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Thursday, December 13, 2012

Supreme Court Order on NEET, CET, TNPG, AIPG etc

PART-HEARD ITEM NOS.4 & 5 COURT NO.1 SECTION XVIA S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS TRANSFERRED CASE (CIVIL) NO.101 OF 2012 A.P.PVT.MEDICAL & DENTAL COLLEGE MGT.ASS Petitioner(s) VERSUS DR.N.T.R.UNIV.OF HEALTH SCIENCES & ANR. Respondent(s) (With appln(s) for impleadment) Transferred Case (C) No.100 of 2012 Transferred Case (C) No.102 of 2012 (With appln.(s) for impleadment) Transferred Case (C) No.103 of 2012 (With appln.(s) for impleadment) Writ Petition (C) No.480 of 2012 (With appln.(s) for ex-parte stay and office report) Transferred Case (C) No.104 of 2012 (With appln.(s) for impleadment) Transferred Case (C) No.105 of 2012 (With appln.(s) for impleadment) Writ Petition (C) No.468 of 2012 (With appln.(s) for directions and office report) Writ Petition (C) No.467 of 2012 (With appln.(s) for stay and office report) Transferred Case (C) No.107 of 2012 Transferred Case (C) No.108 of 2012 Writ Petition (C) No.481 of 2012 (With appln.(s) for ex-parte stay, exemption from filing O.T. and office report) Writ Petition (C) No.464 of 2012 (With appln.(s) for stay, impleadment as party respondent and office report) Transferred Case (C) No......./2012 @ T.P. (C) No.1534 of 2012 (With appln.(s) for ex-parte stay) ...2/-- 2 - Transferred Case (C) No......./2012 @ T.P. (C) No.1524 of 2012 (With appln.(s) for ex-parte stay and office report) Transferred Case (C) No....../2012 @ T.P. (C) No.1527 of 2012 (With appln.(s) for ex-parte stay, directions and office report) Transferred Case (C) No....../2012 @ T.P. (C) No.1532 of 2012 (With appln.(s) for ex-parte stay) Transferred Case (C) No....../2012 @ T.P. (C) No.1535 of 2012 (With appln.(s) for ex-parte stay and office report) Transferred Case (C) No....../2012 @ T.P. (C) No.1533 of 2012 (With appln.(s) for ex-parte stay, direction and office report) Transferred Case (C) No.110 of 2012 (With appln.(s) for impleadment) Transferred Case (C) Nos.132-134 of 2012 Transferred Case (C) Nos.117-118 of 2012 (With appln.(s) for impleadment) Transferred Case (C) Nos.115-116 of 2012 (With appln.(s) for impleadment) Transferred Case (C) Nos.125-127 of 2012 Transferred Case (C) Nos.113-114 of 2012 (With appln.(s) for impleadment) Transferred Case (C) Nos.128-130 of 2012 Transferred Case (C) Nos.121-122 of 2012 Transferred Case (C) No.112 of 2012 (With appln.(s) for impleadment) Transferred Case (C) No.131 of 2012 Transferred Case (C) Nos.123-124 of 2012 (With appln.(s) for impleadment) Transferred Case (C) No.111 of 2012 (With appln.(s) for impleadment) Transferred Case (C) No.120 of 2012 (With appln.(s) for impleadment) ...3/-- 3 - Transferred Case (C) No.119 of 2012 (With appln.(s) for impleadment) Transferred Case (C) Nos.135-137 of 2012 (With appln.(s) for impleadment) Transferred Case (C) Nos.138-139 of 2012 Transfer Petition (C) No.1446 of 2012 (With office report) Transfer Petition (C) No.1447 of 2012 (With office report) Writ Petition (C) No.511 of 2012 (With appln.(s) for stay and office report) Writ Petition (C) No.512 of 2012 (With appln.(s) for stay and office report) Writ Petition (C) No.514 of 2012 (With appln.(s) for stay and office report) Writ Petition (C) No.516 of 2012 (With appln.(s) for stay and office report) Writ Petition (C) No.519 of 2012 (With appln.(s) for stay and office report) Writ Petition (C) No.535 of 2012 (With appln.(s) for stay and office report) Transfer Petition (C) No.1588 of 2012 (With appln.(s) for ex-parte stay and office report) Transferred Case (C) No.142/2012 @ T.P. (C) No.364 of 2012 (With appln.(s) for ex-parte stay and office report) Writ Petition (C) No.483 of 2012 (With appln.(s) for ex-parte stay, permission to file additional documents and office report) Writ Petition (C) No.501 of 2012 (With appln.(s) for ex-parte stay and office report) Writ Petition (C) No.502 of 2012 (With appln.(s) for ex-parte stay and office report) ...4/-- 4 - Writ Petition (C) No.504 of 2012 (With appln.(s) for ex-parte stay and office report) Writ Petition (C) No.507 of 2012 (With appln.(s) for ex-parte stay and office report) Transferred Case (C) No......./2012 @ T.P. (C) No.1572 of 2012 Transfer Petition (C) No.1644 of 2012 (With appln.(s) for ex-parte stay and office report) Transfer Petition (C) No.1645 of 2012 (With appln.(s) for ex-parte stay and office report) Transfer Petition (C) No.1647 of 2012 (With appln.(s) for ex-parte stay and office report) Transfer Petition (C) No.1653 of 2012 (With appln.(s) for ex-parte stay and office report) Transfer Petition (C) No.1654 of 2012 (With appln.(s) for ex-parte stay and office report) Transfer Petition (C) No.1656 of 2012 (With appln.(s) for ex-parte stay and office report) Transfer Petition (C) No.1658 of 2012 (With appln.(s) for ex-parte stay and office report) Transferred Case (C) No.98 of 2012 (with appln.(s) for interim relief, intervention, impleadment and office report) Transferred Case (C) No.99 of 2012 (with appln.(s) for interim relief, impleadment and office report) Writ Petition (C) No.478 of 2012 (With appln.(s) for permission to file synopsis and list of dates, stay and office report) Date: 13/12/2012 This Matter was called on for hearing today. CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SURINDER SINGH NIJJAR HON'BLE MR. JUSTICE J. CHELAMESWAR ...5/-- 5 - For Petitioner(s) Mr. L.N. Rao,Sr.Adv. Mr. A. Ramesh,Adv. Mr. G. Madhavi,Adv. Mr. Y. Rajesh Kumar,Adv. Mr. C.S.N. Mohan Rao,Adv. Mr. D. Geetha,Adv. Mr. P.P. Rao,Sr.Adv. Mr. R. Venkataramani,Sr.Adv. Mr. G.N. Reddy,Adv. Mr. M. Rambabu,Adv. Mr. S. Nagarajan,Adv. Mr. K. Parasaran,Sr.Adv. Mr. Satish Parasaran,Adv. Mr. Senthil Jagadeesan,Adv. Mr. Krishna Dev,Adv. Ms. Sony Bhatt,Adv. Mr. K.K. Mani,Adv. Mr. Ashutosh Kaushik,Adv. Mr. Altaf Ahmed,Sr.Adv. Mr. Neeraj Shekhar,Adv. Mr. Ashutosh Thakur,Adv. Mr. K. Parasaran,Sr.Adv. Mr. Satish Parasaran,Adv. Mr. G. Umapathy,Adv. Ms. R. Nekhala,Adv. Mr. Rakesh K. Sharma,Adv. Mr. K.K. Trivedi,Adv. Mr. Priank Adhyaru,Adv. Mr. K.V. Sreekumar,Adv. Ms. Meenakshi Arora,Adv. Mr. Nidhesh Gupta,Sr.Adv. Mr. Amit Kumar,Adv. Mr. Avijit Mani Tripathi,Adv. Mr. Ravinder Kumar Katna,Adv. Mr. Ankit Rajgarhia,Adv. Mr. Subramonium Prasad,AAG.,TN. Mr. B. Balaji,Adv. Mr. P. Rakesh Sharma,Adv. Mr. P. Krishnamoorthy,Adv. Mr. Varun Tandon,Adv. ...6/-- 6 - Mr. K.K. Venugopal,Sr.Adv. Mr. Shashi Kiran Shetty,Adv. Mr. Sharan Thakur,Adv. Dr. Sushil Balwada,Adv. Mr. K.K. Venugopal,Sr.Adv. Mr. K. Shashi Kiran Shetty,Adv. Mr. S. Udaya Kumar Sagar,Adv. Ms. Bina Madhavan,Adv. Ms. Anindita Pujari,Adv. Mr. Praseena E. Joseph,Adv. for M/s. Lawyers' Knit & Co.,Advs. Mr. L.N. Rao,Sr.Adv. Mr. R. Jagannath Goulay,Adv. Ms. E.S. Sumathy,Adv. Dr. Rajiv Dhavan,Sr.Adv. Mr. Naveen R. Nath,Adv. Ms. Lalit Mohini Bhat,Adv. Ms. Hetu Arora,Adv. Mr. Darpan K.M.,Adv. Mr. Mukul Gupta,Sr.Adv. Mr. Rudreshwar Singh,Adv. Mr. Rakesh Gosain,Adv. Mr. Kaushik Poddar,Adv. Mr. Gopal Jha,Adv. Mr. S. Chandra Shekhar,Adv. Mr. K.K. Venugopal,Sr.Adv. Mr. T. Meikandan,Adv. Mr. Kumar Dushyant Singh,Adv. Mr. Dharmendra Kumar Sinha,Adv. Mr. Jayanth Muth Raj,Adv. Ms. Malavika,Adv. Mr. Sureshan P.,Adv. Mr. L.N. Rao,Sr.Adv. Mr. Mahesh Agarwal,Adv. Mr. Rishi Agarwal,Adv. Mr. E.C. Agrawala,Adv. Mr. Lakshmeesh K. Kamath,Adv. Mr. Abhijat P. Medh,Adv. Mr. Ranjan Kumar,Adv. ...7/-- 7 - Mr. K. Parasaran,Sr.Adv. Mr. Satish Parasaran,Adsv. Mr. Muthiah Kannan,Adv. Mr. V. Balachandran,Adv. Mr. P. George Giri,Adv. Mr. R. Venkataramani,Sr.Adv. Mr. V.G. Pragasam,Adv. Mr. S.J. Aristotle,Adv. Mr. Prabu Ramasubramanian,Adv. Mr. Aljo K. Joseph,Adv. Ms. Supriya Garg,Adv. Ms. Neelam Singh,Adv. Mr. Shodhan Babu,Adv. Mr. Harish