Karnataka High Court
Dr. Saloni Shah vs The State Of Karnataka & Ors on 8 August, 2018
Bench: L.Narayana Swamy, K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF AUGUST 2018
PRESENT
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
AND
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
WRIT PETITION NO.201566/2018 (EDN-MED-ADM)
Between:
Dr. Saloni Shah
D/o Prakiran Shah
Age: 33 years
Occ: Private Practice
R/o Shastri Nagar, Kalaburagi
... Petitioner
(By Sri P. Vilas Kumar, Advocate)
And:
1. The State of Karnataka
Health & Family Planning Department
(Medical Education) Vikas Soudha
Bengaluru, through its Principal Secretary
2. Karnataka Examination Authority
18th Cross, Sampige Road
Malleshwaram, Bengaluru
3. Rajeev Gandhi University of Health Science
4th T Block, Jayanagar, Bangalore - 560 041
Through its Registrar
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4. Karnataka State Dental Council
No.23, Appajappa Agrahar
18th Main Road, Chamarajpet
Bengaluru - 560 018
5. The Regional Commissioner
Kalaburagi
6. Hyderabad Karnataka Education Society
PDA Engineering College Campus
Aiwan-E-Shahi Area, Kalaburagi
Through its President
7. S. Nijalingappa Institute of
Dental Sciences & Research
Sedam Road, Kalaburagi
Through its Principal
8. Bhavsar Tejashree D/o Suhas Bhavsar
Age: Major
C/o S. Nijalilngappa Institute of
Dental Sciences & Research
Sedam Road, Kalaburagi
... Respondents
(Sri K.M. Ghate, AGA for R1, R2 & R5;
Sri Sandeep V. Patil, Advocate for R3;
Sri Ashok S. Kinagi, Adv. for R6 & R7;
Sri Shivakumar Kalloor, Adv. for R8;
R4 - served & unrepresented)
This writ petition is filed under Articles 226 and 227 of
the Constitution of India, praying to, i) issue a writ of certiorari
for quashing the communication made by respondent No.7
dated 29.05.2018 which is at Annexure-A and consequently
issue a writ of mandamus directing the respondents to allot the
said P.G. Course seat of Prosthodontics at respondent No.7
College, Kalaburagi to the petitioner and ii) issue a writ of
certiorari for quashing the admission of respondent No.8 to the
P.G. Course of Prosthodontics seat at HKE's, S. Nijalingappa
Dental College, Kalaburagi and consequently issue a writ of
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mandamus directing the respondents for allotting the said P.G.
Course of Prosthodontics seat at HKE's S. Nijalingappa Dental
College, Kalaburagi to the petitioner.
This petition having been heard and reserved for orders
on 24.07.2018 coming on for pronouncement of orders, this
day, K.N.PHANEENDRA J., made the following:
ORDER
The petitioner filed this writ petition, seeking the following reliefs:
"i) Issue a Writ of certiorari for quashing the communication made by the respondent No.7 dated 29.5.2018 which is at Annexure-A and consequently issue a writ of Mandamus directing the Respondents to allot the said P.G. Course seat of Prosthodontics at Respondent No.7 college Kalaburagi to the petitioner in the interest of justice.
ii) In the alternative, the Hon'ble Court may be pleased to issue Writ of certiorari for quashing the admission of Respondent No.8 to the P.G. Course of Prosthodontics seat at HKE's, S. Nijalingappa Dental College Kalaburagi and consequently issue a writ of mandamus directing the Respondents for 4 allotting the said P.G. Course of Prosthodontics seat at HKE's S. Nijalingappa Dental College Kalaburagi to the petitioner in the interest of justice.
iii) Any other relief to petitioner is entitled to be ordered in the interest of justice."
2. We have heard the arguments of the learned counsel for the petitioner as well as the respondents.
3. We have carefully perused the materials on record and also the objections filed by the respondents.
4. Before adverting to the grounds as urged and elaborated by the learned counsel for the petitioner, it is just and necessary to have a brief factual matrix of his case.
5. It is the contention of the petitioner that, she has completed her Bachelor of Dental Surgery course in the respondent No.7 College and she belongs to Digambar Jain Community which falls under the category III-B. 5 Hence, she is entitled for the benefit of Article 371(j) of the Constitution of India. It is also contended that the respondent No.7 institution was established for the purpose of imparting education for bringing the overall development of the Hyderabad Karnataka area by providing cheaper education to the public. The society has been founded by collecting lot of money from different sources for the said purpose. The said institution presently not following the said laudable objective.
