R.D. GARDI MEDICAL COLLEGE AND ANR. ETC.versusSTATE OF M.P. AND ORS.

                        [2010] 12 S.C.R. 692


A       R.D. GARDI MEDICAL COLLEGE AND ANR. ETC.
                                   V.
                      STATE OF M.P. AND ORS.
               (Civil Appeal Nos.8429-8430 of 2010)

                       SEPTEMBER 30, 2010
B
         [MARKANDEY KATJU AND T.S. THAKUR, JJ.]

          Admissions - Medical admissions - Academic session
    2010-11 - Allocation of seats between the management and
C   the State - Appeals against order passed by the High Court
    in Writ Petitions whereby a total of 15 seats in the 1st year
    MBBS course were directed to be reduced from out of the
    management quota of the appellant-college for the academic
    session 2010-2011 - Held: The appeals are an abuse of the
D   process of law, for two reasons; a) consent of appellant-
    institution to reduction of seats from management quota as
    recorded in the impugned order of the High Court and b)
    earlier order passed by Supreme Court and order passed by
    High Court in a connected matter - Reduction of seats had
E   to be only from the management quota. for it was the
    management who had committed an irregularity which it was
    directed to correct by surrendering an equal number of seats
    to the State - High Court rightly held that unfilled NRI seats
    were to be shared equally between the college and the
F   management and as appellant-college had utilized the
    unfilled NRI seats all by itself it had committed clear
    irregularity justifying reduction of the excess seats during the
    session 2010-2011 - Judicial process - Abuse.

G       For the academic session 2006-2007, the appellant-
    medical college admitted to the first year of MBBS course
    19 students who had not secured 50% marks in the
    entrance examination. The legality of the said admissions

                                  692
H
R.D. GARDI MEDICAL COLLEGE AND ANR. ETC. v. 693
           STATE OF M.P. AND ORS.
came up for scrutiny before the High Court which               A
declar~d the same to be illegal and, as such, liable to be
cancelled. The Supreme Court' by order dated 4th
September, 2008 while holding that the college was not
justified in giving admission to ineligible students,
permitted the students to continue their studies, but          B
directed that an equal number of seats (i.e. 19 seats) shall
be reduced from the management quota of the college for
the academic session 2009-2010. Subsequently, the High
Court by order dated 22nd April, 2009, on the analogy of
the aforesaid order of the Supreme Court, directed 2 more      C
seats, against which ineligible students were admitted, to
be reduced from management quota of the appellant-
college for the academic session 2009-2010 thereby
taking the total number of seats to be reduced from the
quota of the management to 21.                                 D

     Meanwhile the private educational institutions filed
writ petition challenging the constitutional validity of the
"M.P. Niji Vyavsayik Shikshan Sanstha (Pravesh Ka
Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007"            E
which was disposed of by the High Court, aggrieved
whereof the private educational institutions filed appeal
in the Supreme Court. The Supreme Court held that the
impugned enactment in so far as the same handedover
the entire selection process to the State Government or        F
the agencies appointed by it for under-graduate, graduate
and post-graduate medical/dental colleges and fee
fixation, was contrary to the observations made by the
11-Judge Bench of this Court in T.M.A. Pai's case; and
that a literal interpretation of the Act would render the      G
same unconstitutional. An interim arrangement was
accordingly made under which 15% seats were to be first
excluded towards NRI quota to be filled up by the private
institutions. Out of remaining 85% seats available for
admission to the under-graduate and post-graduate              H
    694      SUPREME COURT REPORTS            [2010) 12 S.C.R.


A courses, 50% were to be given to the State Government
  while the remaining 50% were to be filled up on the basis
  of a selection process to be conducted by separate
  entrance examination for the purpose.

