Calcutta High Court (Appellete Side)
Merajul Hoque vs The State Of West Bengal & Ors on 21 September, 2017
Author: Arijit Banerjee
Bench: Arijit Banerjee
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
AST 277 of 2017
Merajul Hoque
-Vs.-
The State of West Bengal & Ors.
AST 278 of 2017
Tabinda Nasim
-Vs.-
The State of West Bengal & Ors.
AST 279 of 2017
Riti Baidya
-Vs.-
The State of West Bengal & Ors.
AST 280 of 2017
Swarnava Paul
-Vs.-
The State of West Bengal & Ors.
Coram : The Hon'ble Justice Arijit Banerjee
For the petitioner : Mr. Joydip Kar, Sr. Adv.
(In AST 277 of 2017) Mr. S. Banerjee, Adv.
Mr. Chayan Gupta, Adv.
Mr. A. Santra, Adv.
For the petitioner : Mr. L. K. Gupta, Sr. Adv.
(In AST 278 of 2017) Mr. S. Banerjee, Adv.
Mr. C. Gupta, Adv.
Mr. A. Samanta, Adv.
For the petitioner : Mr. S. Banerjee, Adv.
(In AST 279 of 2010 & : Mr. S. Banerjee
In AST 280 of 2017) Mr. Chayan Gupta, Adv.
Mr. A. Santra, Adv.
For the State : Mr. Susanta Pal, Adv.
(In AST 277 of 2017) Mr. Prabir Kumar Ray, Adv.
For the State : Mr. Arjun Kumar Mukherjee, Adv.
(In AST 278 of 2017) Mr. Jaydeep Acharya, Adv.
For the State : Mr. Himadri Sekhar Chakraboty, Adv.
(In AST 279 of 2017) Mr. Moloy Roy, Adv.
For the State : Mr. Susanta Pal, Adv.
(In AST 280 of 2017) Mr. Ananda Dulal Sarkar, Adv.
For the MCI : Mr. S. Bhattacharyya, Adv.
For the WBUHS : Mr. Supratic Roy, Adv.
Mr. D. N. Maity, Adv.
Heard On : 08.09.2017, 12.09.2017, 14.09.2017
Judgment On : 21.09.2017
Arijit Banerjee, J.:-
(1) All the four writ petitions involve the same question of facts and law.
Accordingly, they were all taken up together for hearing and disposal. However, for
the sake of convenience in this judgment I will refer to the records of AST 278 of
2017.
(2) The case of the petitioner is that she passed the National Eligibility-cum-
Entrance Test (under graduate)-2017 (in short 'NEET') with 93.485187 percentile
score having all India rank of 70725. She participated in all rounds of counseling
conducted by the respondent no. 2. However, even after verification, she was not
allotted any seat in any medical college. After attending the final manual round of counseling on 26 August, 2017, she came to know that seats are still lying vacant in several medical colleges of West Bengal. She contacted the respondent authorities for allotting one of the vacant seats to her, but in vain. She moved a writ petition in this Court being AST No. 264 of 2017 which was disposed of by this Court by directing the respondent no. 2 to consider the petitioner's prayer and if seats were vacant and the petitioner is otherwise eligible for admission to the MBBS course going by the merit list, to issue necessary directions for admission of the petitioner on the MBBS course. The petitioner contacted the authorities with the aforesaid order who initially said that they were looking into the matter but finally told her on 31 August, 2017 that she could not be allotted any seat in any medical college even if seats were vacant. The petitioner contends that the cut-off date for admission was 31 August, 2017 and the petitioner approached this Court and the authorities prior thereto. It was the duty of the authorities to fill up all the seats. The authorities have acted in breach of law and arbitrarily.