6. In this background, it is alleged that the petitioner has got all India ranking of 5857 in National Eligibility cum Entrance Test (NEET) held in the year 2018 in the month of January. Respondent No.8 has also secured ranking in the said NEET examination and her ranking was more than 10000. The petitioner intending to join for the MDS course. Likewise, respondent No.8 also intended to join Post Graduate course, particularly, "Prosthodontics". In this context, it is seen from the 6 records that, after the NEET examination as per the notification by respondent No.2 and after filling up of the Government quota in the respondent No.7 College as per the consensus agreement entered into between Karnataka Professional Colleges foundation and Government of Karnataka for the academic year 2018-19, the seats were filled up pertaining to Government quota. Thereafter, the seats of management quota, which were fell vacant after the due date fixed by respondent No.2, were notified by respondent No.7. Accordingly, the petitioner has received the intimation about the availability of a seat in the said course, by way of communication dated 21.05.2018, informing her about the availability of various seats in respondent No.7 College including Prosthodontics seat as per Annexure-J. As an interested candidate, she has submitted an application, seeking a seat in the said category and the application was filed by way of letter addressed to respondent No.7 dated 22.05.2018, which was actually submitted to respondent No.7 on 24.05.2018. 7 Likewise, respondent No.8 also submitted her application for the same seat. After receiving the application from the petitioner on 24.05.2018, respondent No.7 has sent an information to the petitioner intimating that she should submit the required original documents along with demand draft of Rs.14.00 lakhs as notified in the Karnataka Examination Authority website, on or before 25.05.2018 by 5.00 p.m. for consideration of her application for admission to the said MDS course.
7. It is the contention of the petitioner that, as 25th May, 2018, was the only day available to her to take the demand draft for Rs.14.00 lakhs and they are from the middle class family, it was very difficult to get a demand draft by arranging so much huge amount and unfortunately, the next two days i.e., 26th and 27th of May 2018 were bank holidays, therefore, she has taken the demand draft on 28.05.2018 and after obtaining the DD, 8 she immediately rushed to the respondent No.7 and gave a representation along with the DD for Rs.14.00 lakhs.
8. It is the further case and contention of the petitioner that, she was expecting that, she would get the said seat, as the last date for admission was fixed on 31.05.2018, but unfortunately, respondent Nos.6 and 7 have colluded with each other and preponed that date to 26.05.2018 and maliciously gave that seat to respondent No.8 and declined to provide that seat to the petitioner. The same was intimated to the petitioner on 29.05.2018. Being aggrieved by the same, the present writ petition is filed.
9. The learned counsel for the petitioner strenuously contends before the Court on various grounds.
10. Sri P. Vilas Kumar, learned counsel for the petitioner contends before the Court that, the main object of providing seats to the Hyderabad Karnataka area 9 students as per Section 371(j) of the Constitution of India has not been followed. He further contends that, there was no breathing time provided to the petitioner to secure the DD for such a huge amount. Only one day time was given and that too when on 26th and 27th of May 2018 were bank holidays, she could not able to get the DD. Therefore, within 31.05.2018, which is the last date fixed for admission, the said demand draft was furnished, but that has not been properly considered by the respondent No.7. He further contend before the Court that, in order to take huge money from respondent No.8 and to give a seat to respondent No.8, the respondent No.7 to enrich itself in money has thrown all the virtues and morals to the winds and given the seat to respondent No.8. It is further contended that, the petitioner is more meritorious compared to the respondent No.8 and therefore, the merit should have been considered by the respondent No.7. It is also contended that, the respondents have also not come up with clear materials before this Court as to on what 10 date the respondent No.8 has paid the amount by way of demand draft and on what date exactly, the seat was allocated to respondent No.8. In the absence of such explanation by respondent Nos.6 and 7, the seat allocated to respondent No.8 is illegal, bad in law and the same is liable to be quashed and the said seat has to be allocated in favour of the petitioner as prayed for.
