Bombay High Court
Kunjam Kale vs State Of Maharashtra on 13 December, 2022
Author: Sharmila U. Deshmukh
Bench: Nitin W. Sambre, Sharmila U. Deshmukh
WPL-38452-2022.doc
BDP-SPS-
BHARAT
DASHARATH
PANDIT
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed
by BHARAT
ORDINARY ORIGINAL CIVIL JURISDICTION
DASHARATH
PANDIT
Date: 2022.12.22
16:48:34 +0530
WRIT PETITION (L) NO.38452 OF 2022
Kunjam Kale ..... Petitioner.
V/s
State of Maharashtra and Others ..... Respondents.
Ms. Pooja Thorat a/w Mr. Anukul Seth for the Petitioner.
Ms. P.H. Kantharia, Government Pleader a/w Mr. Himanshu Takke,
AGP for State/Respondent Nos. 1 and 2.
Mr. Sameer Khedekar for Respondent No.3.
CORAM: NITIN W. SAMBRE &
SHARMILA U. DESHMUKH, JJ.
DATE: DECEMBER 13, 2022
P.C.:-
1] In this Petition, Petitioner has claimed the following reliefs:-
"a. Issue a writ of Certiorari and/or writ in the nature of Certiorari and/or any other appropriate writ, order or direction under Article 226 of the Constitution of India to quash and set aside Rules 7.1 and 11.4.2 of the Information Brochure at (Exhibit-D) to the extent that it requires the Petitioner to register herself for the purpose of participating in the Mop-Up rounds for admission to MBBS course;
(a-1) Quash and Set aside the Selection List for Mop-Up CAP Round (at Exhibit-K);
b. Issue a writ of Mandamus and/or writ in the nature of Mandamus and/or any other 1/17 WPL-38452-2022.doc appropriate writ, order of direction under Article 226 of the Constitution of India to:
i. Hold and declare that the Petitioner is eligible for participating in the Mop-Up rounds for admission to MBBS course on the basis of her merit;
ii. Direct the Respondent State of Maharashtra and Respondent CET Cell to consider the candidature of the Petitioner as eligible for participating in the Mop-Up rounds conducted by the Respondent CET Cell for admission to MBBS course;
(c) In the alternative to the above, the Respondent CET Cell be directed to accept the registration form of the Petitioner for participating in the Mop-Up rounds for admission to MBBS course;
(c-1) In the alternative to the above, the Respondent CET Cell be directed to consider the Petitioner as eligible for participating in the Mop-Up round 2, Stray Vacancy Round and all further admission rounds to be conducted by the Respondent CET Cell;
d. Pending the hearing and final disposal of the present Writ Petition, the admission process for MBBS course for the academic year 2022-2023 be stayed.
e. Pending the hearing and final disposal of the present Writ Petition, the operation and/or implementation and/or execution of Rules 7.1 and 11.4.2 of the Information Brochure at (Exhibit-D) to the extent that it requires the Petitioner to register herself for the purpose of 2/17 WPL-38452-2022.doc participating in the Mop-Up rounds for admission to MBBS course, be stayed;
(e-1) Pending the hearing and final disposal of the present Writ Petition, the operation and/or implementation and/or execution of the Selection List for Mop-Up round (at Exhibit-K), be stayed.
f. Pending the hearing and final disposal of the present Writ Petition, hold and declare that the Petitioner is eligible for participating in the Mop-Up rounds for admission to MBBS course on the basis of her merit;
(f-1) In the alternative to the above and pending the hearing and final disposal of this Writ Petition, the Respondent CET Cell be directed to consider the Petitioner as eligible for participating in the Mop-Up round 2, Stray Vacancy Round and all further admission rounds to be conducted by the Respondent CET Cell;
g. Pending the hearing and final disposal of the present Writ Petition, direct the Respondent State of Maharashtra and Respondent CET Cell to consider the candidature of the Petitioner as eligible for participating in the Mop-Up rounds conducted by the Respondent CET Cell for admission to MBBS course;
h. Pending the hearing and final disposal of this Writ Petition and in the alternative to the above, the Respondent CET Cell be directed to accept the registration form of the Petitioner for participating in the Mop-Up rounds for admission to MBBS course;
i. For ad-interim relief in terms of prayers (d), 3/17 WPL-38452-2022.doc
(e), (f), (g) and (h) above.
j. For costs.
k. For such other and further reliefs, as the nature and circumstances of the case may require."
