Sikkim High Court
Deepa Chettri And Another vs Ministry Of Health And Family Welfare ... on 18 December, 2017
Author: Bhaskar Raj Pradhan
Bench: Bhaskar Raj Pradhan
IN THE HIGH COURT OF SIKKIM: GANGTOK
(Civil Extra Ordinary Jurisdiction)
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SINGLE BENCH:-JUSTICE BHASKAR RAJ PRADHAN, JUDGE.
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WP(C) No.53 of 2017
1. Miss. Deepa Chettri,
D/o Shri Bhim Bahadur Chettri,
R/o Development Area,
Near Brahma kumari,
P.O & P.S. Gangtok,
East Sikkim.
2. Mr. Nagendra Gurung,
S/o Late Gaz Raj Gurung,
R/o Dentam Bazar,
Gyalshing,
P.O. & P.S. Dentam,
West Sikkim. ...........Petitioners.
Versus
1. Ministry of Health & Family Welfare,
Department of Health & Family Welfare,
Government of India,
Nirman Bhawan, New Delhi.
2. State of Sikkim,
Through the Secretary,
Human Resource &
Development Department,
Government of Sikkim - 737 101.
3. Technical Director,
Human Resource
Development Department,
Government of Sikkim,
Tashiling, Gangtok,
East Sikkim - 737 101.
4. Miss Arati Biswakarma,
D/o Chandra Lall Biswakarma,
R/o Hee - Kangbari,
District - Gyalshing,
West Sikkim. ........Respondents.
An Application under Article 226/227 of the
Constitution of India
WP(C) No.53 of 2017 2
(Miss Deepa Chettri & Ors v. State of Sikkim & Ors.)
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Appearance:-
Mr. A.K Upadhyaya, Senior Advocate with Ms. Aruna Chettri, Ms. Hemlata
Sharma and Mr. Kawong Bhutia, Advocates for the Petitioners.
Mr. Karma Thinlay, learned Central Government Advocate for the Respondent
No.1.
Mr. J.B Pradhan, Additional Advocate General with Mr. Thinlay Dorjee, Govt.
Advocate and Mr. S.K Chhetri, Asst. Govt. Advocate and Mr. Bhusan Nepal,
Legal Retainer HRDD for Respondent No.2 and 3.
Mr. N. Rai, Senior Advocate with Ms. Tamanna Chhetri, Advocate for
Respondent No.4.
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ORDER
(18-12-2017) Bhaskar Raj Pradhan, J Heard. The present Writ Petition was filed on 04.09.2017 and refilled on 09.09.2017 aggrieved by the fact that although the Petitioner No.1 and 2 had secured the first position in their respective Other Backward Community (State list) and Other Backward Community (Central list) they had not been given the MBBS seat which they were entitled to. Admittedly, the last date of admission was 31.08.2017. This is a time schedule fixed by the Medical Council of India vide notification dated 04.07.2017. Strict adherence to the time schedule is the mandate and cannot be deviated from as held repeatedly by the Apex Court. The time schedule notified by the Medical Council of India has the force of law. The State Respondents have filed their counter affidavits and the Petitioners have also filed their respective rejoinders. The Respondent No.1 which is the Ministry of Health and Family Welfare, Government of Sikkim inspite of accepting notice on 16.09.2017 has chosen not to file its counter affidavit although the Writ Petition seeks reliefs against the said Respondent and instead on 09.12.2017 filed written submissions. The pleadings, otherwise, being complete the matter was heard. WP(C) No.53 of 2017 3
(Miss Deepa Chettri & Ors v. State of Sikkim & Ors.)
2. The present Writ Petition, jointly filed by the Petitioners, seeks directions to the Respondent No.1 for allocation of 3 more MBBS seats to the State of Sikkim and to the Respondent No.2 and 3 to issue nomination to the Petitioners in any Government Medical College. It also seeks cancellation of the allotment of one MBBS seat to the Respondent No.4 and to allocate the same to the Petitioner No.2. Finally, the Writ Petition seeks direction to the Respondents to allot one MBBS seat each to the Petitioners from the Central Pool.
3. Petitioner No.1 belongs to the Other Backward Community as per the State list (in short "OBC-S"). Petitioner No.2 belongs to the Other Backward Community as per the Central list (in short "OBC-C"). Respondent No.4 belongs to the Schedule Caste Community (in short "SC"). These facts are admitted by Respondent No.2 and 3.
4. Respondent No.2 is the State of Sikkim sued through the Secretary, Human Resource and Development Department, Government of Sikkim. Respondent No.3 is the Technical Director, Human Resource and Development Department, Government of Sikkim.
5. The reservation policy of the Respondent No.2 applicable to the present case was issued vide Notification No.01/T.E./HRDD dated 14.06.2014 (in short "Reservation Notification") and amended vide Notification No.132/T.E./HRDD/2015 dated 15.04.2015. The percentage of reservation was required to be as under:-
"II. The percentage of reservation shall be as under:-
Sl. No. Categories/ Communities % of seat
1 Merit 10%
2 Bhutia and Lepcha 20%
3 Primitive Tribe 05%
4 *Central List Other Backward Classes 20%
5 *State List Other Backward Classes 20%
6 Scheduled Tribes 13%
7 Scheduled Castes 07%
8 Others 05%
"
WP(C) No.53 of 2017 4
(Miss Deepa Chettri & Ors v. State of Sikkim & Ors.)
6. As per clause VI of the said Reservation Notification the 7 categories/ communities shall get first preference over "others" in the choice / selection of seats/ institutions.
7. For the Academic Session 2017-18, the National Eligibility cum Entrance Test, 2017 (in short "NEET, 2017") for MBBS, BDS/ allied State quota seats was conducted by the Central Board of Secondary Education (in short "the CBSE") on 07th May 2017. The Petitioners as well as the Respondent No.4 along with others appeared for the said examination. The CBSE published the result in their official website on 23.06.2017. Pursuant thereto, the Respondent No.2 and 3 published the consolidated merit list of MBBS /BDS /allied State quota seats for the Academic Session 2017-18. The relevant details from the said list is as under:-
"Consolidated Merit list of MBBS/BDS/ allied State quota seats for the Academic Session 2017-18 Sl No. Candidate Name Father's name Community PCB CI XII NEET total marks secured 1 NISHA GUPTA SANTOSH GUPTA Others 95 435 2 SADNDUP DORJEE ASHOK KUMAR ST 92 431 TAMANG TAMANG 3 ASHISH KUMAR MANAGER PRASAD Others 78 429 PRASAD 4 DEEPA CHETTRI BHIM BDR CHETTRI OBC State 86 403 5 AKANCHYA DILIP KUMAR OBC State 79 351 SHARMA SHARMA 6 NAGENDRA LT. GAZRAJ OBC Central 89 351 GURUNG GURUNG 7-8 --- --- --- --- ---9 PRIYA DEOKOTA UDAY KUMAR OBC State 71 335
DEOKOTA 10 KSHETIZ CHETTRI HEMANT KUMAR OBC State 94 328 CHETTRI 11 --- --- --- --- ---
12 HIMAL NEOPANEY DHARNI PRASAD OBC State 67 326
NEOPANEY
13 PRAYASH NEPAL THAKUR PRASAD OBC State 83 326
NEPAL
14-38 --- --- --- --- ---
39 SWATHA RAI JAGAT BAHADUR OBC Central 85 240
RAI
40-43 --- --- --- --- ---
44 MARICCA MADAN DR. SURESH SC 90 230
RASAILY MADAN RASAILY
45-52 --- --- --- --- ---
53 SUBHAM SWARUP BISHNU LALL GIRI OBC Central 65 221
GIRI
54-55 --- --- --- --- ---
WP(C) No.53 of 2017 5
(Miss Deepa Chettri & Ors v. State of Sikkim & Ors.) 56 YUGAL RAJ MEGRAJ GURUNG OBC Central 76 217 GURUNG 57-59 --- --- --- --- ---
60 ALLEN SMRITI RAI BIRBAL RAI OBC Central 87 210
61 ARATI CHANDRA LAL SC 82 210
BISWAKARMA BISWAKARMA
62-63 --- --- --- --- ---
64 PRANISHA DIL BAHADUR OBC Central 89 210
GURUNG GURUNG
...................
