IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JODHPUR

D.B. CIVIL SPECIAL APPEAL (W) No. /2018

IN

S.B. CIVIL WRIT PETITION No.13422/2017

APPELLANT: - The Dental Council of India

VERSUS

RESPONDENTS: - State of Rajasthan & Ors.

SYNOPSIS
_________________________________________________________
 That a writ petition was filed by the respondents/writ-petitioners claiming
themselves to have appeared in the examinations conducted for the
purpose of granting admission in Medical/Dental Colleges i.e. NEET. The
undisputed fact and rather admitted factual backdrop is that none of the
writ-petitioners have secured the qualifying marks under the category to
which they belong, however, they have alleged that they are students of
First year of Bachelor of Dental Surgery (BDS) in their respective
colleges.

 The writ petition was filed challenging the action of the DCI, State
Government and the College, whereby they were informed that they are to
be discharged from the BDS Course pursuant to the communications
dated 10.04.2017, 28.08.2017, 20.09.2017 and 06.10.2017 as their
admissions were contrary to the provisions under the Statute and as such
were found liable to be discharged from the course being granted
admission illegally.

 That the writ-petitioners contended that they were eligible for admission to
the First Year of MBBS/BDS Course as they have secured requisite
qualifying marks in Science stream in 10 + 2 Examination and thus
appeared in the NEET Examination conducted by the statutory authority.
The writ-petitioners alleged that they were declared as not qualified since
they did not meet the minimum eligibility percentile as per their respective
category, however, while relying upon Rule 6 of the Amended Regulations
of 2007, by which the eligibility criteria for selection to BDS Course was
provided in the Regulations, it was alleged by the writ-petitioners that
since a large number of BDS seats were lying vacant in the private dental
colleges in the State of Rajasthan, Federation of Private Dental and
Medical Colleges, approached the Hon’ble Apex Court by way of filing
petitions seeking reduction in the minimum cutoff of percentile of National
Eligibility and Entrance Test (NEET). It has been alleged in the writ
petition that Federation approached the Apex Court since the power of
reduction as per provisions of amended sub-Regulation (5) of the
 Regulations of 2007 vested with the Central Government and hence the
Federation sought a direction from the Hon’ble Apex Court.

 That it was further alleged that the Hon’ble Apex Court vide order dated
23.09.2016 allowed the Federation to withdraw the petition with liberty to
file representation before the Central Government. The Federation
thereafter filed a representation on 23.09.2016 before the Central Board
of Secondary Education with a copy to the Central Government/Union of
India. The original respondent No.2 in the writ petition, vide its letter dated
29.09.2016 forwarded the representation of the Federation dated
23.09.2016 and directed the respondent No.1 i.e. the State of Rajasthan
to take necessary action as deemed fit. The State of Rajasthan vide their
communication dated 30.09.2016 in pursuance to letter of the Govt. of
India dated 29.09.2016 at their own reduced the minimum percentile to
the extent of 10% so that optimum number of seats are filled while
observing the same will be applicable for this academic year and will not
be used as a precedence for the next and further academic years. The
percentiles were further reduced to additional 5% in special exigency
cases by the State of Rajasthan vide their communication dated
04.10.2016 and consequently 5% in all were reduced than the minimum
eligibility marks prescribed by the Regulations of 2007.

 That the appellant came to know about the reduction of 10% and
subsequently 5% wrote a communication immediately to the Central
Government on 05.10.2016 and said reduction was brought to the notice
of the Central Government with clear stipulation that the power of lowering
down the percentile is vested only with the Central Government and not
with the State Government and in case any admission is made in terms of
such relaxation, such admission may be void-ab-initio. The
communication was sent to the Central Government for information and
necessary action, if any, in the matter by the appellant-DCI. The Govt. of
India on 06.10.2016 itself sent a communication to the State Government
with a request to withdraw/cancel immediately its orders dated 30.09.2016
and 04.10.2010, whereby 10% and additional 5% were reduced
respectively by the State Government itself.

 That though the intimation was sent by the Central Government as back
as on 06.10.2016 itself within 5-7 days of granting the relaxation by the
State Government, but the admissions continued and upon the aforesaid
fact when came in the notice of the DCI, the appellant had sent a
communication dated 10.04.2017 while requesting the college authorities
to discharge 46 students, who have secured less than 50 percentile score
for the General Category or less than 40 percentile for reserved category
in NEET 2016 immediately.

 That the writ-petitioners further alleged that the respondent- State of

Rajasthan again sent a communication for granting ex-post facto
relaxation granted by lowering the minimum cutoff of percentile. However,
the relaxation was not granted by the Union of India though the appellant
again sought confirmation vide their communication dated 20.09.2017
 from the respective colleges with respect to discharge of 46 students
including the writ-petitioners from the original respondent No.4- College.