(3) Mr. L.K. Gupta, learned Sr. Adv. and Mr. Joydip Kar, learned Sr. Adv. appearing for the petitioners relied on several decisions of the Hon'ble Apex Court and the High Courts in support of their submission that it is the duty of the respondent authorities to fill up all seats and a candidate can be given admission even after the cut-off date if he/she was wrongly deprived of a seat earlier. Mr. Gupta, learned Sr. Counsel relied on the following authorities:
(i) Parmender Kumar-vs.-State of Haryana, (2012) 1 SCC 177. Learned Sr. Counsel relied on paragraph 32 of the decision which reads as follows;-
"32. We, accordingly, have no hesitation in allowing the appeals and setting aside the judgment and order of the Division Bench of the Punjab and Haryana High court. However, we appear to be facing the same problem, as was faced by this Court in Vinay Rampal case. The counseling process in these appeals was to be conducted on 06.04.2011 and the academic session was to commence on 10.05.2011. In other words, the appellants have already lost about six months of the courses in question. As was observed in Vinay Rampal case, the sands of time had run out which is inevitable in judicial process. Following the same reasoning, as was adopted in the aforesaid case, we direct that the appellants shall be admitted in the postgraduate or diploma courses, for which they have been selected, for the new academic year without any further test or selection."
(ii) Asha-vs.-Pt. B. D. Sharma University of Health Sciences, (2012) 7 SCC
389. Reliance was placed on paragraphs 29, 30, 32 and 38.2 of the said judgment which read as follows:-
"29. However, the question that immediately follows is whether any mid-term admission can be granted after 30th September of the academic year concerned, that being the last date for admission. The respondents before us have argued with some vehemence that it will amount to a mid-term admission which is impermissible, will result in indiscipline and will cause prejudice to other candidates. Reliance has been placed upon the judgments of this Court in Medical Council of India-vs.-Madhu Singh, (2002) 7 SCC 258, Neelu Arora-vs.-Union of India, (2003) 3 SCC 366, Aman Deep Jaswal-vs.-State of Punjab, (2006) 9 SCC 597, Medical Council of India-vs.-Naina Verma, (2005) 12 SCC 626, Mridul Dhar-vs.-Union of India, (2005) 2 SCC 65.
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.
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.
38.2 Question (b): 30th September is undoubtedly the last date by which the admitted students should report to their respective colleges without fail. In the normal course, the admissions must close by holding of second counseling by 15th September of the relevant academic year [in terms of the decision of this Court in Priya Gupta-vs.-State of Chhattisgarh, (2012) 7 SCC 433]. Thereafter, only in very rare and exceptional cases of unequivocal discrimination or arbitrariness or pressing emergency, admission may be permissible but such power may preferably be exercised by the Courts. Further, it will be in the rarest of rare cases and where the ends of justice would be subverted or the process of law would stand frustrated that the courts would exercise their extraordinary jurisdiction of admitting candidates to the courses after the deadline of 30th September of the current academic year. This, however, can only be done if the conditions stated by this Court in Priya Gupta and this judgment are found to be unexceptionally satisfied and the reasons therefore are recorded by the court of competent jurisdiction."
Mr. Gupta, Learned Sr. Counsel also relied on the observation of the Apex Court in paragraph 40.4 to the effect that there are a number of petitions filed in the High Courts of the country challenging the admissions on varied grounds and also praying for grant of admission on merit to the respective professional courses of MBBS/BDS and career of the meritorious youth is at stake. These are matters relating to adherence to the rule of merit and when its breach is complained of, the judiciary may be expected to deal with the said grievances preferentially and effectively.
(iii) Manoj Kumar Dhaka-vs.-Union of India, (2013) 133 DRJ 473. Reliance was placed on paragraphs 19 and 20 of the Division Bench judgment of the Delhi High Court which read as follows:-
"19. These Super Specialty Courses are not classroom courses, though 80% attendance is informed to have been prescribed. The loss of three months in gaining hands on practical experience, we are sure, can always be compensated by extra hours put in by the candidate. It cannot be lost sight of that the appellant approached this Court without any delay and the writ petition was drafted on 5th July, 2012 itself and filed immediately thereafter, i.e. well before the last date prescribed for admission. Unfortunately the correct facts came to be revealed only through recording of the statement of the Registrar of PGIMER by the learned Single Judge. Had the view, as we have taken, been taken immediately, the appellant would have been admitted well within the prescribed time.
20. We are further of the opinion that the decision of the GGSIPU to reject the request of PGIMER for the four seats in terms of amended Regulation 12(4) was wrong. Though PGIMER did not pursue the case but it cannot be lost sight of that it is a Government Institute with none being personally interested and it is ultimately the students who are the beneficiary of the courses which are being imparted and in our view they would have a cause of action against the wrongful denial/reduction of seats."