...............
............ "
8. The Petitioner No.1 stood at Serial No. 4 of the consolidated merit list and ranked first in the OBC-S category securing NEET total marks of 403. The Petitioner No.2 stood at serial no. 6 of the consolidated merit list and ranked first in OBC-C category securing total marks of 351. The Respondent No.4 stood at serial no.61 of the consolidated merit list and ranked second in the SC category securing total marks of 210. These facts are also admitted by the Respondent No.2 and 3.
9. Vide Notification published in the Gazette of India on 04.07.2017 the Medical Council of India notified the Regulations on Graduate Medical Education Amendment, 2017 providing for the time schedule for the Universities and other authorities to organised the admission process for the Academic year 2017-18. Appendix-„F‟ of the said Regulation inter alia provided:-
"APPENDIX - „F‟ TIME SCHEDULE FOR COMPLETION OF THE ADMISSION PROCESS FOR FIRST MBBS COURSE (Academic Session 2017-18) Schedule for Admission Seats filled up by DGHS for Seats filled up by the State All India Quota (15%) Govt./Institutions Deemed/ Central Universities.
Conduct of Examination (NEET- 7th MAY 2017 7th MAY 2017 2017) Declaration of Result of Qualifying 26th JUNE 2017 26th JUNE 2017 Examination/Entrance Examination 1st Round of counselling 3rd JULY to 15th JULY 2017 16th JULY to 24th JULY /Admission 2017 Last date for joining the allotted 22nd JULY 2017 BY 31st JULY 2017 college and course 2nd Round of Counselling / 1st to 7th AUGUST 2017 8th AUGUST to 19th Admission AUGUST 2017 Last date for joining for the BY 16th AUGUST 2017 By 25th AUGUST 2017 candidates allotted seats in 2nd WP(C) No.53 of 2017 6 (Miss Deepa Chettri & Ors v. State of Sikkim & Ors.) Round of counselling Mop up round by DGHs for 18th AUGUST to 27th AUGUST 2017 Deemed University/ Central Universities seats Mop up round by States Not applicable 26th to 28th AUGUST 2017 Commencement of academic 1st AUGUST 2017 session Last date up to which students can Not applicable 31st August 2017 be admitted against the vacancies arising due to any reason by Deemed Universities/ Medical Institutions "
10. As per the Respondent No.2 the guidelines for allotment of State quota seats for 2017-18 was issued in June 2017.
11. The guidelines issued by the Respondent No.2 for the allotment of State quota seats provided for the application of the reservation policy of the State Government and the application of the roster system as indicated in the guidelines and quoted above. The guidelines for allotment of State quota seats required the application of the roster in which the candidate selected in each of the categories would be given option to choose a seat of their choice in accordance with their merit position on that respective category.
12. The Respondent No.1 vide communication No. U/14014/1/2017-ME-II dated 16.08.2017 addressed to the Secretary, Medical, Health and Family Welfare Department, Government of Sikkim issued guidelines for allocation of Central Pool/BDS seat for the Academic year 2017-18. The said guidelines for selection and nomination of candidates against Central Pool MBBS / BDS seats for the Academic year 2017-18 provided for the eligibility conditions, educational qualifications, procedure for selection and reservation of candidates. The relevant extracts are reproduced hereunder:-
"1.4 Selection of candidates:
1.4.1 National Eligibility cum Entrance Test (NEET) The selection of candidates will be made on the basis of rank obtained in the National Eligibility cum Entrance Test (NEET)-2017 being conducted by Central Board of Secondary Education, New Delhi. As per Graduate Medical Education Regulation, 1997 of Medical Council of India, it shall be necessary for the WP(C) No.53 of 2017 7 (Miss Deepa Chettri & Ors v. State of Sikkim & Ors.) candidates to obtain minimum marks at 50 th percentile at NEET, 2016. However, in respect of the candidates belonging to Schedule Castes, Scheduled Tribes, the minimum marks shall be at 40th percentile. In respect of candidates with locomotory disability of lower limbs, the minimum marks shall be at 45th percentile. The percentile shall be determine on the basis of highest marks secured in the all India common merit list in National Eligibility cum Entrance Test for admission to MBBS/ BDS courses. (Emphasis supplied) 1.5 Reservation:
The reservation policy being followed by concerned beneficiary State/ UT will apply on Central Pool MBBS /BDS seats."
(Emphasis supplied)
13. The said guidelines issued by the Respondent No.1 provided that the reservation policy being followed by the concerned beneficiary State will apply to the Central Pool MBBS seats.
14. The Respondent No.2 issued written instructions to the candidates attending the counselling. As per paragraph 3 and 8 of the said instruction:-
"3. If a candidate is absent when his/her name is announced for allotment of seat or do not opt to avail the seat in that counselling, he/she will forfeit his/her claim for the allotment of seat available at that time and person next in merit will be called for allotment. He/she may, however, be considered for allotment in subsequent counselling if seats are available for allotment."
(Emphasis Supplied) "8. HRDD has empanelled few institutions who have offered seats for various courses which are in demand. Due care has been taken in selecting the institutes as well as the courses which the students can avail. It is, however, clarified that it is purely the discretion of the candidate/ guardian to avail the seat and department do not promote any college in particular. The candidates are also advised to log on the institutes website to ensure that they suit their requirements before availing the seat." (Emphasis Supplied)
15. The guidelines for allotment of State quota seats for Academic Session 2017-18 issued by the Respondent No.2,inter alia, provided:-
"I. The allocation of State quota seats for various courses will be done as per the reservation policy of the State Government as notified vide Notification No. 01/T.E./HRDD-2014 dated 14th June 2014. The allocation for MBBS, BDS & Allied courses and Engineering and Allied courses shall be purely as per the category community wise merit list drawn on the basis of the marks obtained in National Eligibility cum Entrance Test (NEET) and Joint Entrance Examination (JEE) Mains 2017 and subject to criteria as laid down by the Medical Council of India, concerned Institute and other authorities from time to time. For the academic session 2017-18 Sikkim Manipal University has provided 30% MBBS seats out of their total intake. Of this 30% seats, 20% will be on concessional fee and 10% will be on full fee basis.WP(C) No.53 of 2017 8
(Miss Deepa Chettri & Ors v. State of Sikkim & Ors.) For other State quota seats allotment will be made as per the merit list drawn on the basis of the marks obtained in the qualifying examination and subject to criteria as laid down by the concerned Institute/other authorities from time to time. Incase of candidates having obtained similar marks in NEET or JEE (Mains) the tie breaker rule of NEET and JEE (Mains) will be adopted as the case may be. II. The roster will be applied as follows:-
The candidates selected in each of the categories would be given option to choose a seat of their choice in accordance with their merit position on that respective category. For instance a candidate who is first in the merit (open category) will be given first choice. Thereafter, a candidate who has scored 1 st position in BL category would also be given an option to choose a seat of his/her choice. Likewise candidates securing 1st position in order of merit in Primitive Tribe, OBC (central), OBC (State), ST and SC category respectively, would also be given their choice. Thereafter, the allotment and choice of seat will be given to those candidates who are entitled and next in the merit in their respective category. This cycle will operate till the candidates belonging to all categories, excluding „Others‟ are allotted seats as per their entitlement on the basis of seat matrix. (Emphasis Supplied) In case seat(s) belongings to any category remains vacant due to candidates not fulfilling criteria for the course as mentioned at para I above or there is no candidate belonging to that category to avail the seat the vacant seat will be allotted to the candidate who is first in the merit at that point of time irrespective of community."
"VIII. Once a seat is allotted and availed by a candidate, he will not be entitled to any other State quota seat even if the State quota seats allotted earlier is surrendered by him."
