IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION

     PRESENT:

Mr. Justice Surendra Kumar Sinha, Chief Justice

Mr. Justice Syed Mahmud Hossain Mr. Justice Hasan Foez Siddique Mr. Justice Mirza Hussain Haider

CIVIL PETITION FOR LEAVE TO APPEAL NO.2274 of 2016.

(From the order dated 13.06.2016 passed by the High Court Division in Writ Petition No.7550 of 2016.)

The Vice Chancellor, University of    Petitioners. Dhaka and others:

=Versus=

A.K.M.Muid and others:  Respondents. For the Petitioners:  Mr. Mahbubey Alam, Senior Advocate,

(with  Mr.  A.F.M.  Meshbahuddin, Senior Advocate) instructed by Mr. Mohammad  Abdul  Hai,  Advocate-on- Record.

For the Respondents:  Mr.  Abdul  Baset  Majumder,  Senior

Advocate, (with Mr. A. J. Mohammad Ali,  Senior  Advocate,  Mr.  Obidur Rahman  Mustafa,  Advocate  and  Mr. Massud  R.  Sobhan,  Advocate) instructed  by  Mrs.  Madhumaloti Chowdhury Barua, Advocate-on-Record.

Date of hearing.  : 21st August, 2016

J U D G M E N T

Surendra Kumar Sinha,CJ: Though this petition

arose out of an interim order, the issue involved in  the  matter  has  public  importance  and accordingly we are left with no option other than to dispose of the matter on merit with a view to

bring discipline in the admission of students in both public and private medical and Dental Colleges.

Writ petitioners who are 153 students of 10 private medical colleges namely; (1) Ashiyan Medical College, Barua, Khilkhet, Dhaka-1215, (2) Dhaka Central International Medical College and Hospital, 2/1 Ring road, Mohammadpur, Dhaka-1207, (3) M.H. Samorita Medical College, 117 Tejgoan, Love road, Dhaka-1208, (4) City Medical College and Hospital, Aoutpara, Tangail Road, Gazipur Chowrasta, Gazipur-1702, (5) Nightingale Medical College and Hospital, Sarker Market, Asholia Dhaka, (6) Zainul Haque Sikder Womens Medical College and Hospital, Monika Estate, Western Side of Dhanmondi, Dhaka-1209, (7) Care Medical College, 2/1, Iqbal Road, Mohammadpur, Dhaka, (8) East-West Medical College, Turag, Dhaka, (9) Tairunnessa Memorial Medical College and Hospital, Konia (Targach) Board Bazar, Gazipur, (10)  Aichi Medical College, 35-37, Sector-8, Abdullahpur, Uttara, Dhaka sought judicial review of the decision of Dhaka University refusing to accord registration and issue admit cards for the 1st professional MBBS examination for the academic session 2014-2015 to be unlawful and a direction be given to issue such cards enabling them to appear in the examination.

Substance of their claim is that the government issued a Circular for admission into MBBS/BDS courses in 2011 (Nitimala of 2011) for the academic session 2012-2013. Under the said Nitimala 2011 a student would be eligible to get admission who scored highest marks out of 200 marks and the basis of selection of an eligible student is that out of 200 marks, 100 marks to be calculated on the basis of GPA score in SSC and HSC and 100 marks in written test. Students who secured top list on merit would be eligible for admission in the academic session. It was decided that students scoring 120 marks out of 200 marks in the merit list would be admitted. Challenging the said decision Bangladesh Private Medical College Association (BPMCA) filed Writ Petition No.1337 of 2014. A Division Bench of the High Court Division made the rule absolute. Another writ petition was also filed by 52 students of the aforesaid 10 private medical colleges being Writ Petition No.669 of 2015 on the same issue and the rule was also made absolute. In pursuance of the latter judgment, the students were admitted to the aforesaid 10 Medical Colleges. Against the judgment passed in writ petition No.1337 of 2014 the government preferred C.A.

