Delhi High Court - Orders
Jatin vs Guru Gobind Singh Indraprastha ... on 21 November, 2022
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~45
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 15772/2022
JATIN ..... Petitioner
Through: Mr. D.K. Sharma and Mr. S.K.
Vashisth, Advocates.
versus
GURU GOBIND SINGH INDRAPRASTHA
UNIVERSITY & ANR. ..... Respondents
Through: Ms. Anita Sahani, Advocate for R-1/
GGSIPU.
Mr. T. Singhdev, Mr. Abhijit
Chakravarty, Mr. Bhanu Gulati, Ms.
Michelle B. Das and Ms. Ramanpreet
Kaur, Advocates for R-3/ NMC.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 21.11.2022 CM APPLs. 49049-49050/2022 (for exemption from filing fair typed copy of dim annexure, annexure having improper margin, spacing and underlining)
1. Exemption is granted, subject to all just exceptions.
2. Accordingly, the applications stand disposed of.
W.P.(C) 15772/2022 & CM APPL. 49048/2022 (for stay)
3. Petitioner's provisional admission in MBBS course at North DMC Medical College and Hindu Rao Hospital, affiliated to Guru Gobind Singh Indraprastha University for academic year 2021-22, stands cancelled vide impugned communication dated 31st October, 2022, on the ground of ineligibility relating to cut-off percentile, a fact that the University alleges Signature Not Verified Digitally Signed W.P.(C) 15772/2022 Page 1 of 12 By:SAPNA SETHI Signing Date:25.11.2022 20:49:34 was concealed. Nonetheless, Petitioner assails the said decision and seeks mandamus against the University to allow him to continue with the course, notwithstanding the disqualification, contending that admission once granted, cannot be withdrawn.
FACTS
4. The background facts leading to filing of instant petition are as under:
4.1. Petitioner appeared in National Eligibility cum Entrance Test (UG)-
2021 [hereinafter "NEET (UG)-2021"] and scored All India Rank of 924174 in NEET (UG)-2021 as per score card Annexure P-3 extracted hereinbelow: -
Signature Not Verified Digitally Signed W.P.(C) 15772/2022 Page 2 of 12 By:SAPNA SETHI Signing Date:25.11.2022 20:49:344.2. Petitioner scored 40.1371390 percentile, which is less than the cut-off of 45 in 'UR/EWS-PwD' category.
4.3. Petitioner applied for counselling at Guru Gobind Singh Indraprastha University [Respondent No. 1 - hereinafter "GGSIPU" or "the University"] and desirous of seeking reservation benefit under 'UR/EWS-PwD' category, he also submitted Disability Certificate dated 23rd October, 2021 issued by the Ministry of Social Justice and Empowerment of Persons with Disabilities, Government of India [Annexure P-2]. He uploaded documents for verification on University portal and a Document Verification Certificate was issued on 15th December, 2021, declaring him 'Eligible for Counselling'.
4.4. He participated in counselling and was successful in the Mop-Up round, and on 04th April, 2022, was issued a Provisional Admission Slip [Annexure P-5], allotting him a seat in North DMC Medical College and Hindu Rao Hospital [Respondent No. 2 - hereinafter "NDMC Medical College"]. His name is mentioned in the list of admitted students published on 05th April, 2022 [Annexure P-6 (Colly)].
4.5. Petitioner joined NDMC Medical College and deposited requisite fee as well as original certificates for which two separate receipts were issued, both dated 06th April, 2022.
4.6. Petitioner has been attending classes in first-year of MBBS course.
Signature Not Verified Digitally Signed W.P.(C) 15772/2022 Page 3 of 12 By:SAPNA SETHI Signing Date:25.11.2022 20:49:34However, as it turns out, Petitioner's happiness was short-lived. On 01st November, 2022, he received a call from the Dean of NDMC College informing him about cancellation, which was then officially conveyed vide impugned communication dated 31st October, 2022 [hereinafter "impugned communication"], which reads as follows: -
"No GGSIPU/Admissions/MBBS/2021-22/2954 Date: 31/10/2022 To, Dean/Principal North DMC Medical College & Hindu Rac Hospital, Malika Ganj, Kamla Nehru Ridge. Civil Lines Delhi-110007.
Subject: Cancellation of admission of Sh. Jatin (Enrollment No. 01450299821) admitted in MBBS programme during the academic session 2021-22.