N. Salve,Sr.Adv. Mr. V. Giri,Sr.Adv. Ms. Sangita Chauhan,Adv. Mr. Sanjay Misra,Adv. Mr. Rakesh K. Sharma,Adv. Mr. Harish N. Salve,Sr.Adv. Mr. P.H. Parekh,Sr.Adv. Mr. E.R. Kumar,Adv. Mr. Sameer Parekh,Adv. for M/s. Parekh & Co.,Advs. For Respondent(s) Mr. Y. Raja Gopala Rao,Adv. Mr. Nidhesh Gupta,Sr.Adv. Mr. Amit Kumar,Adv. Ms. Rekha Bakshi,Adsv. Mr. Avijit Mani Tripathi,Adv. Mr. Ankit Rajgarhia,Adv. Mr. Ravinder Kumar,Adv. Mr. Tara Chandra Sharma,Adv. Ms. Neelam Sharma,Adv. Mr. Rajeev Sharma,Adv. Mr. Dinesh Kumar Aggarwal,adv. Mr. Sukh Deo Singh,Adv. Mr. Rudreshwar Singh,Adv. Mr. Rakesh Gosain,Adv. Mr. Gopal Jha,Adv. Mr. Kaushik Poddar,Adv. ...8/-- 8 - Mr. K.K. Mani,Adv. Mr. A.S. Rao,Adv. Mr. Ashutosh Kaushik,Adv. Mr. Siddharth Luthra,ASG. Ms. Rahsmi Malhotra,Adv. Mr. Ritin Rai,Adv. Ms. Supriya Juneja,Adv. Mr. Arjun Deewan,Adv. Ms. Sushma Suri,Adv. For AIIMS: Mr. Mukul Gupta,Sr.Adv. Ms. Suruchii Aggarwal,Adv. Mr. Rishab Kaushik,Adv. Mr. Rahul Tomar,Adv. Mr. Pradip K. Ghosh,Sr.Adv. Mr. Jaideep Gupta,Sr.Adv. Mr. Rauf Rahim,Adv. Ms. Devyani,Adv. Mr. Yadunandan Bansal,Adv. Mr. Amitesh Kumar,Adv. Mr. Ravi Kant,Adv. Mr. Chandra Shekhar Singh,Adv. Mr. Gopal Singh,Adv. Ms. Pratibha M. Singh,Adv. Ms. Surbhu Mehta,Adv. Mr. Gaurav Sharma,Adv. Mr. Sanjay R. Hegde,Adv. Mr. S. Nitin,Adv. Mr. Anil Kumar Mishra-I,Adv. Mr. P.P. Rao,Sr.Adv. Mr. R. Venkataramani,Sr.Adv. Mr. G.N. Reddy,Adv. Mr. M. Rambabu,Adv. Mr. S. Nagarajan,Adv. Mr. V. Prabhakar,Adv. Mr. R. Chandrachud,Adv. Ms. Jyoti Prashar,Adv. Mr. Girish Ananthamurthy,Adv. Ms. Vaijanthi Girish,Adv. ...9/-- 9 - Mr. Abdhesh Chaudhary,Adv. Mr. Amit Jaiswal,Adv. Mr. Rajiv Ranjan Dwivedi,Adv. Ms. Hemantika Wahi,Adv. Ms. Jesal,Adv. Ms. Nandani Gupta,Adv. UPON hearing counsel the Court made the following O R D E R Place these matters on 15th January, 2013. In the meantime, the Medical Council of India, the Dental Council of India, as well as the States and Universities and other Institutions, will be entitled to conduct their respective examinations for the M.B.B.S, B.D.S. and PostGraduate courses, but shall not declare the results of the same, until further orders of this Court. Learned counsel for the respective parties are all directed to make available their written submissions by 7th January, 2013. Let copies of this Order be made available to the advocates on-record for the respective parties for communication to the concerned Authorities. Wide publicity may also be given to this Order by the States, Union of India, Medical Council of India and the Dental Council of India so that the students, who are intending to sit for the entrance examination, may have knowledge of the same. [ T.I. Rajput ] [ Juginder Kaur ] A.R.-cum-P.S. Assistant Registrar [Signed order is placed on the file]IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION TRANSFERRED CASE (C) NO.101 OF 2012 A.P. Private Medical and Dental College Management Association ...Petitioner(s) Versus Dr. N.T.R. University of Health Sciences & Anr. ...Respondent(s) W I T H Transferred Case (C) No.100 of 2012, Transferred Case (C) No.102 of 2012, Transferred Case (C) No.103 of 2012, Writ Petition (C) No.480 of 2012, Transferred Case (C) No.104 of 2012, Transferred Case (C) No.105 of 2012, Writ Petition (C) No.468 of 2012, Writ Petition (C) No.467 of 2012, Transferred Case (C) No.107 of 2012, Transferred Case (C) No.108 of 2012, Writ Petition (C) No.481 of 2012, Writ Petition (C) No.464 of 2012, Transferred Case (C) No......./2012 @ T.P. (C) No.1534 of 2012, Transferred Case (C) No......./2012 @ T.P. (C) No.1524 of 2012, Transferred Case (C) No....../2012 @ T.P. (C) No.1527 of 2012, Transferred Case (C) No....../2012 @ T.P. (C) No.1532 of 2012, Transferred Case (C) No....../2012 @ T.P. (C) No.1535 of 2012, Transferred Case (C) No....../2012 @ T.P. (C) No.1533 of 2012, Transferred Case (C) No.110 of 2012, Transferred Case (C) Nos.132-134 of 2012, Transferred Case (C) Nos.117-118 of 2012, Transferred Case (C) Nos.115-116 of 2012, Transferred Case (C) Nos.125-127 of 2012, Transferred Case (C) Nos.113-114 of 2012, Transferred Case (C) Nos.128-130 of 2012, Transferred Case (C) Nos.121-122 of 2012, Transferred Case (C) No.112 of 2012, Transferred Case (C) No.131 of 2012, Transferred Case (C) Nos.123-124 of 2012, Transferred Case (C) No.111 of 2012, Transferred Case (C) No.120 of 2012, Transferred Case (C) No.119 of 2012, Transferred Case (C) Nos.135-137 of 2012, Transferred Case (C) Nos.138-139 of 2012, Transfer Petition (C) No.1446 of 2012, Transfer Petition (C) No.1447 of 2012, Writ Petition (C) No.511 of 2012, Writ Petition (C) No.512 of 2012, Writ Petition (C) No.514 of 2012, Writ Petition (C) No.516 of 2012, Writ Petition (C) No.519 of 2012, Writ Petition (C) No.535 of 2012, Transfer Petition (C) ....2/-- 2 - No.1588 of 2012, Transferred Case (C) No.142/2012 @ T.P. (C) No.364 of 2012, Writ Petition (C) No.483 of 2012, Writ Petition (C) No.501 of 2012, Writ Petition (C) No.502 of 2012, Writ Petition (C) No.504 of 2012, Writ Petition (C) No.507 of 2012, Transferred Case (C) No......./2012 @ T.P. (C) No.1572 of 2012, Transfer Petition (C) No.1644 of 2012, Transfer Petition (C) No.1645 of 2012, Transfer Petition (C) No.1647 of 2012, Transfer Petition (C) No.1653 of 2012, Transfer Petition (C) No.1654 of 2012, Transfer Petition (C) No.1656 of 2012, Transfer Petition (C) No.1658 of 2012, Transferred Case (C) No.98 of 2012, Transferred Case (C) No.99 of 2012 and Writ Petition (C) No.478 of 2012 O R D E R In all these matters, which are before us, the main question which has been urged is with regard to the applicability of the decision by the Medical Council of India to conduct National Eligibility and Entrance Test for both M.B.B.S. and Post-Graduate Courses for Medicine. In addition to the above, there is also the question of admission into B.D.S. and M.D.S. Examinations. Having heard learned counsel representing different parties, while we are of the view that the main matters which are pending need to be heard and decided at an early stage, the time taken in hearing the matters should be utilised in allowing the students to sit for their respective examinations, which are already notified. Accordingly, let all the transferred cases, as well as the writ petitions, be listed for final hearing and disposal, irrespective of other part-heard or specially fixed matters on 15th, 16th and 17th January, 2013. In all the matters where transfer has not yet been completed, those transfer petitions shall stand allowed and all the petitions, pending in the various courts, should be ...3/-- 3 - transferred to this Court by 15th January, 2013, and be treated as Transferred cases and be listed along with these Transferred cases and the writ petitions. In the meantime, the Medical Council of India, the Dental Council of India, as well as the States and Universities and other Institutions, will be entitled to conduct their respective examinations for the M.B.B.S, B.D.S. and PostGraduate courses, but shall not declare the results of the same, until further orders of this Court. Learned counsel for the respective parties are all directed to make available their written submissions by 7th January, 2013. Let copies of this Order be made available to the advocates on-record for the respective parties for communication to the concerned Authorities. Wide publicity may also be given to this Order by the States, Union of India, Medical Council of India and the Dental Council of India so that the students, who are intending to sit for the entrance examination, may have knowledge of the same. .........................CJI. [ALTAMAS KABIR] ...........................J. [SURINDER SINGH NIJJAR] ...........................J. [J. CHELAMESWAR] New Delhi, December 13, 2012. -tir-

