Allahabad High Court
Atiharsh Mohan S/O Dr. K.M. Agarwal vs Banaras Hindu University Through Its ... on 20 December, 2007
Equivalent citations: AIR 2008 (NOC) 1774 (ALL.) = 2008 (3) ALJ 74, 2008 (3) ALJ 74 2008 (4) ABR (NOC) 722 (ALL.) = 2008 (3) ALJ 74, 2008 (4) ABR (NOC) 722 (ALL.) = 2008 (3) ALJ 74
Author: Rajes Kumar
Bench: Rajes Kumar
JUDGMENT Rajes Kumar, J.
1. Heard Sri A.K. Gupta, assisted by Sri Ashish Agrawal, learned Counsel for the petitioner and Sri Vijay Bahadur Singh, learned Senior Advocate and Sri Pankaj Naqvi, learned Counsel appearing on behalf of Banaras Hindu University.
2. In the present petition, the petitioner is seeking the following reliefs:
(a) Issue writ, order or direction in nature of certiorari quashing the counseling held on 12.6.2007 for the M.D./M.S. Courses of Institute of Medical Sciences (BHU) Varanasi,
(b) Issue writ, order or direction in the nature of mandamus commanding the respondents to grant the admission to the petitioner on the available seat in the department of Anaesthesiology in M.D. Course.
(c) Issue any other writ, order or direction please this Hon'ble Court may de em fit in the circumstances of the present case.
3. The brief facts set up in the writ petition are as follows:
The petitioner passed MBBS course and applied for the course of M.D./M.S. and appeared in the admission test for M.D./M.S. course conducted by the Institute of Medical Sciences, BHU, Varanasi in the year 2007 held on 18.2.2007. The petitioner appeared under the general category and secured position in waiting list. The said position was 31 to 34 and the same was subject to determination and verification of inter se merit as the petitioner along with some other candidates secured equal marks. In pursuance of his selection in waiting list, the petitioner was issued a counselling letter dated 17.4.2007 and the petitioner was required to appear in counselling on 14.5.2007 at 10-00 A.M. in the office of the Director, IMS, BHU, Varanasi. In the counselling letter a bifurcation of seats available with reference to the subject was provided. As per chart in the Anaesthesiology Department for General Category there were two seats. The petitioner was interested in Anaesthesiology subject. In the counselling the petitioner was informed that two seats of Anaesthesiology were filled by the candidates who secured a better rank than the petitioner and since the petitioner was not interested in other subjects, when the other subject was being offered, the petitioner gave his consent i.e. not interested and signed the attendance register. When the petitioner came to know that two additional seats for Anaesthesiology subject were provided, and counselling was going to be held on 12.6.2007, on 11.6.2007 the petitioner moved an application to the Director of IMS, BHU, Varanasi which was duly received in his office on the same day. In the said letter the petitioner categorically stated that since in the first counselling held on 14.5.2007 he was not getting the subject of his choice i.e. Anaesthesiology and was not interest to any other subject. Now the second counseling held on 12.6.2007, two seats for Anaesthesiology M.D. Course were available and thus the petitioner requested that he may be permitted to participate in the counselling to be held on 12.6.2007. Despite the aforesaid letter, the petitioner had not been called upon in the second counselling held on 12.6.2007 and the two candidates, namely, Dr. Rama Kant and Dr. Abhishek Srivastava whose ranks were about 100 to 105 were called for counselling and were selected for M.D. Course in Anaesthesiology Department. The claim of the petitioner is that when after the counselling held on 14.5.2007 two new seats had been provided to the University for Anaesthesiology Department which were not available earlier, the petitioner should have been called upon to participate in the counselling in respect of the said subject on 12.6.2007 and the denial to participate in the counselling held on 12.6.2007 amounts to infringement of the petitioner's fundamental right.
4. Learned Counsel for the University submitted that though there is no specific statutory Rules or Regulations provided for the counselling but the procedure which has been followed by the University since long, in the second counselling only those candidates who have not been called upon in the first counselling were being called in the second counselling. The same procedure had been adopted for two seats of Anaesthesiology which were provided to the University in addition to the earlier two seats and therefore, the petitioner was not called upon to participate in the counselling held on 12.6.2007. He further submitted that the petitioner has waived his right by saying "Not Interested" in counselling held on 14.5.2007 and therefore, cannot raise his claim subsequently. He further submitted that the counselling was held fairly by a committee constituted by the reputed Professors and there are no allegation against them of being biased or unfair.
