1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ORDER The Federation of Private vs. State of Rajasthan Medical and Dental Colleges & ors. of Rajasthan & ors. S.B. Civil Writ Petition No.3657/2010 under Article 226 of the Constitution of India. Date of Order :- May 18th ,2010. PRESENT HON'BLE MR.JUSTICE PRAKASH TATIA REPORTABLE: Servashri M.S. Singhvi, Manoj Bhandari, Vijay Bishnoi for the petitioners. Mr. G.R. Punia, Addl. Advocate General. Servashri MR Singhvi, PS Bhati, Manish Shishodia for the respondents. Mr. Vineet Mathur for respondents no.3 and 4. ... BY THE COURT:
The matter came for consideration upon the application submitted by the respondent-State under Article 226(3) of the Constitution of India seeking 2 vacation of the interim order passed by this court dated 16.4.2010.
Heard learned counsel for the parties.
The petitioners aggrieved against the communications dated 26.3.2010(Annex. 18 and 19), order dated 1.4.2010 (Annex.20), communication dated 3.4.2010 (Annex.21) and notice dated 6.4.2010 (Annex.24) have preferred this writ petition and to challenge above communications/order/notice also challenged the part of the Dental Council of India revised MDS Course Regulations, 2007, which provides for filling up of 50% of seats of MDS Course in non- Governmental institutions by the State Government or by the competent authority.
Petitioner No.1 is an Association of Private Medical and Dental Colleges of Rajasthan having 12 members. The petitioners no.2 and 3 are members of the petitioner No. 1 Association and are running the private Dental Colleges and Hospitals which are affiliated to the Rajasthan University of Health Science, Jaipur (respondent no.2). According to the petitioners, the Private Medical and Dental Colleges formed the Association in the name of respondent no.1-federation 3 for regulating the admission to graduate and post- graduate course so that the admissions may be made on the basis of transparent and fair criteria by way of holding the own entrance test and federation has been allotting the seats to the students to the petitioners no.2 and 3 for MDS Course from 2006 onwards till this controversy cropped up, as on 28.7.2009, the State Government informed the petitioners and other colleges that in view of the regulations framed by the Dental Council of India, 50% seats in MDS Course are to be filled up from out of entrance test conducted by the State Government or conducted by the competent authority under the Regulations, 2007. According to the petitioners, on receipt of notice of the State Government dated 28.7.2009, the federation sent reply (Annex.11) to the State Government conveying that in view of the law laid down by the Hon'ble Apex Court in P.A.Inamdar and others v. State of Maharashtra and others (2005) 6 SCC 537, the State has no power to insist on seats sharing in unaided private professional educational institutions by fixing the quota of seats between the management of the institution and the State. Hon'ble Apex Court in above decision 4 disapproved the scheme evolved in judgment deliverd in the case of Islamic Academy of Education (2003) 6 SCC 697) wherein it was held that the State can fix quota for seats sharing between the management of unaided professional educational institutions and the States on the basis of local needs of each State of both minority and non-minority categories.Therefore, when the larger Bench of the Hon'ble Supreme Court in P.A.Inamdar's case(supra) did not approve the case evolved in Islamic Academy of Education, to allow the State to fix quota for seats sharing between the management and State, the direction of the State Government for seats sharing is not tenable. The petitioners' further contention is that not only the larger Bench decision of P.A. Inamdar's case holds the field and restricts the State Government from claiming share in seats allotment in private unaided professional educational institutions but above view was based on 11 Judges Bench decision of Hon'ble Apex Court delivered in the case of T.M.A. Pai Foundation and others v. State of Karnataka & ors. ((2002) 8 SCC
481). The above judgments and specifically in the case of P.A.Inamdar's case(supra), it has been held that 5 minority unaided institutions can legitimately claim an unfettered fundamental right to choose the students to be allowed admission and the procedure therefor subject to its being fair, transparent and non- exploitative and the same principle applies to non- minority unaided institutions. There may be single institution imparting a particular type of education which is not being imparted by any other institution and having its own admission procedure, fulfilling the tests of being fair, transparent and non-exploitative. All institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the above triple tests. The Hon'ble Apex Court held, that the admission procedure so adopted by the private institutions or group of institutions, if it fails to satisfy all or any of the triple tests, the state can take over and the State may substitute such procedure by its own procedure. According to the petitioners, there is no allegation of procedure adopted by the petitioners for giving admission to the MDS Course being unfair, non- transparent and exploitative. Therefore, in view of the law of land, as declared by the Hon'ble Supreme Court 6 and that too by Bench of 11 Judges of the Hon'ble Apex Court and followed by seven judges Bench in the case referred above, the State had no right to claim sharing of the seats and consequently, has no right to issue impugned communications/order/notice, Annxs. 18, 19, 20, 21 and 24.