Saturday, September 08, 2012

AMUPMDC Maharashtra MBBS Admission Case

Ms. Priyanka Dattatray Bamane vs 8) Medical Council Of India on 9 June, 2011 Bench: S. J. Kathawalla wp-7799-10-final 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7799 OF 2010 Ms. Priyanka Dattatray Bamane ) Aged 17 years, Occupation -Student ) through her father and legal guardian ) Mr. Dattatray Baburao Bamane ) R/at Post Shirval, Taluka Khandala ) District Satara, Maharashtra 412 801 ).. Petitioner Versus 1) The State of Maharashtra ) through its Department of Medical Education ) through the Assistant Government Pleader ) Appellate Side, High Court, Bombay. ) 2) The Director of Medical Education & Research ) having his address at St. George Hospital ) Compound, Mumbai 400 001. ) 3) The Association of Management of Unaided ) Private Medical & Dental Colleges, Maharahtra ) (AMUPMDC), having his office address at ) Shreeji House, 75, Mint Road, Fort ) Mumbai 400 001. ) 4) The Competent Authority ) The Association of Management of Unaided ) Private Medical & Dental Colleges, Maharahtra ) (AMUPMDC), having his office address at ) Shreeji House, 75, Mint Road, Fort ) Mumbai 400 001. ) 5) The Dean ) Smt.Kashibai Navale Medical College and ) General Hospital, having its address at Narhe ) Pune 41. ) 6) The Dean, Ahmednagar Medical College ) having its address at Vilad Ghat, Vadgaon Gupta ) Ahmednagar, Maharashtra 411 111 ) wp-7799-10-final 2 7) The Dean, K.J. Somaiya Medical College ) Eastern Highway, Sion, Mumbai 400 022 ) 8) The Dean, Annasaheb Chudaman Patil ) Memorial College ) having its address at Jawahar Soot Girni ) Sakri Road, Dhule, Maharashtra 424 001 ) 9) The Dean, Terna Medical College ) having its address, Sector 12, Phase II, Nerul ) Navi Mumbai, Maharashtra 400 706 ) 10) The Dean, V.P. Dental College ) having its address, Kavalpur, Taluk Miraj ) Dist. Sangli, Maharashtra 416 306 ) 11) Pravesh Niyantran Samiti ) (Admission Monitoring Committee) ) through its Secretary, having its address at ) rd Room No.305, 3 Floor, Government Polytechnic ) Building, 49, Ali Yawar Jung Marg, Bandra (East)) Mumbai 400 051. ) 12) The Dean, Nashik District Maratha Vidya ) Prasarak Samaja's Medical College ) having its address, Vasantdada Nagar, Adgaon ) Nashik 422 003, Maharashtra ) 13) Mr. Kadam Akshay Patil ) having his c/o address at Ahmednagar Medical ) College (Padmashri Dr.Vithalrao Vikhe Patil ) Medical College), Vilad Ghat, Vadgaon Gupta ) Ahmednagar 414 111 ) 14) Ms. Kumbale Neha Dayanand ) having her c/o address at K.J. Somaiya College ) & Research Centre, Eastern Highway, Sion ) Mumbai 400 022. ) 15) Mr. Yogesh Nishad ) having his c/o address at Terna Medical College ) & Hospital, Sector 12, Phase II, Nerul ) Navi Mumbai 400 706 ) wp-7799-10-final 3 16) Mr. Tushar Deshmukh ) having his c/o address at Smt.Kashibai Navale ) Medical College & General Hospital, Narhe ) Pune-41. ) 17) Maharashtra University of Health Sciences ) having its address at Vani-Dindori Road ) Mhasrul, Nashik 422 004 ) 18) Medical Council of India ) having its address at Pocket 14, Sector-8 ) Dwarka Phase I, New Delhi 110 077 ).. Respondents Mr. Ulhas G. Kerkar i/b Mr.Victor K. Fernandes for the Petitioner. Mr. R.P. Behere, Additional Government Pleader, for Respondent Nos.1 and 2. Mr. N.H. Seervai, Senior Advocate, with Mrs.Chandana Salgaonkar for Respondent Nos.3 and 4. Mr. V.P. Malvankar for Respondent No.5. Mr. S.V. Marne for Respondent No.6. Mr. Rishit Badiani i/b Hariani & Co. for Respondent No.7. Mr. M.D. Naik for Respondent No.11. Mr. Tejas Dande for Respondent No.13. Mr. Raunak Shah for Respondent No.16. Ms. Simran Puri for Respondent No.18. CORAM : MOHIT S. SHAH, C.J. AND S.J. KATHAWALLA, J. Judgment reserved on : 18th April 2011 Judgment pronounced on : 09th June, 2011 JUDGMENT (Per Chief Justice) This is an unfortunate case where a less meritorious student than the petitioner, a student with 136 marks at the Common Entrance Test as against 137 marks obtained by the petitioner at the same test, secured admission to the first year MBBS course in respondent No.6 College. The petitioner moved this Court on 29th September 2010 but by wp-7799-10-final 4 the time all the relevant facts could come on record and the parties completed their pleadings and made their oral submissions through their respective learned counsel, the cut off date of 30th September 2010 had already gone past. This Court, therefore, noted in the order dated 5th October 2010, that this unfortunate situation arose because students, who had already secured admissions to seats in Government Medical Colleges did not give up their entitlement to secure admissions to the private unaided medical colleges till the third round of counselling, with the result that the seats were later on treated as vacant and taken out of the pool of seats to be filled in by respondent No.3 herein -Association of Management of Unaided Private Medical and Dental Colleges. One such seat reserved for NT-1 category then became available to the individual unaided private medical college in Pune-respondent No.6. This private college did not notify the vacancy on its website nor did it advertise the vacancy in any newspaper from Pune, but had notified the vacancy in a newspaper from Nagpur long before respondent No.3 Association had declared the vacancy. Respondent No.13 applied in response to that advertisement and secured admission to the first year MBBS course, leaving the petitioner at a disadvantage. 2. It is necessary to examine the relevant clauses in the scheme prepared for admissions to private unaided medical colleges, which have been invoked by the Association and respondent No.6- College. Admission Procedure 3. From the affidavit in reply filed on behalf of the Director of Medical Education & Research (respondent No.2), Association of Management of Unaided Private Medical and Dental Colleges, Maharashtra (respondent No.3) and the Competent Authority of the said wp-7799-10-final 5 Association (respondent No.4) as well as the Dean, Ahmednagar Medical College (respondent No.6) it transpires that the Selection Process is as under :- Whilst there is a Centralised Admission Process being undertaken by the Director of Medical Education for admissions to seats in the first year MBBS course in the Government Medical Colleges and in the First Year BDS Course in Government Dental Colleges in the State, there is another Centralised Admission Process for admissions to the first year MBBS course in the private medical colleges and to the 1st year BDS course in private dental colleges in the State which is being undertaken by respondent No.3 Association. The Final Revised Scheme for Centralised Admission Process for unaided private medical and dental colleges, in so far as it is relevant for the purposes of this petition, reads as follows. 4. The Final Revised Scheme for Common Admission Process (as approved by this Court's order dated 10th August, 2006). This Scheme will operate subject to the Legislation of either the Central Government or the State Government. The admissions to every Private Educational Institution conducting Health Science courses in the State of Maharashtra, aided or unaided, as also minority or non minority shall be carried out as under:- (a) All the admissions to each and every seat save and except the seats reserved for the children or wards of Persons of Indian Origin or Non Resident Indian or Foreign Students (which in any case shall not be in excess of the 15% of the total approved intake capacity of such Institution) shall be granted only, and only, on the basis of the merit position secured by the concerned student at the Common Entrance Test conducted by an Association formed by the Institutions conducting a Health Science Course in the same discipline. At present "Association of Management of Unaided Private Medical & Dental Colleges, Mumbai", is conducting such Common Entrance Test and is therefore, hereinafter referred to as 'such Association'. However, it will be open for any such wp-7799-10-final 6 Private Educational Institution to opt for the Common Entrance Test conducted by the State as also to be a part of admission process conducted by the State, as held by the Hon'ble Division Bench of this Hon'ble Court in Writ Petition (Lodging) No.930 of 2006 as per order dated 20th April, 2006. It is made clear that this option so provided is subject to the order that may be passed by the Hon'ble Supreme Court in this regard, in the pending proceedings arising out of the aforesaid Order of the Hon'ble Division Bench. (b) Allotment of each and every seat from and out of such Institutions shall be granted through a Centralised Admission Process (Single Window System) for the three rounds conducted in a fair and transparent manner by the aforesaid Association of Management. If any Professional College chooses not to admit from the Centralised admission process (Single Window System) conducted by the Association then that college must necessarily admit from the Centralized Admission Process (Single Window System) conducted by the State. (c) The Centralized Admission Process shall be conducted by the aforesaid Association of Management and in its absence by the State, in a computerized manner on the basis of the option forms submitted by the students in triplicate indicating choices course-wise/discipline-wise, college-wise and category-wise. Such option forms may also contain other requisite information including the income group of the parents of the students. (d) In case such admission process is conducted by such Association :- (i) One set of final merit list declared by the aforesaid Association (in case such Association has conducted the CET) along with its soft copy shall be submitted within one week of its declaration by the Association to the Admission Monitoring Committee ( Pravesh Niyantran Samiti) for publication thereof, in addition to its publication by such Association. The admission Monitoring Committee (Pravesh Niyantran Samiti ) shall, immediately on its receipt, display the same on its website. (ii) One set of all such option forms received by such an Association along with a soft copy of total data collected of such option forms electronically by such an wp-7799-10-final 7 Association shall be submitted by such an Association to the aforesaid Admission Monitoring Committee (Pravesh Niyantran Samiti) within one week from the last date of submission of such option forms. The Association shall also furnish to such Admission Monitoring Committee (Pravesh Niyantran Samiti) category-wise detailed information as to the total intake capacity of each and every such Institution to which such admissions are to be granted. (iii) After duly processing these option forms such Association shall prepare a list of provisional admissions proposed to be granted to such Institutions and within three days of such preparation shall submit to the Admission Monitoring Committee (Pravesh Niyantran Samiti) with a soft copy thereof in a sealed cover, all the relevant papers of the proposed admissions to be granted to various such Institutions, category-wise, institution-wise, course of study- wise/discipline-wise. The information shall clearly state the full name of the students, requisite particulars as to the marks obtained by the student at the Common Entrance Test and other necessary particulars as may be required by such admission Monitoring Committee (Pravesh Niyantran Samiti). (iv) Solely for the sake of ensuring merit based selection and transparency in the admission process, the Association shall simultaneously also submit all the aforesaid information to the State Government through the Secretary, Medical Education and Drugs Department for the purpose of publishing the same on their Website. This will not in any way amount to a waiver of the Association's constitutional rights, if any, laid down by the Hon'ble Supreme Court. (v) For the first round, within two weeks of receipt of such information from such an Association, the Admission Monitoring Committee (Pravesh Niyantran Samiti) shall carry out necessary verification of such proposed admissions and communicate to the said Association its non-approval, if any, for the grant of such admissions. In case if within two weeks such non approval is not wp-7799-10-final 8 communicated, it shall be presumed that the admissions so proposed are approved. The Admission Monitoring Committee (Pravesh Niyantran Samiti) may raise objection in such proposed admissions only if it is found that the proposed admissions are not in accordance with the merit determined by the Common Entrance Test, or the relative choice of the student, or is otherwise illegal. Such Institutions shall not grant a single admission in breach of such approved rules of admissions. (vi) Such Association shall conduct three