16. The Respondent No.2 vide counselling notice no.GOS/DTE/2017/731 dated 30.06.2017 informed all concerned that the counselling for allotment of State quota seats for MBBS/ BDS for the Academic Session 2017-18 will be held on 13.07.2017. As per the said counselling notice, the following information would be available on the Department‟s portal www.sikkimhrdd.org and all were advised to log on to the said site on regular basis:-
"(i) the Notification relating to the reservation policy of the State Government for different categories of people of Sikkim for allotment of State quota seats,
(ii) Guidelines relating to procedure for allotment of State quota seats
(iii) list of institutions and number of seats available for allotment ( a week before the date of counselling), and
(iv) instructions for counselling."
17. In so far as candidates belonging to SC/ST, Central and State OBC communities are concerned they were advised to log on to the website www.socialjustice.nic.in and www.tribal.nic.in of Ministry of WP(C) No.53 of 2017 9 (Miss Deepa Chettri & Ors v. State of Sikkim & Ors.) Social Justice and Ministry of Tribal Affairs, Govt. of India for eligibility conditions and components of the Scholarship.
18. Pursuant to the said counselling notice the Petitioners as well as others attended the counselling on 13.07.2017. The records of the Respondent No.2 reflect that counselling was conducted for the following:-
"
Sl No. Name of Institutions No. of seats
1 SMIMS 10 seats
2 RIMS, Manipur 05 seats
3 Central Pool 06 seats (anticipated)
"
19. On the basis of the counselling seat matrix for 21 MBBS seats along with the details of allotment of the seat was as under:-
"
Total Reserved Nominee Name NEET Institute
seats= 21 Seats score
Merit 10% 2 1. Sandup Dorjee Tamang s/o. 431 Central Pool
Ashok Kumar Tamang waiting
2. Akanchya Sharma d/o. Dilip 351 RIMS, Imphal
Kumar Sharma
BL 04 1. Jem Pandi Targain d/o. 304 Central Pool
20% Pempa Tshering Lepcha waiting
2. Chepen Wangyal Bhutia d/o. 289 RIMS, Imphal
Pema wangyal Bhutia
3. Rigsem Gyatso Bhutia d/o. 285 SMIMS
Sonam Gyatso Bhutia
4. Yanke Doma Sherpa d/o. 282 SMIMS
Karma Sherpa
PT 01 1. Nareep Taraum Lepcha d/o. 217 Central Pool
05% Topden Lepcha waiting
OBC 04 1. Nagendra Gurung 351 Central Pool
(Central) (Petitioner No.2) waiting
20% s/o. Lt. Gaz Raj Gurung
2. Swatha Rai d/o. Jagat 240 RIMS, Imphal
Bahadur Rai
3. Subham Swarup Giri s/o. 221 SMIMS
Bishnu Lall Giri
4. Yugal Raj Gurung s/o. Megraj 217 SMIMS
Gurung
OBC 04 1. Deepa Chettri (Petitioner 403 Central Pool
(State) No.1) waiting
20% d/o. B.B Chettri
2. Priya Deokota d/o. U.K. 335 SMIMS
Deokota
3. Kshetiz Chettri s/o. H.K. 328 SMIMS
Chettri
4. Himal Neopaney s/o. D.P. 326 SMIMS
Neopaney
ST 03 1. Ankita Subba d/o. R. Subba 315 RIMS, Imphal
WP(C) No.53 of 2017 10
(Miss Deepa Chettri & Ors v. State of Sikkim & Ors.) 13% 2. Prabika Lama d/o. S.D. Lama 314 SMIMS
3. Hangma Subba d/o. Ramesh 272 SMIMS Subba SC 07% 02 1. Maricca Madan Rasily d/o. 230 RIMS, Imphal Suresh Madan Rasaily
2. Arati Biswakarma 210 Central Pool (Respondent No.4) d/o. C.L. waiting Biswakarma Others 01 Nisha Gupta d/o. Santosh Gupta 435 SMIMS 05% "
20. The records thus reveal that on the date of first counselling i.e. 13.07.2017 only 15 confirmed State quota MBBS seats were available with the Respondent No.2 for allotment. The records further reveal that the counselling notice dated 30.06.2017 invited the candidates for allotment of State quota seats for MBBS/BDS. However, on the date of counselling held on 13.07.2017 the Respondent No.2 notified that besides the 15 State quota MBBS seats consisting of 10 seats from SMIMS and 5 seats from RIMS, Manipur, 6 Central Pool seats were also anticipated. The above chart would clearly reflect that during the counselling 6 candidates opted to wait for the 6 Central Pool seats which were anticipated by the Respondent No.2 from the Respondent No.1 on the Respondent No.2 projecting that the said 6 Central pool seats were anticipated.
21. In the first round of counselling when the 6 candidates named above opted to wait for the 6 Central Pool seats which were anticipated a declaration were taken from the Petitioner No.1 and 2 to the following effect:-
"Declaration It is to declare that I Deepa Chettri d/o. Bhim Bdr Chettri was offered MBBS seat in the first round of counselling held on 13 th July 2017. I have however on my own judgment and freewill have decided not to avail the offered seat and to participate in the next round of counselling for MBBS seat which is expected to be held after receipt of central pool seats. I shall have no claim with HRDD in case I am not allotted seat due to less number of seats reserved in Central Pool. Candidate‟s Name and signature: Deepa Chettri (sd/-) Parent/Guardian name and signature: Bhim Bdr Chettri (sd/-) WP(C) No.53 of 2017 11 (Miss Deepa Chettri & Ors v. State of Sikkim & Ors.) Contact No.: 8290699244 "
"Declaration It is to declare that I NAGENDRA GURUNG s/o. LT. GAZ RAJ GURUNG was offered MBBS seat in the first round of counselling held on 13 th July 2017. I have however on my own judgment and freewill have decided not to avail the offered seat and to participate in the next round of counselling for MBBS seat which is expected to be held after receipt of central pool seats. I shall have no claim with HRDD in case I am not allotted seat due to less number of seats reserved in Central Pool.
Candidate‟s Name and signature: NAGENDRA GURUNG(sd/-) Parent/Guardian name and signature: Kriti Gurung (sd/-) Contact No.: 8768664944 "
22. The Respondent No.2 under the signature of the Respondent No.3 issued the second counselling notice dated 29.07.2017. In the said notice it mentioned that the State Government has fixed the quota for allotment of State quota seats vide notification dated 14.06.2017. It also mentioned that for the academic session 2017-18 the State Government has received 15 MBBS seats and were anticipating 6 Central Pool seats. The counselling notice clearly stated that in the second instalment 10 concessional conditional seats were made available by SMIMS. Accordingly, seat matrix of 31 seats were prepared and communicated which provided for 3 seats for merit (10%), 6 seats for Bhutia & Lepcha (BL) (20%), 2 seats for Primitive Tribe (PT) (5%), 6 seats for OBC-C (20%), 6 seats for OBC-S (20%), 4 seats for Schedule Tribe (ST) (13%), 2 seats for SC (7%) and 2 seats for others (5%). The said counselling notice informed that during the first round of counselling allotment was done for 21 MBBS seats and allotment was done providing 2 seats for merit, 4 seats for BL, 1 for PT, 4 seats for OBC-C, 4 seats for OBC-S, 3 seats for ST, 2 seats for SC and 1 seats for others totalling to 21 seats. Accordingly, the Respondent No.2 decided to allot 1 seat for merit, 2 seats for BL, 1 seat for PT, 2 seats for OBC-C, 2 seats for OBC-S, 1 seat for ST, no seat for SC and 1 seat for others as balance allocation for WP(C) No.53 of 2017 12 (Miss Deepa Chettri & Ors v. State of Sikkim & Ors.) second round of counselling. The said notice provided that the counselling for allotment of 10 MBBS (concessional conditional) was scheduled to be held on 05.08.2017 at 10.00 am and that the allotment would be done to the categories indicated in the notice in consonance with the reservation policy of the Government.