11. Respondent Nos.6 to 8 have contested the proceedings seriously. It is contended that, the Director of Medical Education, Government of Karnataka has issued a notification on 21.05.2018 to all the Medical and Dental Colleges instructing to fill up the vacant seats notified by the Karnataka Examination Authority and the same shall be compulsorily done through the names list available in the College Login portal of Karnataka Examination Authority and fixed the last date of admission as on 26.05.2018 up to 11.59 p.m. Therefore, respondent No.7, without any unnecessary delay, has requested the 11 petitioner on 24.05.2018 i.e., on the date of she filing the application for the said seat, to furnish all the documents along with DD of Rs.14.00 lakhs and the same has to be submitted before 5.00 p.m. on 25.05.2018 so as to consider her application for the said seat and to communicate the same to respondent No.6. As the petitioner has not done the same on 25.05.2018 as per the directions of the Director of Medical Education, respondent No.7 has uploaded the details in the website of the third respondent and also completed the process of admission by giving seat to respondent No.8 and intimated the same to the third respondent on 26.05.2018. The petitioner herself was negligent and failed to deposit the amount within time. Infact, all the colleges have received the notification on 26.05.2018, which was also published on their website informing that as per the directions of the Hon'ble Apex Court in W.P. Nos.267/2017 and 556/2018, as they have web-hosted the name of respondent No.8, they cannot cancel her admission and give the same to the 12 petitioner herein. Because of the negligence on the part of the petitioner, she has to suffer and no illegality or irregularity has been committed by respondent Nos.6 to 8. Therefore, the respondents have sought for dismissal of the writ petition.
12. On a careful perusal of the above said rival contentions of the parties, there is no much dispute regarding the contention of the petitioner that, lot of money have been collected by the Divisional Commissioner for the purpose of developing the Educational institutions and supporting all the education societies for the development and upliftment of the Hyderabad Karnataka Region and to give proper representation to the people of that area. There is no dispute that, the petitioner belonging to this area and she also studied in the respondent No.7 institution during her Bachelor Dental Surgery Degree. Though the learned counsel for the petitioner has strenuously contended 13 about the responsibility of respondent No.7, but he has not denied the understanding between the institution and the Government by means of consensus agreement and also the policies, NEET examination pattern and the allocation of the Government seats and Management seats so far as private educational institutions are concerned. It is also an admitted fact that, after filling up the Government seats on the basis of the merits as per the Government policy decision, only one seat was available so far as 'Prosthodontics' course in respondent No.7 institution. It is also undisputed fact between the parties that petitioner and respondent No.8 have applied for the said seat. Though respondent No.7 is an Educational society, it has to provide importance to this area people, but on the other hand, it cannot ignore and violate the consensus agreement between itself and the Government. Therefore, if after due compliance of Section 371(j) of the Constitution of India, the Government has allocated the seat so far as the institution quota is concerned, the 14 further following up of Article 371(j) of the Constitution of India by the private institutions does not arise.
13. At the time of submitting arguments, both the counsel have conceded before the Court that on overall taking into consideration the availability of the seats in Medical Education, the Government has followed Article 371(j) of the Constitution of India and thereafter allocated the seats. Therefore, in this particular case, the allocation of the seats to respondent No.7 institution is only after following the reservation policy as per Article 371(j) of the Constitution of India. Therefore, the said ground which is taken up by the petitioner is not available to her.
14. The records produced before the Court would clearly disclose that as per Annexure-G filed by the petitioner i.e., the Revised Mop-up round Schedule-2018, wherein this document shows that, the last date for reporting to the college in Medical and Dental was fixed on 21.05.2018 at 5.00 p.m. so far as the seats allocated to 15 the Government and the institutions have to forward the names list of un-allotted candidates in order to merit equaling to ten times the number of vacant seats to the Medical and Dental Colleges by KEA on or before 21.05.2018 at 8.00 p.m. and the last date of joining Medical and Dental Colleges for candidates admitted by colleges out of the names list was fixed on 26.05.2018. Therefore, this document makes it clear that including the respondent No.7 institution, up to 21.05.2018 at 8.00 p.m., the un-allotted seats were not available to the institutions. Therefore, on 22.05.2018, the unfilled seats were notified in the website by the respondent No.7 institution. On the basis of that, the petitioner has made an application on 22.05.2018, which was admittedly submitted to respondent No.7 institution on 24.05.2018 which was accepted and received by respondent No.7. On 24.05.2018, as per Annexure-L, immediate intimation has been given to the petitioner to submit all the documents along with D.D. for Rs.14.00 lakhs for consideration of her 16 application to admit her to MDS course 2018-19. Admittedly, the same has not been done. On the other hand, as per Annexure-M, on 28.05.2018, a request was made by the petitioner to consider her application along with the said letter, it appears that DD for Rs.14.00 lakhs was also presented. Annexure-N is the copy of the D.D., which also shows that the D.D. for Rs.14.00 lakhs was purchased on 28.05.2018.