rounds of aforesaid centralized admission process as may be required by 10th September every year.Every such additional process as may be required, shall be completed by or before 10th September every year. Before completing every such additional round of admissions such Association shall follow the procedure set out herein above. In addition to the same, such Association shall submit the total number of vacant seats institution-wise and category-wise to such Admission Monitoring Committee (Pravesh Niyantran Samiti) along with the provisional admissions suggested for every such round. (vii)The aforesaid Association as also such Admission Monitoring Committee (Pravesh Niyantran Samiti) and the Director of Medical Education shall publish on their websites the final list of admitted students along with the particulars such as the Name of the College, Category etc. immediately after the finalization of the admission list at the end of each round enabling the students so admitted to complete the formalities with their respective college, int which admission has been granted to them. (viii)The Scheme to be followed for effecting admission shall be as under for the year 2006-07..... (ix) The schedule to be followed for effecting admissions shall be as under, from the year 2007-08 onwards. wp-7799-10-final 9 Sr.No. Programme Schedule 1. Final merit list of CET to be displayed 15th June 2. CET merit list to be submitted to the Committee 16th June 3. Submission of Data : 3rd July (i) Intake Capacity College-course-category-wise (seal Matrix) (ii) Preferences of candidates merit-wise with category. (iii) Provisional selection list 4. Verification process to be concluded by the 17th July Committee for First Selection List. 5. Declaration of First Selection List and display on 18th July Website 6. Last date of joining the college- First Selection List 25th July 7. Last date of Retention Form Submission 27th July 8. Reporting of the college-wise vacancy by 4th August Association after First Selection List alongwith the Second Provisional Selection List 9. Verification process to be conducted by the 11th August Committee for Second Selection List. 10. Declaration of Second Selection List and display 12th August on Website. 11. Last date of joining the College- Second Selection 20th August List 12. Last date of Retention Form submission 22nd August 13. Reporting of the college-wise vacancy by 29th August Association after Second Selection List alongwith the Third provisional Selection List 14. Verification process to be concluded by the 5th Sept. Committee for Third Selection List. 15. Declaration of Third Selection List and display on 6th Sept. the Website 16. Last date of joining the college- Third Selection 12th Sept. List. 17. Individual Colleges to start granting admission(s) 13th Sept. against the vacant seats strictly in accordance with inter-se merit from among the students applying to each of the colleges directly. 18. Individual colleges to submit the list of such 20th Sept. provisional admissions with the Committee. 19. Verification process to be concluded by the 27th Sept. Committee for admissions 20. Last date for grant of admissions at colleges level 30th Sept. in case of only MBBS and BDS courses wp-7799-10-final 10 (ix) There will be a third round of Centralised Admission Process in conformity with the directions of the Hon'ble Supreme Court dated 27-7-2005 issued in SLP (Civil) No. 11367/2005. The seats remaining vacant after the third round of the Centralized Admission Process shall be filled in by the respective Colleges only and strictly in accordance with the order of merit determined by such Common Entrance Test after the written prior approval of the Committee. The seats remaining unfilled shall be filled in by these colleges at their own level strictly in accordance with inter-se merit of the applicants and in a fair and transparent manner. (emphasis supplied) 5. The above Scheme and Schedule are operative from 2007-08 onwards. On the basis thereof, the Association published the brochure Asso- CET 2010, the relevant extract whereof reads as under :- "Pursuant to the orders dated 10.8.2006 of the Hon'ble High Court of Bombay in Writ Petition No. 5655 of 2006, the Selection to all the Health Science Courses will be made as per Merit Cum Preference given by the candidates. The selection Process will be as follows:- 12.1 & 12.2 : As per the orders there will be three rounds of Selection Process for MBBS & BDS Courses only. 12.3. For MBBS & BDS Courses there shall be Three Rounds of Selection of candidates depending on the availability of vacant seats. The selection will be on the basis of Merit and the Preference submitted by the candidates in their Preference Form. For second and subsequent Rounds no separate Preference Form will be filled in by the candidates. The choice of the College & Course once entered in the data shall be final and irrevocable. This final data shall be used in entire selection process for the admission to first year Health Science Courses for the academic year 2010-11. wp-7799-10-final 11 12.4 The candidates may kindly note that while filling the Preference form Association -CET 2010 merit number will be operated from number one onwards in each Round of selection. The candidate selected in previous Round will be considered for betterment in the subsequent Round. The betterment means the higher Preference exercised by the candidate. The shift in such betterment shall be compulsory and mandatory except for those who have filled Status Retention Form . Such a candidate who has filled Status Retention Form will not be considered for any subsequent Rounds of Selection process for the year 2010-11. 12.5 Based on Merit and Preference given, the seat will be allotted on merit and the allotment will be displayed on Official Website of AMUPMDC (www.amupmdc.org). No separate letters will be issued to the candidates, they should report to the allotted Colleges with a printed copy of the allotment letter downloaded from the website. 12.6 Candidate as per the allotment should report alongwith all Original Certificates and a set of attested photocopies of each document at the allotted College as per the schedule. All Original Certificates will be verified by the allotted College before finalizing the admission. Certificates and documents should be submitted as per the list given below:- 12.7 & 12.8......................... 12.9 A candidate selected for any Health Science Course as per Merit cum Preference will not be allowed for change of college on mutual basis. Request for mutual transfer is not permissible. Such request will not be entertained. wp-7799-10-final 12 12.10 The selection made by the Competent Authority as per procedure is final and will be binding on the candidate. 12.11 Status Retention of Admissions : After selection in first or second round if the candidate desires to retain the same selection (Course & College) and does not want to take any further betterment then he/she can do so by filing "Status Retention Form" to be submitted to the Competent Authority through the College Principal/Dean where he/she is admitted. However, candidate should note that once Retention Form is given his/her admission is confirmed in that college and his/her name will be deleted from the further selection process for the academic year 2010-11 (Annexure- G). 12.12 To confirm the admission the Candidate will have to deposit his/her all relevant Original Certificates, documents along with the complete tuition fees to the concerned college where the candidate is admitted. 13. PROCESS FOR FILLING VACANT SEATS OF MBBS & BDS Courses only. 13.1 After first round, the vacant seats will be filled-in. For these seats, the selected as well as not selected candidates who have filled the Preference Form are eligible. For this process Association-CET 2010 Merit List will be operated from Merit Number 1 onwards. The Candidate selected in round one will be considered for betterment in the 2nd and 3rd round of selection process. "Betterment" means the higher preference exercised by the candidates. The shift in such betterment shall be compulsory and mandatory, except as provided in para no.12.11. 13.2 The Competent Authority will issue notice which will be displayed on the website of AMUPMDC indicating the date of subsequent round of selection process. wp-7799-10-final 13 13.3 The following candidates will not be eligible for subsequent admission process. 13.3.1 Candidate who is selected as per his/her merit cum preference, but does not join the allotted college or cancels the admission after joining, is not eligible for further selection process. 13.3.2 Accepting admission but not reporting to the College and/or not paying the fees. 17. Cancellation of Admission and Refund of fees 17.1. CANCELLATION 17.1.1. The Selected candidate must join the College at which he/she is selected on or before the date prescribed by the Competent Authority, failing which his/her admission stands cancelled. 17.1.2. The selected candidate who has confirmed the admission wishes to cancel the admission should cancel it at the respective College. The College should accept the cancellation and inform the Competent Authority along with copy of the cancellation Letter immediately (Annexure H). (emphasis supplied) FACTS 6. Two students (Ajinkya Parhe and Sonal Kumawat) each with 152 marks at the Common Entrance Test conducted by the Government of Maharashtra (MHT-CET) were offered admissions in the first found of the centralised admission process for the Government Medical Colleges which took place on 17th July 2010. The same two students were offered seats of their choice in the third round of the wp-7799-10-final 14 centralised admission process for the private medical colleges which took place on 6th September 2010. Whether it was lack of co-ordination or negligence or carelessness on the part of the Director of Medical Education or respondent No.3 Association, the fact remains that the Director of Medical Education did not inform respondent No.3 Association that Ajinkya Parhe and Sonal Kumawat had already secured admissions to seats in the first MBBS course in the Government Medical colleges. It appears that even respondent No.3 Association did not check up with the Director of Medical Education. Respondent No.3 Association accordingly considered names of five students who were already offered admissions in the Government Medical colleges and had secured such admissions. Two of them i.e. Ajinkya Parhe and Sonal Kumawat had already accepted admissions as far back as in the first round in the Centralised Admission Process of the Government on 17 th July 2010 but still they did not withdraw their candidature for admissions to private medical colleges. Accordingly, when the third round of counselling took place on 6th September 2010, these five students were given six days' time to join the concerned private medical colleges i. e. 12th September 2010 which was extended by the Association upto 15th September, 2010. On the ground that these five students did not join the concerned private medical colleges, those five seats were treated as vacant after the third round and were made available to the concerned private medical colleges including respondent No.6 college. One of those seats being the seat in respondent No.6 college was reserved for an NT-I category student. 7. However, respondent No.6-College filled in the said seat reserved for NT-1 category by giving admission to respondent No.13, also belonging to NT-1 category, through he had obtained only 136 CET wp-7799-10-final 15 marks as against 137 marks obtained by the petitioner (who also belongs to NT-1 category) in the same test. Respondent No.13 was thus granted admission to respondent No.6 college on 18th September 2010. 8. The defence of respondent no.6-College is that it had notified the vacancy in the advertisement published in a newspaper on 2nd September 2010 and that respondent No.13 applied in response to that advertisement and the petitioner did not apply and therefore, respondent No.13 was granted admission. Submissions 9. The learned counsel for the petitioner submitted that in the first place a student having secured admission to a Government Medical College cannot be allowed to participate in the subsequent selection process for admissions to private medical colleges. Secondly, respondent No.6 college did not notify the vacancy on its website nor did it notify the vacancy in any advertisement published in any newspaper from Pune (where respondent No.6-College is situate and where the petitioner is residing) and that the vacancy notified in a newspaper published from Nagpur and that too on 2nd September 2010 (even before the third round of counselling took place on 6th September 2010 and the vacancy arose on 16th September 2010) could never be expected to be read by students seeking admission to respondent No.6- college at Pune, to a seat becomes available to respondent No.6 after 15th September, 2010. 