23. It is quite evident that the second round of counselling did not give any scope of selecting or preferring any available State quota seats to those 6 candidates who had opted to await the anticipated 6 Central Pool seats as projected by the Respondent No.2.
24. A merit list for second round of counselling for State quota MBBS seats 2017-18 was also drawn in which the Petitioner No.1 is found at serial No.3 and Petitioner No.2 at serial No.4. The said list includes the names of all 6 candidates who had opted to await the Central Pool seats in the first round of counselling. Respondent No.4 was placed at serial No.38 of the said merit list.
25. The second round of counselling for allotment of 10 concessional and 5 full fees conditional MBBS seats of SMIMS, Tadong was held on 05th August 2017. The details of the seats were as under:-
"
Sl. No. Course No. of
seats
1. MBBS (concessional conditional seat). 10
SMIMS, Sikkim Manipal University.
2 MBBS (full fee conditional seat). 05
SMIMS, Sikkim Manipal University.
"
26. Taking note of the fact that during the first round of counselling held on 13.07.2017 in which 21 MBBS seats had already been allotted the Respondent No.2 decided to allot the ten additional MBBS conditional concessional seats from SMIMS in the following manner:-WP(C) No.53 of 2017 13
(Miss Deepa Chettri & Ors v. State of Sikkim & Ors.) "
31 MBBS Sl. Communities Percentage Total Allotment in Balance No. number of 1st round allocation for seats counselling 2nd round of counselling 1 Merit 10% 03 02 01 2 Bhutia and Lepcha 20% 04 04 02 3 Primitive Tribe 05% 01 01 01 4 Central OBC 20% 04 04 02 5 State OBC 20% 04 04 02 6 Scheduled Tribe 13% 03 03 01 7 Scheduled Castes 07% 02 02 -
8 Others 05% 01 01 01
Total "
27. The Respondent No.2 based on the aforesaid calculations and allocations allotted the 10 additional MBBS conditional seats. In the said 10 additional MBBS conditional seats 2 candidates belonging to OBC-C and 2 candidates belonging to OBC-S who were below the Petitioners in the merit list were also allotted as the Respondent No.2 continued to anticipate the 6 Central Pool seats from the Respondent No.1.
28. It is quite evident that the genesis of the present dispute started when the Respondent No.2 decided to project to the candidates who had appeared in the NEET and who found their names in the consolidated merit list that there was an anticipation of 6 Central Pool MBBS seats during the first round of counselling held on 17.07.2017.The Respondent No.2 very candidly admits that it had „devised‟ a method for the merit candidates to wait for the Central Pool seats in the counter affidavit filed. As per this „devise‟ 6 candidates including the Petitioners and the Respondent No.4were given the option to await the Central Pool seats in anticipation. The Petitioner No.1 had secured the 1st position in the category wise merit list of OBC-S and the 4th position in the first consolidated merit list. Similarly, the Petitioner No.2 had secured the 1st position in the category wise merit list of OBC-C and the 6th position in the consolidated merit list. The Respondent No.4 had secured the 2nd WP(C) No.53 of 2017 14 (Miss Deepa Chettri & Ors v. State of Sikkim & Ors.) position in the category wise merit list of SC and 61st position in the consolidated merit list.
29. Although, the Respondent No.1 has not filed any counter affidavit, in the written submission filed on 09.12.2017 it would contend that the Government of India receives medical seats from different States where Government aided medical colleges exists and it is the prerogative of these States to contribute or not to contribute medical seats to the Ministry. It is only on the receipt of the seats that the same are allocated. The allocation is based on two factors i.e. population of the State and number of Medical Colleges in the State. There are no guidelines or regulations governing allotment of medical seats to the North Eastern States and seats are allocated based on the State contribution. This would mean that allotment of Central Pool seats may not be constant and it is liable to decrease or increase. The learned Senior Counsel appearing for the Respondent No.4 submits that when the Central Pool seats were not available to the Respondent No.2 on the date of first counselling held on 17.07.2017 it was illegal on the part of the Respondent No.2 to allocate the said seats.
30. The Respondent No.2 would, however, contend that as practiced for last many years the department anticipated receiving 6 seats from the Central Pool.
31. The record reveals that the first counselling was held on 17.07.2017 when only 15 confirmed MBBS seats were available. However, due to the method devised by the Respondent No.2 the meritorious students who had excelled in the NEET were given the option to await the Central Pool seats which was anticipated by the Respondent No.2 without any assurance from the Respondent No.1. At this stage 4 other candidates belonging to OBC-C category and 4 other candidates WP(C) No.53 of 2017 15 (Miss Deepa Chettri & Ors v. State of Sikkim & Ors.) belonging to OBC-S category all lower in the consolidated merit list than the Petitioners were allotted the non central pool State quota seats. Out of the said 4 candidates each, of the OBC-C category and OBC-S category, the Petitioners both toppers in their respective categories availed the option given by the Respondent No.2 to await the Central Pool seats. However, the said allotments against the anticipated Central Pool seats were conditional upon the Central pools seats being made available. The records placed do not reveal that the Respondent No.2 had any assurance from the Respondent No.1 that 6 seats would be provided. However, to protect itself the Respondent No.2 sought and took a declaration each from the Petitioners. The instructions issued to the candidates by the Respondent No.2 provided that if the candidate do not opt to avail the seat in that counselling he/she shall forfeit his/her claim for the allotment of seat available at that time and the person next in merit will be called for allotment. Even if it is believed that the Petitioners had not opted to avail the 15 State quota seats available at the first round of counselling held on 17.07.2017 and therefore had forfeited his/her claim for the allotment of seats it is evident that the opting out or the forfeiture is only for those 15 seats only. The records however, reveal that it was at the instance of the Respondent No.2 projecting the anticipation of the 6 Central Pool seats that the 6 candidates including the Petitioners opted to await the same. No fault can therefore be attributed to the Petitioner No.1 and 2.
32. The record further reveals that the Respondent No.2issued the second counselling notice on 29.07.2017 once again mentioning about the anticipated 6 Central Pool seats and drew the seat matrix for 31 seats keeping in mind that the 6 Central Pool seats were not only anticipated but also allotted to the 6 candidates including the two Petitioners.WP(C) No.53 of 2017 16
(Miss Deepa Chettri & Ors v. State of Sikkim & Ors.)
33. The second counselling took place on 09.08.2017 when further 10conditional concessional seats were made available by SMIMS, Tadong. Due to the fact that the Respondent No.2 had given an option to await the so called anticipated Central Pool seats which option was exercised by the 6 candidates on 09.08.2017,in the second round of counselling there is no mention that even at this stage the 6 candidates were given the option to take the further 10 seats made available by SMIMS, Tadong. The instructions issued by the Respondent No.2 to the candidates provided that even if the candidate did not opt to avail the seats in the earlier counselling and he/she forfeited his/her claim for the allotment of the said 15 seats available at that time and the person next would be called for allotment, he/she may still, however, be considered for allotment in subsequent counselling if seats were available for allotment. The records reveal that no such opportunity for considering the Petitioners for allotment in the second round of counselling was given by the Respondent No.2 although 10 State quota seats were available. Infact the records/ note sheets reveal that on 09.08.2017 the Respondent No.2 allotted the ten additional MBBS seats keeping in mind the fact that it had already allotted 21 seats inclusive of the 6 anticipated Central Pool seats in the first round of counselling held on 17.07.2017. On the allotment of 10 additional MBBS seats to those candidates other than the 6 candidates awaiting the anticipated 6 Central Pool seats two more candidates belonging to OBC-C category and two more candidates belonging to OBC-S category were allotted seats. By doing so the Respondent No.2 seems to have exceeded and transgressed the reservation policy and the roster system in anticipation of the 6 Central Pool seats. By the method devised by the Respondent No.2 to await the Central Pool seats two toppers of their respective categories have lost WP(C) No.53 of 2017 17 (Miss Deepa Chettri & Ors v. State of Sikkim & Ors.) out and were not allotted any seat at all. In this manner the Petitioners placed higher in the merit list could not secure MBBS seats.