2] Facts necessary for deciding the issue raised in the Petition are as under:-
3] Petitioner claims to have secured 91.6% of marks in 10 th Standard, whereas 78% in 12th Standard with Science Stream. According to the Petitioner, she has appeared for NEET Examination on 17/07/2022 conducted by National Testing Agency for academic year 2022-23 and has secured 464678 All India Rank with a percentile of 73.6008356. Petitioner thereafter for having admission in State Quota, submitted Online Application Form and was allotted seat at Terna Medical College in CAP Round-2. Since the Petitioner was desirous of exercising her choice of betterment of seat, has not retained the said seat. Respondent No.3 who is working under aegis of Respondent No.1 - State and Respondent No.2 - Directorate of Medical Education & Research issued a Notification dated 01/12/2022 thereby putting the candidates to notice of filling of fresh preference 4/17 WPL-38452-2022.doc form for MOP-UP rounds which is to be commenced from 05/12/2022. It is claimed by the Petitioner that she has remained under impression that she having once registered herself for admission to medical course need not to register herself afresh and failed to fill in fresh preference form thereby missing the date of registration. According to the Petitioner, she has as such missed date of submission of registration which has prompted her to file present Petition. 4] In support of the claim put forth by the Petitioner, Petitioner has urged that the admission procedure is governed by the provisions of Maharashtra Unaided Private Professional Educational Institutions (Regulation of Admissions and Fees) Act, 2015 (hereinafter referred to for the sake of brevity as "the Act of 2015") and the Rules framed thereunder viz. the Maharashtra Unaided Private Professional Educational Institutions (Regulation of Admission to the Full Time Professional Undergraduate Medical and Dental Courses) Rules, 2016 (For short "said Rules"). According to her, sub-clause (c) of Rule 2 of the said Rules defines "Application Form" and Rule 3 provides for Invitation of Application Form. She would urge that competent 5/17 WPL-38452-2022.doc authority is duty bound to invite Online and Offline Application Forms from the candidates participating in Central Admission Process (CAP) seeking admission to the Course for which "NEET" is required to be conducted in respective academic year. She would urge that Rule 13 of the said Rules provides for selection process through CAP round. According to her, clause (c) of Rule 13 of the said Rules provides that for second or subsequent round no separate preference form is required to be filled in by the candidate. She would further urge that choices of courses and colleges once entered in while filling in Form under Rule 3 i.e. seeking registration, is sufficient for candidate which attains finality and same is irrevocable. She would urge that final data submitted by candidate like Petitioner is required to be used for entire selection process for admission to first year Courses for the same academic year. According to her, clause (b) of Rule 13 of the said Rules provides that duly filled in preference form shall be submitted only once and submission of more than one preference form is considered to be a disqualification. 5] Based on the aforesaid provisions of the said Rules, it is the 6/17 WPL-38452-2022.doc contention of Counsel for the Petitioner that Respondents have framed admission rules which go contrary to the aforesaid provisions of the said Rules. So as to substantiate her claim, she has invited our attention to clause 11.9 of the Information Brochure which provides for CAP Mop-up Round Process. According to her, once sub-clause (b) of Rule 13 of the said Rules provides for non-submission of more than one preference form, calling upon the candidate to submit another preference form in the Mop-up Round is contrary to the very scheme of the Act and the Rules framed thereunder. So as to substantiate said contention, she has drawn support from Clauses 11.4 and 11.4.2 of the Information Brochure.
6] According to her, schedule of Mop-up Round is declared on 01/12/2022 vide Notice No.11. She would urge that before Mop-up Round for All India Quota is completed, list of registered candidate for MBBS and BDS so also combine common provisional merit list was declared on 5/12/2022. She would also further invite attention of this Court to the publication of seat matrix in Mop-up Round on 5/12/2022. According to her, declaration of selection list of Mop-up 7/17 WPL-38452-2022.doc Round is after Mop-up Round for All India Quota is over. She would further urge that the note is prescribed in fresh Notice No.11 that candidates who failed to register in previous registration process are also liable for Mop-up Round registration. Counsel for the Petitioner would invite attention of this Court to Notice dated 8/10/2022 issued by the All India Directorate General of Health Services Medical Counselling Committee. According to her, vide said notice State Counseling Authorities are advised to conduct counseling of their respective States in letter and spirit of the schedule uploaded on the website of said Central Authority. She would as such urge that Respondents are not following the calendar which is fixed by the Central Authority and as such her Petition needs to be allowed by permitting her to participate in Mop-up Round irrespective of whether she has registered afresh or not.