10. The learned counsel for respondent No.6 College submitted that it is common practice of Private College Management to give such advertisement in advance to give enough time to students to apply. It is further submitted that the admission granted to respondent No.13 should wp-7799-10-final 16 not be disturbed because the cut off date of 30th September 2010 having already gone, even if the admission granted to respondent No.13 were to be cancelled, the petitioner would not be entitled to get admission to respondent No.6 college for the current year 2010-11 and, therefore, no useful purpose would be served by cancelling the admission granted to respondent No.13 in respondent No.6 college. 11. The learned counsel for respondent No.13 submitted that whatever may be the error on the part of respondent No.6 college, respondent No.13 had bona fide applied in response to the advertisement which he had read in the newspaper and on the basis thereof respondent No.13 secured admission on 18th September 2010. If respondent No.13 had not secured admission to the first MBBS course in respondent No.6 college, respondent No.13 would have secured admission to a seat in a Dental course in another college or in any other course by 30th September 2010 and as such any interference with his admission after 30th September 2010 would cause irreparable loss and injury which cannot be compensated in terms of money. 12. It is submitted by the learned counsel for respondent No.3 Association that assuming that there was some error committed by respondent No.6 college in granting admission to respondent No.13, there were 22 candidates more meritorious than the petitioner who also belonged to NT-1 category and who had given option for respondent No. 6 College. Hence, the petitioner is not required to be granted any relief whatsoever, because even if respondent No.6 college had issued an advertisement at the relevant time in a newspaper published from Pune and also on its website, the seat could have gone to any one of those 22 more meritorious students. wp-7799-10-final 17 13. The learned counsel for the petitioner, however, points out that in the first place none of those 22 students have made any grievance so far. It is submitted that none of them have filed any writ petition before this Court nor have the respondents shown any communication from those students making any grievance against admission granted to respondent No.13. 14. The learned counsel for the petitioner further submits that respondent No.6 should be directed to grant the petitioner admission to 1st MBBS course for the year 2011-12, because the petitioner should not be made to suffer for the illegal and arbitrary act of respondent No.6 College. 15. The above submission has been vehemently opposed by the Association through their affidavit dated 15th April, 2011 wherein reliance is placed on the decision of another Division Bench of this Court at Nagpur in Ms. Gitanjali Ashok Kumar Yadav Vs. State of Maharashtra and ors. 2011 (1) ALL MR 225 in support of the contention that it is impermissible for a college to grant admission to a student on the basis of the result of CET of previous academic year. DISCUSSION 16. Having heard the learned counsel for the parties, we are of the view that since respondent No.13 was granted admission to respondent No.6 college on 18th September 2010 and although the writ petition was filed on 29th September 2010, the cut off date of 30th September 2010 having already gone, no useful purpose will be served by cancelling the admission granted to respondent No.13. At the same time, the arbitrary action on the part of the respondents cannot be wp-7799-10-final 18 condoned. Respondent No.6 college did not notify the vacancy which became available to it for the first time on 16th September 2010 (the third round took place on 6th September and the time limit for the concerned students to join expired on 15th September 2010). After the vacancy was created, respondent No.6 college, did not at all notify the vacancy on its website or advertised the same in any newspaper on or after 15th September 2010. The very fact that respondent No.6 at Pune had advertised the vacancy in question in a newspaper published on 2nd September 2010, and that too, published from Nagpur, is sufficient to show the malafides on the part of respondent No.6 College. The petitioner is justified in making a serious grievance against such arbitrary action on the part of respondent No.6 College in giving admission to 1st MBBS Course to respondent No.13, a less meritorious candidate, on 18th September 2010. 17. No further discussion is required to hold that respondent No.6 acted arbitrarily in granting admission to its first MBBS course to respondent No.13, who is admittedly a less meritorious student than the petitioner. This situation arose in the first place on account of the fact that the five students who had already secured admission to Government Medical Colleges were subsequently also offered admission to private medical colleges right upto the third round. This aspect will be adverted to later on, but the fact remains that admission granted by respondent No.6 to respondent No.13 was in an absolutely unfair and non transparent manner. The last paragraph of the Scheme makes it clear that the colleges which claim to have vacant seats after the third round cannot fill in the seats as per their whims and caprice. wp-7799-10-final 19 "The seats remaining unfilled shall be filled in by these colleges at their own level strictly in accordance with inter-se merit of the applicants and in a fair and transparent manner". 18. As per the Final Revised Scheme for common admission process for admissions to Private Medical Colleges, even when after third round unfilled vacancies are to be filled in by the concerned private colleges, it can grant only provisional admission only after the approval by Admission Monitoring Committee, the student can be finally admitted. The allegation made by the petitioner that respondent No.6 College did not obtain such approval from the Admission Monitoring Committee has not been disputed by respondent No.6- College. It is therefore, clear that respondent No.6 College acted arbitrarily and malafide in granting admission to respondent No.13 who was admittedly a less meritorious candidate than the petitioner and 22 other candidates who had given their preferences for admission to 1st MBBS course in respondent No.6 College. 19. The question is what relief should be granted at this stage. 20. In the first place it must be declared that the act of respondent No.6 college in granting admission to respondent No.13 with 136 mark at Association CET to a seat reserved for NT-1 category on 18th September, 2010 without considering the claim of the petitioner with 137 mark at the same CET as grossly arbitrary, malafide and illegal. We, however, refrain from giving any direction to cancel the admission given to respondent No.13 for the following reasons taken cumulatively:- (i) The cut off date of 30th September, 2010 having already gone, Respondent No.13 would not be able to wp-7799-10-final 20 secure admission to any other course like BDS. Course, nor can the petitioner be directed to be admitted to 1st MBBS Course in respondent No.6- College for the year 2010-2011. (ii) There were 22 candidates more meritorious than the petitioner, who had also opted for respondent No.6 college in the preference form. (iii) The petitioner is prosecuting her course in a Dental College (Vasant Dada Patil Dental College) from the academic year 2010-2011. (iv) If the petitioner is directed to be admitted to respondent No.6 College in 2011-2012, one seat in the BDS course for the year 2010-2011 will fall vacant in the dental college where the petitioner is studying at present and will be wasted as no other student can now be granted admission to first year B.D.S. Course in the year 2010-2011. 21. Even while declining to issue any direction to respondent No.6 college to grant the present petitioner admission to first year MBBS course, on the above grounds and also on the ground that directing respondent No.6 college to admit the petitioner on a seat in the year 2011-2012 would amount to directing the college to grant admission to a student on the basis of the result of CET of previous academic year, we make it clear that in an appropriate case, this Court will not feel helpless and the Court may direct the concerned erring wp-7799-10-final 21 unaided private college to grant admission to a student on an NRI seat in the next academic year, because for admission to NRI seats, passing of CET is not required. Of course, in such a case the college would not be permitted to charge fees leviable from an NRI student, but only fees chargeable from a non-NRI student. 22. It is necessary to make these observations because such a controversy usually arises after the third round of admissions, that is in the second half of September. The aggrieved student would obviously take some time to get the information from various authorities and try to persuade them to redress his grievance. It is only thereafter that he would approach this Court. This court would naturally require the parties to file affidavit in reply, rejoinder affidavit and sur-rejoinder and thereafter, hear the arguments of the learned counsel for the parties. Hence, it may not generally be possible for the Court to grant relief in such cases before 30th September, 2011. If thereafter the relief is to be refused to the student only on the ground that his case cannot be considered for admission for the next academic year on the basis of the CET result of the previous year, the Court would never be in a position to grant any substantive relief to the student who has been caused gross injustice on account of illegal and even malafide acts of the College or any other authority or Association. 23. In the facts of the present case also, issuing notice to 22 more meritorious candidates after filing of the last affidavit on behalf of the Association on 25th April, 2011 would have delayed the hearing further and therefore, we have not undertaken that process to ascertain whether any of those 22 students is still interested in securing admission to 1st MBBS course in respondent No.6 College on an NRI seat in the wp-7799-10-final 22 academic year 2011.2012. Hence, even while declining to grant substantive relief to the petitioner for the above reasons we have thought it fit to make the above observations about the power of the Court to grant and mould suitable relief in an appropriate case. 24. We are also of the view that respondent No.6 cannot be allowed to get scot free and shall pay exemplary costs of this petition quantified at Rs. three lakhs. Directions for implementation of the Revised Scheme in a fair and transparent manner. 25. Further, in order to see that such manifestly arbitrary and illegal act is not repeated in future, we have considered it appropriate to give suitable directions to the Director of Medical Education and respondent No.3 Association, without disturbing the core of the Revised Scheme. 26. We must now deal with the petitioner's contention that a student having secured admission to a Government Medical College cannot be allowed to participate in the subsequent selection process for admissions to private medical colleges. 27. The learned Additional Government Pleader appearing for Director of Education and Research submitted that since after each round the list of selected candidates was notified on the website, there was no need for the Director to separately inform respondent No.3 Association about the students who secured admissions to 1st year MBBS course in Government Medical Colleges. wp-7799-10-final 23 28. The learned counsel for respondent No.3 Association submitted that even if the names of the students, who secured admissions to Government Medical Colleges, were displayed on the Government website or respondent No.3 Association was separately informed by the Director, the Association on their own cannot delete the names of students who have been offered admission or admitted to the Government Medical Colleges, from the list maintained by respondent No.3 Association, for admissions to private medical colleges. 29. The very fact that as many as five students who had already secured admission to the 1st MBBS course in Government Medical Colleges were offered admissions by the Association of Private Medical Colleges in the third round is sufficient to raise eyebrows against the manner in which the two Common Admission Processes (one for Government Medical/Dental Colleges and the other for unaided Private medical/Dental Colleges) are operated. Ajinkya Parhe and Sonal Kumavat who had secured admissions to 1st MBBS course in Government Medical Colleges on 17th July 2010, were offered admission to 1st MBBS course in Private Medical Colleges in the third round on 6th September 2010. 