34. On 18.08.2017, 3 MBBS Central Pool seats for the Academic Session 2017-18 were made available to the Respondent No.2 by the Respondent No.1 for the first time. Vide notice dated 25.08.2017 the Respondent No.3 notified that the State of Sikkim had received only 3 MBBS seats from the Central Pool for the year 2017 as against 6 candidates who awaited for the Central Pool seats in the first round of counselling held on 13.07.2017. The said notice did not give any details of the 3 Central Pool seats made available by the Respondent No.1 on 18.08.2017. The Respondent No.3 further notified that the Department was vigorously pursuing with the concerned authorities for allotment of further 3MBBS quota seats so that all 6 wait listed candidate can be nominated but the process would take sometime. The said notice invited candidates for counselling for the 2 BDS Central Pool seats along with the total number of seats available till that date stating that interested candidates who wanted to avail BDS seats may attend the said counselling. The notice clarified that in case less than 6 MBBS seats were available for counselling and the candidates waiting for MBBS seats opt to avail BDS seats such candidate would be given preference over the candidates who are attending counselling for BDS and accordingly the candidates were advised that they should exercise their discretion to attend the counselling for BDS course. The tenor of the notice dated 25.08.2017 makes it evident that the said notice emphasised more on the counselling for the 2 BDS Central Pool seats to be held on 28th July 2017 and gave option to the 6 candidates waiting for the Central Pool MBBS seat to opt for the BDS seats stating that if they do so preference would be given to them. Neither the records nor the pleadings in the counter affidavit filed by the Respondent No.2 reflect that the Petitioners WP(C) No.53 of 2017 18 (Miss Deepa Chettri & Ors v. State of Sikkim & Ors.) were called to or were invited for counselling for the 3 Central Pool seats made available by the Respondent No.1 on 18.08.2017. It is not surprising that the Petitioners did not take the option for applying for the BDS seats which are less promising.
35. It is evident that the Respondent No.2 did not invite any of the Petitioners for counselling although 3 Central Pool seats were made available on 18.08.2017.
36. The said 3 seats were allotted to the three toppers in the merit, BL and PT categories who were the 3 candidates who had opted to await the 6 anticipated Central Pool seats in the first round of counselling held on 17.07.2017. The Petitioners were not allotted any of the 3 seats on application of the roster. The guidelines issued by the Respondent No.1 for selection and nomination of candidates against Central Pool MBBS/BDS seats for the academic year 2017-18 does not provide for the application of roster. Under the said guidelines the selection of candidates was required to be made on the basis of rank obtained in the NEET duly applying the reservation policy. The reservation Notification also does not provide for application of the roster. The learned Senior Counsel appearing for the Respondent No.1 as well as the learned Counsel appearing for the State Respondent No.2 and 3 submits that once the Central Pool seats are allocated to the State it goes into the State quota seats. The learned Counsels also submits that since in the guidelines issued by the Respondent No.1 it is provided that the reservation policy of the State would be applicable the roster which was made a part of the reservation policy vide the guidelines issued for the State quota seats by the Respondent No.2 would also apply. There seems to be some force in the aforesaid contention. The guidelines for allotment of State quota seats provides for application of the reservation policy and the roster. The reservation policy provides for 8 categories / WP(C) No.53 of 2017 19 (Miss Deepa Chettri & Ors v. State of Sikkim & Ors.) communities and the percentage of reservation for each of the categories. The guidelines issued by the Respondent No.2 regarding roster provides that the candidates selected in each of the categories would be given option to choose the seat of their choice in accordance with their merit position in that respective category and then goes on to provide as to how the roster was to apply. It is thus clear that the application of the roster was integral to the reservation policy of the Respondent No.2.
37. The Petitioners have not arrayed the candidates in their respective categories who had secured lesser marks than them but have been allotted the MBBS seats. At the hearing, the learned senior counsel appearing for the Petitioners were specifically asked twice if they would desire to array the said candidates as party Respondents to which it was specifically replied that they would not do so. It is trite that no adverse order can be passed against persons who were not made parties to the litigation. This Court is of the view that in an action at law while seeking discriminatory relief from the Court the Petitioners cannot pick and choose the Respondents. If the non-parties were necessary parties they ought to have been impleaded. Any order passed in favour of Petitioners for allotment of seats would obviously affect the non-parties in the facts of the present case keeping in mind the fact that only 29 seats were at the disposal of the Respondent No.2.
38. At this juncture it is important to appreciate three important judgments of the Apex Court connected to MBBS admissions to examine what relief could be granted in favour of the Petitioners as prayed for in the Writ Petition.WP(C) No.53 of 2017 20
(Miss Deepa Chettri & Ors v. State of Sikkim & Ors.)
39. In re: Asha v. Pt. B.D Sharma University of Health Science and Ors.1 the Apex Court would hold:-
"21. At this stage, we may refer to certain judgments of the Court where it has clearly spelt out that the criteria for selection has to be merit alone. In fact, merit, fairness and transparency are the ethos of the process for admission to such courses. It will be a travesty of the scheme formulated by this Court and duly notified by the States, if the Rule of Merit is defeated by inefficiency, inaccuracy or improper methods of admission. There cannot be any circumstance where the rule of merit can be compromised. From the facts of the present case, it is evident that merit has been a casualty. It will be useful to refer to the view consistently taken by this Court that merit alone is the criteria for such admissions and circumvention of merit is not only impermissible but is also abuse of the process of law. (Ref.: Priya Gupta v. State of Chhattisgarh [(2012) 7 SCC 433] , Harshali v. State of Maharashtra [(2005) 13 SCC 464] , Pradeep Jain v. Union of India [(1984) 3 SCC 654] , Sharwan Kumar v. DG of Health Services [1993 Supp (1) SCC 632] , Preeti Srivastava v. State of M.P. [(1999) 7 SCC 120] , Guru Nanak Dev University v. Saumil Garg [(2005) 13 SCC 749] and AIIMS Students' Union v. AIIMS [(2002) 1 SCC 428] .)
24. The Court cannot ignore the fact that these admissions relate to professional courses and the entire life of a student depends upon his admission to a particular course. Every candidate of higher merit would always aspire admission to the course which is more promising. Undoubtedly, any candidate would prefer course of MBBS over BDS given the high competitiveness in the present times, where on a fraction of a mark, admission to the course could vary. Higher the competition, greater is the duty on the part of the authorities concerned to act with utmost caution to ensure transparency and fairness. It is one of their primary obligations to see that a candidate of higher merit is not denied seat to the appropriate course and college, as per his preference. We are not oblivious of the fact that the process of admissions is a cumbersome task for the authorities but that per se cannot be a ground for compromising merit. The authorities concerned are expected to perform certain functions, which must be performed in a fair and proper manner i.e. strictly in consonance with the relevant rules and regulations.
30. There is no doubt that 30th September is the cut-off date. The authorities cannot grant admission beyond the cut-off date which is specifically postulated. But where no fault is attributable to a candidate and she is denied admission for arbitrary reasons, should the cut-off date be permitted to operate as a bar to admission to such students particularly when it would result in complete ruining of the professional career of a meritorious candidate, is the question we have to answer.
31. Having recorded that the appellant is not at fault and she pursued her rights and remedies as expeditiously as possible, we are of the considered view that the cut-off date cannot be used as a technical instrument or tool to deny admission to meritorious students. The rule of merit stands completely defeated in the facts of the present case. The appellant was a candidate placed higher in the merit list. It cannot be disputed that candidates having merit much lower to her have already been given admission in the MBBS course. The appellant had attained 832 marks while the students who had attained 821, 792, 752, 740 and 731 marks have already been given admission in the ESM category in the MBBS course. It is not only unfortunate but apparently unfair that the appellant be denied admission.1
(2012 ) 7 SCC 389 WP(C) No.53 of 2017 21 (Miss Deepa Chettri & Ors v. State of Sikkim & Ors.)
