merely because theseats are lying vacant, in our view, is not a ground to grantextension of time and grant further opportunity to fill up vacantseats. The schedule must be followed. If we permit violationof schedule and grant extension, we shall be opening apandora’s box and the whole purpose of fixing a time scheduleand laying down a regime which strictly adheres to timeschedule will be defeated.”

Applying the law laid down by this Court in the aforesaid decisions,even if on the last date of admission, seats remained vacant was noground by the institutions/colleges to grant admissions unilaterallyand that too without intimating the vacant seats to the Directorate.

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A11. Now so far as the prayer on behalf of the institutions/collegesand the respective original writ petitioners to permit them to continue thecourse and/or to declare their results as they have completed their studies/course is concerned, the said prayer is required to be rejected outright.It is required to be noted that all the original writ petitioners continuedtheir studies/course pursuant to the interim order passed by the HighBCourt. So far as the State is concerned, the State promptly took a decisionto annul/cancel their admissions on the ground that their admissions wereabsolutely illegal. As such, the High Court ought not have passed suchan interim order directing to grant admissions or continue with admission/course. The interim order passed by the High Court is not legallyCsustainable. As per the settled position of law, nobody can be permittedto take the advantage of the order passed by the Courts.

11.1 Even otherwise, once it is found that the respective originalwrit petitioners were granted admissions illegally and their admissionsare backdoor, thereafter to allow them to continue their course shall beDperpetuating the illegality. Similar prayers have been consistently deniedby this Court in catena of decisions (See Abdul Ahad (supra) & Dr.Astha Goel (supra)). In the case of Guru Nanak Dev University v.Parminder Kr. Bansal, (1993) 4 SCC 401, in paragraph 7, it is observedand held as under:

E“7. Shri Gambhir is right in his submission. We are afraid that thiskind of administration of interlocutory remedies, more guided bysympathy quite often wholly misplaced, does no service to anyone.From the series of orders that keep coming before us in academicmatters, we find that loose, ill-conceived sympathy masqueradesas interlocutory justice exposing judicial discretion to the criticismFof degenerating into private benevolence. This is subversive ofacademic discipline, or whatever is left of it, leading to seriousimpasse in academic life. Admissions cannot be ordered withoutregard to the eligibility of the candidates. Decisions on mattersrelevant to be taken into account at the interlocutory stage cannotbe deferred or decided later when serious complications mightGensue from the interim order itself. In the present case, the HighCourt was apparently moved by sympathy for the candidates thanby an accurate assessment of even the prima facie legal position.Such orders cannot be allowed to stand. The courts should notembarrass academic authorities by themselves taking over theirHfunctions.”

11.2 Similar observations have been made by this Court in thecase of K.S. Bhoir v. State of Maharashtra, (2001) 10 SCC 264.

11.3 In the case of Mahatma Gandhi University v. GIS Jose,(2008) 17 SCC 611, it is observed and held by this Court that themisplaced sympathies should not have been shown in total breach of therules.

11.4 In the case of CBSE v. Sheena Peethambaran, (2003) 7SCC 719, in paragraph 6, it is observed and held as under:

“6. This Court has on several occasions earlier deprecated thepractice of permitting the students to pursue their studies and toappear in the examination under the interim orders passed in thepetitions. In most of such cases it is ultimately pleaded that sincethe course was over or the result had been declared, the matterdeserves to be considered sympathetically. It results in veryawkward and difficult situations. Rules stare straight into the faceof the plea of sympathy and concessions, against the legalprovisions…..”

12. Applying the law laid down by this Court in the aforesaiddecisions, the prayer on behalf of the institutions/students to allow themto complete their course is not required to be accepted. As observedhereinabove, the undue sympathy would lead to perpetuating the illegalityand giving premium to the students who got admissions illegally.

13. In view of the above and for the reasons stated above, theimpugned common judgment and order passed by the High Court directingthe admissions of the respective original writ petitioners and quashingand setting aside communication dated 6.6.2018 issued by the Directorate/State Government annulling/cancelling the admissions of the original writpetitions is unsustainable and the same deserves to be quashed and setaside and is accordingly hereby quashed and set aside. Consequently,the writ petitions preferred by the original writ petitioners stand dismissedand communication dated 6.6.2018 issued by the Directorate annulling/cancelling the admission of the original writ petitioners in the postgraduatecourse in the respective private institutions/colleges is hereby restored.

14. The instant appeals are allowed accordingly. However, in thefacts and circumstances of the case, there shall be no order as to costs.

Devika Gujral(Assisted by : Mahendra Yadav, LCRA)

Appeals allowed

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