B      A writ petition was filed before the High Court,
  alleging that the allocation of seats between the
  management and the State was not proper nor was the
  reduction of 21 seats from the management quota given
  effect to, as directed by the Court. The High Court held
c that 21 seats permitted to be reduced from the
  management quota had been erroneously reduced from
  the total of 100 seats available in the college and directed
  10 seats to be reduced from out of the management
  quota for the academic session 2010-11. As regards the
o NRI seats for the session 2009-10, the High Court held
  that unfilled NRI seats had to be shared between the State
  and the appellant-college in equal proportion, and
  directed 5 seats which were wrongly filled up by the
  management of the college for the session 2009-10 to be
E reduced from out of the management quota taking the
  total number of seats to be reduced for the session 2010-
  2011 to 15.

          Dismissing the appeals, the Court
F      HELD:1.1. The instant appeals are an abuse of the
  process of law, for two precise reasons. Firstly, because
  the order passed by the High Court has on more than one
  occasions recorded the consent of the appellant-
  institution to the reduction of 10 seats from the
G management quota during the session 2010-2011. It is
  difficult to appreciate how the institution can question the
  direction issued by the High Court regarding the
  reduction of 10 seats after having agreed to such
H reduction before the High Court. That apart, a plain
R.D. GARDI MEDICAL COLLEGE AND ANR. ETC. v. 695
           STATE OF M.P. AND ORS.
reading of the earlier orders of the Supreme Court dated       A
4th September, 2008 and the High Court in the connected
matters dated 22nd April, 2009, leave no manner of doubt
that the reduction of the seats had to be from out of the
management quota alone. The earlier interim order
passed by the Supreme Court clearly specified that the         B
NRI seats to the extent of 15% of the total number of
seats, shall be first reduced from the total and the balance
85% shared half and half between college and the State.
Instead of doing so, the govt. officials adopted a wrong
method of calculating the seats by reducing 21 seats from      C
the total number of 100 seats. The above method of
calculation was not the correct method to be adopted in
the matter. The direction of the Supreme Court that 15%
seats towards NRI will be first reduced from the total has
been ignored by the authorities. By doing so the               D
reduction of 21 seats has taken place vis-a-vis not only
the management quota but even the State quota. The
Supreme Court had never directed reduction of any seat
from the State quota. The reduction had to be only from
the management quota, for it was the management who            E
had committed an irregularity which it was directed to
correct by surrendering an equal number of seats to the
State. [Paras 11, 13, 14 and 15] [704-E; 705-F-H; 706-A-B;
F-G]
                                                               F
     1.2. So long as the order of this Court directing
reduction from out of the management share of seats was
capable of being implemented and enforced and so long
as there were enough number of seats from out of which
it could be made to surrender the requisite number of G
seats, it did not make any difference whether the
management had 100 seats available to it or a lesser
number. Inasmuch as the management failed to do so
with or without the support or connivance of the State
authorities who were charged with the duty of complying H
    696      SUPREME COURT REPORTS             [2010] 12 S.C.R.

A   with the direction of this Court it committed a mistake
    which could be corrected by directing surrender of the
    requisite number of seats to the State for the session
    2010-2011. The direction, therefore, by the High Court to
    that effect was perfectly justified. [Para 16] [707-8-D]
B
        1.3. The High Court rightly held that unfilled NRI
  seats were to be shared equally between the college and
  the management. Inasmuch as the appellant-college had
  utilized the unfilled NRI seats all by itself it had committed
c clear irregularity justifying reduction of the excess seats
  during the session 2010-2011. A plain reading of Rule 8
  of the Admission Rules, 2008 leaves no manner of doubt
  that unfilled NRI seats had to be transferred to the general
  pool to be filled up on the basis of the merit of the
o candidates in the State level common entrance test
  conducted by Madhya Pradesh Vyavasyik Pariksha
  Mandal or by any other agency authorized by the State
  Government for that purpose. The unfilled seats in the
  NRI quota were, therefore, to be treated as a part of the
E general pool and once that was done the share of the
  college in terms of the order passed by this Court would
  be 50% out of the said seats. The High Court has, in that
  view, rightly held that while the management was justified
  in filling up 5 unfilled seats in NRI quota, the remaining 5
F could not have been filled up otherwise than on the basis
  of the entrance test referred to in Rule 8. (Paras 17, 19]
  [707-F; 708-G-H; 709-A-B]

       T. M.A. Pai Foundation v. State of Karnataka (2002) 8
G SCC 481; Islamic Academy of Education v. State of
  Karnataka (2003) 6 SCC 697 and P.A. lnamdar & Ors. v.
  State of Maharashtra & Ors. (2005) 6 SCC 537 - referred to.