32. Though there can be the rarest of rare cases or exceptional circumstances where the courts may have to mould the relief and make exception to the cut-off date of 30th September, but in those cases, the Court must first return a finding that no fault is attributable to the candidate, the candidate has pursued her rights and legal remedies expeditiously without any delay and that there is fault on the part of the authorities and apparent breach of some rules, regulations and principles in the process of selection and grant of admission. Where denial of admission violates the right to equality and equal treatment of the candidate, it would be completely unjust and unfair to deny such exceptional relief to the candidate. (Refer Arti Sapru v. State of J&K [(1981) 2 SCC 484 : 1981 SCC (L&S) 398] , Chhavi Mehrotra v. DG, Health Services [(1994) 2 SCC 370] and Arvind Kumar Kankane v. State of U.P. [(2001) 8 SCC 355] )"
40. In re: Chandigarh Administration and Ano. V. Jasmine Kaur and Ors.2 the Apex Court would hold:-
"33. Having noted the various decisions relied upon by the appellant in SLP (C) No. 18099 of 2014 and the contesting respondent, we are able to discern the following principles:
33.1. The schedule relating to admissions to the professional colleges should be strictly and scrupulously adhered to and shall not be deviated under any circumstance either by the courts or the Board and midstream admission should not be permitted.
33.2. Under exceptional circumstances, if the court finds that there is no fault attributable to the candidate i.e. the candidate has pursued his or her legal right expeditiously without any delay and that there is fault only on the part of the authorities or there is an apparent breach of rules and regulations as well as related principles in the process of grant of admission which would violate the right to equality and equal treatment to the competing candidates and the relief of admission can be directed within the time schedule prescribed, it would be completely just and fair to provide exceptional reliefs to the candidate under such circumstance alone.
33.3. If a candidate is not selected during a particular academic year due to the fault of the institutions/authorities and in this process if the seats are filled up and the scope for granting admission is lost due to eclipse of time schedule, then under such circumstances, the candidate should not be victimised for no fault of his/her and the court may consider grant of appropriate compensation to offset the loss caused, if any.
33.4. When a candidate does not exercise or pursue his/her rights or legal remedies against his/her non-selection expeditiously and promptly, then the courts cannot grant any relief to the candidate in the form of securing an admission.
33.5. If the candidate takes a calculated risk/chance by subjecting himself/herself to the selection process and after knowing his/her non-selection, he/she cannot subsequently turn around and contend that the process of selection was unfair.
33.6. If it is found that the candidate acquiesces or waives his/her right to claim relief before the court promptly, then in such cases, the legal maxim vigilantibus 2 (2014) 10 SCC 521 WP(C) No.53 of 2017 22 (Miss Deepa Chettri & Ors v. State of Sikkim & Ors.) et non dormientibus jura subveniunt, which means that equity aids only the vigilant and not the ones who sleep over their rights, will be highly appropriate.
33.7. No relief can be granted even though the prospectus is declared illegal or invalid if the same is not challenged promptly. Once the candidate is aware that he/she does not fulfil the criteria of the prospectus he/she cannot be heard to state that, he/she chose to challenge the same only after preferring the application and after the same is refused on the ground of eligibility. 33.8. There cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year i.e. carry-forward of seats cannot be permitted how much ever meritorious a candidate is and deserved admission. In such circumstances, the courts cannot grant any relief to the candidate but it is up to the candidate to reapply in the next academic year.
33.9. There cannot be at any point of time a direction given either by the court or the Board to increase the number of seats which is exclusively in the realm of the Medical Council of India.
33.10. Each of these abovementioned principles should be applied based on the unique and distinguishable facts and circumstances of each case and no two cases can be held to be identical.
43. As time and again such instances of claiming admission into such professional courses are brought before the Court, and on every such occasion, reliance is placed upon the various decisions of this Court for issuing necessary directions for accommodating the students to various courses claiming parity, we feel it appropriate to state that unless such claims of exceptional nature are brought before the Court within the time schedule fixed by this Court, court or Board should not pass orders for granting admission into any particular course out of time. In this context, it will have to be stated that in whatever earlier decisions of this Court such out-of-time admissions were granted, the same cannot be quoted as a precedent in any other case, as such directions were issued after due consideration of the peculiar facts involved in those cases. No two cases can be held to be similar in all respects. Therefore, in such of those cases where the court or Board is not in a position to grant the relief within the time schedule due to the fault attributable to the candidate concerned, like the case on hand, there should be no hesitation to deny the relief as was done by the learned Single Judge. If for any reason, such grant of relief is not possible within the time schedule, due to reasons attributable to other parties, and such reasons are found to be deliberate or mala fide the court should only consider any other relief other than direction for admission, such as compensation, etc. In such situations, the court should ensure that those who were at fault are appropriately proceeded against and punished in order to ensure that such deliberate or malicious acts do not recur."
41. In re: S.Krishna Sradha v. State of Andhra Pradesh & Ors.3 the Apex Court would hold:-
"27. As is seen, stress has always been laid on the merit in the matters of all admissions as meritorious students should not face any impediment to get admission for some fault on the part of the institution or the persons involved with it. He/She has no other remedy but to approach the court for getting redressal of his/her grievances. It is a grievance that pertains to fundamental right. It has to be remembered that a right is conferred on a person by rule of law and if he seeks remedy through the process meant for establishing rule of law and it is denied to him, it would never subserve the cause of real justice. When a lis of this nature comes in a constitutional court, it becomes the duty of 3 ( 2017) 4 SCC 516 WP(C) No.53 of 2017 23 (Miss Deepa Chettri & Ors v. State of Sikkim & Ors.) the court to address whether the authority had acted within the powers conferred on it or deviated from the same as a consequence of which injustice has been caused to the grieved person. The redressal of a fundamental right, if one deserves to have, cannot be weighed in terms of grant of compensation only. Grant of compensation may be an additional relief. Confining it to grant of compensation as the only measure would defeat the basic purpose of the fundamental rights which the Constitution has conferred so that the said rights are sustained. It would be inapposite to recognise the right, record a finding that there is a violation of the right and deny the requisite relief.
28. A young student should not feel that his entire industry to get himself qualified in the examination becomes meaningless because of some fault or dramatic design of certain authorities and they can get away by giving some amount as compensation. It may not only be agonising but may amount to grant of premium either to laxity or evil design or incurable greed of the authorities. We are disposed to think, in such a situation, justice may be farther away and the knocking at the doors of a constitutional court, a Sisyphean endeavour, an exercise in futility. It is well known that the law intends not anything impossible; lex non intendit aliquid impossibile. But when it is in the realm of possibility; and denial of relief hurts the "majesty of justice", it should not be denied. On the contrary, every effort has to be made to grant the relief. Needless to say, to get the relief, conditions precedent are to be satisfied; and that is what has precisely been stated in Asha [Asha v. Pt. B.D. Sharma University of Health Sciences, (2012) 7 SCC 389 : 4 SCEC 611] and Harshali [Harshali v. State of Maharashtra, (2005) 13 SCC 464] .
29. In this context, Mr Narasimha, learned friend of the court submitted that the Court in Jasmine Kaur [Chandigarh Admn. v. Jasmine Kaur, (2014) 10 SCC 521 : 6 SCEC 745] has been guided by the principle adopted by this Court in the cases of constitutional tort. He has drawn our attention to the authorities in Rudul Sah v. State of Bihar [Rudul Sah v. State of Bihar, (1983) 4 SCC 141 :
1983 SCC (Cri) 798] , Sebastian M. Hongray v. Union of India [Sebastian M. Hongray v. Union of India, (1984) 1 SCC 339 : 1984 SCC (Cri) 87 : AIR 1984 SC 571] and Railway Board v. Chandrima Das [Railway Board v. Chandrima Das, (2000) 2 SCC 465] , where the Court granted compensation because there was no other option and the only way of redemption was to grant compensation. It is necessary to state that grant of relief as lawfully due should be the primary duty of the court. Where doctrine of restitution can be applied and there is no impossibility it would be anathema to the cause of justice to deny the same. It is seemly to appreciate that restitution as a concept, as is traditionally understood, is the restoration of an aggrieved party to his condition prior to the wrongdoing.