A Division Bench of the High Court Division passed the impugned order in following terms:

 “The respondents (writ respondents) are directed to issue Registration Card for the forthcoming 1st professional MBBS Examination of the petitioners within 72 hours and allow them to appear in the forthcoming examination 1st professional Examination”.         

Against the said order the university authority moved this court and obtained an order of stay. From the averments it is clear that the writ petitioners said to have been admitted to the aforesaid 10 private medical colleges in pursuance of the judgment of the High Court Division in Writ Petition No.669 of 2015 and that the college authorities sent their applications for registration in pursuance of the judgment of this court in Civil Appeal No.147 of 2015. It is on record that these private medical colleges admitted the students for the academic sessions 2013-2014 and 2014-2015 after securing judgments from the High Court Division. It is also pertinent to note here that though the first writ petition was filed by BPMCA, the second writ petition was filed by the students of those private medical colleges and this time also the students of the said private medical colleges moved the writ petition. They claimed that in pursuance of the judgment of the High Court Division the Ministry of Health and Family Welfare directed to comply with the judgment of the court and that the principals of the medical colleges forwarded their applications for according registration. Apparently the students had no responsibility in the matter of registration of their names with the Dhaka University. It is the college authorities which

In course of hearing of the matter, this court meticulously perused the pleadings made in previous two writ petitions, the judgments and the pleadings of the present writ petition, and it led to believe that this time the college authorities played trick to utilize the sympathy of the students and secured the interim order through them. Accordingly this court issued show cause notices upon them to explain why they should not be proceeded against by imposing penalty for violation of the decisions of the government under memos dated 1st July, 2014 and 14 December, 2014 and the University under memo dated 19 October, 2014 for admitting 153 students in their medical colleges for the academic session 2014-2015. They showed cause and stated that they admitted the students in pursuance of the decisions of the High Court Division; that the University authority was corum-non-judice in introducing the cut-off mark; that the colleges did not give admission to any students who did not secure 40 marks in the written examination

and that it was only after the judgment passed in Writ Petition No.669 of 2015, they admitted the students. So they took similar stand with the students.

Mr. Mahbubey Alam, learned counsel appearing for the petitioner submitted that the High Court Division fell in an error in making the interim direction upon Dhaka University ignoring the decisions taken by the University and the government. In this connection he has drawn our attention to the decisions taken by the authorities regarding the conditions attached for getting admission of the students in the academic session 2014-2015. The first decision relied upon is a resolution headed by the Minister, Ministry of Health and Family Welfare in which the representatives of the Private Medical Colleges, Dean of Medical Faculty, Dhaka University,

General Secretary, Bangladesh Medical Association, Secretary BPMCA were present. The secretary of the said association requested to fix up the amount of money to be spent by a student of private medical college in the similar manner a student of government medical colleges spends in MBBS/BDS courses. In the said meeting the question of cut-off mark and criteria for admission for the academic session 2014-2015 were discussed in which one representative from a private medical college proposed that the minimum score of 120 marks should be fixed for admission. The Registrar, Dhaka University proposed that the students must score 40 marks in written examination in the similar manner the students of first year honours courses are admitted. After a threadbare discussion, it was resolved amongst others that “Hj¢h¢hHp/¢h¢XHp ®L¡−pÑ i¢aÑ fl£r¡u 200 Hl j−dÉ 120 eðl fË¡ç

R¡œ/R¡œ£−cl i¢aÑ Ll¡ k¡−h Hhw Eš² R¡œ/R¡œ£−cl ¢m¢Ma fl r¡u 40 eðl ®f−a q−hz'' It

was decided that a student would be eligible to

get admission in the academic session scoring 120 marks and must secure 40 marks in written examination out of 100 marks.