(4) Mr. Joydip Kar, Learned Senior Counsel relied on an order dated 18 January, 2016 passed by the Hon'ble Apex Court in IA No. 7 and 8 in Writ Petition (Civil) No. 76 of 2015 (Ashish Ranjan & Ors.-vs.-Union of India & Ors.), wherein the Apex Court approved the time schedule for completion of the admission process for the first MBBS Course. According to the time schedule the last date up to which students could be admitted against vacancies arising due to any reason was 31 August.
(5) Mr. Kar also relied on an order dated 9 May, 2017 passed by the Hon'ble Apex Court in Writ Petition (Civil) No. 267 of 2017 (Dar-Us-Slam Educational Trust and ors.-vs.-Medical Council of India and ors.). In particular learned Sr. Counsel relied on paragraph 7 of the said order which reads as follows:-
"7. In order to ascertain the number of seats that still remain vacant after the counseling the State Government or the authority designated by the State Government shall conduct manual counseling for allotment of students. After the completion counseling, the State Government shall determine the number of seats that are still vacant and thereafter shall forward a list of students in order of merit, equaling to ten times the number of vacant seats to the medical college so that in case of any stray vacancy arising in any college the said seat may be filled up from the said list."
Learned Counsel submitted that the procedure delineated in the aforesaid order was not followed by the respondent authorities.
(6) Learned Counsel for the petitioners also referred to a decision of a learned Single Judge of this Court in the case of Dr. Samar Kumar Barai-vs.-State of West Bengal, (2013) 2 CLJ (Cal) 245. However, the said judgment and order was set aside on appeal by the Hon'ble Division Bench by a judgment and order dated 18 July, 2013 passed in MAT No. 561 of 2013 (Medical Council of India-vs.-Dr. Sukarna Mukherjee & Ors.), as pointed out by Mr. Bhattacharyya, learned Counsel for the Medical Counsel of India. Mr. Bhattacharyya further apprised this Court that the Special Leave Petition preferred against the judgment and order of the Hon'ble Division Bench was dismissed by the Hon'ble Apex Court. (7) Appearing for the Medical Council of India (in short 'MCI'), Mr. S. Bhattacharyya, learned Counsel referred to Regulation 7(6)(6) of the Medical Council of India Regulation on Graduate Medical Education, 1997 which provides that universities shall organize admission timings and admission process in such a way that teaching in first semester starts by first of August each year. (8) Mr. Bhattracharyya then referred to the Hon'ble Apex Court's decision in Medical Council of India-vs.-Madhu Singh & Ors., AIR 2002 SC 3230, and in particular learned Counsel relied on paragraph 24 of the judgment which reads as follows:-
"24. There is, however, a necessity for specifically providing the time schedule for the course and fixing the period during which admissions can take place, making it clear that no admission can be granted after the scheduled date, which essentially should be the date for commencement of the course.
In conclusion:
(i) There is no scope for admitting students mid-term as that would be against very spirit of statutes governing the medical education;
(ii) Even if, seats are unfilled that cannot be a ground for making mid session admissions;
(iii) There cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year;
(iv) The MCI shall ensure that the examining bodies fix a time schedule specifying the duration of this course, the date of commencement of the course and the last date for admission;
(v) Different modalities for admission can be worked out and necessary steps like holding of examination if prescribed, counseling and the like have to be completed within the specified time;
(vi) No variation of the schedule so far as admissions are concerned shall be allowed;
(vii) In case of any deviation by the concerned institution, action as prescribed shall be taken by the MCI."
(9) Mr. Bhattacharyya then referred to the Hon'ble Apex Court's decision in Mridul Dhar-vs.-Union of India, (2005) 2 SCC 65. In the said judgment at paragraph 31, the Hon'ble Apex Court noted the time schedule for post- graduate and super-specialty medical course admissions. Thereafter, in paragraphs 32 and 35 of the judgment, the Apex Court observed as follows:-
"32. Having regard to the professional courses, it deserves to be emphasized that all concerned including Governments, State and Central both, MCI/DCI, college - new or old, students, Boards, universities, examining authorities, etc. are required to strictly adhere to the time schedule wherever provided for; there should not be midstream admissions; admissions should not be in excess of sanctioned intake capacity or in excess of quota of anyone, whether State or management. The carrying forward of any unfilled seats of one academic year to next academic year is also not permissible.