It could be limited to monetary quantification only if the breach is not capable of being remedied. That being so, compensation cannot be the adequate or sole remedy for the wrongful deprivation of admission, as it affects the academic career of a student. There may be cases where restitution may be too harsh. Then, as we are inclined to think, telescoping albeit reasonably is not an impossible one. In Aneesh D. Lawande [Aneesh D. Lawande v. State of Goa, (2014) 1 SCC 554 : 6 SCEC 534] some of the candidates were adjusted as the Government had played possum and telescoping was not allowed as the candidates had got into the course in contravention of the decision of this Court. The factual score was different. But when a right is comatosed by a maladroit design, we think, the right of the person presently aggrieved should matter, not the right of the future candidate. Present cannot be crucified at the altar of the future. Whether the beneficiary who has got in should go out or not, would depend upon the discretion of the Court.
33. In view of the aforesaid, we think the decision in Chandigarh Admn. [Chandigarh Admn. v. Jasmine Kaur, (2014) 10 SCC 521 : 6 SCEC 745] requires WP(C) No.53 of 2017 24 (Miss Deepa Chettri & Ors v. State of Sikkim & Ors.) reconsideration by a larger Bench. Papers be placed before the Hon'ble the Chief Justice of India for constitution of the appropriate larger Bench."
42. As the law stand today as declared by the Apex Court the schedule relating to the admission to the professional college should be strictly and scrupulously adhered to and shall not be deviated under any circumstance either by the Courts or the Board and midstream admission should not be permitted. It is only under exceptional circumstances, if the Court finds that there is no fault attributable to candidate relief of admission can be directed, however, within the time schedule prescribed. As the last date of admission notified by the Medical Council of India was 31.08.2017 although it is seen that the Petitioners both toppers in their respective categories have suffered non admission due to the fault on the part of the Respondent No.2 this Court is unable to grant any relief for grant of admission to them. MBBS is a professional course. The semesters having begun on 01.09.2017 three months have already lapsed. The Petitioners have chosen not to challenge the admission of the non-parties and acquiesced and waived their rights to claim reliefs before the Court promptly. In fact considered in that light the Petitioners have failed to consciously challenge the selection of the non-parties selected at the first round of counselling held on 17.07.2017 and second round of counselling held on 09.08.2017.The Petitioners have thus failed to pursue their legal remedies on time and chosen to attack only one candidate who has secured the last Central Pool seat provided by the Respondent No.1 on the 31st August 2017 to the Respondent No.2.
43. The failure of the Petitioners to implead the said non-parties would not allow this Court to examine the merit of their selection to grant relief of admission in favour of Petitioners. An action at law definitely is not a game of chess. The relief of admission cannot be granted to the Petitioners on account of the fact that the non-parties WP(C) No.53 of 2017 25 (Miss Deepa Chettri & Ors v. State of Sikkim & Ors.) similarly placed have been consciously kept out of the lis by the Petitioners for reason best known to them, inspite of opportunities to do so.
44. In view of the Judgment of the Apex Court in re: Chandigarh Administration (supra)and specifically para 33.1 to 33.10 and 43, the prayers prayed for in the Writ Petition for a direction to the Respondent No.1 to allocate 3 more MBBS seats to the State of Sikkim and to the Respondent No.2 and 3 to issue nomination to the Petitioners in any Government Medical Colleges cannot be granted. Similarly, the prayer seeking a direction to the Respondents to allot one MBBS seat each to the Petitioners from the Central Pool also cannot be granted.
45. The Petitioners however, seeks to challenge the allotment of the Central Pool seat to the Respondent No.4 which was made available by the Respondent No.1 to the Respondent No.2 on the 31 st of August 2017 at 06.01 pm as per the Respondent No.2.The records reveal that on 31.08.2017 i.e. on the last date of admissions as notified by the Medical Council of India the Respondent No.1 allotted an additional MBBS seat at Government Medical College at Haldwani, Uttarakhand (GMC, Haldwani) The communication from the Respondent No.1 was received as per the Respondent No.2 at 06.00 pm on 31.08.2017. On the same day itself the Respondent No.2 allotted the seat to the Respondent No.4 and nominated the Respondent No.4 in its communication to the Dean of the GMC, Haldwani. The Respondent No.4 in her counter affidavit states that at about 04-05 pm on 31.08.2017 the Respondent No.4 suddenly received a call from Respondent No.2 and was informed that one more seat was made available for SC candidate and after being called to the office handed over the order for the State quota seat for GMC, Haldwani. The Respondent No.4 in her counter affidavit states that on 01.09.2017 after the receipt of the communication from Respondent No.2 she along WP(C) No.53 of 2017 26 (Miss Deepa Chettri & Ors v. State of Sikkim & Ors.) with her guardians proceeded to Delhi and reached Haldwani on 02.09.2017 and reported to the GMC, Haldwani at 09.00 am, the same day. GMC, Haldwani however, refused to give admission stating that the admission was closed on 31.08.2017 as per the guidelines of the Medical Council of India and that the admission date of the MBBS course was declared by the Hon‟ble Supreme Court of India. The Respondent No.4 was also informed that since the admission was declared as per the guidelines of the Hon‟ble Supreme Court of India the same could be extended only by the orders of the Hon‟ble Supreme Court. In such circumstances, the Respondent No.4 filed Writ Petition (Civil) No. 830 of 2017 (Arati Bishwakarma v. Union of India & Ors.) before the Hon‟ble Supreme Court of India on 06.09.2017. The said Writ Petition was heard and decided on 11.09.2017 allowing three days time to the Respondent No.4 for taking admission in GMC, Haldwani. Armed with the certified copy of the said order the Respondent No.4 obtained admission on 12.09.2017 and has paid an amount of Rs. 1,06,000/-. A copy of the order dated 11.09.2017 has been annexed to the counter affidavit. A copy of the said Writ Petition has been filed on 18.12.2017 by the Respondent No.4. A perusal of the said Writ Petition reflects that the Respondent No.4 had pleaded before the Apex Court that the Respondent No.4 belonging to the SC community was granted admission by the State of Sikkim based on allotment of one seat to the State of Sikkim by the Respondent No.1 under the Central Pool in GMC, Haldwani which is far away from the State of Sikkim on 31.08.2017. The Respondent No.4 further pleaded that the State of Sikkim had nominated the Respondent No.4 on the very same date i.e. 31.08.2017 and also informed GMC, Haldwani accordingly. The Respondent No.4 further pleaded that the State of Sikkim also informed the Respondent No.4 of her admission on 31.08.2017 and thus the Respondent No.4 was granted WP(C) No.53 of 2017 27 (Miss Deepa Chettri & Ors v. State of Sikkim & Ors.) admission by the competent authorities namely the Government of India and the State Government on 31.08.2017 within the time frame fixed for admissions. It categorically stated that the admission of the Respondent No.4 was based on the merit in the NEET. The Respondent No.4 thereafter pleaded the immediate steps taken to reach GMC, Haldwani and how on reaching thereon the next date she was declined admission. The Respondent No.4 also pointed out in the said Writ Petition how she had pleaded with GMC, Haldwani as to how it was impossible to report from a remote village in Sikkim to Haldwani on 31.08.2017 itself, but to no avail. The Respondent No.4 had pleaded that the Apex Court in numerous Judgments had held that the career of students especially in professional courses like the MBBS programme, should not be jeopardized due to administrative or other lapses by the authorities. The Respondent No.4 further pleaded that the Government of India which allotted the seat on 31.08.2017 to the State of Sikkim being aware of the fact that it is allotting a seat in Uttarakhand which is far away from the Sikkim and any student admitted by the State of Sikkim against the said seat would have to travel from Sikkim to Delhi and from Delhi to Haldwani which could not have been done on 31.08.2017 itself and thus ought to have been given reasonable time to join. It is seen that besides the Union of India, the Medical Council of India, the State of Sikkim as well as the GMC, Haldwani had been made Respondents in the said Writ Petition under Article 32 of the Constitution of India. On the aforesaid pleadings the Respondent No.4 had prayed for a writ, order or direction in the nature of mandamus directing GMC, Haldwani to permit the Respondent No.4 to join the MBBS course for the Academic year 2017-18 pursuant to the allotment/ admission by the Government of India and Government of Sikkim dated 31.08.2017. The Respondent No.4 had filed the letter dated 31.08.2017 by the Government of India addressed to the WP(C) No.53 of 2017 28 (Miss Deepa Chettri & Ors v. State of Sikkim & Ors.) Secretary, Ministry of Health Family Welfare Department, Government of Sikkim allocating one seat in GMC, Haldwani to Sikkim as well as the communication dated 31.08.2017 issued by the Respondent No.2 to the Dean of the GMC, Haldwani nominating the Respondent No.4 for the allotment. The Respondent No.4 had also annexed the travel details to Haldwani along with the said Writ Petition. The Respondent No.4 also filed the communication dated 02.09.2017 issued by the Principal of GMC, Haldwani to the Respondent No.2 pointing out that the Respondent No.4 had reported for admission on 02.09.2017 and since the last date of admission was 31.08.2017 instructions/ directions were required on the issue of granting the permission for admission. The Respondent No.4 had also annexed a letter dated 06.09.2017 issued by her Advocate to the Registrar of the Apex Court seeking for urgent hearing for immediate urgent orders.