Dhaka University authority accordingly issued

a Circular in pursuance of Dean Committee’s decision taken on 1st October, 2014, prescribing

the criteria for admission of students under the University in respect of government medical colleges and private dental/medical colleges for

the academic session 2014-2015. The relevant portion is quoted below:

“ü¡ÙÛÉ J f¢lh¡l LmÉ¡Z j¿»e¡m−ul ¢pÜ¡¿¹ Ae¤k¡u£ 2014-2015 ¢nr¡h−oÑ 1j hoÑ Hj¢h¢hHp

J ¢h¢XH|p ®L¡−pÑ i¢aÑ fl£r¡l ®k¡NÉa¡ pÇfæ i¢aѵR¤ R¡œ/R¡œ£−L fl£r¡l 100 eð−ll j−dÉ

40 eðl ®f−a q−hz Hl e£−Q fË¡ç ®L¡e R¡œ/R¡œ£−L i¢aÑ Ll¡ k¡−h e¡z

¢hNa 2013-2014 ¢nr¡h−oÑ ®pC ¢nr¡h−oÑl ¢pÜ¡¿¹ Ae¤k¡u£ ®jd¡−ú¡l 120 Hl e£−Q eðl fË¡ç ®L¡e R¡œ/R¡œ£−L ¢euj h¢qiѧai¡−h i¢aÑ Ll¡ q−m a¡−cl−L ®l¢S−ØVÊne ®cu¡ q−h e¡ j−jÑ

L−mS LaѪfr−L S¡¢e−u ®cu¡ ®q¡L z'' It clearly directed that the students must score 40 written marks out of 100 and that any student scoring below the said mark would not be eligible for admission. It was pointed out that the said decision should be intimated to all concerned. There was no ambiguity in the decision prohibiting the medical colleges not to admit students who could not secure 40 marks in the written examination.

Subsequently the Ministry of Health and Family Welfare had taken another resolution and in the said meeting also the representatives of all medical colleges both private and public through out the country had attended. It was unanimously decided prescribing the criteria for admission in the first year MBBS course for the academic session 2014-2015. It was directed that the students must score 40 written marks for admission. The decision is as under:

“2014-2015 ¢nr¡h−oÑ Hj¢h¢hHp/¢h¢XHp ®L¡−pÑ R¡œ/R¡œ£ i¢aÑ L¢j¢Vl 01/07/2014 a¡¢l−Ml pi¡u i¢aÑ fl£r¡u 200 Hl j−dÉ 120 eðl fË¡f¹ R¡œ/R¡œ£−cl i¢aÑ Ll¡ k¡−h Hhw Eš² R¡œ/R¡œ£−cl ¢m¢Ma fl£r¡u e§eÉaj 40ðl ®f−a q−h j−jÑ Nªq£a ¢pÜ¡¿¹¢V hq¡m b¡L−hz”. It was said that out of 200 marks, the students who scored 120 marks could be eligible

for admission, but the students must also score

40 written marks out of 100 marks. 

Mr. Mahbubey Alam, submitted that these decisions of the authorities are binding upon the aforesaid private medical colleges and the said colleges cannot take exception on the doctrine of estoppel, inasmuch as, the decision was taken in their presence and within their knowledge, and that they had admitted the students defying the decisions of the concerned authorities. He argued that these medical colleges admitted the students for deriving monetary gains without considering the future of the students. They have no sympathy towards the students and they are not also at all concerned about the improvement in the medical education. The organisers set up colleges with the motive of profit taking the medical education as business. We find force in the contention of the learned counsel.

Mr. Sobhan, learned counsel appearing for the private medical colleges reiterated the statements made in reply to the show cause notice and banks upon the judgments as mentioned above. According to him the decision for admission was taken in pursuance of the judgment of the High Court Division in writ petition no 669 of 2015. This submission nakedly focused the motive of those colleges that they utilized the students in the earlier writ petition and this time also, they defying the decisions of the authorities admitted the students.