According to the petitioners, part of Dental Council of India revised MDS Course Regulations, 2007 providing and empowering the State Government or any competent authority to take entrance test and give admission to the MDS Course to the extent of 50% or to any extent, is contrary to not only above law of land declared by the Hon'ble Apex Court but it is against the specific directions of the Hon'ble Supreme Court given in the case of Brahmo Samaj Education Society and others v. State of W.B. and others ( (2004) 6 SCC
224), wherein after considering T.M.A. Pai Foundation's case(supra), Hon'ble the Supreme Court declared that the State Government shall take note of the declaration of law made by this Court (Supreme Court) in this regard and made suitable amendment or laws, rules and regulations to bring them in conformity with the principle set out therein, obviously, as laid down in 7 T.M.A. Pai Foundation's case(supra). The power given in the Regulation, 2007 to the State Government to give admission to the non-governmental institutions to the extent of 50% of total seats, taking away right of management of the private institutions is, therefore, illegal and liable to be struck down.
The petitioners, in the writ petition itself, stated that there is interim order dated 26.3.2010passed by the Hon'ble Supreme Court in Civil Appeal No.4060/2009 in the case of Modern Dental College and ors. v. State of Madhya Pradesh and others (reported in (2009) 7 SCC 751), but according to the petitioners, that interlocutory order dated 26.3.2010 cannot hold the field against the final decision of the Hon'ble Supreme Court rendered in the case of P.A.Inamdar and, in support of this contention, the learned counsel for the petitioners relied upon the recent judgment of the Hon'ble Supreme Court given in the case of State of Assam vs. Barak Upatyaka D.U. Karmachari Sanstha ( (2009)5 SCC 694), wherein Hon'ble the Supreme Court held that an interim order cannot be precedent and is only an order making temporary arrangement to preserve status quo to 8 ensure that the matter does not become either infructuous or a fait accompli before final hearing. The interim order does not finally and conclusive decide an issue and it is not possible to read such tentative reasons as final conclusion. In view of the above, that interim order, which has been passed in the facts when State of M.P. enacted law and took over right to give admission in private unaided medical/dental colleges in the state of M.P. The above interim orger cannot be applied to whole of the India and particularly in the State of Rajasthan where the Hon'ble Apex Court between the parties, (between the present petitioners and the respondent-State), has decided the issue in earlier round of litigation when Jaipur Bench of this Court in S.B. Civil Writ Petition No. 4371/2006 held that admission to MDS Course in the Private Dental Colleges shall be governed by the examination conducted by the University of Rajasthan and that direction of this Court was set aside by the Hon'ble Supreme Court in Special Leave to Appeal(Civil) No.10252/06 by judgment dated 22.6.2006. Therefore, according to the learned counsel for the petitioners, firstly, the decision of the State Government as well as 9 the part of the Regulations, 2007 are contrary to law laid down by the Hon'ble Supreme Court in the cases referred above and secondly, contrary to the decision given by the Supreme Court against the State of Rajasthan itself in Special Leave to Appeal(Civil ) No.10252/2006 and the interim order passed by the Hon'ble Supreme Court in the case of Modern Dental College(supra) cannot be applied and, therefore, the petitioners in exercise of their rights, conducted the Pre-PG Dental Examination 2010 by issuing public notification dated 20.1.2010 and conducted the fair examination with full transparency and there is no allegation of mal-practice and declared the result on 24.3.2010 and gave admission to the successful candidates in the Colleges. So has been done by the petitioners after informing the respondents in reply to the communication sent by the respondents referred above that they are following the law laid down by the Hon'ble Supreme Court and are not bound by any action done by the respondents in violation to the law laid down by Hon'ble Supreme Court. According to the learned counsel for the petitioners, neither the part of Regulation, 2007 nor any order of the State 10 Government can prevent the petitioners from giving admission to the students selected by them in a fair, impartial and merit selection process.