                        Case Law Reference:

H         (2002) 8 sec 481       referred to          Para 5
R.D. GARDI MEDICAL COLLEGE AND ANR. ETC. v. 697 .
           STATE OF M.P. AND ORS.

    (2003) s sec 697           referred to          Para 5         A

    (2005) s sec 537           referred to           Para 5

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
8429-30 of 2010.
                                                                   B
     From the Judgment & Order dated 30.07.2010 of the High
Court of Madhya Pradesh at Jabalpur in WP No. 8979 of2009
(PIL) & 6876 of 2009 (PIL).

                                With                               c
Civil Appeal No. 7894 of 2010.

    Vivek K. Tankha, ASG, P.S. Patwalia, C.A. Sundaram,
Rakesh Dwivedi, R.F. Nariman, Rohit Arya, Puneet Jain, Pragati
Neekhra, Suryanarayan Singh, B.S. Banthia, Rishabh Sancheti,       D
Sumeer Sodhi, Vaibhav Srivastava, D. Kumanan, Manan
Nagrath, Vikas Upadhyay, Paritosh Gupta, Babita Sant and
D.B. Vohra, for the appearing parties.

    The Judgment of the Court was delivered by                     E

    T.S. THAKUR, J. 1. Leave granted.

      2. These appeals are directed against an order dated 30th
July, 2010 passed by the High Court of Madhya Pradesh in Writ F
Petitions Nos. 6876 and 8979 of 2009 whereby a total of 15
seats in the 1st year MBBS course have been directed to be
reduced from out of the management quota of the appellant-
college for the academic session 2010-2011, with a direction
to the Admission and Fee Regulator Committee to ensure that G
the order passed by the Court is carried out in letter and spirit.
The facts giving rise to the filing of the writ petitions may be
summarized as under:

    3. For the academic session 2006-2007 the appellant-Ml
s R.D. Gardi Medical College, Ujjain, admitted to the first year   H
    698       SUPREME COURT REPORTS                  (2010] 12 S.C.R.


A   of MBBS course as many as 19 students who had not secured
    50% marks in the examination conducted by the Association
    of Private Medical and Dental College of MP. The legality of
    the said admissions came up for scrutiny before the High Court
    who declared the same to be illegal hence liable to be
B   cancelled. Aggrieved by the said order the affected students
    approached this Court in Civil Appeal Nos.5518-5521 of 2008
    which were disposed of by this Court by an order dated 4th
    September, 2008 holding that the college was not justified in
    giving admission to students who were not eligible in terms of
C   the relevant rules. This Court, however, permitted the students
    to continue their studies but directed that an equal number of
    seats shall be reduced from the management quota of the
    college for the academic session 2009-2010. This Court said:

o         "The management of the R.D. Gardi Medical college was
          not justified in giving admission to these students. Certainly,
          they must be aware of the fact that the candidates should
          have secured at least 50% marks in the entrance
          examination but the learned senior counsel appearing for
E         the college says that they were not aware of the marks
          secured by these candidates as the entrance examination
          was held by a different association as the marks were not
          furnished to them by the association. However, as the
          admission is found to be irregular, equal number of
F         students shall be reduced from the management quota
          for the year 2009-10.

                The appeals are disposed of accordingly. No costs."