 That being aggrieved by the above chain of circumstances, the writ-

petitioners filed writ petition before the learned Single Judge.

 That at the time of issuing notices, the writ-petitioners also made a prayer
for allowing them to appear in the examination at their own risk and
considering the aforesaid prayer, the writ-petitioners were allowed to
appear in the examination, however, it was ordered that result shall not be
declared without permission of the Court.

 That upon receipt of the notice, a detailed reply to writ petition was filed on
behalf of present appellant- DCI as well as Union of India and while
denying the contents mentioned in the writ petition, it was averred that the
writ petition preferred by the writ-petitioners is devoid of any merit and
thus deserves to be dismissed. It was stated very categorically that the
writ petition has been filed in connivance and collusion as well as at
instance and at the behest of the college authorities so as to succeed in
regularizing the illegal admissions of the writ-petitioners. It was also
submitted categorically that the admissions which have been made by the
colleges are in violation of Revised BDS Course Regulation, 2007 as
amended by its 5th Amendment notified on 31.05.2012. The humble
appellant- DCI also took a categorical stand that remedy of principle of
natural justice has no application in the instant case as the admissions are
illegal and not irregular. The illegality cannot be regularized merely on the
ground of sympathy or factum of vesting their precious time or money. On
the contrary, there is mass illegality in the admissions even in
contravention to the statutory provisions of Section 10 (d) of the Dentist
Act, 2016 and Revised BDS Course Regulations, 2007 as amended on
31.05.212.

 That it was further stated that the writ-petitioners have been admitted at a
percentile score of even –6.00 percentile and less than 50th or 40th
percentile score prescribed by the appellant- DCI. The admissions have
been made without fulfilling the eligibility criteria prescribed by the
appellant- DCI in its regulations on the pretext that first the respondent i.e.
State of Rajasthan has lower down the percentile score by 10% and
additional 5% in the special exigency cases, which was without any power
or authority and at its whims and fancies in gross violation of the statutory
provisions of Revised BDS Course Regulation, 2007 as amended.

 That the Respondent/Appellant herein also submitted relevant regulations

along with reply which clearly provides that power to relax in the minimum
eligibility marks was available in line only with the Central Government
and neither Central Government was having the power to sub-delegate
nor the State Government was having the power to relax it. The appellant
also took a stand very specifically that only a person who has cleared
NEET with the requisite eligibility percentile score, only is eligible to be
given admission and no person not having the qualifying marks, could
 have been given admission by the respective colleges or relaxation could
have been given by the State of Rajasthan.

 That appellant also took stand that the Central Government at no point of
time sub- delegated its power to the State Government to relax the marks
for two reasons, firstly neither there is any such communication which
reveals so and secondly the power which was available with the Central
Government, could not have been sub-delegated. The appellant also
submitted in its reply while stating that the Hon’ble Apex Court in catena
of judgments has clearly held that the Court cannot direct perpetuation of
the illegality or irregularity and the Court cannot direct implementation of
an illegality simply because it has granted earlier. The Court also cannot
direct the Government to do something, which is in utter violation of
provisions of law and no order perpetuating the illegality can be passed by
the Court. While placing reliance upon various judgments of which the
detailed reference was given in the reply, it was prayed that the writ
petition preferred by the writ-petitioners is liable to be dismissed being
devoid of any merit and contrary to the statutory provisions as contained
in the Regulations of 2007. Thus it was prayed that the writ petition filed
by the writ-petitioners may kindly be dismissed.

 That reply to writ petition was also submitted by Union of India while
taking same stand as taken by the appellant- DCI, so also, by other non-
petitioners including State of Rajasthan.

 That the learned Single Judge thereafter heard the arguments and after
hearing arguments at length, vide order dated 20.04.2018 partly allowed
the writ petition while ignoring all statutory provisions as well as
arguments advanced from the side of present appellant while holding that
the students who have been granted admissions by applying relaxation to
the extent of 10% and further additional 5% shall not be disturbed and
their admissions stand regularized. The result of these students to be
declared forthwith. It has further been ordered that students, who have
been admitted after giving relaxation beyond 10% and 5% additionally,
shall stand discharged from BDS Course with immediately effect. The
above arrangement shall be applicable only to the Academic Year 2016-
17 and will not be used as a precedent for the following and future
academic years. The Central Government has also been directed for
future to take decision in view of Proviso-II to the Regulation (6) of 5th
Amendment of the Regulations of 2007 well on time to avoid harassment
and confusion.

 Hence this Special Appeal

COUNSEL FOR THE APPELLANT