The students, who have been given admission in the process of selection adopted by the petitioners, also moved applications in this writ petition for being impleading them as party and looking to the urgency, as it is a matter relating to the admission to the specialty course which is required to be completed within time-frame given by the Hon'ble Supreme Court, therefore, they are also heard. These applicants have supported the petitioners with full vehemence by adopting the arguments referred above, with additional ground that these applicants-students were interested in getting the admission in private colleges, therefore, they appeared in the examination and are selected in fair process of selection. Learned counsels for the applicants as well as the learned counsel for the petitioners both pointed towards the defect in the process of selection adopted by the respondents. According to the learned counsel for the petitioners and the learned counsel for the students who have been admitted in the course concerned, submitted that 11 apart from the fact that the respondents have no right to claim seats sharing in private institutions and though petitioners no.2 and 3 are affiliated to the University referred above and the University has appointed Principal and Controller Sardar Patel Medical College and Associate Group of Hospital, Bikaner as of Convener P.G. Admission Board and the Convener has issued advertisement dated 11.12.2009 and notified the entrance examination for MDS Courses for Academic Session 2010-11 but it is clear from the application form, the eligibility criteria, syllabus of examination as provided on website of respondent- University that total number of seats disclosed were to be only 10, that too only in the Government Dental College, Jaipur and the seats of Private Dental Colleges were neither notified nor proposed to be filled up by the said entrance examination. Therefore, on this ground alone, the students selected for admission in only Govt. College cannot be given admission in the colleges run by the petitioners no.2 and 3. Not only this, as per the details given in for process of selection, it is clear that the admission was available only for the students who have passed the final BDS Examination 12 from the University of Rajasthan, Jaipur or Rajasthan University of Health Science, Jaipur and it was not an all India level competitive examination, which is clear from sub-clause (v) of clause (2) of Instructions, 2010 (Annex.13) whereas, petitioner No. 1 conducted all India Entrance Test and selected the best talent for the course. Further more, out of 50% seats kept by the respondent University to be filled by them gave 50% of it to the students to be made available by the Director General of Health Services, Government of India New Delhi on the basis of the result of competitive examination for admission to PG Course in MDS and it has been stated that so is done as per the directions of the Hon'ble Supreme Court of India, whereas so is not provided, in the Regulations, 2007 nor can be given to the Central Government for filling up the 50% of 50% seats claimed by the State for allotment to the students selected by them.