7] Counsel for Respondent No.3 has filed an affidavit of the Commissioner of Respondent No.3 opposing the relief claimed. According to him, Petition itself is not maintainable as the Petitioner after having registered for seeking admission for MBBS course from 8/17 WPL-38452-2022.doc the State Quota is presumably aware about the rules of admission which are approved by Respondent No.2. He would draw support from the order of the Apex Court dated 15/12/2020 passed in SLP No.10487 of 2021 which is in relation to requirement of fresh registration of the candidate for Mop-up Round. According to him, Respondents have followed the said principles which are adhered to by the Central Authority for admission through the All India Quota. As such, he would urge that Petition is liable to be dismissed.
8] We have appreciated the submissions. 9] Fact that Petitioner has registered herself for admission to MBBS
Course by submitting Online Application Form on 18/10/2022 is not in dispute. The said Application Form is based on the Information Brochure published by Respondent Nos. 2 and 3. In the said Brochure, it is expressly provided that such candidates who are registered for Mop-up Round Process are eligible to participate. As far as case of the Petitioner is concerned, admittedly, Petitioner has not registered herself for Mop-up Round. Aforesaid conduct of the 9/17 WPL-38452-2022.doc Petitioner as regards her Online registration for admission to MBBS Course sufficiently establishes that she was having knowledge about the rules which are governing admission process. As such, it cannot be said that the Petitioner was not aware about requirement for fresh registration for CAP Mop-up Round Process. 10] As regards reliance placed by the Petitioner on the provisions of Rule 13 of the said Rules is concerned, said provisions read thus:
13. Selection process though, CAP round - The Unaided Private Professional Education Institution shall admit candidates through the centralised admission process as below :-
(a) The selection of the candidates shall be made on the basis of preferences given by the candidates. Only a limited number of meritorious candidates shall be called for Counselling and asked to fill the preference form. The Counselling sessions are not meant for instant seat allocation. During these sessions, candidates are helped in exercising their preferences for various courses and the institutions. Seat allocation shall be made centrally at a later date on the basis of NEET merit list, eligibility and preferences exercised by the candidates.
(b) The preference form shall be available at the office of the document verification Center as notified by Competent Authority. The duly filled preference form should be submitted at the same office. The candidate should submit only one preference form. Submission of more than one form shall lead to disqualification.
10/17
WPL-38452-2022.doc
(c) There shall be one or more rounds of selection of candidates depending on the availability of vacant seats. The selection will be on the basis of merit and the preferences submitted by the candidates in their preference form. For second or subsequent round no separate preference form will be filled by the candidate. The choices of courses and colleges, once entered in the record/data, after verification by the candidate, shall be final and irrevocable. This final data shall be used in entire selection process for the admission to first year Courses for the same academic year only.
(d) NEET merit list shall be operated from state merit list Number-One onwards in each round of selection. The candidate getting selected in previous round shall be considered for betterment in the subsequent round. The betterment herein means the higher preference exercised by the candidate. The Shift in such betterment shall be compulsory and mandatory except for those who have filled 'Status Retention Form'. Such a candidate who has filled Status Retention form will not be considered for any subsequent rounds of selection process for the same academic year. The last date for filling Status Retention Form will be notified along with the selection list of each CAP round.
(e) After concluding the first round, for the further rounds, candidates who have been allotted seats in the earlier rounds and joined the course, as also the candidates who have not been allotted any seat, shall be eligible. In the subsequent rounds, betterment chances will be given to the candidates who have already been allotted seats.
(f) It is hereby made abundantly clear that shifting on account of a better choice given by a candidate in any round, shall be effected only and only if such a candidate in 11/17 WPL-38452-2022.doc the subsequent rounds is found entitled for 'change of course' or a 'change of college'. Mere possibility of a 'change in category' on account of availability of seat in the same college and/or same course in the further rounds shall not amount to "betterment" as such and therefore, no shifting shall be effected in such an eventuality. Such a 'change in category' shall include inter-alia change from reserved category to open category or vice-versa. The shift in such betterment shall be compulsory and mandatory, except those who have filled Status Retention Form.
(g) Based on preferences given, the seat shall be allotted on merit and the allotment shall be displayed on website.
(h) Candidates as per allotment should report alongwith all original certificates and a set of attested photocopies of all requisite documents at allotted college within the prescribed time. The Dean/Principal shall verify all the original documents before finalizing the admission.
(i) While filling the seats for any college or institution, 30 percent state quota seats shall be filled first followed by 70 percent regional quota seats.
(j) Earmarking for reserved category candidates - Reserved category candidate entitled to admission on the basis of merit in an open category seat will have the option of taking admission either against his respective category seat or on an open category seat. If he opts for the reserved category he will be deemed to have been admitted as an open category candidate and not as reserved category candidate. In such case the particular seat in the college where he was eligible for admission against open seat shall be earmarked for a candidate belonging to the respective reserved category. Such earmarked seat will be made available immediately to the successive reserved category 12/17 WPL-38452-2022.doc candidate from the same category merit during the counselling.