15. The learned counsel for the respondents have brought to the notice of this Court that, as per Annexure- R2 dated 21.05.2018, the Director of Medical Education has notified all the private Medical and Dental Colleges giving instructions regarding Post Graduate Medical/Dental admissions 2018. It is stated therein that, the last date of admission was fixed on 26.05.2018 by 11.59 p.m. i.e., before last minute of the end of the day of 26.05.2018 and it is also stated that, the candidates admitted from other than the names list, admission will 17 not be approved by RGUHS. The another document which is as per Annexure-R4, the Director of Medical Education vide letter dated 25.05.2018 also directed that the selected candidates list from the names list has to be uploaded to the RGUHS website on or before 26.05.2018 by 11.59 p.m. However, the documents can be uploaded on or before 31.05.2018. Therefore, it is clear from the above said documents that the process of filling up of the seats allocated to the private Medical Colleges have to be completed on or before 11.59 p.m. on 26.05.2018 and the list has to be sent. Accordingly, respondent No.7 has given opportunity to the petitioner to submit her documents as well as the demand draft on or before 25.05.2018. Therefore, the fair opportunity was given to the petitioner to comply with the directions of respondent No.1 and in turn respondent No.7 can comply with the directions of the Director of Medical Education. As the same has not been done by the petitioner, her candidature for the seat of MDS has not been considered vide letter 18 dated 29.05.2018. The final list sent to the Registrar, RGUHS is also produced as document No.1 along with list of documents dated 06.07.2018, which also shows that, the name of respondent No.8 has been shown as the person, who was allocated with the seat of MDS for 'Prosthodontics' course and the information was sent as on 26.05.2018 as per the directions of the Director of Medical Education. The above said factual aspects clearly disclose that the procedure as contemplated under the different directions and notification noted above, have been strictly complied by the respondent No.7.
16. When the petitioner has filed an application on 22.05.2018, but submitted the said application on 24.05.2018, she must be knowing that, if the seat is allocated, immediately she should be ready with all the legal requirements to obtain that seat. In this context, the learned counsel for the respondents have also brought to the notice of this Court the document No.2 filed with the 19 list of documents dated 06.07.2018, which is a notification calling for the applications online uploading of the Seat Matrix and Fees structure for Post-Graduate Dental seats for the academic year 2018-19. This letter was dated 10.03.2018 addressed to the Executive Director, Karnataka Examination Authority, Bangalore. The said letter also shows that, the Seat Matrix and Fee structure for online uploading has been fixed particularly for the seat of 'Prosthodontics', a sum of Rs.14.00 lakhs plus other fees has been fixed and it is also noted that, the seat allocated to the institution was only one. Therefore, as on 10.03.2018 itself, it is available to the petitioner in the concerned website that, she should be ready with a sum of Rs.14.00 lakhs demand draft, if she has applied for the seat allocated to respondent No.7 institution after filling up of the Government quota. Therefore, it may not lie in her mouth that, she was only given one day time for the purpose of securing the D.D. It is but natural in the given set of situation as on the date of filing of the 20 application for the seat i.e., on 24.05.2018 itself, she should have been ready with all the necessary documents and the demand draft for the said purpose. It goes without saying that the demand draft will be in force for a period of six months, if it is not cancelled and hence, she should have purchased the D.D. even much earlier so as to present the same to respondent No.7 as an when required. There was every opportunity to her to do the same. Suppose if she fail to get the seat, she would have surrendered the D.D. and received back the money. This has not been done for the reasons best known to her. When she submitted her application on 24.05.2018, it was well within her knowledge that 26th and 27th of May 2018 are the Bank holidays. Inspite of that, she did not make any efforts to take the D.D. on or before 25th May 2018. The petitioner, if really intended to secure the seat, she should have foreseen all the consequences and acted swiftly on a war-footing to comply with the legal requirements. Every day, hour and minute is important 21 in such situation, which has not been best utilized by the petitioner. She has to blame herself for the same.
17. Last but not least, the respondent No.8 has been allocated with the seat. It is not the question that requires to be considered by this Court, whether the seat allocated to respondent No.8 is proper and correct, but the Court has to see whether the refusal by respondent No.7 in not giving seat to the petitioner is correct or not. Therefore, when the petitioner herself has not made out a strong case in any manner, the question of allocating the seat to respondent No.8 cannot be disturbed at all.
18. Under the above said facts and circumstances, we do not find any strong reason to interfere with the communication made by respondent No.7 dated 29.05.2018 and consequently to set aside the seat allocated to respondent No.8 to the Post Graduation Course of 'Prosthodontics' in HKE's S. Nijalingappa Institute of Dental Sciences and Research, Kalaburagi. 22 Therefore, we are of the opinion that the petitioner is not entitled for any relief as prayed for. Hence, the petition is devoid of merit and liable to be dismissed. Accordingly, it is dismissed.
Sd/-
JUDGE Sd/-
JUDGE LG