35. Having regard to the aforesaid, we issue the following directions:-
1. All participating States and Union Territories' Board of Secondary Education shall declare 10 + 2 result by 10th June of every year and make available the mark sheet to the students by 15th June.
The aforesaid condition would not apply to West Bengal for the year 2005. As already noticed, the West Bengal would make available to the concerned students the mark sheets by 15th June, 2005.
Heads of Boards would be personally liable to ensure compliance.
2. The time table mentioned in Notification dated 25th February, 2004 shall be strictly adhered to by all concerned including States and Union Territories and results of State Medical/Dental Entrance Examination shall be declared before 15th of June.
3. The States/Union Territories shall complete the admission process of first round of State Level Medical/Dental College admission by 25th July i.e. a week before start of second round counselling or allotment of seats under All India Quota. The correct vacancy position shall be intimated by the Chief Secretary to the DGHS by 26th July. It shall be verified by the Head of the Institution/or Head of the Medical Institution/Health Department in the State.
4. It shall be the responsibility of all concerned including Chief Secretaries of each State/Union Territories and/or Health Secretaries to ensure compliance of the directions of this Court and requisite time schedule as laid down in the Regulations and non- compliance would make them liable for requisite penal consequences.
5. All seats in All India Quota must be fully disclosed giving details of the date of recognition/renewal to DGHS before a date to be notified by DGHS and the same shall be duly published.
6. By 31st October, the State through Chief Secretaries/Health Secretaries shall file a report in regard to admissions with the DGHS giving details about the adherence to a time schedule and admission granted as per the prescribed quota. The recalcitrant States, particularly officers personally will have to face consequences for violation.
7. The DGHS shall file by 31st January, 2005 report in regard to feasibility of conducting counselling through the process of video conferencing.
8. The DGHS shall file report within three months on the aspect of Section 10-A seats being subjected to 15 per cent All India Quota and about the increase of the quota from 15 per cent to 20 per cent.
9. The DGHS shall also file a report within three months on the aspect of constitution of high-power Committee/Ombudsman.
10. The seats allotted up to 15th July, shall also be subjected to respective State Quotas.
11. If any private medical college in a given academic year for any reason grants admission in its management quota in excess of its prescribed quota, the management quota for the next academic year shall stand reduced so as to set off the effect of excess admission in the management quota in the previous academic year.
12. The time schedule for grant of admission to postgraduate courses shall also be adhered to.
13. For granting admission, the merit determined by competitive examination shall not be tinkered with by making a provision like grant of marks by mode of interview or any other mode.
14. Time schedule for establishment of new college or to increase intake in existing college, shall be adhered to strictly by all concerned.
15. Time schedule provided in Regulations shall be strictly adhered to by all concerned failing which defaulting party would be liable to be personally proceeded with.
16. Copy of the judgment shall be sent to Chief Secretaries of all States/Union Territories for compliance"
(9) The next decision referred to by learned Counsel for MCI is the one in Priya Gupta-vs.-State of Chhattisgarh, AIR 2012 SC 2413. Reliance was placed particularly on paragraph 30 and part of paragraph 53 which read as follows:-
"30. Thus, the need of the hour is that binding dicta be prescribed and statutory regulations be enforced, so that all concerned are mandatorily required to implement the time schedule in its true spirit and substance. It is difficult and not even advisable to keep some windows open to meet a particular situation of exception, as it may pose impediments to the smooth implementation of laws and defeat the very object of the scheme. These schedules have been prescribed upon serious consideration by all concerned. They are to be applied strictosensu and cannot be moulded to suit the convenience of some economic or other interest of any institution, especially, in a manner that is bound to result in compromise of the above stated principles. Keeping in view the contemptuous conduct of the relevant stakeholders, their cannonade on the rule of merit compels us to state, with precision and esemplastically, the action that is necessary to ameliorate the process of selection. Thus, we issue the following directions in rem for their strict compliance, without demur and default, by all concerned.