In Writ Petition No.1337 of 2014, though the memos dated 23rd September, 2013 and 5th November, 2013 were challenged, in the first memo issued by the government it was resolved that the students could be admitted to in the academic session 2012-2013 who secured 120 marks out of 200 marks and in the latter memo issued by the Directorate of Health services, a direction was given prescribing the guidelines for admission of the students in the academic session 2013-2014. In the present writ petition the question is whether the medical colleges legally admitted the students defying the decisions given by the authorities prescribing the guide line that no student could be admitted without securing 40 marks in written examination out of 100 marks for

the academic year 2014-2015. The writ petitioner in the first petition sought a declaration that the increase of the minimum cut-off mark from 110 to 120 out of total 200 marks was without lawful authority. It is contended by Mr. A.J. Mohammad Ali appearing for the students that in Writ Petition No.669 of 2015, the question of scoring marks was an issue. The submission is devoid of substance, inasmuch as, in the said writ petition the Nitimala 2011 was challenged. The prayer made in the writ petition was “(i) Nitimal 2011” as of Annexure-“A” published should not declared as having been made without any lawful authority and is of no legal effect”.

The students claimed that in pursuance of the said judgment passed in writ petition No.669 of 2015, the college authorities admitted them but the University authority did not accord registration of their names. In Writ Petition No.1337 of 2014 the High Court Division discussed in detail the criteria for admission for the academic session 2013-2014. In pursuance of the Nitimala 2011, the Circular dated 4.12.2012 was issued with regard to admission of students in MBBS/BDS courses in medical colleges clearly stipulating that “the cut-off marks for admission into MBBS/BDS courses would be 110 and 105 respectively (annexure-D) and an advertisement was published pursuant to the said Nitimala (annexure-C) and Circular (annexure-D)’. In the Nitimala nothing was stipulated about the cut-off mark. There was direction for holding centralized admission test in which a merit list would be prepared on the basis of marks to be scored by students out of 200 marks. It was directed that 100 marks to be calculated on the basis of GPA

This court in Civil Appeal No.147 of 2015 held as under:

“Admittedly, the impugned decision raising the minimum “cut-off’ mark from 110 to 120 was taken by a committee headed by the respondent No.1 and not by the Council, namely, Bangladesh Medical and Dental Council (MBDC) which has been formed as per law. Section 5 of this Act shows that this Council (BMDC) is empowered to deal with almost all the matters relating to medical and Dental Institutions including framing of guidelines etc. for admission to M.B.B.S and B.D.S. courses. The setting of “cut- off” mark for being eligible for admission to M.B.B.S. and B.D.S. courses falls within these powers of BMDC and as such the BMDC only is empowered to fix or set the minimum “cut-off” mark for being

eligible for admission to these courses. Admittedly, the impugned decision raising the “cut-off” mark from 110 to 120 was not taken by this BMDC, rather it was taken by the respondent No.1 and some other persons.”

So, the issue in that case was regarding raising of the minimum cut-off mark from 110-105 to 120 - 110 respectively after issuance of admission circular for the academic session 2013- 2014.

In writ petition No.669 of 2015 in Paragraph 10 it was stated that the concerned Ministry issued a circular on 15.07.2014, annexure-F, wherein in Paragraph 11(ga) it directed that the students must score 40 marks in the written examination besides scoring 120 out of 200 marks. Though this letter was annexed, the scoring 40 marks in the written examination was not an issue and the court did not give any opinion in this regard. The High Court Division declared that the said circular setting up 120 marks as threshold criteria for passing the test for admission into MBBS/BDS courses in Government/Private Medical/Dental Colleges for 2014-2015 academic session was illegal. 