                                                  (emphasis supplied)
G
         4. By an order dated 22nd April, 2009 passed by the High
    Court in Writ Petitions No.5592 of 2008 and 5624 of 2008, on
    the analogy of the~ order of this Court extracted above two more
    seats against which the said petitioners were admitted without
H
R.D. GARD! MEDICAL COLLEGE AND ANR. ETC. v. 699
    STATE OF M.P. AND ORS. [T.S. THAKUR, J.]
satisfying the essential condition of eligibility were also directed   A
to be reduced from management quota of the appellant-college
for the academic session 2009-2010 thereby taking the total
number of seats to be reduced from the quota of the
management to 21.
                                                                       B
     5. On the receipt of the orders abovementioned the
Medical Council of India sent a communication dated 26th May,
2009 requesting the Principal Secretary, Government of
Madhya Pradesh and the Director of Medical Education,
Madhya Pradesh to fill up 21 seats (19 admission as per the            c
Order of this Court dated 4th September, 2008 and 2
admission as per the order dated 22nd April, 2009 passed by
the High Court of Madhya Pradesh) through MPCET entrance
test for the academic session 2009-2010. Writ Petition
No.2732 of 2009 filed by the private educational institutions          D
before the High Court of Madhya Pradesh challenging the
constitutional validity of what is known as "M.P. Niji Vyavsayik
Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka
Nirdharan) Adhiniyam, 2007" was in the meantime disposed
of by the High Court on 21st May, 2009, aggrieved whereof the          E
private educational institutions filed Civil Appeal No.4060 of
2009 in this Court by special leave. This Court noticed that the
common question of law that arose in the said batch of appeals
was as to how far it was permissible under the Constitution for
the State to control and regulate admissions and fee in private        F
unaided professional educational institutions in the State of
Madhya Pradesh. Relying upon the decisions rendered by this
Court in TM.A. Pai Foundation v. State of Karnataka (2002)
8 SCC 481, Islamic Academy of Education v. State of
Karnataka (2003) 6 SCC 697 and P.A. lnamdar & Ors. v.                  G
State of Maharashtra & Ors. (2005) 6 SCC 537 this Court
prima facie came to the conclusion that the impugned
enactment in so far as the same handovers the entire selection
process to the State Government or the agencies appointed
                                                                       H
    700      SUPREME COURT REPORTS                 [2010) 12 S.C.R.


A by it for under-graduate, graduate and post-graduate medical/
  dental colleges and fee fixation was contrary to the observations
  made by the 11-Judges Bench of this Court in TM.A. Pai's
  case (supra). This Court further observed that a literal
  interpretation of the Act would render the same unconstitutional.
B An interim arrangement was accordingly made under which
  15% seats were to be first excluded towards NRI quota to be
  filled up by the private institutions as per the observations made
  by this Court in lnamdar's case (supra). Out of remaining 85%
  seats available for admission to the under-graduate and post-
C graduate courses 50% were to be given to the State
  Government while the remaining 50% were to be filled up on
  the basis of a selection process to be conducted by the
  Association of Private Medical and Dental Colleges who were
  to hold their own separate entrance examinations for the
D purpose. The following passage from the said order is, in this
  regard, relevant:

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

                We make it clear that the aforesaid directions will for
H
R.D. GARDI MEDICAL COLLEGE AND ANR. ETC. v. 701
    STATE OF M.P. AND ORS. [T.S. THAKUR, J.]
    the time being only be applicable for this academic year         A
    i.e. 2009-10. We also make it clear that if there are an odd
    number of seats then it will be rounded off in favour of the
    private institutions. For example, if there are 25 seats, 12
    will be filled up by the State Government and 13 will be
    filled up by the Association of Private Medical/Dental           B
    Colleges. In Specialities in P.G. courses also half the
    seats will be filled in by the State Government and half by
    the Association of Private Medical/Dental Colleges and
    any fraction will be rounded off in favour of the Association.
    In other words if in any discipline there are, say, 9 seats,     c
    then 5 will be filled in by the Association and remaining 4
    will by the State Government. Capitation fee is prohibited,
    both to the State Government as well as the private
    institutions, vide para 140 of lnamdar's case (supra). Both
    the State Government and the Association of Private              D
    Medical/Dental Colleges will separately hold single window
    examinations for the whole State (vide para 136 of
     lnamdar's case (supra)."