The learned Addl. Advocate General Shri G.R. Punia, on behalf of the State, vehemently submitted that as back as in the year 2009, by letter of July, 2009, the petitioners were duly informed that in view of the revised MDS Course Regulations, 2007, as 13 modified on 12.10.2007, which has been duly published in the gazette on 20.11.2007, the petitioners can give admission to the students to the extent of their quota, as provided in Regulations, 2007. The said Regulation has been made applicable from Academic Session 2008-09 but that has not been followed by the petitioners and the petitioners gave admission to the students to the extent of 100% seats in the session 2008-09, which is in violation to the regulation. The petitioners were asked to show reason why the seats have not been allocated to the State for admission. The petitioners then again, vide letter of January, 2010 (Annex.14) were directed to divide quota in 50:50 and give details of the available seats to the State in compliance to the provision made in the Regulations, 2007. The petitioners deliberately did not give any information about availability of seats with them. Then the respondents, following the statutory provision of law, i.e., Regulations, 2007, proceeded to conduct the examination for giving admission to the MDS Course by conducting Pre-P.G. Entrance Test for admission to course including Dental MDS Course by issuing Notification dated 11.12.2009 which was duly 14 published in the news-paper and the instructions were duly made available for public even on website. The Notification clearly states that examination will be conducted by the convener appointed by the competent authority and it will be for the admission to the course of MDS in Dental Colleges of Rajasthan which is clear from first para of Instructions (Page 49 of paper-book). The petitioners tried to mislead this Court by referring the seats of Government Dental Colleges, Jaipur only whereas it is clear from the instruction of Book, 2010, copy of which has been placed on record by the petitioners (page 56 of the paper book) that reference of Govt. Dental college, Jaipur was given as illustration by mentioning "probable" total number of seats for Pre-P.G. Dental Examination, 2010. The learned Addl. Advocate General Shri G.R. Punia frankly admitted that at the time of issuance of Notification inviting applications for Pre-P.G.Dental Examination Entrance Test, the State/Convener of the examination had no knowledge of total number of seats because it has not been provided by the petitioners to the respondents. However, the respondents thereafter got the full details 15 of the available seats from their own source, which is clear from the office order dated 1.4.2010(Annex.20) submitted by the petitioners themselves. The respondents bifurcated the seats for allotment in different heads like NRI Quota, State Quota and management quota of the colleges. The petitioners, if proceeded with the selection process in violation to the Regulations, 2007 and against the directions of the University to whom the petitioners no.2 and 3 are affiliated and in violation to the directions of the State Government, the petitioners cannot get any benefit of their own wrong nor the beneficiary of any wrong decision, the applicant-students selected by the petitioner No. 1 can claim any right of admission to the MDS Course.
The learned Addl. Advocate General Shri G.R. Punia for the State and the learned counsel for the students who have been selected by the State Government for admission to the petitioners-colleges, Shri MR Singhvi and Shri Dr. PS Bhati, Shri Manish Sishodia counsel for the respondent No. 2 University as well as the learned counsel Shri Vineet Mathur appearing for the Union of India and the Dental Council 16 of India, vehemently submitted that the judgment relied upon by the learned counsel for the petitioners were delivered when there was no statutory provision governing the admission to the courses in question in the colleges run by the private unaided professional colleges, therefore, those judgments which were law of land, were holding the field till the law was enacted by the legislature. The learned counsel Shri MR Singhvi relied upon author's opinion given in the Book- "Judicial Process-Precedent in Indian Law" by Prof. A. Lakshminath, published by Eastern Book Company, third Edition, 2009, in Chapter 2 at page 42, wherein on the basis of the judgment of the Supreme Court delivered in the case of Union of India vs. Assn. For Democratic Reforms (2002)5 SCC 294), it has been observed that, "however, the Supreme Court cannot give any direction for amending the Act or the Rules nor can it give any direction contrary to the Act or Rules. Where the Act and Rules are silent on a subject and the authority implementing the same has constitutional or statutory power to implement it Court can issue directions to such authority on such a subject to fill the vacuum or void till the enactment of a 17 suitable law." Therefore, according to the learned counsel Shri MR Singhvi, the judgments though rendered by the Bench of 11 Judges and by the Constitutional Bench, on the issue of the private unaided educational institutions for giving admission, but after the Regulations, 2007 which is admittedly statutory regulations framed under the Dentist Act, 1948, still holds the field till it is declared illegal or unconstitutional and is quashed.