53.3. For the reasons afore-stated, if their admissions are cancelled, there being no claimants for these seats, the seats will go waste and the entire expenditure incurred by the State would also be wasted. After so many years, it would be an exercise in futility to cancel their admissions, which, but for the interim orders, could be avoided. An undue advantage from the interim orders has accrued in favour of the appellants.
With all the humility at our command, we request the High Courts to ensure strict adherence to the prescribed time schedule, process of selection and to the rule of merit.
We reiterate what has been stated by this Court earlier, that except in very exceptional cases, the High Court may consider it appropriate to decline interim orders and hear the main petitions finally, subject to convenience of the Court. We may refer the dictum of this Court in the case of Medical Council of India v. Rajiv Gandhi University of Health Sciences [(2004) 6 SCC 76, para 14] in this regard.
4. We have categorically returned a finding that all the relevant stakeholders have failed to perform their duty/obligation in accordance with law. Where the time schedules have not been complied with, and rule of merit has been defeated, there nepotism and manipulation have prevailed. The stands of various authorities are at variance with each other and none admits to fault. Thus, it is imperative for this Court to ensure proper implementation of judgments of this Court and the regulations of the Medical Council of India as well as not to overlook the arbitrary and colourable exercise of power by the concerned authorities/colleges."
(10) Learned Counsel then referred to the Hon'ble Apex Court's decision in Faiza Choudhary-vs.-State of Jammu and Kashmir, AIR 2013 SC 1115. He relied on paragraph 12 of the judgment which reads as follows:-
"12. A medical seat has life only in the year it falls that too only till the cut-off date fixed by this Court i.e. 30th September of the respective year. Carry forward principle is unknown to the professional courses like medical, engineering, dental etc. No rule or regulation has been brought to our knowledge conferring power on the Board to carry forward a vacant seat to a succeeding year. If the Board or the Court indulges in such an exercise, in the absence of any rule or regulation, that will be at the expense of other meritorious candidates waiting for admission in the succeeding years."
(11) Mr. Bhattacharyya also relied on a decision of the Hon'ble Apex Court in the case of Royal Medical Trust (Registered)-vs.-Union of India, (2015) 10 SCC 19, and in particular referred to paragraph 33 of the said decision which reads as follows:-
"33 The cases in hand show that the Central Government did not choose to extend the time limits in the Schedule despite being empowered by Note below the Schedule. Though the Central Government apparently felt constrained by the directions in Priya Gupta it did exercise that power in favour of Government Medical Colleges. The decision of this Court in Priya Gupta undoubtedly directed that Schedule to the Regulations must be strictly and scrupulously observed. However, subsequent to that decision, the Regulations stood amended, incorporating a Note empowering the Central Government to modify the stages and time limits in the Schedule to the Regulations. The effect of similar such empowerment and consequential exercise of power as expected from the Central Government has been considered by this Court in Priyadarshini. The Central Government is thus statutorily empowered to modify the Schedule in respect of class or category of applicants, for reasons to be recorded in writing. Because of subsequent amendment and incorporation of the Note as aforesaid, the matter is now required to be seen in the light of and in accord with Priyadarshini where similar Note in pari materia Regulations was considered by this Court. We therefore hold that the directions in Priya Gupta must now be understood in the light of such statutory empowerment and we declare that it is open to the Central Government, in terms of the Note, to extend or modify the time limits in the Schedule to the Regulations. However the dead line namely 30th of September for making admissions to the first MBBS course as laid down by this Court in Madhu Singh and Mridul Dhar must always be observed."
(12) Mr. Bhattacharyya submitted that every year applications are filled before the Hon'ble Apex Court for extension of time for admission to the MBBS Course. This year also such applications were filed. On such an application filed by one Akshita Singh, the Hon'ble Apex Court has passed an order dated 28 August, 2017 giving the following directions:
"(a) This time Mop up round counseling is extended till 7.9.2017.
(b) This extension shall only be applicable to the deemed universities and none else.
(c) Any application by any other college or institution seeking extension shall be not be entertained.
(d) The competent authority, i.e., Director General of Health Services shall put up the list on the website and send it by e-
mail to each of the deemed university by 8.00 p.m. today itself.