Sir, With reference to the subject above, it is to state that Sh. Jatin (GGSIPU App. No. 103212708274, NEET UG 2021 Rank 924174 was allotted seat in Delhi General PWD' category at North DMC Medical College through Mop Up round of Offline Counselling conducted by the University during the academic session 2021-23 on 04.04.2022. After allotment of sent, the candidate reported as your college/institute with the documents and thereafter was issued with Enrolment No. 01450399821.
During further scrutiny of his documents in the University, it was found that the candidate Jatin secured a percentile 40.1371390 in NEET UG 2021, whereas the Qualifying Percentile in UR-PWD is 45th percentile. It is implied that he scored lower percentile than the required i.e. "40.1371390" as against "45th Percentile". Clause (g) of Notes in the Counselling schedule of Mop-Up round i.e. Notification No. 150/2021, No IPU-7/Admissions/MS/2021/2020 dated 31.03.2021 clearly as that "CUT OFF percentile and score as per MCI Regulation shall be applicable". Sh. Jatin did not acquire the passing percentile in his category i.e. GEN- PWD and he concealed the fact at the time of admission resulting in grant of his admission against provisions.
The candidate was very well aware of the qualifying percentile for admission in MBBS course and also the percentile that he secured in Signature Not Verified Digitally Signed W.P.(C) 15772/2022 Page 4 of 12 By:SAPNA SETHI Signing Date:25.11.2022 20:49:34 NEET 2021 UG exam. Yet, he participated in the counselling and bagged a seat. He had a lower percentile, yet secured a seat. It is very loudly mentioned in the Admission Brochure 2021-22 at page 34 that "it is the sole responsibility of the candidate to ascertain whether they possess the requisite eligibility and qualifications for admissions". The same is repeated at page no. 115 of Admission Brochure 2021-22.
With regard to the role of college, it was very much mentioned in the Admission Brochure 2021- 22, Point No. 2 in Clause 8.1.3 that ".... The lead of Institution, where the candidate is admitted shall again verify the original documents to ensure the eligibility of the candidate...".
In view of the above facts that the candidate Sh. Jatin, S/o Sh. Gokul Chand, Enrolment No. 01450299821 has secured admission in MBBS program during Academic Session 2021-22 by deliberately concealing the facts that he is ineligible as per the eligibility laid down, the admission of Sh. Jatin, S/o Sh. Gokul Chand, Enrolment No. 01450299821 stands cancelled in MBBS program; with immediate effect.
Brig. P. K. Upmanyu (Retd.) Incharge (Admissions)"
[Emphasis supplied] CONTENTIONS OF PARTIES
5. Mr. D.K. Sharma, counsel for Petitioner, argues that the impugned communication is arbitrary, contrary to law and liable to be quashed. Petitioner was admitted in MBBS course after following due-process and did not conceal any document and/ or fact from the University. All documents have been duly verified by the University, prior to grant of admission. No discrepancy was found at the time of admission and Respondents cannot, after a year, cancel the admission. At the highest, Petitioner committed a bona fide mistake, for which the University is equally guilty as they allowed him to continue with his education. If the impugned communication is not set-aside, Petitioner would be left in the lurch and gravely prejudiced as he would lose two valuable academic years.
Signature Not Verified Digitally Signed W.P.(C) 15772/2022 Page 5 of 12 By:SAPNA SETHI Signing Date:25.11.2022 20:49:34The courts have repeatedly come to the rescue of candidates who are victims of bona fide mistakes and were admitted in colleges without any fault on their part. The academic institutions should not be permitted to mid-way cancel admission. To buttress his submissions, reliance is placed upon the following judgments: Abha George and Ors. v. All India Institute of Medical Sciences (AIIMS) and Anr.,1 A. Sudha v. University of Mysore and Anr.,2 and Rajendra Prasad Mathur v. Karnataka University.3
6. Per contra, T. Singhdev, counsel for Respondent No. 3 [National Medical Commission - hereinafter "NMC"], submits that MBBS admission is merit based, on the basis of marks obtained in NEET. Petitioner is disentitled to be considered for admission since he did not obtain qualifying marks in the category applied - Gen-PwD. To support his submissions, he drew attention of this Court to the Regulations on Graduate Medical Education, 1997 (issued by the erstwhile Indian Medical Council of India), as amended on 22nd January, 2018 by Regulations on Graduate Medical Education (Amendment), 2017 [hereinafter "2017 Amendment to GME Regulations"] and particularly, sub-clause (3) to Clause 4 [Admission to Medical Courses - Eligibility Criteria] and Clause 5 [Procedure for selection to MBBS course]. He submits that Petitioner was aware that he had failed to qualify NEET (UG)-2021 as he did not score the cut-off percentile and score, yet he secured an admission by concealing this fact. Mr. Singhdev submits that apart from the above, there is another ineligibility relating to Disability Certificate (for availing PwD Reservation). He explains that the 1 2022/DHC/000454.