The learned counsel Shri MR Singhvi further relied upon Article 144 of the Constitution of India which provides that all authorities, civil and judicial, are required to act in aid of the Supreme Court. It is also submitted that the Supreme Court itself after considering all above judgments relied upon by the learned counsel for the petitioners issued directions in the case of Modern Dental College and Research Center for admission in private unaided Medical/Dental Colleges in the State of MP so as to allot the seats in the ratio of 50:50 to the State Government and the private institutions for the Academic Session 2009-10 and the same procedure has been followed by the State Government and the University in the State of 18 Rajasthan which is in consonance with the statutory provision of Regulations, 2007. That interim arrangement made for the year 2009-2010 in case of Modern Dental College and Research Center by the order of the Supreme Court was then continued by the three Judges Bench headed by the Hon'ble Chief Justice of India by order dated 26.3.2010 for the Academic Session 2010-11 and the matter has been referred to the constitutional Bench. According to the learned counsel for the respondents, once the Hon'ble Supreme Court itself has applied its mind to the issue and there is departure in subsequent orders then that subsequent direction may be of the interim nature, covers the field at least for making interim arrangement by all courts and no courts have any jurisdiction to take a contrary view than the view taken in the subsequent order passed by the Supreme Court. Otherwise it will result into interpreting the final judgment of the Supreme Court by the Supreme Court in one way and interpreting the same final judgment by the High Court in just contrary to the interpretation given by the Supreme Court, which is impermissible in the law of precedent as well as would be contrary to 19 the mandate of Article 144 of the Constitution of India.
The learned counsel for the State as well as of the private parties vehemently submitted that the petitioners-colleges and their federation had no right to question the process of selection adopted by the respondents because they cannot claim more than 50% seats and even if there is fault in the procedure of selection of candidates selected by the respondents, even then because of that fact, the petitioners cannot claim any right to fill those seats by themselves in contravention to Regulations, 2007 and contrary to the view expressed by the Hon'ble Supreme Court in the case of Modern Dental College. It is also submitted that though judgment of this Court in Writ Petition No.4371/06 was set aside by the Hon'ble the Supreme Court in Special Leave to Appeal(Civil) 10252/06 but that was also because of the reason that there was no statutory provision governing the subject and this enactment of 2007 makes the change totally.
The learned counsel for the respondents also submitted that by not disclosing number of seats by the petitioners themselves, they cannot take benefit of their own wrong and, therefore, cannot assail the 20 action of the respondents. It is also submitted that the seats for all the Dental Colleges of Rajasthan were advertised, which is clear from the documents produced the petitioners themselves, which are Annex.12 and 13.
The learned counsel Shri Vineet Mathur, appearing on behalf of the Union of India and Dental Council of India supported the State's decision and the provision made in the Regulations, 2007, however, the reply to the writ petition has not been filed by the Union of India and Dental Council of India.
Learned counsel Shri Manish Shishodia submitted that inadvertently and by mistake in Instruction Booklet 2010 allotment of 50% seats out of 50% seats reserved for State have been shown for the students of All India Competitive Entrance Examination.
I considered the submission of the learned counsel for the parties and perused the judgments referred above as well as the record.
The first and foremost important question is whether the interim orders passed by the Supreme Court in the case of Modern Dental College and Research Center(supra) dated 27.5.2009 and dated 21 26.3.2010 are binding in nature for all including this Court, the State Government and the authorities including the petitioners and respondents?
It is settled law that the interim orders/directions are issued on the basis of prima facie finding and makes temporary arrangements to preserve status quo to ensure that the matter does not either become infructuous or a fait accompli before final hearing and that view has again been declared by the Hon'ble Supreme Court in the case of State of Assam v. Barak Upatyaka D.U. Karmachari Sanstha ( (2009) 5 SCC
694). The Hon'ble Supreme Court again held that interim directions based on tentative reasons, restricted to peculiar facts of the case involving extra- ordinary situation have no value of precedent and the interim order which does not finally and conclusively decide an issue cannot be a precedent. Apart from above, it is also settled law that the interim order and direction issued in a case binds the parties to that case only and that too, till the final decision of the matter by final judgment. Not only this but what is binding in the interim order is the ultimate direction and order which has been passed by the court and any finding recorded 22 in the interim order on any issue is not binding on even the parties in the same suit or litigation, what to say it be binding upon stranger to the litigation. Any decision on any issue in interim order is also not binding upon the same court which has passed it. Because of this reason only the court can decide and is required to decide the issues finally in final judgment uninfluenced by any prima facie finding given in interim order. Therefore, not only that, the interim order is not precedent for stranger to the litigation in which such order has been passed but also is not a precedent for the party to litigation in whose litigation such order has been passed. To that extent, there may be force in the submissions of the learned counsel for the petitioners and the counsels for the students who have been given admission by the petitioners but in the present facts of the case, it is no end of the controversy.