Now the question is whether the colleges were justified in admitting the students in pursuance of the judgment passed in writ petition No.669 of 2015. Article 4 of the Dhaka University Order, 1973 provides that the University may exercise powers to affiliate colleges; to prescribe courses of studies to be conducted by the University or its affiliated colleges; to hold examinations and to grant and confer certificates, diplomas, degrees etc. Article 25 prescribes the powers of Academic Council. It said that ‘the Council shall subject to the provision of the Order, Statutes and the University Ordinances, have the control and general supervision over, and be responsible for maintenance of standards of instruction, education and examination within the University and shall exercise such other powers as may be conferred or imposed upon it by the statutes. It shall have the right to advise the Syndicate or all academic matters. Article 39 authorises the University to promulgate Statutes as set out in the schedule. Article 27 deals with the Faculties. Clause (3) of Article 27 provides that the Faculties shall be advisory bodies and their decision shall be submitted to the syndicate through Academic Council for implementation.

“(a) to make regulations for and to award in accordance with such Regulations, Fellowships, Scholarships, Exhibitions, bursaries,, medals and other rewards;

(b)......................................

(c)...................................... (d) to formulate, modify or revise, subject to the control of the syndicate, schemes for the constitution or reconstitution of Faculties and for the assignment of subjects to such Faculties.”

There are several Faculties prescribed in section 6, in addition to Article 27(1) of the order and section 9 deals with the Faculty of Medicine. Section 16 prescribes the powers of the Faculty, such as-

(a) to constitute Committees of Courses and Studies; (b) to recommend to the Academic Council, after consulting the Committees of Courses and Studies, the names of the examiners in subjects assigned to the Faculty. Section 17 deals with the Deans wherein sub-section (I) provides:- “The Dean of each faculty shall be the executive officer of the Faulty and shall preside at its meetings........”

Section 43 is relevant for our consideration which provides for Administration of Departments. Sub-section (3) provides that the Academic Committee shall deal with –

(a)     Admission of students;

(b)     Syllabuses;

(c)     Examinations;

(d)     Teaching in the department;

(e)       Co-curricular activities of the students

in the department.

Therefore, there is no gainsaying that the Dean of each Faculty is the Chief Executive Officer rather the Academic Committee shall deal with admission of students. In exercise of that power, the Deans Committee issued the guidelines for admission of the students in Medical Colleges for the academic session 2014-2015 and one of those criteria was that the students must score 40 marks in written examination out of 100 marks.

The Medical and Dental Council Ain, 2010 empowers the Bangladesh Medical and Dental Council to recognize the competency of the education to be given by the medical and dental institutions; to recognize the students obtaining degrees from other medical and dental colleges outside Bangladesh; to settle the standard courses of the degrees and post degree courses and to settle the admission of students in degree and post degree courses in medical and dental colleges. Though this Ain was promulgated in 2010, no Rules or Guidelines or Regulations for admission of students have been formulated as yet by the Council. Even if it is assumed that the Council has formulated Guidelines, none of the parties has produced any such Guidelines in that regard. The object of promulgating the Ain is to monitor the standard of medical education and to recognise the medical and dental graduates, post graduates both from home and abroad but it retains no power to confer degree to the students. It has the power to recognise the medical colleges in accordance with section 12. There is a provision for registration of the students of recognized institutions, but the writ

More so, this Ain will not prevail over the University Statutes since the medical and dental students are obtaining degrees and post degree certificates from Dhaka University. The University Statutes have force of law and on the strength of those Statutes, the University regulates the criteria for admission of medical students’ syllabus. There is no doubt that the Ain of 2010 was promulgated to cover the field of medical education and to oversee standard of medical education providing by the public and private medical colleges. The Medical Council has power not to recognise a degree certificate issued by any public or private University in or outside Bangladesh. It can also suggest the public Universities to incorporate a particular course or subject for degree or post degree courses, and if the Universities do not follow its advice, it may withhold recognition of the students obtaining certificates by the said Universities. Yet it cannot compel Dhaka University to relax the guide lines for admission

Since the Writ Petitioners seek direction upon Dhaka University to get their names registered for 1st year MBBS examination admit cards, they must satisfy the criteria and guidelines given by the University authority because of the fact that unless it issues graduation certificates, they will not be recognized as graduates by the Council constituted under Ain of 2010. The power to co- ordinate standards of education lies with the Parliament. The Parliament has power to prevent disparity of standard of education in different Universities by promulgating law but this does not mean that the Parliament can interfere in the internal administration of the university.