(k) A candidate who is selected but does not join the college or cancels the admission after joining, is not eligible for further selection process.
(l) Seats that have arisen or fallen vacant after the first round shall be made available at the second round of selection on the basis of preference form already submitted. No new preference form will be required to be filled in for any subsequent rounds. The vacancy position shall be made available on website before commencement of the next round.
(m) The inter-se round shall be conducted for remaining vacant seats from the category as per rule 12(1), if necessary at the end of each round.
(n) The cut-off date for the course shall be as prescribed by the MCI or DCI from time to time." Rule 11 of the said Rules provides for Centralized Admission Process (CAP). Sub-clause (f) of Rule 11 provides for display or publication of subsequent computerized round(s) if seat remains vacant after completion of CAP Round-1. Sub-rule (ii) of Rule 11 provides for chance to candidate to retain the seat that has been allotted by way of status retention form at the end of each CAP round. In the case in hand, Petitioner claims that in the CAP Round-2, she was allotted Terna Medical College. However, since she wanted to exercise her 13/17 WPL-38452-2022.doc choice for betterment of seat, she has not retained the said College. In such an eventuality, fact of having CAP Mop-up Round was well within her knowledge. If we consider sub-clause (b) of Rule 13 of the said Rules, same provides for availability of the preference form at the office of Documents Verification Centre. Said sub-clause (b) further directs that candidate should submit only one preference form and submission of more than one preference form is said to incur disqualification. Provisions of sub-clauses (b) and (c) are restricted to CAP Round-1 and CAP Round-2. In support of aforesaid observations reliance can be placed on sub-clauses (k) and (l) of Rule 13 of the said Rules which read as under:-
"(k) A candidate who is selected but does not join the college or cancels the admission after joining, is not eligible for further selection process."
"(l) Seats that have arisen or fallen vacant after the first round shall be made available at the second round of selection on the basis of preference form already submitted. No new preference form will be required to be filled in for any subsequent rounds. The vacancy position shall be made available on website before commencement of the next round."
Petitioner though selected has not joined the college and has opted for waiting. The aforesaid sub-clause (l) provides for after the first 14/17 WPL-38452-2022.doc round, seats which are falling vacant are to be made available for second round of selection on the basis of preference form already submitted. As such, for second round, no preference form is required to be filled in for subsequent round. As such, said sub-clauses (b) and
(c) will operate only to the extent of CAP Round-1 and CAP Round-2. As regards, Mop-up Round is concerned, same appears to be as per the provisions of 11.4 of the Information Brochure so as to make available seats which are at the disposal of the authority. As per clause 11.4.2, CAP Mop-up Round for MBBS seats is available to the candidates who did not join in CAP Mop-up Round-1 and CAP Mop-up Round-2 and who have already registered for CAP Mop-up Round. Petitioner, admittedly, has not registered her candidature for CAP Mop-up Round. Not only this, clause 11.4.3 of the Information Brochure provides that candidate is required to fill fresh preference form for Mop-up Round and all previous preferences which were considered for CAP Mop-up Round-1 and CAP Mop-up Round-2 are null and void. The said rule further provides that fresh registration for the CAP Mop-up Round is irrespective of the initial registration made by the candidate in CAP Mop-up Round-1 and CAP Mop-up 15/17 WPL-38452-2022.doc Round-2. In the CAP Mop-up Round, preferences given are to be used for all subsequent Online CAP Stray Vacancy Round(s). In the aforesaid backdrop, claim put forth by the Petitioner that act of the Respondents is contrary to very scheme of Rule 13 of the said Rules is not justified. Rule 13 does not put an embargo on the right of the Respondents to seek fresh registration for CAP Mop-up Round-2. 11] Notice No.11 which contains note about eligibility for CAP Mop- up Round registration provides for permission to register such candidates who have failed to register in the previous registration process i.e. registration process in relation to CAP Mop-up Round-1 and CAP Mop-up Round-2. In this backdrop, it cannot be said that Respondents are acting contrary to the provisions of the Act of 2015 and Rules framed thereunder or direction of the Central Authority. Rather, Petitioner after having participated in the selection process for CAP Mop-up Round-1 and CAP Mop-up Round-2 ought to have applied for participation in CAP Mop-up Round by calling for fresh registration which she has failed to, though she was having knowledge about the procedure and the rules.
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WPL-38452-2022.doc 12] In this view of the matter, no case for interference is made out. Petition as such fails and same stands dismissed. [ SHARMILA U. DESHMUKH, J. ] [ NITIN W. SAMBRE, J. ] 17/17