(e) The candidate whose names shall feature in the list should be NEET qualification
(f) The ratio shall remain at 1:10.
At this juncture, it is urged on behalf of the deemed universities that if need be and in order to maintain the ration of 1:10, in case of deficit in the list meant for deemed universities, the names from the larger NEET list may be provided. As long as for the seats which have fallen vacant, the ratio is maintained at 1:10, we do not perceive any difficulty. If 1:10 ratio is not sufficient, the Director General of Health Services is granted liberty to get into the larger NEET list. We order accordingly.
It is made clear that no extension shall be granted." (13) On the basis of the above referred judgments and orders, Mr. Bhattacharyya submitted that even if seats are lying vacant, it is not possible for the authorities to grant admission to the petitioner or anybody else on the MBBS course beyond 31 August, 2017. The only remedy that the petitioner has is to approach the Hon'ble Apex Court and only the Apex Court can extend the time period. He further submitted that if today the petitioners are given a chance to participate in counselling then the authorities will have to issue public notice as otherwise the other candidates higher on the ranking list than the petitioners will be left out. This will lead to a complete chaos. A third round of counselling will be necessary even after the Mop-up round. The entire process will be unsettled.
(14) Appearing for the State Mr. Arjun Roy Mukherjee referred to the notice dated 10 July, 2017 issued by the Department of Health and Family Welfare, Government of West Bengal (page 11 of the State's A/O) according to which the date for admission out of manual counseling to colleges was 28 August, 2017, the date for handover of vacant seats and non-allotted candidate list to colleges for filling vacancy arising due to any reason was 29 August, 2017 and the last date for counseling was on 31 August, 2017. He further referred to a notice dated 25 August, 2017 (Annexure B to State's A/O) issued by the Directorate of Medical Education, Government of West Bengal, wherein it is stated, inter alia, as follows:-
"No admission is possible after 4 pm of 29.08.2017 as per server time. The vacant seats after 4 pm of 29.08.2017 will be transferred to the respective colleges with non-allotted candidate list for filling up any stray vacancy by the college themselves in pursuance to the Hon'ble Apex Court order. This excludes the Dental seats for which a second manual will be undertaken in pursuance to the schedule published by MCC of DGHS, Government of India in their counseling website www.mcc.nic.in"
(15) Learned Counsel for the State submitted that there are 14 vacancies as per particulars mentioned at page 10 of its A/O. As per the West Bengal merit list, the petitioner's rank is 70725. There are 1171 candidates above her. As per the Hon'ble Apex Court's directions the authorities can invite 140 candidates in 1:10 ratio. Hence, the petitioner has no right at all. (16) Learned Counsel for the University submitted that there is no merit in the petitioner's allegation that candidates with lower NEET rank than the petitioner have been granted admission in supersession of the petitioner. The cases where candidates with lower NEET rank have been admitted on the MBBS course were all special cases e.g. the candidate was 'ward of insured' or Scheduled Caste candidate. Even assuming that some candidates were wrongly admitted, the same cannot create a right in favour of the petitioner. At best, the admission of such candidates may be cancelled. But the petitioner has no positive right to be admitted on the course. Article 14 of the Constitution does not contemplate a negative right.
(17) In reply, Mr. L.K. Gupta, learned Sr. Counsel submitted that the respondents cannot urge that the petitioners have been late in approaching the court. In Ashish Ranjan's (supra) case as per the time schedule prescribed, counseling had to be completed on 30 July but was in fact completed only on 28 August. The time schedule was not followed by the authorities themselves. Further, the deadline would not apply if there is fault on the part of the authorities and there is no fault on the part of the candidate. (18) Mr. Gupta further submitted that none of the 1171 candidates who are ranked higher than the petitioner have approached the Court. Hence, their case should not be considered and the petitioner should be granted relief. In this connection, learned Counsel relied on a decision of the Hon'ble Apex Court in the case of Sri Ashok alias Somanna Gowda-vs.-State of Karnataka, AIR 1992 SC 80. Learned Counsel relied on the following observation of the Hon'ble Apex Court:
".......In view of the fact that appointments under the impugned Rules were made as back as in 1987 and only the present appellants had approached the Tribunal for relief, the case of other candidates cannot be considered as they never approached for redress within the reasonable time. We are, thus, inclined to grant relief only to the present appellants who were vigilant in making grievance and approaching the Tribunal in time................."