 A decision is flawed if it is illegal and if the authority contravenes or exceeds the terms of the power which authorises the making of the decision, judicial review is available against such decision. The task for a court of law in assessing whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon decision maker. The court is to determine whether an authority has made an error of law in making the decision. There is number of issues that arise in public law that make the court’s task more complex. This task is made easier where the purpose is clearly defined, or where the considerations which the body must take into account in arriving at its decision are clearly spelled out. In such cases the court requires the decision-maker to take into account the specified considerations and ignore the irrelevant.

The students were admitted by the concerned colleges in pursuance of the judgment passed in Writ Petition No.669 of 2015. Though the High Court Division discussed the minutes of the resolution of the Ministry of Health and Family Welfare (annexure-F), the issue of scoring 40 written marks was not an issue in the writ petition. The High Court Division declared that ‘the admission procedure for MBBS/BDS courses for all Medical Colleges, Government or Private be done by respondent No.5, the Bangladesh Medical and Dental Council in accordance with the Bangladesh Medical and Dental Council Act and for ensuing year i.e. 2014-2015 admission of MBBS/BDS students be done ‘by ignoring the threshold cut- off marks’.

 The concerned Ministry and Dhaka University specifically directed that the students must score 40 marks out of 100 in the written examination for the academic session 2014-2015. The aforesaid 10 colleges admitted the students defying that direction and instead of challenging the decision taken by the authorities, utilized the sentiments of the students in the High Court Division. The colleges were under obligation to get the students registered with Dhaka University following the guidelines given by it. These colleges in the previous academic session also admitted the students by securing a judgment from the High Court Division through the students and in the next academic session as well, they admitted the students in violation of the decisions of the government and the University. There are some issues which are inherently unsuited for judicial determination. Even if a matter falls within the jurisdiction of administrative authority and is justifiable, there are a good number of reasons why the court may properly exercise its discretion to refuse to consider a claim for judicial review. The decision involving policy – utilitarian calculation of the public good – such decisions about the levels of taxation or public expenditure are constitutionally in the realm of legislature and not judicially reviewable. It is now settled that the court will not interfere with policy decision merely because it feels that another policy decision could have been fairer or wiser or more scientific or logical (Balco Employees Union V. India, 2002 (2) SCC 3330). This court accepted the views taken in that case and we find no cogent reason to differ from the

The High Court Division cannot regulate the criteria for the admission of students in MBBS/BDS courses. The authority which is authorized by law to deal with a subject should be allowed to perform its duty and responsibility in accordance with laws governing that subject. This exercise of powers by the High Court Division may be taken as usurpation of power not sanctioned by law. Every organ of the State should be allowed to perform its onerous responsibility in accordance with their respective laws. If the court interferes with their internal administration and the eligibility of admission of students in any University, this will tantamount to exercise of a power not vested in law. The court should refrain itself from interfering with the internal administration of an authority if such authority does not contravene the law and it can interfere only in those cases where there is infraction of law in taking decision affecting the right of a citizen. The court shall always keep in mind while exercising its power of judicial review that it has not transgressed the jurisdiction in any authority transacting its business.

The Medical Colleges mentioned above utterly violated the Statutes of Dhaka University and by defying its guidelines admitted the students and thereby they have gambled with the students for their personal gains. Their conduct is deprecated. They have violated laws repeatedly and thus, unless they are dealt with severely, they would recur similar violation in future.

This petition is disposed of with the above observations. This short order shall form part of this judgment.

          C.J.   J.  

J.

J.

The 21st August, 2016 Md. Mahbub Hossain.

APPROVED FOR REPORTING