This Court, at this stage, is not deciding any issue finally while hearing the application under Article 226 (3) of the Constitution of India for vacating the interim order or while decide the stay petition finally. The root question before this Court, at this stage, is that, whether inspite of the above legal position this Court 23 can take a contrary view than expressed by the Hon'ble Supreme Court in an interim order passed in another but similar matter and which order has been passed after considering the earlier final judgments delivered by the larger benches of the Hon'ble Supreme Court, consisting of Bench of seven Judges and eleven Judges and the interim order has not been passed "in ignoratium of a statute or other binding authority"? In humble opinion, if final judgment of Supreme Court or number of Judgments of Supreme Court rendered by more number of Hon'ble Judges of the Supreme Court have been considered by less number of judges bench of the Supreme Court and that bench of less number of judges passes any interim order than that interim order is binding upon all for the purpose of making interim arrangements in similar facts and circumstances, not strictly as precedent but as per the demand of propriety. Further, so is because of the reason that High Court has no jurisdiction to say that the Supreme Court has not correctly read or not correctly understood the earlier decisions of larger benches of Supreme Court and passed the interim order. In such situation courts must remember that a decision 24 rendered in ignorance of earlier decision or provision of controlling statute can be per in curium but a judgment/order passed knowingly, and after considering the earlier judgment is not a judgment/order per in curium. Further, if Hon'ble Supreme Court itself, after considering its earlier judgments passes an order not "in ignoratium of a statute or other binding authority", the High Court cannot declare that such order of Supreme Court is against the said earlier judgment of the Supreme Court. This view is in consonance of judicial propriety without violating the principal to ignore the per in curium order and judgments.
The Hon'ble Supreme Court's every order is binding as per Article 144 of the Constitution of India also. Every judicial authority is also under constitutional obligation to act in aid to the order passed by the Hon'ble Supreme Court. Apart from above the constitutional obligation of this Court, even if issue is examined from the angle of all proprieties then also for one subject, there cannot be two directions, one issued by the Supreme Court and another contrary to the Supreme Court's directions and that too by the 25 High Court.
Following the interim order passed by the Supreme Court in Modern Dental College case is more appropriate in the facts of the present case which shall be clear from the reasons mentioned hereinafter. The Judgments delivered in the case of T.N.A. Pai Foundation, Islamic Academy of Education and P.A. Inamdar as well as the earlier judgment of the Unni Krishhnan,JP, all were delivered when the subject was not governed by any statutory provision. The subsequent event of enactment of law "Dental Council of India Revised Course Regulation, 2007" under the provisions of Dentist Act, 1948 by exercising powers under Section 20 Dentist Act, 1948, has changed the fact situation. Statutory provision cannot be declared illegal or unconstitutional or ultra vires or contrary to even Supreme Court's judgments by any person, institution or authority other than the competent court of law. How strong any body's conviction may be about the illegality of enactment but that enactment unless is declared illegal or unconstitutional or ultra vires and inoperative by competent court of law, binds all till said enactment is declared so by the competent 26 court of law. Hon'ble the Supreme Court in the case of Brahmo Samaj Education Society(supra), therefore, did not declare that all the laws which may be enacted in future shall be illegal, void or ultra vires and directed the States to take note of declaration of law made by the Supreme Court in this regard and make suitable amendments to their laws, rules and regulations to bring that in conformity with the principles set out therein. At this stage, this Court