2(1987) 4 SCC 537 : MANU/SC/0085/1987.
Signature Not Verified Digitally Signed W.P.(C) 15772/2022 Page 6 of 12 By:SAPNA SETHI Signing Date:25.11.2022 20:49:34certificate submitted by Petitioner is not in terms of Information Bulletin of NEET (UG)-2021 and is not been issued the prescribed format by a Government Medical College/ District Hospital/ Government Hospital.4 Therefore, since Petitioner's certificate is not in consonance with extant rules his admission is even, otherwise liable to be cancelled.
ANALYSIS
7. The Court has heard counsel for the parties. Admission to MBBS courses has to be based solely on marks obtained in NEET (UG)-2021. Procedure for selection is governed by 2017 Amendment to GME Regulations which, inter alia, stipulates the eligibility criteria, culled out hereinbelow: -
"5. Procedure for selection to MBBS course shall be as follows: -
xx .. xx .. xx
(4) In order to be eligible for admission to MBBS Course for a academic year, it
shall be necessary for a candidate to obtain minimum of marks at 50th percentile in 'National Eligibility-cum-Entrance Test to MBBS course' held for the said academic year. However, in respect of candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, the minimum marks shall be at 40th percentile. In respect of candidates with benchmark disabilities specified under the Rights of Persons with Disabilities Act, 2016, in terms of Clause 4(3) above, the minimum marks shall be at 45th percentile. The percentile shall be determined on the basis of highest marks secured in the All-India common merit list for admission in 'National Eligibility-cum- Entrance Test for admission to MBBS course. Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility-cum-Entrance Test held for any academic year for admission to MBBS Course, the Central Government in consultation with Medical Council of India may at its discretion lower the minimum marks required for admission to MBBS Course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the said academic year only.3
(1986) Suppl SCC 740.4
As notified vide Gazette Notification No. MCI-18(1)/2019-Med./187262 dated 05th February, 2019 for Admission to Medical Courses in All India Quota..
Signature Not Verified Digitally Signed W.P.(C) 15772/2022 Page 7 of 12 By:SAPNA SETHI Signing Date:25.11.2022 20:49:34 xx .. xx .. xx
(6) No candidate who has failed to obtain the minimum eligibility marks as
prescribed in Sub-clause (4) above shall be admitted to MBBS course in the said academic year.
(7) No authority/institution shall admit any candidate to the MBBS course in contravention of the criteria/procedure as laid down by these Regulations and / or in violation of the judgments passed by the Hon'ble Supreme Court in respect of admissions. Any candidate admitted in contravention/violation of aforesaid shall be discharged by the Council forthwith. The authority / institution which grants admission to any student in contravention / violation of the Regulations and / or the judgments passed by the Hon'ble Supreme Court, shall also be liable to face such action as may be prescribed by the Council, including surrender of seats equivalent to the extent of such admission made from its sanctioned intake capacity for the succeeding academic year/years.
(8) All admission to MBBS course within the respective categories shall be based solely on the marks obtained in the 'National Eligibility-Cum-Entrance Test."
[Emphasis supplied]
8. Concededly, Petitioner did not fulfil the prescribed eligibility criteria as his percentile of 40.1371390 was below the cut-off of 45th percentile provided in the 2017 Amendment to GME Regulations, also mentioned in NTA Score Card, extracted above. Nonetheless, Petitioner's applied for admission to MBBS course and pursuant to participation in counselling, the University mistakenly granted provisional admission on 04th April, 2022. Thus, the short question before this Court is whether provisional admission sans requisite eligibility under NEET (UG)-2021 confers any right in favour of Petitioner.