5. Learned Counsel for the petitioner further submitted that two seats for Anaesthesiology subject came after the counselling held on 14.5.2007 therefore, the fresh procedure for calling to the candidates for the said seats should be adopted and it should not be considered to be the part of the earlier counselling held on 14.5.2007 for the seats available on the said date. He submitted that the consent of the petitioner, namely not interested on 14.5.2007 was confine to the seats available at the time of counselling because the petitioner was not interested in any other subject other than Anaesthesiology and two seats available for the said subject had already been filled by the candidates of a higher rank and not for all time to come in future. If the two seats of Anaesthesiology would have been available on 14.5.2007 the petitioner would have opted and be selected also for the said subject. Therefore, the consent not interested was only confined to the counselling held on 14.5.2007 and will not amount to waiver of his right to participate in the counselling held in respect of seats created/provided in future.
6. Learned Counsel for the petitioner further submitted that in the notification dated 26.7.2007 the list of the candidates provisionally admitted to M.D./M.S. courses has been issued. In the said notification Dr. Amtita Chaudhary has been admitted in a subject of Anaesthesiology subject to the final decision of the petitioner writ petition. Thus, a proper precaution has been taken by the University to accommodate the petitioner in the event the writ petition of the petitioner would be allowed.
7. Learned Counsel for the University has cited the following decisions in support of his argument.
1. Medical Counsel of India v. Madhu Singh and Ors. .
2. Arvind Mumar Kankane v. State of U.P. and Ors. .
3. Supreet Batra and Ors. v. Union of India and Ors. .
4. Paramjeet Gambhir and Anr. v. State of M.P. and Ors. reported in (2003) 4 Supreme Court Cases-276.
5. Anand S. Biji v. State of Kerala and Ors. reported in (1993) 3 Supreme Court Cases-80.
8. In the case of Medical Counsel of India v. Madhu Singh and Ors. (Supra), the following has been held by the Apex Court.
23. 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 midstream as that would be against the very spirit of status governing 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) 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, counselling 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 institution concerned, action as prescribed shall be taken by MCI.
9. In the case of Arvind Kumar Kankane v. State of U.P. and Ors. reported in (2001) 8 Supreme Court Cases-335, the Division Bench of this Court after considering the scheme of admission and conditions imposed therein formulated by the State Government for Post Graduate Medical Courses and the decision of the Full Bench of Delhi High Court in Veena Gupta (Dr.) v. University of Delhi and of the High Court of Punjab and Haryana in Anil Jain v. Controller of Examinations held that any seat which is available and which has not been included in any of the three counsellings by mistake should be filled in, in order of merit from amongst the wait-listed candidates. Normally, when a seat is available, the same should be included in the initial counselling. If by mistake a seat is not included in the initial counselling then the effect is that no body opts for the same. If now the said seat is sought to be offered to all the candidates for counselling, the result would be that all the candidates who took part in the first counselling should be given a chance, in order of merit, to opt for the same seat. This will start a chain reaction and ultimately there will be one seat more, which would become available for the second counselling. There again a chain reaction will start leading to the third counselling. The effect of putting the seat back for counselling for all candidates, would, therefore, be to upset the entire counselling which had already taken place. Prima facie though it appears to be somewhat unfair, there is no alternative, apart from leaving the seat unfilled, but to offer the said seat to the wait-listed candidates. It was also noticed that once the academic course commences the same will have to be completed within a period of three years and if the counselling goes on continuously for a long period then it may not be possible, to fulfil that condition and thereby upset the course of study itself.
10. The Hon'ble Apex Court has upheld the decision of the Division Bench and held as follows:
We have carefully examined the contentions put forth before the High Court and before us and we are of the view that the finding recorded by the Division Bench and the Delhi High Court in Dr. Veena Gupta case and the High Court of Punjab and Haryana in Anil Jain case is in accordance with reason and stands the test of rationality. It is clear that once an option is exercised by a candidate on the basis of which he is allotted the subject and thereafter that candidate is allowed to participate in subsequent counselling and his seat becomes vacant, the process of counselling will be endless and, as apprehended by the High Court, it may not be possible to complete the academic course within the stipulated period.