(19) Mr. Kar in reply submitted that the petitioners are not seeking extension of time for admission on the MBBS course. It is the State's responsibility to fill up all vacant posts. The petitioners expected the State to act in terms of the regulations and the Apex Court's directions. The State has failed to do so. Hence, the petitioners were constrained to approach this Court. This is a court of equity and relief may be moulded properly by this Court. (20) I have considered the rival contentions of the parties (21) The short contention of the petitioners is that there are vacancies in 14 seats on the MBBS course for the session 2017-18. It is the duty of the respondent authorities to fill up such vacancies. It was the further duty of the respondents to advertise such vacancies which they have failed to do. The petitioners as successful participants in NEET, should be granted admission in the medical colleges in West Bengal where there are vacant seats. For that purpose, admission can also be granted beyond the stipulated last date for admission since the authorities have not complied with the prescribed procedure.
(22) Learned Counsel for the MCI has contended that the MCI Regulations stipulate the procedure for admission to the MBBS course must be strictly adhered to. This is also the mandate of the Hon'ble Apex Court. (23) The Hon'ble Apex Court in the case of Ashish Ranjan (supra) directed that the MCI Regulations, 1997 pertaining to Graduate Medical Education, Appendix E would be replaced as per the time schedule for completion of the admission process for first MBBS course as directed by the Hon'ble Apex Court. The effect of such order of the Hon'ble Apex Court is that the last date up to which students can be admitted against vacancies arising due to any reason is 31 August.
(24) In the case of Priya Gupta (supra), the Apex Court issued certain directions which have been extracted above. In view of the directions in the case of Ashish Ranjan (supra), the last date for joining the course has to be read as 31 August instead of 31 September. In the case of Priya Gupta (supra) the Apex Court observed that it is imperative to ensure proper implementation of the Regulations of the Medical Council of India. The Regulations of the MCI as amended, stipulate the last date of admission as 31 August.
(25) In MCI-vs.-Madhu Singh (supra), the Apex Court observed that if any student is admitted after the commencement of the course, it would be against the intended objects of fixing the time schedule. The Apex Court categorically held that there is no scope for admitting students mid-stream as that would be against the very spirit of statutes governing the medical education. Even if seats are unfilled, that cannot be a ground for allowing mid-session admission. The Apex Court further held that there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year. (26) In the case of Mridul Dhar (supra) also the Hon'ble Apex Court observed that having regard to the professional courses, all concerned, including Governments, State and Centre both, MCI/DCI-Colleges, Boards, Universities, and Examining Authorities etc. are required to strictly adhere to the time schedule wherever provided for; there should not be mid-stream admissions. It was also observed that carrying forward of any unfilled seats of one academic year to next academic year is also not permissible. This opinion has also been expressed by the Apex Court in the case of Faiza Choudhary (supra).
(27) The fulcrum of the petitioners' argument is the case of Asha (supra). In that case, the Apex Court had intervened because it came to the conclusion that the rule of merit stood completely defeated. The Apex Court held that the appellant in that case was not at fault and she had pursued her rights and remedies as expeditiously as possible and hence, the cut-off date could not be used as a technical instrument or tool to deny admission to meritorious students. Further, in that case it was established that candidates having merit much lesser than the appellant had been given admission in MBBS course. In that view of the matter, the Apex Court made the observations extracted above.
The case of Asha (supra) does not help the petitioner in this case. The ranks that the petitioners have obtained in the NEET examination do not bring them within the zone of consideration. An allegation has been made that candidates with lower ranks have been granted admission. But those are special cases of Scheduled Cast candidates or 'wards of insured'. Hence, the petitioners cannot have any legitimate grievance regarding the same. I agree with the submission of the learned Counsel for the respondents that even if some candidates have been wrongly given admission, the same cannot create a right in favour of the petitioners if they are otherwise not eligible for admission. The case of discrimination sought to be made out on behalf of the petitioners is not acceptable. Article 14 of the Constitution of India does not envisage a negative right. Unless the petitioners can establish that they are eligible for admission, just because some other candidates may have been wrongly granted admission, the same cannot be a ground for allowing the prayer of the petitioners.