has no reason to believe that neither the legislature was conscious of the judgments referred above and relied upon by the learned counsel for the petitioners including the cases of T.M.A. Pai's Foundations and P.A. Inamdar(supra) and the directions issued by the Supreme Court in the case of Brahmo Samaj Education Society(supra), before the Regulation, 2007 was enacted. At this juncture, this Court cannot pre-judge the validity of Regulation, 2007 while deciding the applications of interlocutory nature as the issue requires consideration and further more necessary in view of consciously given direction in interim order of Supreme Court in Modern Dental College case and order of continuance of that interim order for the year 2010-2011 by 27 another bench of the Supreme Court of more number of judges who also did not find any wrong in the direction given by two judges bench of the Supreme Court. The issue of validity of Regulations 2007 can be decided after full opportunity to the respondents who can show the reasons for framing Regulation, 2007 inspite of the judgments of the Hon'ble Supreme Court giving liberty to the private educational professional institutions to admit students by their own selection process. In the case reported in S. Nagaraj Vs. State of Karnataka (1993(Supp) 4 SCC 595, Hon'ble the Supreme Court held that even if the order of competent court is erroneous, mistaken or improperly obtained, they cannot be substituted, altered or modified by the authorities according to their own rules. They will be still binding. However, remedy can be had only from a higher court or from the same court. The view expressed for the court's order, as above, applies to the acts and laws enacted and framed by the legislature, once a law is enacted. The Statute, Laws and Rules cannot be ignored till they are declared by competent court of law to be illegal, unconstitutional or bad in law. Even with the help of the ultimate final 28 decision rendered by the Hon'ble Apex Court, no private party, authority, the institution or any body itself except the competent court can decide the legality and validity of the Act, enactment or regulation, otherwise the exclusive powers which have been given to the court to decide about the issue of law will vest in individual person and authorities and even the Government to take decision against law by deciding about the legality and validity of the Act, Rules or bye-laws, which is impermissible whereas there exists judicial system for redresses.
The petitioners cannot claim that they came to know about the Regulation, 2007 only when it was brought to their knowledge by the respondents, when respondents received the letter from the Deputy Secretary of the Government of Rajasthan dated 28.7.2009(Annex.10) only. The Regulation came in force in the year 2007 directly effecting the admission procedure of the petitioner, yet they did not choose to challenge the said regulation for more than 2-1/2 years in spite of State's insistence for enforcing the Regulation, 2007 in the admission to the course concerned for the year 2010-11 for the reasons best 29 known to the petitioners.
At the cost of repetition, again it may be observed that the petitioners had no right to declare the Regulation, 2007 illegal or had right to ignore the Regulation, 2007 by treating it to be illegal and in contravention of the judgment of the Hon'ble Supreme Court at their own accord. Therefore, for the purpose of passing an interim order, this Court unless stays operation of that part of Regulation, 2007, cannot restrain the respondents from acting in consonance with the statutory regulations and prima facie there exists no reason for staying the Regulation, 2007, when Hon'ble the Supreme Court, after considering the judgments relied upon by the learned counsel for the petitioners, has passed the interim orders twice, firstly, making exactly the same arrangement which has been made in the Supreme Court's orders dated 27.5.2009, that too after hearing counsels for the parties, then that arrangement was continued by the three Judges Bench headed by Hon'ble the Chief Justice of India vide order dated 26.3.2010 and the matter has been referred to the Constitutional Bench, which obviously opens the issue again before the Hon'ble Supreme 30 Court.