30. Apart from the cases of five candidates who secured admission to Government Government Medical Colleges and thereafter also whose names were considered till the third round for common admission process conducted by respondent No.3 Association, the petitioner has also pointed out the case of Mr. Vinayak Pimpale who had first secured admission to Unaided Private Medical College (NDMVP) at Nashik by 20th August, 2010 by depositing his original mark-sheet . He subsequently secured admission to Government wp-7799-10-final 24 Medical College at Akola on 25th August, 2010. Since the last date for reporting at the said Government College was 30th August, 2010, he could not have taken admission in the said Government College without cancelling his admission at the Private Medical College at Nashik on or before 29th August, 2010. Hence, such cancellation must have been given by Mr. Vinayak Pimple before 29th August, 2010 to the concerned college at Nashik because the said college did not forward the cancellation to respondent No.3 Association. Mr. Vinayak Pimple's name continued to be considered by respondent No.3 Association for the third selection round also. It is submitted that before the third select list was published on 6th September, 2010, the Private Medical College at Nashik ought to have informed respondent No.3 Association that the seat given up by Mr. Vinayak Pimple in the Nashik college was available. The petitioner has submitted that retention form of Mr. Vinayak Pimple for retaining his admission in the Private Medical College at Nashik has been brought on record by respondent No.3 but the cancellation form has not been brought on record nor has the College brought the said form on record. 31. The above instances make it clear that, it would be ideal if the single window system for admission to Government Medical/Dental Colleges could be operated simultaneously with the single window system for admissions to Unaided Private Medical/Dental Colleges. Since this cannot be done in the present proceedings, it will be at least necessary to consider giving appropriate directions to ensure that the necessary and vital communications from the students either giving up their admissions or indicating their interest in betterment must reach the concerned authority and respondent No.3 well in time and must also be displayed on the concerned websitess. wp-7799-10-final 25 32. While we appreciate the petitioner's grievance that students who had already secured admission to seats in the 1st years MBBS course in Government Medical Colleges/admissions continued to block admissions to private Medical Colleges till the third round, the submission made on behalf of the respondent No.3 Association also deserves serious consideration, that a student residing with his family in Mumbai, who had secured admission to 1st MBBS course in the Government Medical College at Kolhapur, may still wish to secure admission to an Unaided Private Medical College in Mumbai and, therefore, cannot be prevented from participating in the Common Admission Process being conducted by respondent No.3 Association. Such a situation arises because a number of students seeking admission to 1st MBBS course are participating in both the Common Admission Processes- one for admission to Government Medical/Dental Colleges and the other for admissions to Private Medical/Dental Colleges. The students securing admission to Government Medical College can certainly be considered for betterment in the common admission process being conducted by Private Medical Colleges. The provisions of Rule 12.4 and 13.1 in the Common Admission Process for admissions to Private Medical/Govt. Colleges as per the Revised Final Scheme approved by order dated 10th August, 2006 of this Court in Writ petition No.5655 of 2006 can therefore, be conveniently applied even in the case of a student who is taking part in one Common Admission Processes can be considered for betterment of his preferences in the other Common Admission process (Betterment means the higher preference exercised by the candidate. The shift in such betterment shall be compulsory and mandatory). wp-7799-10-final 26 33. In view of the above discussion, it is directed as under:- (I) (a) the Director of the Medical Education shall require any student securing admission to 1st MBBS Course/1st BDS course in a Govt. College and submitting the Status Retention Form to secure admission in the concerned Government College, to fill in an additional form- (i) indicating whether he still desires to secure admission to any particular course in any particular unaided private Medical /Dental College/s; and (ii) if yes, he must indicate those preferences as per the preference form given to respondent No.3 Association. (iii) declaring that upon his getting such admission, he will forgo the admission in the concerned Government Medical/Dental College. (b) In default, that is to say, in absence of any such declaration in the additional form, all concerned including respondent No.3 Association and its members shall proceed on the basis that the student is not interested in any subsequent stages of the Common Admission Process being conducted by respondent No.3 Association i.e. any stage after the date of submission of Status Retain form to the concerned Government Medical/Dental College. wp-7799-10-final 27 (c) the Director shall forward to respondent No.3 Association list of all such students who have secured admission to Government Medical/Dental Colleges and submitted Status Retention Form alongwith particulars whether they have submitted any declaration as per (a) above. Such lists shall be forwarded by the Director of Medical Education to respondent No.3 Association by fax and e-mail and also be displayed on the Government website on day to day basis till all the seats in Government Medical Colleges and in the Government Dental Colleges are filled in. (d) Within one week from today, the Director of Medical Education shall circulate the above directions to the Deans of all the Government Medical Colleges and Deans of all the Dental Colleges in the State of Maharashtra and shall display the above directions on the Government website and shall also issue appropriate instructions to the concerned authority distributing /collecting the option forms for Common Admission Process of Government Medical/Dental Colleges to bring the above directions to the notice of all the applicants. (II) As required by Paragraph 17.1.2 of the ASSO-CET Brochure of respondent No.3 Association, the college wp-7799-10-final 28 accepting the cancellation shall inform the competent authority of respondent No.3 Association along with a copy of the cancellation letter immediately on the same day on which it is received by the college or atlest on the immediate next date by fax and e-mail. Respondent No.3 Association shall thereafter publish this information on its website either on the date of receiving the information from the concerned college or at least on the immediate next date. It is directed accordingly with effect from academic year 2011-2012 onwards. 34. The second issue is that sub-clause (xi) in clause (d) of the Scheme proceeds on the premise that, since the seats have remained vacant even after the third round, it means that there are no takers. But the facts in the instant case reveal that though there were at least 24 meritorious candidates waiting in the queue, even then the seats were treated as vacant after the third round, the queue was disbanded and the advertisement for the vacancy was not issued in a fair and transparent manner. Subsequently, the 24th student in the queue was granted admission to 1st MBBS course in respondent No.6 college. 35. In the affidavit dated 15th April, 2011 itself the Authorised Officer of the Association of Management of Private Unaided Dental College has stated as under :- " I say that in my earlier Affidavit dated 6th January 2011, I had annexed a list of 25 students in NT1 category who are more meritorious than the Petitioner, having secured marks in the range of 158 and 138, the Petitioner wp-7799-10-final 29 having secured 137 marks. I am now placing on record the Preference Forms of the said 25 students. Hereto annexed and marked as Exhibit"A" collectively are the Preference Forms of the said 25 students. I say that the Preference code of the Respondent No.6 College i.e. Ahmednagar Medical College is 109. I say that 22 out of the 25 students have selected Respondent No.6 as one of their preferences in the Preference Forms. Hereto annexed and marked as Exhibit "B" is a list of the names of the students in the NT1 category along with their merit list number and the preference ranking of the Respondent No.6." 36. Thus, there were as many as 23 students more meritorious than respondent No.13 who was granted admission to the first MBBS Course by respondent No.1 College in NT-1 category. The Common Admission Process was operated in such a manner that the particular seat in respondent No.6 College was allowed to remain vacant with more than 23 candidates waiting in the queue and the queue was disbanded with the consequence that the 24th student in the erstwhile queue came be given admission to this coveted seat. 37. A perusal of the Schedule to be followed for effecting the admissions from 2008 onwards in Clause 9 of the Revised Scheme for common admission process to be conducted by respondent No.3 Association indicates that after completion of the first round (State 8) of admissions and after second round (Stage 13) admissions, the Association is required to report the college wise vacancies. There is no reason why the Association should not be required to report the college wise vacancy after third selection list also. Even though the Association is not going to conduct common admission process after the third round, reporting such college wise vacancy after the third round will best ensure that the individual colleges which are members of respondent No. 3 Association will fill in unfilled seats at their own level in a fair and wp-7799-10-final 30 transparent manner, which is the mandate of Final Revised Scheme as approved by this Court's order dated 10th August, 2006. 38. In view of the above, we direct that after the third round of Centralised Admission Process of the Association, respondent No.3 Association shall place on its own website (on 13th September or whichever is the date immediately after the date of expiry of the time limit to accept the admissions granted to candidates offered seats in the third round of the Common Admission Process conducted by respondent No.3-Association.) information about the number of vacant seats in each unaided Private Medical/Dental College after the third round, and whether any vacancy is reserved for a particular category. Respondent No.3 Association shall carry out this direction from academic year 2011-2012 onwards. 39. For the above purpose, the members of respondent No.3 Association shall also furnish to the said Association all the necessary information by fax and e-mail immediately upon expiry of the dead line for acceptance of admissions granted to the candidates offered seats in the third round of the Common Admission Process conducted by respondent No.3 Association. It is further directed that each unaided private medical/dental college, where the vacancy arises after the third round, shall also advertise the vacancy on its website, apart from publishing the advertisement in a leading newspaper having wide circulation in the State, out of five newspapers to be specified by the Director of Medical Education by 17th July, 2011. These directions shall be communicated by the Association (Respondent No.3) to all its members within two weeks from today. wp-7799-10-final 31 40. In the result, while declaring that respondent No.6 college had granted admission to respondent No.13 in an arbitrary and malafide manner, in the peculiar facts and circumstances of this case, this Court does not propose to disturb the admission granted to respondent No.13, but the petition is disposed of in terms of the following directions:- (i) Respondent No.6 is directed to pay the petitioner exemplary costs quantified at Rs.3/- lakhs which shall be paid within one month from today. (ii) respondent No.2-Director of Medical Education and respondent No.3-Association shall carry out the directions given in Paragraph Nos. 33, 38 and 39 hereinabove from the academic year 2011-2012 onwards. CHIEF JUSTICE S.J. KATHAWALLA, J.