11. In the case of Supreet Batra and Ors. v Union of India and Ors. . In pursuance of the direction of the Apex Court in the case of Sharwan Kumar v. Director General of Health Services prescribing the procedure to complete the process of allotment of 15 percent of all-India quota for admission to MBBS/BDS courses in various colleges in the country earlier Scheme has been modified. The contention of the petitioners were that inasmuch as certain circumstances have arisen in view of the change in the date in the matter of counselling and the date by which intimation of the vacancy position to the Director General of Health Services, the Scheme framed by this Court in Sharwan Kumar case is not being given full effect with the consequence of seats reverting to States thus frustrating the Scheme framed by this Court. The apex Court held as follows:
When a detailed scheme has been framed through orders of this Court and the manner in which it has to be worked out is also indicated therein, we do not think that if in a particular year there is any shortfall or a certain number of seats are not filled up, the same should be done by adopting one more round of counselling because there is no scope for the third round of counselling under the Scheme. It would not be advisable to go on altering the Scheme as and when seats are vacant. What is to be borne in mind is that board equally will have to be achieved and not that it should result in any mathematical exactitude. Out of about 1600 seats, if 200 seats are not filled up for various reasons and such not-filled-up seats were much less in the earlier years, we do not think it should result in the third round of counselling. If that process is to be adopted then there will be again vacancies and further filling up of the seats falling vacant will have to be undertaken. In that process, it will become endless until all the seats under the all-India quota are filled up. That is not the object of the Scheme formulated by this Court. The object was to achieve a broad-based equality as indicated by us at the outset and we do not think that any steps have to be taken for altering the Scheme. We have taken identical view in the decision in Neelu Arora v. Union of India and connected matters disposed of on 24.1.2003. Moreover, this Court in Medical Council of India v. Madhu Singh has taken the view that there is no scope for admitting students midstream as that would be against the very spirit of statues governing medical education. Even if seats are unfilled that cannot be a ground for making mid-session admissions and there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year. If these aspects are borne in mind, we do not think any reliefs as sought for by the petitioners can be granted under these petitions. These writ petitions shall stand dismissed.
12. In the case of Paramjeet Gambhir and Anr. v. State of M.P. and Ors. reported in (2003) 4 Supreme Court Cases 276, the petitioners appeared in M.P. Medical and Dental Postgraduate Entrance Examination which was held on 24.3.2002, the petitioner Dr. Paramjeet Gambhir secured 141st rank while petitioner No. 2 Smita Lakhotia secured 75th rank. The first counselling was held on 8.5.2002 and 9.5.2002. According to the petitioners certain seats had been surrendered from all-India quota much before 8th May, but the same were not included in the counselling. Under the U.P. Medical and Dental Postgraduate Examination Rules, 2001a candidate who stood higher in the merit list and who did not get a course of his/her choice could forego his/her claim in the first round of counselling and had a right to appear again in the second counselling. This was commonly known as "opt-for-waiting". Subsequently, in the year 2002 new rules were made and Rule 15.8 of the said Rules abolished the system of opt-for-waiting and provided that a candidate who due to any reason did not opt for any course, subject and college available at his/her turn as per merit shall forfeit all the rights for allotment of a seat. Learned Counsel for the petitioners has submitted that they did not opt for any seat in the first round of counselling as certain seats in the prized disciplines of Radio-diagnosis, Orthopaedics and Paediatrics which had been surrendered from all-India quota had not been included in the aforesaid counselling. He has further submitted that in view of the clear stand taken by the State Government in the counter affidavit filed in the High Court that the prohibition contained in the 2002 Rules to the effect that if a candidate due to any reasons did not opt for any course, subject or college available at his/her turn as per merit shall forfeit all the rights for allotment of a seat had been withdrawn and the system of "opt-for-waiting" in the 2001 Rules had been revived, the appellants should have been given an opportunity to participate in the second counselling and in the said counselling all the vacant seats including those surrendered from the all-India quota should have been made available to them. Learned Counsel for respondents 1 to 3 has urged that the second counselling has already been done in December, 2002 and any direction for admitting the appellants at this stage would disturb the academic session. Learned Counsel has further submitted that some candidates who had secured higher rank than the appellants had opted for disciplines/colleges which were made available at the time of the first counseling in view of the 2002 Rules and any direction in favour of the appellants at this stage would result in injustice to such candidates.
13. The Apex Court held as follows:
We have given our careful consideration to the submissions made by the learned Counsel for the parties. It is true that in a series of decisions of this Court starting form Dinesh Kumar (Dr) v. Motilal Nehru Medical College, State of Bihar v. Dr Sanjay Kumar Sinha, Stae of U.P. v. Dr Anupam Gupta and finally Medical Council of India v. Madhu Singh it has been held that the timetable for the course should be strictly adhered to and there is no scope for admitting students midstream which would be against the very spirit of the statute governing medical education. However, in the present case what we find is that certain seats which had been surrendered from the all-India quota even before the first counselling had been done were not included in the said counselling. The second feature is that the State Government made a provision in the 2002 Rules whereby the system of opt-for-waiting was abolished but subsequently in the counter-affidavit filed in the writ petition it was pleaded that Rule 15.8 had been deleted and the old system of opt-for-waiting had been revived. In view of this stand of the State Government the appellants were entitled to participate in the second counselling wherein all the vacant seats/colleges should have been made available. The appellants filed the special leave petitions, prior to the holding of the second counselling.