     6. The Government of Madhya Pradesh constituted a               E
Counseling Committee comprising of nine bureaucrats and the
Secretary of the Association. The said Committee undertook
an exercise for distribution and allocation of seats in the
appellant-college for the academic session 2010-11 in
compliance with order dated 4th September, 2008 passed by            F
this Court and that passed by the High Court of Madhya
Pradesh on 22nd April, 2009. We shall presently deal with the
allocation so made by the Committee but before we do so we
need to point out that Writ Petition No.8979 was filed by Nidhi
Ahankari and another in public interest, inter alia, praying for a   G
writ of certiorari quashing the allocation and distribution of
seats made by the appellant-college and a mandamus directing
that 46 seats of the said college and 21 seats of management
quota making a total of 67 seats be filled up by the State
                                                                     H
    702       SUPREME COURT REPORTS                 [2010] 12 S.C.R.


A Government on the basis of the merit of the candidates in the
  PMT quota. The writ petition alleged that the allocation of seats
  between the management and the State was not proper nor
  was the reduction of 21 seats from the management quota
  given effect to as directed by this Court. The result, alleged the
B petitioners, was that the meritorious candidates entitled to said
  quota were deprived of admission to the appellant-college.

          7. By an interim order passed by the High Court on 23rd
  July, 2010 the appellant was directed to keep 10 seats vacant
c out of the seats filled by the APDMC of the appellant-college
  as the High Court was prima facie of the opinion that calculation
  and allocation of seats required to be surrendered by the
  college, was wrong and that the appellant had been permitted
  to fill up the seats in violation of the orders passed by this Court.
D That order was followed by an order dated 30th July, 2010
  impugned in the present appeal allowing the writ petitions and
  directing 10 seats to be reduced from out of the management
  quota for the academic session 2010-11 in compliance with
  the order of this Court dated 4th SeptembE!r. 2008 and that
E passed by the High Court of Madhya Pradesh on 22nd April,
  2009. The High Court took the view that 21 seats permitted to
  be reduced from the management quota had been erroneously
  reduced from the total of 100 s~ats available in the college
  which was not correct understanding of the order passed by
F this Court on 4th September, 2008 and that passed by the High
  Court in Writ Petition No.6876 of 2009 dated 31st August,
  2009. The High Court observed:

                "What was proposed by the State Government in its
G         return had the effect of reducing 21 seats out of total
          available 100 seats which included a seat of the State
          quota also whereas there was clear direction of the Apex
          Court in its order dated 4.9.2008 and the order of this
          Court in Writ Petition Nos.5592/2008 & 5654/2008
H
R.D. GARD! MEDICAL COLLEGE AND ANR. ETC. v.                   703
    STATE OF M.P. AND ORS. [T.S. THAKUR, J.]
    decided on 22.4.2009 to reduce the management quota              A
    seats only. The State initially wanted to benefit the
    management by its action and wanted to proceed on the
    basis of what was proposed by the College. There was
    no room to violate the aforesaid order also passed on
    31.8.2009.                                                       B

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

     8. In so far as N RI seats for the session 2009-10 were
concerned, the High Court noticed that 10 seats had remained         D
vacant in the State quota as only 5 of such seats were filled
up. Unfilled NRI seats had, therefore, to be shared between the
State and the appellant-college in equal proportion. The High
Court rejected the contention that the said seats had to be filled
up entirely by the management of the college. It observed:·          E
         "It is submitted by Shri Rajendra Tiwari senior
    counsel appearing on behalf of the Management that the
    Supreme Court has mentioned that the seats of NRI quota
    have to be filled in as used to be done earlier. Thus, the
                                                                     F
    Supreme Court meant the seats were to be filled in by
    APDMC.

           The aforesaid submissions cannot be accepted in
    view of the order passed by the Supreme Court. There
    was no direction issued by the Supreme Court that the            G
    unfilled NRI seats are to be filled in by the students on the
    basis of the DMAT examination conducted by APDMC.
    The intention of the order is clear that out of the available
    seats, 50% are to be filled in by the State quota and 50%
                                                                     H
    704       SUPREME COURT REPORTS                 (2010] 12 S.C.R.