46. The Apex Court examined the Writ Petition on 11.09.2017.The Order dated 11.09.2017 of the Apex Court reads thus:-
"Mr. Maninder Singh, learned Additional Solicitor General appearing for the respondents-Union of India, states that the petitioner may be allowed to join the MBBS course for the academic year 2017-18 in the Government Medical College, Haldwani, Uttarakhand, within three days from today.
We order accordingly.
Hence, the writ petition is disposed of in the above terms."
47. It is evident that after being allotted the last Central Pool seat by the Respondent No.2 on 31.08.2017 i.e. the last date specified for admission by the Medical Council of India the Respondent No.4 had sought extension of time from the Apex Court which had been granted on the submission made on behalf of the Respondent No.1. Judicial propriety demands that this Court shall not delve into examining any issue which may undermine the authority of the Apex Court. In such circumstances, this Court shall refrain from examining the merit of the WP(C) No.53 of 2017 29 (Miss Deepa Chettri & Ors v. State of Sikkim & Ors.) contentions of the Petitioners challenging the allotment of the last Central Pool seat to the Respondent No.4. Although it must be noted that at the hearing when the learned Counsel for the State Respondent was asked as to whether if the reservation policy of the Respondent No.2 read with the guidelines issued by the Respondent No.2 and the roster were to be applied the Respondent No.4 would be entitled to the allotment of the 4th Central Pool seat it was candidly replied that it would entitle the Petitioner No.2 and not the Respondent No.4. The Respondent No.2 would justify this act by stating that on the date of the first counselling since the Central guidelines had not been issued to the Respondent No.2 by the Respondent No.1 the Respondent No.2 had applied the guidelines of 2016-17 in which it was provided that a distinct reservation of 15% for SC category would be reserved from 22½ % of the seats allotted to each State. A perusal of the contemporaneous documents i.e. the file containing the note sheets dated 17.07.2017 allocating 21 seats in the first counselling held on 13.07.2017, however, does not reflect so. In fact the said file contains only the guidelines for selection and nomination of candidates against Central Pool MBBS/BDS seats for the Academic year 2017-18.
48. However, in the peculiar facts of the present case this Judgment shall not preclude the Petitioner No.2 to seek his remedy in accordance with law. In view of the aforesaid circumstances, this Court is of the view that no direction could be issued to the Respondent No.2 and 3 to cancel the allotment of one MBBS seat to the Respondent No.4 and to allocate the same to the Petitioner No.2 for, that would be in derogation of the order passed by the Apex Court.
49. The Apex Court has consistently held and stressed on the merit in matters of admissions as meritorious student ought not to face any impediment to get admission for some fault on the part of the WP(C) No.53 of 2017 30 (Miss Deepa Chettri & Ors v. State of Sikkim & Ors.) Institution or the persons involved with it. The Respondent No.2 and 3 have failed in their constitutional duties to ensure merit in the matters of admission to the MBBS courses although it is quite evident that there are only few seats available for the medical aspirants of Sikkim. In fact the record suggest that the counselling sessions conducted by the Respondent No.2 and 3 instead of helping the meritorious candidates to secure their legitimate allotments have ensured that those meritorious student i.e. the Petitioners were deprived of their legitimate allotments. The very word counselling suggests professional assistance and guidance by experts. There is but one medical College in Sikkim. The records reveal that the Respondent No.1 had provided 6 Central Pool MBBS seats in the year 2009, 8 Central Pool MBBS seats in the year 2010, 8 Central Pool MBBS seats in the year 2011, 7 Central Pool MBBS seats in the year 2012, 6 Central Pool MBBS seats from the year 2013 till year 2016. Viewed in these facts the plea of anticipation by the Respondent No.2 for being allotted at least 6 Central Pool MBBS seats thus does not seems improbable. The Respondent No.1 in spite of notice has failed to provide any factual details or data as to why the allocation for the year 2017 was restricted to 4 seats only save stating by way of written submission that the Central Pool MBBS seats are dependent on the contribution of the different States and therefore always subject to fluctuations. However, even if the Respondent No.2 and 3 had good reason to anticipate at least 6 Central Pool seats it had no right to allocate them before the seat was actually allotted to the Respondent No.2.In view of the aforesaid to protect the student community aspiring for medical admissions, this Court is of the view that a direction may be appropriate to the Respondent No.2 to henceforth not allocate seats in anticipation. By doing so the Respondent No.2 has directly harmed the medical professional career of the Petitioners who are both found to be WP(C) No.53 of 2017 31 (Miss Deepa Chettri & Ors v. State of Sikkim & Ors.) meritorious. In a welfare State the Respondent No.1 as the Centre and the Respondent No.2 as the State must play a key role in ensuring that the most meritorious students are not deprived of their legitimate rights to professional education. Their merits demands that they be given preference. The Respondent No.1 and 2 have a constituted duty for ensuring this which would directly help in nation building. Before devising any method for allotment the Respondent No.3 ought to have considered whether such a method devised would ensure fair-play. Our Constitution guarantees rights to equality. The Respondent No.1 and 2 must, therefore, devise fair, equal, accurate and perfect method to ensure that the allotments of MBBS seats are done not only on time but also equitably and in the manner contemplated by the laws guided by its policies. Although by the failure of the Petitioners to seek proper remedy and on time they would not fall in the category of „exceptional cases‟ and entitled to a Writ for admission beyond the time schedule prescribed, the failure of the Respondent No.2 to protect the constitutional mandate and the resultant harm to the academic career of the Petitioners cannot be ignored. The Respondent No.2 shall thus, pay compensation to the Petitioners equivalent to the amount of medical fees payable by them for admission into the MBBS seats to which the Petitioners would have been entitled to as the first candidate in their respective categories had the Respondent No.2 not devised the method to allocate Central Pool MBBS seats in anticipation within a period of two weeks from the date of this Judgment.
50. The Writ Petition is disposed of in the above terms. WP(C) No.53 of 2017 32
(Miss Deepa Chettri & Ors v. State of Sikkim & Ors.)
51. No orders as to cost. All Interlocutory applications shall stand disposed of accordingly. Urgent photostat certified copy of this Judgment, if applied for, be furnished to the parties expeditiously.
(Bhaskar Raj Pradhan) Judge 18-12-2017 Approved for reporting: yes.
Avi/ Internet: yes.