For grant of interim relief, the conduct of the parties is also relevant. Firstly, the petitioners had knowledge of the Regulation, 2007 framed under the Dentist Act, 1948 which they did not choose to challenge for 2-1/2 years and they further did not choose to challenge when the State asked them to show cause why they did not follow the Regulation, 2007 in the Academic Session 2008-09. The petitioners did not challenge the action of the respondents in time, then the petitioners even after the letter of the State Government dated 1.1.2010, asking them to furnish the details of the available seats to comply with the Regulation, 2007, did not challenge that action in time and in spite of protest of the respondents, at their own risk respondents invited students for Pre-P.G. Dental Examination, 2010 by issuing Notification dated 20.1.2010 and than further ignored the letter of the State Government dated 26.3.2010 and office order of their own University dated 1.4.2010 and did not challenge the action of the respondents started vide Notification dated 11.12.2009 for giving admission to the M.D.S. Course and when counseling started or 31 about to start for admitting the students by the respondent University to the private colleges and Jaipur Dental College, Jaipur, then on 9.4.2010 submitted this writ petition and prayed for interim relief, which was granted by this Court on 16.4.2010. Therefore, prima facie for this year's admission, they are responsible for the situation in a matter where the issue was with respect to the admission to the course of professional degree as well as nature of specialty subject which issue could not have been lingered on if the petitioners have legitimate right in the light of the any decision of the Hon'ble Supreme Court because of the simple reason that the process of admission to such courses cannot be delayed and is required to be completed within the time framed.
So far as any procedural defect in the process of selection by the respondents for giving admission to the M.D.S. Course is concerned, certainly the other students may have say but the petitioners cannot get the right to admit the students beyond their quota till the Regulation, 2007 contains the provisions of quota to State and the interim orders of the Hon'ble Supreme Court are in force. So far as students are concerned, 32 they may be certainly on receiving end but so far as the invitation of applications by the petitioners and the respondents for Pre-P.G. Entrance Test are concerned, they had full opportunity to take chance in both the selections. The students also cannot say that they had no knowledge of restriction imposed by the Regulation 2007 against giving of admission to the students by private colleges beyond 50% of seats. The students' mere saying that they had no interest in the Government Colleges, therefore, they did not appear in the Pre-P.G. Entrance Test conducted by the respondents, is no sufficient answer and if it is so then also these students selected by the petitioners can get the admission to the extent of available seats with the private colleges. In advertisement issued by the respondents it is nowhere stated that the Rajasthan University of Health Science through convener shall be conducting the examination for only Government College and this Notification dated 11.12.2009 (Annex.12) was issued as per the instructions Booklet for the Pre-P.G.Dental Entrance Examination, 2010 (Annex.13) wherein it is clearly mentioned that the above examinations are for admission to M.D.S. Course 33 in Dental Colleges of Rajasthan and not only for the Government Colleges of Rajasthan. The declaration of probable seats appears to be because of the reason that the petitioners did not cooperate with the respondents, though under their belief that they are only competent to give admission to their colleges but that cannot help the petitioners at this stage in the peculiar facts of the case.
The declaration and non-declaration of the seats by the respondents in the advertisement dated 11.12.2009 and Instructions Booklet, 2010, prima facie has not prejudice the students in any manner because of the reason that if the students read the last page of the said booklet where reference of Government Dental Colleges, Jaipur's seats reference is there, then they certainly did read the word "probable total number of seats" mentioned above the chart and if they had any doubt for enquiry about the seats, they could have made the enquiry from the competent authority. Along with above, there is an objection that there is allocation of seats made in the booklet is not proper and the students of central competitive entrance examinations have been allotted the seats, which could 34 not have been done or the eligibility criteria is defective resulting into non-selection of best talent are concerned, at this stage, cannot help the petitioners and the students admitted by the petitioners because of the reason that if there is defect in selection in the process of selection adopted by the respondents, that can be corrected but on this count, the petitioners cannot get the right to admit to course more than 50% students as allotted to them with admission to those students whose admission has been kept with the petitioners in consonance with the order of the Hon'ble Supreme Court's order dated 27.5.2009 and which has been made continued by order of the Hon'ble Supreme Court dated 26.3.2010.
Because of the reasons given in this very order it is hardly necessary to mention here that this order is of interim nature and any finding recorded in order is only of interim nature on the issue dealt with but again it is made clear that the finding recorded above will not prejudice the case of any of parties in any manner while deciding the writ petition finally.
For the reasons mentioned above, the application filed by the respondents under Article 226(3) of the 35 Constitution of India is allowed. The interim order passed by this Court on 16.4.2010 and continued thereafter, is vacated.
The stay petition submitted by the petitioners is dismissed.