Calcutta High Court (Appellete Side)
28.08.15 vs Sl-49 The West Bengal University Of ... on 28 August, 2015
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
1
CAN No.5569 of 2015
in
W. P. No.12165 (W) of 2015
Dr. Snehanshu Dholey
28.08.15 v.
SL-49 The West Bengal University of Health Sciences & Ors.
(S.R.)
Mr. Amal Baran Chatterjee
Mr. Sanjib Kumar Mukhopadhyay
Mr. Uttam Chakraborty ... for the petitioner.
Mr. Siddhartha Banerjee
Mr. D.N. Maiti ... for the University.
The instant writ application has been preferred
challenging a memorandum dated 6th June, 2015 issued
by the respondent no.3 and the impugned denial of the
respondents to allow the petitioner to join the course of Diploma in Child Health.
Mr. Chatterjee, learned senior counsel appearing for the petitioner submits that the petitioner participated in the West Bengal Postgraduate Medical Entrance Test, 2015 (hereinafter referred to as the said 'Examination') on 1st February, 2015 and emerged to be successful in the same and was ranked 477 in the Combined Category. Upon such empanelment, the petitioner submitted his online choice and in course of first counseling the petitioner was allotted a seat at IPGMER in the course of Diploma in Psychological Medicine course and the petitioner took admission in the same on 6th April, 2015. In course of second counseling the option of the petitioner was not upgraded. In the third round of counseling the petitioner was allotted a seat at Burdwan Medical College 2 to pursue the Diploma in Gynecology and Obstetrics course and he availed admission in the said college on 6th June, 2015.
He further submits that the petitioner was desirous of pursuing the course of Diploma in Child Health but on the basis of his merit after the third counseling he could not get a berth in the said course. Surprisingly thereafter, the respondent no.3 issued a memorandum dated 6th June, 2015 detailing, inter alia, that for the seats remaining vacant after the three rounds of counseling, a waiting list would be prepared from the registered candidates who were not allotted any seat in the said three rounds of counseling.
Drawing the attention of this Court to the averments made in paragraph 23 of the writ application, Mr. Chatterjee submits that after issuance of the memorandum dated 6th June, 2015, the petitioner was surprised to note from a vacancy list dated 9th June, 2015 that vacancies in Diploma in Child Health course are available in three seats respectively at Chittaranjan Seva Sadan Sishu College OBS, Child Health Institute of Calcutta and in the Ramkrishna Mission Seva Pratisthan, Vivekananda and counseling for the said vacancies was scheduled on 10th June, 2015. The seats opted by the petitioner in course of third counseling were being made available to the less meritorious candidates and all the 3 candidates in the said waiting list were less meritorious than the petitioner and thus, as the respondents were desirous of filling up the said vacant seats through the candidates in the said waiting list, the petitioner made a representation to the respondent no.3 protesting against such discrimination but the same was not attended to.
Prima facie, the contention of Mr. Chatterjee was found to be acceptable by this Court and accordingly, an interim order was passed directing the authorities to keep the seat in Diploma in Child Health course vacant in any of the hospitals/institutes at Chittaranjan Seva Sadan Sishu College OBS, Child Health Institute of Calcutta and in the Ramkrishna Mission Seva Pratisthan, Vivekananda.
Citing the provisions of the Medical Council of India Postgraduate Medical Education Regulations, 2000 and the Regulations for Admission to Post Graduate Degree and Diploma Courses in Modern Medicine, he argues that the process adopted by the University suffers from the vice of the discrimination in as much as by the said Mop up counseling a less meritorious candidate was being allotted a seat which was opted by the petitioner in course of third counseling.
He further submits that the order of the Hon'ble Supreme Court passed in the Writ Petition (Civil) No.76 of 2015 does not stand in the way towards allotment of a 4 seat to the petitioner in the Diploma of Child Health. The order passed by the Hon'ble Supreme Court has nowhere stated that merit can be compromised.
He argues that the judgment delivered in Writ Petition (Civil) No.76 of 2015 is distinguishable on facts and the said order does not, in any manner, curtail the petitioner's right to avail admission in the Diploma of Child Heath to which he is entitled on the basis of merit. In support of his arguments, Mr. Chatterjee has placed reliance upon the judgments delivered in the following matters :
a) Dr. A. Franklin Joseph v. State of T.N. & Ors., reported in (1994) 2 SCC 387.
b) Association of Management of Unaided Private Medical & Dental College v. Pravesh Niyantran Samiti & Ors., reported in (2005) 13 SCC 704.
Per contra Mr. Banerjee, learned advocate appearing for the University authorities submits that the Hon'ble Supreme Court had specifically detailed the schedule of the concerned examination and by no means the said schedule can be extended for accommodating the petitioner.