A         by DMAT examination."

      9. The High Court accordingly directed 5 seats which were
  wrongly filled up by the management of the college for the
  session 2009-10 to be reduced from out of the management
B quota taking the total number of seats to be reduced for the
  session 2010-2011 to 15. The Court observed:

                 "Thus, we direct 5 seats in addition to the 10 seats
          which have been agreed to be reduced in the aforesaid
          part of the order total 15 seats be surrendered by the
c         Institution to the State quota for the year 2010-2011. The
          management quota shall stand reduced by further 15 seats
          for the year 2010-2011."

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

      11. We have heard learned counsel for the parties at
  considerable length and gone through the record including the
  orders passed by this Court and those passed by the High
E Court of Madhya Pradesh. These appeals, in our opinion, are
  an abuse of the process of law. We say so for two precise
  reasons. Firstly, because the order passed by the High Court
  has on more than one occasions recorded the consent of the
  appellant-institution to the reduction of 10 seats from the
F management quota during the session 2010-2011. The High
  Court has in para 12 observed:

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

                                                 (emphasis supplied)
H
R.D. GARDI MEDICAL COLLEGE AND ANR. ETC. v. 705
    STATE OF M.P. AND ORS. [T.S. THAKUR, J.]
      12. Again in para 25 of the order, the High Court has           A
recorded the agreement of the institution to the reduction of 10
seats from its quota for the academic session 2010-2011 so
that the directions issued by this Court on 4th September, 2008
and those issued by the High Court of Madhya Pradesh on
22nd April, 2009 were complied with. The High Court has               B
observed:

      "Accordingly, the Writ Petition is allowed. We direct 10
      seats as agreed by the - College to be reduced of the
      management quota for the academic session 2010-2011             c
      in order to comply with the order passed by the Supreme
      Court on 49.2008 in SLP (Civil) Nos.17990-179911?008
      and the order dated 22.4.2009 passed by this Court in
      Writ Petition Nos. 559212008 & 565412008 which has
      been agreed to the Institution. In addition, we direct 5 more   D
      seats are to be reduced out of the management quota for
      2010-2011 as 5 excess seats which remained vacant out
      of NRI quota were filled by the management of 2009-2010
      though they were required to be filled in by the State quota
      on the basis of PMT. Thus, further 5 seats of the               E
      management quota shall stand reduced on this count for
      the academic sessions 2010-2011."

                                                 (emphasis ours)
                                                                      F
     13. We find it difficult to appreciate how the institution can
question the direction issued by the High Court regarding the
reduction of 10 seats after having agreed to such reduction
before the High Court.

    14. That apart, a plain reading of the order of this Court        G
dated 4th September, 2008 and the orders passed by the High
Court in the connected matters dated 22nd April, 2009, leave
no manner of doubt that the reduction of the seats had to be
from out of the management quota alone. The interim order
                                                                      H



 ·,
    706       SUPREME COURT REPORTS              [2010] 12 S.C.R.


A passed by this Court in Civil Appeal No.4060 of 2009 on 27th
  May, 2009 clearly specified that the NRI seats to the extent of
  15% of the total number of seats, shall be first reduced from
  the total and the balance 85% shared half and half between
  college and the State. Instead of doing so, the Counseling
B Committee and the govt. officials adopted a wrong method of
  calculating the seats by reducing 21 seats from the total number
  of 100 seats. The above method of calculation was not the
  correct method to be adopted in the matter. The Committee
  allocated the seats in the following 1nanner :
c
    Name      Total NRI Pvt.  State PH UR ST SC OBC Total
    of        Seats     Quota Quota
    Instil-
    ution
D
    R.D.     100    15 32      32+21 2 26      10 8     7     51
    Gardi    -21               = 53 UR
    Medical =79
    College,                          OB
E   Ujjain                            c
       15. The direction of this Court that 15% seats towards NRI
  will be first reduced from the total has been ignored by the
  authorities. By doing so the reduction of 21 seats has taken
F place vis-a-vis not only the management quota but even the
  State quota. This Court had never directed reduction of any
  seat from the State quota. The reduction had to be only from
  the management quota, for it was the management who had
  committed an irregularity which it was directed to correct by
G surrendering an equal number of seats to the State.