9. Petitioner's admission was purely provisional in nature, as is evident from several documents placed on record, such as: (I) Provisional Allotment Signature Not Verified Digitally Signed W.P.(C) 15772/2022 Page 8 of 12 By:SAPNA SETHI Signing Date:25.11.2022 20:49:34 Slip [Annexure P-5] which clearly mentions Petitioner's admission status provisional; (II) footnote of Fee Receipt [Annexure P-7] which provides "if the admission is cancelled, all fees deposited by the candidate will be refunded except student activity fee"; (III) Original Documents Receipt dated 06th April, 2022 [Annexure P-8], certifying that Petitioner has been "provisionally admitted as MBBS student of North DMC Medical College..."; (IV) Provisional MBBS Admission Slip [Annexure P-9] categorically provides that admission is provisional. For clarity, the Provisional MBBS Admission Slip is extracted below: -
10. The Court cannot ignore the principle of merit, which is the touchstone for admission to under-graduate courses based on NEET scores/ percentile. If Petitioner is allowed to continue, it would amount to perpetuating illegality as his admission is in contravention of the regulations. The authority which has granted admission, in contravention of the Signature Not Verified Digitally Signed W.P.(C) 15772/2022 Page 9 of 12 By:SAPNA SETHI Signing Date:25.11.2022 20:49:34 Regulations, is liable to face such action if this admission is allowed to continue. Merely because Petitioner continued MBBS course for some time, no vested right is acquired by him. He was aware that his admission is on provisional basis. Even if there is breach of promise on the part of the University, precedence has to be given to the regulations, and in terms thereof, he does not fulfil the prescribed eligibility criteria. It may be correct that Petitioner did not falsify any certificates/ documents, however, that does not discern the fact that his admission is ex facie contrary to the extant regulations (2017 Amendment to GME Regulations) and he has not qualified NEET (UG)-2021. Therefore, on the basis of provisional admission, he cannot take advantage of an error on the part of the University. Besides, the error was noticed barely few months after grant of admission. Furthermore, Petitioner's plea of bona fide mistake is devoid of merit and has no legal standing, as his scorecard clearly indicated the cut-off score. The Court is not convinced that he was unaware of the process and acted innocently. It was his responsibility to ascertain whether he possessed the requisite eligibility and qualifications for admission.
11. Undoubtedly, at times courts have taken sympathetic view and allowed ineligible candidates to continue, nonetheless, each case has to be decided on its own merit. The judgments relied by Petitioner are inapplicable to the facts of case. There are several judgments cited by Mr. Singhdev on this issue, which are contrary to the proposition advanced by Petitioner's counsel. It is thus considered appropriate to briefly deal only with few judgments relied upon by Petitioner. In Abha George (supra), Petitioners acquired eligibility subsequent to cut-off date, which aspect Signature Not Verified Digitally Signed W.P.(C) 15772/2022 Page 10 of 12 By:SAPNA SETHI Signing Date:25.11.2022 20:49:34 prevailed upon the court to take a lenient view. That case is therefore, entirely distinguishable on facts. In Rajendra Prasad Mathur (supra), the Apex Court was concerned with the question of cancellation of admissions of Appellants in engineering colleges in Karnataka University. While coming to the conclusion that candidates were ineligible for admission, the Court found it plausible that Appellants/ students before them had no knowledge regarding the status/ recognition of equivalence of Higher Secondary Examination conducted by Secondary Education Board, Rajasthan and first year B.Sc. examination of Rajasthan and Udaipur Universities vis-à-vis Pre-University Examinations of Pre-University Examination Board, Bangalore. Thus, this judgment is entirely distinguishable on facts and is inapplicable. The case of A. Sudha (supra) concerns interpretation of regulations framed by Mysore University by the principal of Respondent-Institute in a letter addressed to the Appellant whereby, she informed the Appellant that she was eligible for admission in the MBBS course. On the basis of the said letter, Appellant joined the institute, however, after about seven months, her admission stood cancelled due to want of minimum qualifying marks. The Apex Court found fault on part of the principal of Respondent-Institute and noted that the regulations in question, to some extent, suffered from ambiguity and in this light, Petitioner was permitted to prosecute her studies at Respondent-Institute. This decision as well is entirely distinguishable on facts.
12. In view of the fore-going, there is nothing compelling for this Court to invoke its extraordinary jurisdiction under Article 226 of the Constitution of India, 1950 to ratify an invalid admission and allow Petitioner to continue Signature Not Verified Digitally Signed W.P.(C) 15772/2022 Page 11 of 12 By:SAPNA SETHI Signing Date:25.11.2022 20:49:34 with his course. The sympathetic view that Petitioner implores the Court to take to avoid causing hardship to himself, will compromise the sanctity of selection process.
13. Dismissed.
SANJEEV NARULA, J NOVEMBER 21, 2022 nk (Corrected and released on: 25th November, 2022) Signature Not Verified Digitally Signed W.P.(C) 15772/2022 Page 12 of 12 By:SAPNA SETHI Signing Date:25.11.2022 20:49:34