Drawing the attention of this Court to the averments made in paragraph 13 of the writ application, Mr. Banerjee submits that the seat pertaining to Diploma 5 course in Child Health in the Institute of Child Health, Kolkata was allotted to Dr. Neha Gupta whose combined rank in the merit list was 407. Dr. Sarnendu Bisawas, who secured 425 position in the combined merit list was allotted the seat pertaining to Diploma course in Child Health at the Ramkrishna Mission Seva Pratisthan and one Dr. Samaresh Dutta who had secured 350 position in the combined merit list was offered the seat pertaining to Diploma Course in Child Health in Chittaranjan Seva Sadan Sishu College. Since all the aforesaid three candidates were more meritorious than the writ petitioner and had secured higher position in the merit list, the writ petitioner could not be allotted any of the said seats either in accordance with the performance in the admission test or in accordance with the respective ranks obtained by the candidates in the merit list. The writ petitioner cannot accuse the respondents for having not strictly followed the combined merit list. Seats were allotted in all the rounds through merit-cum option basis.
He further submits that after the third round of counseling and admission, three seats in Diploma in Child Health fell vacant due to non-reporting of allotted candidates for the concerned seats and the same was sought to be filled up by a last phase of allotment and the same was not in fact a fourth round of counseling. On the basis of the Hon'ble Supreme Court's order, the seats 6 were required to be filled up from the waiting list candidates. As the candidate got the seat in third counseling, he was barred to exercise option as waiting list candidate. The candidate who was allotted the seat at Ram Krishna Mission Seva Pratisthan after the third round of counseling did not join and as a result the said seat could not be filled up, which stood revealed after 10th June, 2015.
He further contends that the allegation of the petitioner to the effect that the University authorities have practised discrimination amongst the candidates is absolutely unfounded in as much as merit inter se the candidates in the waiting list was strictly maintained. Having availed allotment and admission in the course of Diploma in Gynecology and Obstetrics at Burdwan Medical College, the petitioner cannot turn back and challenge the process pertaining to filling up of seats, which have remained vacant after the third round of counseling.
I have heard the learned advocates appearing for the respective parties and I have considered the materials on record.
The undisputed facts are that the vacancies pertaining to the course of Diploma in Child Health is existing in the Ramkrishna Mission Seva Pratisthan, Vivekananda (hereinafter referred to as the said 'institute') 7 and the said vacancy occasioned as the candidate who had opted for the same in course of third counselling did not ultimately join. The said vacancy was, accordingly, kept in waiting list for being filling up by the candidates, who could not avail any allotment in the course of the first three rounds of counseling and who are admittedly less meritorious than the petitioner.
The question is as to whether the petitioner can be debarred from availing an allotment in the said vacancy as he had already been allotted a particular seat in course of the prior rounds of counseling. In my opinion, as merit is the primary criterion towards allotment of seats such criterion cannot be diluted on a purported plea to the effect that the petitioner has already availed an allotment and admission. Adoption of any such course would be ex- facie discriminatory since in place and instead of the petitioner a less meritorious candidate would be getting the berth. Such an issue was not involved in the matter before the Hon'ble Supreme Court. The term 'waiting list' stands incorporated in the schedule after the second round of counseling and also in the last phase of allotment. The waiting list after the second round of counseling includes the candidates whose desired option for a post was not fulfilled during previous round of counseling though they were awarded seats on the basis of their respective ranking. But such procedure has been deviated from while preparing the waiting list after the 8 third round of counseling and thus the impugned restriction in the memorandum dated 6th June, 2015 towards non-incorporation of candidates, who were allotted seats in the previous rounds of counseling, is arbitrary and unsustainable in law. The respondents cannot apply different yardsticks towards preparation of waiting list in different rounds of counseling and such discrimination as practiced cannot be defended by altering the nomenclature of the fourth round of counseling as a last phase for allotment of seats. The objective behind maintenance of a time schedule is to prevent unnecessary extension of time which would ultimately affect the interest of the student at large. Moulding of time schedule for accommodating a candidate in a particular course on the basis of merit cannot be construed to be an extension or moulding of the time schedule to suit the convenience of some economic or other interest of any institution. The time frame fixed by the Court, in my opinion, is not intended to be inflexibly adhered to in a situation of this kind which this Court is seised of. In that view of the matter I am of the understanding that the directions to be issued in the facts of this case would not in any way be repugnant to be order of the Hon'ble Supreme Court as referred to by the respondents.
Admittedly, the interim order passed by this Court 9 was not appealed against by the respondents and in terms of the said interim order a seat has been kept vacant pertaining to the course of Diploma in Child Health at Ramkrishna Mission Seva Pratisthan, Vivekananda and that no third party right has been created in respect of the said vacancy and as such there exists no hurdle in accommodating the petitioner in the said vacancy.
Accordingly, the respondents are directed to admit the petitioner and to allow the petitioner to join the course of Diploma in Child Health at Ramkrishna Mission Seva Pratisthan, Vivekananda, upon compliance of other formalities, if any, within a period of two weeks from the date of communication of this order.
With the above observations and directions, the writ application is disposed of.
There shall be no order as to costs.
Urgent certified photocopy of this order, if applied for, be supplied as expeditiously as possible.
(Tapabrata Chakraborty, J.)