         16. It was contended by learned counsel for the appellants
    that the direction regarding reduction of 21 seats from
    management quota was issued by this Court at a time when
    the management had 100 seats to its share which position had
H
R.D. GARDI MEDICAL COLLEGE AND ANR. ETC. v. 707
    STATE OF M.P. AND ORS. [TS. THAKUR, J.]
changed on account of the interim direction of this Court in Civil     A
Appeal No.4060 of 2009. There is, in our opinion, no merit in
that contention. So long as the order of this Court directing
reduction from out of the management share of seats was
capable of being implemented and enforced and so long as
there were enough number of seats from out of which it could           B
be made to surrender the requisite number of seats, it did not
make any difference whether the management had 100 seats
available to it or a lesser number. Even after the interim order
passed by this Court, the management had at least 43 seats
in its quota for the session 2009-2010 to comply with the              C
direction of this Court. In as much as the management failed
to do so with or without the support or connivance of the State
authorities who were charged with the duty of complying with
the direction of this Court it committed a mistake which could
be corrected by directing surrender of the requisite number of         D
seats to the State for the session 2010-2011. The direction,
therefore, by the High Court to that effect was perfectly justified.

     17. Coming then to the question whether the direction
regarding surrender of 5 unfilled NRI seats for the session            E
2009-2010 to the State was justified we need only mention that
the High Court has correctly interpreted the order of this Court
and rightly held that unfilled NRI seats to be shared equally
between the college and the management. Inasmuch as the
appellant-college had utilized the unfilled NRI seats all by itself    F
it had committed clear irregularity justifying reduction of the
excess seats during the session 2010-2011.

     18. This Court had directed the NRI seats to be filled up
in accordance with the Act and the Rules. Rule 8 of Admission          G
Rules 2008 in this regard relevant may be extracted:

     "Rule 8: For remaining vacant seats the sequence of
     admission shall be as under:
                                                                       H
    708     SUPREME COURT REPORTS                [2010] 12 S.C.R.


A               (1)   "Firstly 15% seats shall be filled by
                      management of the respective institution by
                      NRI candidates only they are available. If
                      sufficient number of NRI candidates are not
                      available remaining vacant seats shall be
B                     merged into general pool. Seats in general
                      pool shall be filled on the basis of merit of
                      state level common entrance test conducted
                      by Madhya Pradesh Vyavasyik Pariksha
                      Manda! or may other agency authorized by
C                     the state government for this purpose.

                (2)   Secondly remaining seats shall be filled on
                      the basis of merit of National level test as
                      decided by the State Government.
D
                (3)   Thirdly remaining seats shall be filled on the
                      basis of marks obtained in the qualifying
                      examination.

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

        19. A plain reading of the above leaves no manner of
  doubt that unfilled NRI seats had to be transferred to the general
  pool to be filled up on the basis of the merit of the candidates
G in the State level common entrance test conducted by Madhya
  Pradesh Vyavasyik Pariksha Manda! or by any other agency
  authorized by the State Government for that purpose. The
  unfilled seats in the NRI quota were, therefore, to be treated
  as a part of the genHral pool and once that was done the share
H
 R.D. GARDI MEDICAL COLLEGE AND ANR. ETC. v. 709
     STATE OF M.P. AND ORS. [T.S. THAKUR, J.]
of the college in terms of the order passed by this Court would      A
be 50% out of the said seats. The High Court has, in that view,
rightly held that while the management was justified in filling up
5 unfilled seats in NRI quota, the remaining 5 could not have
been filled up otherwise than on the basis of the entrance test
referred to in Rule 8 (supra).                                       B

     20. In the result there is no merit in these appeals which
fail and are hereby dismissed with costs assessed at
Rs.50,000/-. The costs shall be paid to the writ petitioners in
equal proportion.                                                    C

8.8.8.       ..                            Appeals dismissed.