(28) Even in the case of Parmender Kumar (supra), relied upon on behalf of the petitioners, in the facts of the case, the Hon'ble Apex Court held that the petitioners were entitled to be admitted on the concerned course. However, since the course had already started, the Apex Court directed that the petitioners should be admitted on the course for which they had been selected for the new academic year without any further test or selection. (29) In the case of Royal Medical Trust (Registered) (supra), the Apex Court observed that the deadline for making admissions to the MBBS course as laid down in the cases of Madhu Singh (supra) and Mridul Dhar (supra) must always be observed.
(30) Mr. Kar heavily relied on the observations of the Hon'ble Apex Court at paragraph 7 of the order dated 9 may, 2017 which has been extracted above. He submitted that the petitioners were waiting for publication of the number of vacant seats but the authorities never made such publication. The authorities are at fault. Even if Mr. Kar is right in his submission, I am unable to pass an order in favour of the petitioners. This is for the reason that in a subsequent order of the Apex Court dated 28 August, 2017, which has been set out hereinabove, it was stipulated that the time for Mop-up round counselling was extended till 7 September, 2017. It was further categorically observed that no extension shall be granted. In that view of the matter, whatever my views be, I am unable to pass any order in favour of the petitioners. (31) In the Division Bench judgment of this Court in the case of Medical Council of India-vs.-Dr. Sukarna Mukherjee (supra), all the cases referred to above were considered. The Division Bench referred to the Hon'ble Apex Court's decision in State of Bihar-vs.-Dr. Sanjay Kumar Sinha, AIR 1990 SC 749, wherein it was observed that the Regulation issued by the Medical Council of India must be strictly followed. It was further observed that mid- stream admissions should not be permitted and the practice of compassion in review of such admission even just 'four months after beginning of the classes' cannot be permitted. The adverse consequences of non-adherence to the prescribed schedule were noted and it was laid down that there is no power with the authorities to violate the schedule. It was declared that none of the authorities are vested with the power of relaxing, varying or disturbing the time schedule or the procedure of admission as provided in the judgments of the Hon'ble Apex Court and the MCI Regulations. Regarding the case of Asha (supra) which has been the strongest pillar of the petitioners' argument, the Hon'ble Division Bench observed that in the case of Asha (supra) the Apex Court considered the case of discrimination and not the case of extension of time limit. In case of such discrimination and unjust denial of admission obviously the equities are to be adjusted by the Court by issuing proper direction.
(32) In the facts of the present case, the petitioners have not established that they have been discriminated against. They have not been able to establish that candidates who obtained lower ranks than the petitioners and were not entitled to get admission, have been granted admission. A bald allegation was made by the petitioners to that effect. Such allegation has been sufficiently refuted by the respondents. Candidates with lower ranks were granted admission because of other permissible considerations e.g. because they were 'wards of insured; or Scheduled Caste candidates.
(33) As has been observed by the Apex Court in the case of Madhu Singh (supra), seats remaining vacant, cannot be a ground for relaxing the time schedule for admission stipulated by the MCI or the Hon'ble Apex Court. Further, the Apex Court also observed that a third round of counseling is not permissible. Two rounds of counseling have already taken place in respect of admission to the MBBS course for the session 2017-18. Allowing the petitioners' prayer would compel the respondents to conduct a third round of counseling. I cannot pass an order which will be contrary to the observations/directions of the Hon'ble Apex Court. Judicial indiscipline must be avoided at all costs.
(34) I am afraid, I am unable to pass any order on these writ applications. I need not grant any liberty to the petitioners to approach the Hon'ble Apex Court for the relief they are praying for in these applications as they always have that liberty.
(35) In view of the aforesaid, all the four writ petitions fail and are dismissed, without, however, any order as to costs.
(36) AST No. 277 of 2017, AST No. 278 of 2017, AST No. 279 of 2017 and AST No. 280 of 2017 are accordingly disposed of.
(37) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.
(Arijit Banerjee, J.)