Wednesday, July 04, 2012

Running clinic from residence not a commercial activity: Delhi High Court

From http://www.aalatimes.com/2012/07/03/running-clinic-from-residence-not-a-commercial-activity-delhi-high-court/ NEWS Running clinic from residence not a commercial activity: Delhi High Court Tuesday, July 3, 2012 New Delhi: Running a clinic from one’s residence can’t be labelled a commercial activity, the Delhi High Court has said. Quashing a criminal case lodged against Dr D V Chug, who was booked by the Municipal Corporation of Delhi (MCD) in 2004 for running a clinic from his house at Rajouri Garden, Justice Suresh Kait on Monday said he wasn’t liable to be prosecuted for running the clinic. “The professional establishment of a doctor cannot come within the definition of commercial activity. Commerce is that activity where a capital is put into work and risk run of profit or loss… The word ‘profession’ used to be confined to the three learned professions: the Church, Medicine and Law. There is a fundamental distinction between the professional activities and commercial activities,” Justice Kait said. According to the MCD, running of a doctor’s clinic from the residential premises is currently permissible and is not an offence. However, at the time of filing the complaint against Dr Chug, it was not permissible. -oOo- Crl.M.C.No.1474/2007 Page 1 of 14 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C.No.1474/2007 & Crl.M.A.5115-16/2007 % Judgment reserved on :13 th March, 2012 Judgment delivered on:02 nd July,2012 DR. D.V.CHUG ..... Petitioner Through : Mr. Rajat Aneja & Mr.Vaibhav Jairaj, Advocates versus STATE & ANR ..... Respondents Through : Mr. Kapil Dutta & Mr. Ajay Verma, Advocates for respondent MCD CORAM: HON'BLE MR. JUSTICE SURESH KAIT SURESH KAIT, J. Crl. M.A. No. 5116/2007(exemption) Allowed, subject to all just exceptions. Application stands disposed of. CRL.M.C.No.1474/2007 & Crl.M.A.5115/2007 1. The instant petition is being filed while challenging the complaint filed by the MCD under Section 347/461 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred as ''the said Act'') against the petitioner. 2. Mr. Rajat Aneja, learned counsel for petitioner submitted that allegations in the complaint against the petitioner are as under:-Crl.M.C.No.1474/2007 Page 2 of 14 That according to the Prosecution Report of Sh.Hasruddin Khan, Jr. Engineer (Bldg), West Zone, dated 09.09.2004, the accused Dr. D.V. Chug, Owner/Occupier of the property No. H.14, Rajouri Garden, New Delhi, was found committing the following offence on 09.09.2004 at 11:00AM under Section 347 of the Delhi Municipal Corporation Act, 1957 (hereinafter called the Act), which is punishable under Section 461 of the DMC Act. That Dr. D.V.Chug, Owner/Occupier of the Property No.H.14, Rajouri Garden, New Delhi, has changed the use of the property from residential to commercial by running clinic of Dr. D. V. Chug, without written permission of the Commissioner, MCD. The sanctioned/ permissible use of this property is residential only. 3. Learned counsel has drawn the attention of this Court to the notice issued by the respondent No.2, which is at page No.23 wherein it is stated that the petitioner committed the offence under Section 347 DMC Act by changing the use of property from residential to commercial by running a clinic of doctor; whereas the MCD sanctioned the permissible use of this property as residential. 4. Undisputedly, the petitioner is a doctor, who was running his clinic from his own residence. Allegations in the complaint against him are that he was using his residential premises for the commercial activity. 5. The issue arise in the instant petition, whether, running of clinic from the residential premises, would come in commercial activity. Crl.M.C.No.1474/2007 Page 3 of 14 6. Learned counsel submitted that the petitioner is now 80 years of age as on date and the said clinic was closed down ten years back. Therefore, no purpose would be served by allowing the proceedings against the petitioner. 7. Learned counsel has relied upon Dr.Devendra M. Surti v. The State of Gujarat : AIR 1969 SC 63 wherein the Apex Court has observed as under:- “6. Under s. 2(8) of the Act an 'establishment' is defined as meaning 'a shop, commercial establishment, residential hotel, restaurant, eating house, theatre, or other place of public amusement or entertainment to which this Act applies'. Section 2(24) again defines a "Residential hotel", s. 2(25) a "Restaurant or eating house" and s. 2(27) similarly defines a "Shop". Section 2(29) defines a "Theatre". It is clear therefore that the legislature has taken care separately to define each one of the categories of 'the establishments mentioned in s. 2(8) of the Act. It is, true that s. 2(4) of the Act has used words of very wide import and grammatically it may include even a consulting room where a doctor examines his patients with the help of a solitary nurse or attendant. But, in our opinion, in the matter of construing the language of s. 2(4) of the Act we must adopt the principle of noscitur a sociis. This rule, means that, when two or more words which are susceptible of analogous meaning are coupled to-ether they are understood to be used in their cognate sense. The words take as it were their colour from each other, that is, the more general is restricted to a, sense analogous to, a less general. "Associated words take their meaning from one another under the doctrine of noscitur a sociis, the philosophy of which is that Crl.M.C.No.1474/2007 Page 4 of 14 the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it; such doctrine is broiderthan the maximum Ejusdein Generis." (Words and Phrases. Vol. XIV, p. 207). For instance, in Reed v. Ingham(1) it was upon the principle of the maxim nosscitur a sociis, that a steam tug of eighty-seven tons burden engaged in moving another vessel was not a craft within the meaning of the statute. Again, in Scales v. Pickering(-) the question was what was the meaning of the word "footway" when used in a private Act which empowered a water company to break up the, soil and pavement of roads. highways, footways, commons, streets, lanes, alleys', passages and public places. provided they did not enter upon any private lands without the consent of the owner. It was contend that this authorised the company to break up the soil of a private field in which there was a public footway, but it was held otherwise. "Construing the word 'footway,' " said Best C. J. "from the company in which it is found the legislature appears to have meant those paved footways in large towns which are too narrow to admit of horses and carriages." And Park J. added : "The word 'footway' here noscitur a sociis." In the present case, certain essential features or attributes are invariably associated with the words "business and trade" as understood in the popular and conventional sense, and it is the colour of these attributes which is taken by the other words used in the definition of s. 2(4') of the Act, though. their normal import may be much wider. We are therefore of opinion that the professional establishment of a doctor cannot come within the definition of s. 2(4) of the Act unless the activity carried on was also commercial in character. As to what exactly is meant by "Commerce" it may be difficult to define but in an early case-McKav v. Crl.M.C.No.1474/2007 Page 5 of 14 Rutherfurd(3), Lord Camp-bell gave a useful definition : "Commerce is that activity where a capital is laid out on any work and a risk run of profit or loss; it is a commercial venture". It is true that the definition of Lord Campbell is the conventional definition attributed to trade or commerce but it cannot be taken to be wholly valid for the purpose of construing industrial legislation in a modem welfare State. It is clear that the presence of the profit motive or the investment of capital tradition associated to the notion of trade and commerce cannot be given an undue importance in construing the definition of 'Commercial establishment' under s. 2(4) of the Act. In our opinion, the correct test of finding whether a professional activity falls within s. 2(4) of the Act is whether the activity is systematically and habitually undertaken for production or distribution of goods or for rendering material services to the community or any part of the community with the help of employees in the manner of a trade or business in such an undertaking. It is also necessary in this connection to construe the word "profession" under s. 2(4) of the Act. In Commissioner's of Inland Revenue v. Maxse(1), Scrutton L.J. stated as follows:- "I am very reluctant finally to propound a comprehensive definition. A set of facts not present to the mind of the judicial propounder, and not raised in the case before him, may immediately arise to confound his proposition. But it seems to me as at present advised that a 'profession' in the present use of language involves the idea of an Occupation requiring either purely intellectual skill, or of manual skill controlled, as in painting and sculpture, or surgery, by the intellectual skill of the, operator, as distinguished from an occupation which IS substantially the production Crl.M.C.No.1474/2007 Page 6 of 14 or sale or arrangements for the production or sale of commodities. The line of demarcation may vary from time to time. The word 'profession' used to be confined to the three learned professions, the Church, Medicine and Law. IL has now, I think, a wider meaning." The matter was again considered in another case where the question was whether a company doing the work of naval architect could be said to be carrying on a profession in a naval architecture. The case was William Esplen, Son, and Swainston, Ld. v. Inland Revenue Commissioner's 1919-2 KB 731 where Rowlatt J. observed as follows:-"...... but :in my opinion the company is not carry in,-- on the profession of naval architects within the meaning of the section, because for this purpose it is of the essence of a profession that the profits should be dependent mainly upon the personal qualifications of the person by whom it is carried on, and that can only be an individual." 7. It is therefore clear that a professional activity must be an -activity carried on by an individual by his personal skill and intelligence. There is a fundamental distinction therefore between a professional activity and an activity of a commercial character and unless the profession carried on by the appellant also partakes of the character of a commercial nature, the appellant cannot fall within the ambit of S. 2 (4) of the Act. In The National Union of Commercial Employees and another v. M. R. Meher, Industrial Tribunal, Bombay(1) it was held by this Court that the work of solicitors is not an industry within the meaning of s. 2(J) of the Industrial Disputes Act, 1947 and therefore any dispute raised by the employees of the solicitors against them cannot be made the subject of reference to the Industrial Tribunal. In Crl.M.C.No.1474/2007 Page 7 of 14 dealing with this question, Gajendragadkar, J., speaking for the Court, observed as follows at page 163 of ,the Report:- "When in the Hospital case ((1960) 2 S.C.R. 866) this Court referred to the Organisation of the undertaking involving the co-operation of capital and labour or the employer and his employees, it obviously meant the co-operation essential and necessary for the purpose of rendering material service or for the purpose of production. It would be realised that the concept of -industry postulates partnership between capital and labour or between the employer and his employees. It is under this partnership that the employer contributes his capital and the employees their labour and the joint contribution of capital and labour leads directly to the production which the industry has in view. In other words, the co-operation between capital and labour or between -the employer and his employees which is treated as a working test in determining whether any activity amounts to an industry, is the co- operation which is directly involved in the production of goods or in the rendering of service. It cannot be suggested that every form or aspect of human activity in which capital and labour cooperate or employer and employees assist each other is an industry. The distinguishing feature of an industry is that for the production of goods or for the rendering of service, cooperation between capital and labour or between the employer and his employees must be direct and must be essential." Again, at page 166 of the Report Gajendragadkar, J. proceeds to state " Does a solicitor's firm satisfy that test ? Sacrificially considered, the solicitor's firm is no doubt organised as an industrial concern would be organised. There are different categories of Crl.M.C.No.1474/2007 Page 8 of 14 servants employed by a firm, each category being assigned separate duties and functions. But it must be remembered that the service rendered by a solicitor functioning either individually or working together with partners is service which is essentially individual; it depends upon the professional equipment, knowledge and efficiency of the solicitor concerned. Subsidiary work which is purely of an incidental type and which is intended to assist the solicitor in doing his job has no direct relation to the professional service ultimately rendered by the solicitor. For his own convenience, a solicitor may employ a clerk because a clerk would type his opinion; for his convenience, a solicitor may employ menial servant to keep his chamber clean and in order; and it is likely that the number of clerks may be large if the concern is prosperous and so would be the number of menial servants. but the work done either by the typist or the stenographer or by the menial servant or other employees in a solicitor's firm is not directly concerned with the service which the solicitor renders to his client and cannot, therefore, be said to satisfy the test of cooperation between the employer and the employees which is relevant to the -purpose. There can be no doubt that for carrying on the work of a solicitor efficiently, accounts have to be kept and correspondence carried on and this work would need the employment of clerks and accountants. But has the work of the clerk who types correspondence or that of the accountant who keeps account,; any direct or essential nexus or connection with the advice which it is the duty of the solicitor to give to his client? The answer to this question must, in our opinion, be in the negative. There is, no doubt, a kind of cooperation between the solicitor and his employees, but that cooperation has, no direct or immediate relation to Crl.M.C.No.1474/2007 Page 9 of 14 the professional service which the solicitor renders to his client. ........ Looking at this question in a broad and general way, it is not easy to conceive that a liberal Profession like that of an attorney could have been intended by the Legislature to fall within the definition of 'industry' under s. 2 (J). The very concept of the liberal professions has its own special and distinctive features which do not readily permit the inclusion of the liberal professions into the four corners of industrial law. The essential basis of an industrial dispute is that it is a dispute arising between capital and labour in enterprises where capital and labour combine to produce commodities or to render service. This essential basis would be absent in the case of liberal professions. A person following a liberal profession does not carry on his profession in any intelligible sense with the active cooperation of his employees and the principal, if not the sole, capital which he brings into his profession is his special or peculiar intellectual and educational equipment. That is why on broad and general considerations which cannot be ignored, a liberal profession like that of an attorney must, we think, be deemed to be outside the definition of 'Industry' under section2(1)." Applying a similar line of reasoning we are of opinion that the dispensary of the appellant would fall within the definition of S. 2(4) of the Act if the activity of the appellant is organised in the manner in which a trade or business is generally organised or arranged and if the activity is systematically or habitually undertaken for rendering material services to the community at large or a part of such community with the help of the employees and if such an activity generally involves co-operation Crl.M.C.No.1474/2007 Page 10 of 14 of the employer and the employees. To put it differently, the manner in which the activity in question is organised or arranged, the condition of the co-operation between the employer and the employees being necessary for its success and its object being to render material service to the community can be regarded as some of the features which render the carrying on of a professional activity to fall within the ambit of S. 2(4) of the Act. Tested in the light of these principles, we hold that the case of the appellant does not fall within the purview of the Act and the conviction of the appellant of the offence under S. 52(e) of the Act read with S. 62 of the Act and r. 23(1) of the Rules is illegal." 8. He also relied upon a decision rendered by Coordinate Bench of this Court in Crl.M.C.Nos.1459-64/2006 titled Parivar Seva Sansthan & Ors v. The State wherein vide order dated 20.10.2009 it has been observed as under:- “9. Coming to the second submission of the counsel for the petitioner that with the enforcement of the Notification dated 7.5.1999, the petitioner society could run the activity of nursing home in the residential premises and therefore, there was no violation of Section 14 of the DDA Act which could be complained of by the respondent. For better appreciation of this contention, Section 14 and Section 29 of the DDA Act are reproduced as under:- “14. User of land and buildings in contravention of plans:-After the coming into operation of any of the plans in a zone no person shall use or permit to be used and land or building in that zone otherwise than in conformity with such plan.Crl.M.C.No.1474/2007 Page 11 of 14 Provided that it shall be lawful to continue to use upon such terms and conditions as may be prescribed by regulations made in this behalf any land or building for the purpose and to the extent for and to which it is being used upon the date on which such plan comes into force. „29.Penalties (1) Any person who whether any his own instance or at the instance of any other person or anybody (including a department of Government) undertakes or carries out development of any land in contravention of the master plan or zonal development plan or without the permission, approval or sanction referred to in section 12 or in contravention of any condition subject to which such permission, approval or sanction has been granted, shall be punishable- (a) with rigorous imprisonment which may extend to three years, if such development relates to utilizing, selling or otherwise dealing with any land with a view to the setting up of a colony without a lay out plan; and (b) with simple imprisonment which may extend to six months, or with fine which may extend to five thousand rupees, or with both, in any case, other than those referred to in clause (a). (2) Any person who uses any land or building in contravention of the provisions of section 14 or in contravention of any terms and conditions prescribed by regulations under the proviso to that section shall be punishable with fine which may extend to five thousand rupees and in the case of a continuing offence, with further fine which may extend to two hundred and fifty rupees for very day during which such offence continues after conviction for the first commission of the offence.Crl.M.C.No.1474/2007 Page 12 of 14 (3) Any person who obstructs the entry of a person authorized under section 28 to enter into or upon any land or building or molests such person after such entry shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.” 11. With the said notification in place the respondent DDA could not have filed a complaint complaining non-conforming use of residential premises being put to use for running a nursing home/ guest house and banks unless running of such activity was not found to be in conformity with the other conditions concerning the width of the road and the size of the plot etc. A bare perusal of the entire complaint would show that nowhere in the complaint, the respondent DDA has specifically disclosed as to what was the size of the plot in which the nursing home was being run by the accused society and what was the width of the road facing the plot wherefrom the nursing home was being run and in the absence of the same the complaint filed by the respondent DDA lacked the basic facts and material which could have disclosed commission of an offence on the part of the petitioners contravening Section 14 of the DDA Act read with said Notification. It is not in dispute that inspection of the premises of the society was carried out by the field staff of the DDA after the enforcement of the said notification and therefore, the field staff in their inspection report ought to have disclosed the width of the road and the exact size of the plot wherefrom the accused society was running the nursing home and since no such particulars have been disclosed in the inspection report or in the complaint, therefore, the complainant respondent prima facie failed to disclose any Crl.M.C.No.1474/2007 Page 13 of 14 violation on the part of the petitioners under Section 14 of the DDA Act.” 9. On the other hand, ld. counsel for MCD has fairly conceded that as on today running of a doctor’s clinic from the residential premises is permissible and is not an offence. However, at the time of filing the complaint against the petitioner, it was not permissible. 10. He further submitted, be that as it may, the petitioner has closed down its clinic, that satisfy the complaint. 11. On considering the submissions of ld. counsel appearing for the parties, I am of the considered view that the professional establishment of a doctor cannot come within the definition of commercial activity. Commerce is that activity where a capital is put into; work and risk run of profit or loss. If the activities are undertaken for production or distribution of goods or for rendering material services, then it comes under the definition of commerce. The word ‘profession’ used to be confined to the three learned professions; the Church, Medicine and Law. There is a fundamental distinction between the professional activities and commercial activities. 12. Moreso, in the case Parivar Sewa Sansthan (supra) has held that running of ‘Nursing Home’ in residential premises does not come under the commercial activity. 13. More so, the petitioner has already suffered about 8 years as he has been facing trial since then. Crl.M.C.No.1474/2007 Page 14 of 14 14. Therefore, in view of the reasons recorded above, instant petition is allowed. 15. Consequently, the proceedings pending against the petitioner before learned Trial Court are hereby set aside. 16. Bail bonds are cancelled. Surety stands discharged. 17. Crl.M.A.No.5115/2007 does not require further adjudication and stand disposed of accordingly. 18. Dasti. SURESH KAIT, J JULY 02, 2012 Mk