In view of the peculiar facts and circumstances of the case and in the interest of justice the appeals are disposed of with a direction to the respondents to consider the candidature of the appellants for giving them admission in a postgraduate course in the disciplines in which seats are still lying vacant taking into consideration their rank and choice. This may be done within ten days of presentation of a certified copy of this Judgment before the appropriate authority.
In the case of Anand. S. Biji v. State of Kerala and Ors. , for the admission in the Medical Colleges the existing system of first issuing a list of admission on merit-cum-preference-cum-eligibility basis and then depending upon vacancies arising in that list, issuing second and third lists without again examining the overall merit-cum-preference-cum-eligibility as a result of which candidates with lesser score were often getting better subject than the candidates with higher score. Counselling system directed to be introduced from 1994 the appellant was adversely affected by the existing system. The Apex Court denied the relief to the appellant on the ground that all India seats were surrendered to the State Government. The State Government has already filled almost all of them. The course has begun in the month of September, 1992. On these facts, the Apex Court refused to grant any relief.
Having heard the learned Counsel for the parties, I have Defused the various documents on record.
14. It has been admitted by the learned Counsel for the University that no Rule or regulation has been framed relating to the counselling. It has been informed that the counselling has been carried on as per the old practice. In the present case, the question is whether the petitioner has been given opportunity to exercise his right of option in respect of two seats for Anaesthesiology at any point of time, and the denial of the right of the petitioner to exercise the option in respect of two such seats which admittedly, have been provided after the completion of the counselling held on 14.5.2007 is justified and amounts to the violation of the right of the petitioner to participate.
15. In the acts and circumstances of the present case, in my view, the petitioner has not been provided opportunity to exercise his option in respect of two seats which had come to the University after the counselling held on 14.5.2007-and was not available on 14.5.2007 when the counselling took place in which the petitioner participated. The consent given by the petitioner on 14.5.2007 that he was not interested was only for the subject and the seats available on 14.5.2007 in respect of which the counselling was called upon, such consent cannot be treated for ever and for the future seats. When the two fresh seats were provided to the University for Anaesthesiology and the counselling was fixed for 12.6.2007, the petitioner wrote a letter on 11.6.2007 and requested for the opportunity to participate in the said counselling. In my view, in respect of the two impugned seats for Anaesthesiology, there should be a fresh counselling and the petitioner ought to have been called upon to participate along with other eligible candidates. If the two impugned seats for Anaesthesiology would be available on 14.5.2007, the petitioner would have got the said subject in which the petitioner was interested. In my view, in respect of the two impugned seats for Anaesthesiology the counselling held on 12.6.2007 cannot be said to be in continuity of the counselling held on 14.5.2007 and in other words, it was not the second counselling in respect of the said.seats but it was the first counselling. In none of the decision, referred hereinabove, the Apex Court had occasioned to examine the issue as involved in the present case.
16. In the case of Arvind Kumar Kankane v. State of U.P. and Ors. (Supra) the decision is based on the rules framed under the Government Order issued on 30.3.1994 in relation to the admission to the postgraduate medical courses. In the said case one seat was not included in the initial counselling by mistake but the said was available at the time of counselling. It was not the case where after the counselling fresh seats have been made available. Thus, the decision of the Apex Court is distinguishable on the fact.
17. The decision of Supreet Batra and Ors. v. Union of India and Ors. (Supra) is distinguishable on the facts of the case. The issue involved in the present case was not involved in the said case.
18. The decision in the case of Paramjeet Gambhir and Anr. v. State of M.P. and Ors. (Supra) supports the case of the petitioner. In the said case certain seats which were surrendered from all-India quota had not been included in the first counselling. In the said case the petitioner did not opt for any seat in the first round of the counselling as certain seats in the prized disciplines of Radio-diagnosis, Orthopaedics and Paediatrics had been surrendered from all-India quota had not been included in the aforesaid counselling. The claim of the petitioners was that they were entitled to participate in the second counselling in respect of such surrendered seats which were denied. The petitioners filed Special Leave Petition prior to the holding of the second counselling. In the said case certain seats were surrendered from all-India quota even before the first counselling but had not been included in the said counselling. In the counter affidavit the stand of the State Government was that the petitioners were entitled to participate in the second counselling wherein all the vacant seats/colleges should have been made available. On the peculiar facts and circumstances of the case, in the interest of justice, the Apex Court has directed the respondents to consider the candidature of the appellants for giving them admission in a postgraduate course in the disciplines in which seats are still lying vacant taking into consideration their rank and choice.
19. In this view of the matter, I am of the view that in the peculiar facts of the case and in the interest of justice the University is directed to consider the candidature of the petitioner for the two seats of Anaesthesiology and in case, if the petitioner is eligible on merit the same may be provided to the petitioner. This may be done within 10 days from the date of filing of certified copy of this order.
With the aforesaid observation, writ petition stands disposed of.