Thursday, June 28, 2012

Odisha gang-rape: Doctors protest action

From http://www.aalatimes.com/2012/06/26/odisha-gang-rape-doctors-protest-action/ Bhubaneswar: Doctors in Odisha on Tuesday protested police action against three medics for allegedly not taking care of a gang-rape victim who died after more than six months of treatment at a hospital. The Odisha Medical Services Association, an organisation of over 4,000 doctors, said the crime branch of the state police has filed charge sheet against the doctors, alleging that they violated the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocity) Act. The woman was gang-raped on November 28, 2011, and died on June 21, 2012. “The doctors have not violated any act. Rather the victim was kept in the intensive care unit (ICU) of the Sriram Chandra Bhanj Medical College and Hospital (SCB Medical College) at Cuttack for several months for no reason,” Dr J B Biswal, member of the central working committee, told reporters. “She was kept unnecessarily under political pressure. It was all due to politics. It was a drama. There was no justification,” he said. The woman was allegedly gang-raped by some people near her village Arjunagoda in the Pipili police station area of Puri district, about 10 km from Bhubaneswar, on Nov 28 last year. The crime branch has filed charge sheet against several persons in the case, including against Dr D N Moharana, superintendent of SCB Medical College, Cuttack, and Dr Milan Mitra and Dr K C Sahu of a government hospital in Bhubaneswar. The doctors have been accused of denying the woman proper treatment. The crime branch filed its first charge sheet against four people arrested in the case in March, but said that there was no evidence of rape. However, according to the woman’s family, she was gang-raped by a group of men who had earlier assaulted her in 2008 and against whom she had filed a molestation case. The incident came to light when the woman was denied proper treatment at hospitals. The case had also created a political storm, prompting Odisha agriculture minister Pradeep Maharathy to resign on January 19 on moral grounds after the opposition and the girl’s family alleged that he was protecting the attackers. The incident is being investigated by the crime branch and a one-man judicial commission headed by a retired judge of the Orissa High Court. After the woman died on June 21, activists of women’s organisations and opposition parties have renewed their protests and demonstrations and demanded a probe by the Central Bureau of Investigation (CBI). [Source: IANS]

PMCH junior doctors end 14-day strike in Bihar

From http://www.aalatimes.com/2012/06/27/pmch-junior-doctors-end-14-day-strike-in-bihar/ Patna: Junior doctors of Bihar’s premier medical institution — Patna Medical College and Hospital (PMCH) — ended their 14-day long strike on Wednesday after the state government assured them it would look into their grievances. Medicos of two other colleges will also call off their agitation. According to reports, the strike led to the death of over a dozen patients, including children affected by the Acute Encephalitis Syndrome, but the government has not confirmed it. Hundreds of junior doctors of PMCH were on strike after relatives of some patients manhandled their colleagues on duty. The incident led to doctors going on strike and also putting up demands like introduction of junior residency scheme and proper management of hospitals. The state government last Monday raised the stipend of the junior doctors from Rs 25,000 to Rs 30,000, and this led to the medicos calling off their strike, officials of the health department said. The junior doctors of Nalanda Medical College and Hospital (NMCH) in Patna and Darbhanga Medical College and Hospital who were also on strike in support of their PMCH colleagues are now likely to end their strike soon. [Source: IANS]

Sunday, April 22, 2012

Case against anaesthesia training course for doctors

http://www.thehindu.com/news/cities/Madurai/article3332604.ece


“Doctors compelled to undergo training against their will”
A government doctor has filed a writ petition in the Madras High Court Bench alleging that the State government was compelling medical practitioners possessing MBBS degrees to undergo a Life Saving Anaesthetic Skill (LSAS) training course that leads to a certification authorising them to administer general anaesthesia and spinal anaesthesia to obstetrics and gynaecology patients.
Admitting the writ petition filed by P.P. Ramajeyam, an Assistant Surgeon recruited to Tamil Nadu Medical Service through the Tamil Nadu Public Service Commission and posted to work at Government Hospital, Peraiyur, in Madurai district, Justice K. Venkataraman directed a government counsel to take notice on behalf of the Joint Director of Health Services and other official respondents.
According to the petitioner, the LSAS training, spanning for 24 weeks, covered all aspects of clinical anaesthesia and basic sciences. The trainees should complete 100 cases of spinal anaesthesia, 30 cases of general anaesthesia, 10 cases of epidural anaesthesia, and 10 cases of laryngeal mask insertion apart from cardio pulmonary circulatory resuscitation (CPCR) and cannulation on mannequins.
“Though the LSAS is only an optional training, all the government doctors with MBBS degrees are being compelled to participate in the training without getting their willingness… I never sent any application to undergo LSAS training. But without any application and without my consent, I was directed by the Joint Director to join LSAS training at Madurai Medical College,” he claimed.
His counsel C. Arulvadivel alias Sekar contended that such a training was ultra vires to the Constitution and contrary to the provisions of the Indian Medical Council Act, 1956, and the Indian Medical Degrees Act, 1916, and was being given to government doctors without the permission of Medical Council of India. “As per medial norms and ethics, a doctor should not practice in a branch of medicine without possessing statutorily prescribed qualification relevant to that branch. The certificate issued after the completion of LSAS training is not statutorily prescribed qualification to give anaesthesia to patients,” the petitioner's affidavit read.