Madras High Court
M.Pratibha Roshini vs The State Of Tamil Nadu on 4 March, 2020
Author: M. Sathyanarayanan
Bench: M. Sathyanarayanan
Rev.Aplw.No.22/2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 04.03.2020
CORAM
THE HONOURABLE MR. JUSTICE M. SATHYANARAYANAN
AND
THE HONOURABLE MR. JUSTICE M.SUNDAR
Rev.Aplw.No.22/2020
M.Pratibha Roshini .. Petitioner
Versus
1.The State of Tamil Nadu
rep.by its Secretary
Health & Family Welfare Department
Fort St. George, Chennai 600 009.
2.The Secretary
Medical Council of India
Pocket 14, Sector 8,
Dwarka Phase-I
New Delhi 110 077.
3.The Registrar
The Tamil Nadu Dr.MGR Medical University
NO.69, Anna Salai, Guindy
Chennai 600 032.
4.The Director of Medical Education
Directorate of Medical Education,
No.162, Periyar EVR High Road
Kilpauk, Chennai 600 010.
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5.The Secretary
Selection Committee
Directorate of Medical Education,
No.162, Periyar EVR High Road
Kilpauk, Chennai 600 010.
6.The Chairman
Ponnaiyah Ramajayam Institute of Medical Science
Manamai Nellur, Kancheepuram District. .. Respondents
PRAYER:- Review Application filed under Order XLVII Rule 1 and Section
114 of CPC., to review the order dated 10.03.2017 in Writ Appeal No.242
of 2017 and permit the petitioner to pursue the MBBS Course in any one of
the Medical Colleges in the State.
For Petitioner : Mr.T.Mohan for
Mr.V.Sithannan
For RR1 & 4 : Mr.Akhil Akbar Ali, GA
For R2 : Mr.V.P.Raman
For R3 : Mr.D.Ravichander
For R5 : Mr.Abdul Saleem
For R6 : Mr.L.Chandrakumar
ORDER
[Order of the Court was made by M.SUNDAR,J.,] (1)Instant Review Application has been filed seeking review of an order dated 10.03.2017 made in WA.No.242 of 2017. 2/12 http://www.judis.nic.in Rev.Aplw.No.22/2020 (2)A short narrative of proceedings which culminated in instant review, is as follows:
(a)Genesis of entire lis is a letter dated 14.11.2016 bearing Letter No.EX1[3]/58835/2016 from the 3rd respondent - University wherein, review petitioner was one of the 38 candidates whose admissions in MBBS course were put in peril. Assailing this communication dated 14.11.2016 and seeking admission in accordance with Section 10-D of Indian Medical Council Act, review petitioner filed WP.No.1605 of 2017. This writ petition came to be dismissed by a Hon'ble Single Judge after full contest, vide order dated 23.01.2017.
(b)The unsuccessful writ petitioner carried the matter by way of an Intra Court Appeal, i.e., WA.No.242 of 2017, which came to be dismissed by a Division Bench [to which, one of us was a party] and Division Bench, after contest, dismissed the writ appeal by judgment dated 10.03.2017.
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(c)Seeking review of the aforesaid judgment of the Division Bench, instant Review Application has been filed and the entire review is predicated on the case of one S.Yamini, who according to the review petitioner, had secured lesser marks in the same Backward Class Category, but was given admission in another Medical College which goes by the name 'Sree Mookambika Institute of Medical Sciences' in what was described as 'Government Quota Lapsed Seat'.
(3)Though there are a mass of pleadings in the instant Review Application, as the Review Application progressed, the entire scope of the review narrowed down to aforementioned case of S.Yamini and the issue of admission in what was described as Government Quota Lapsed Seats in Private Institutions. To be noted, there is no disputation or contestation between all learned Counsel before this Division Bench that entire review petition has now been narrowed down to these two aspects of the matter.
(4)With regard to the case of Yamini, one paragraph in Synopsis filed by the Review Petitioner can be usefully extracted to set out with clarity, the 4/12 http://www.judis.nic.in Rev.Aplw.No.22/2020 substratum of the review petition and the same reads as follows:
'In the meanwhile it came to the knowledge of the petitioner that another candidate by name Ms.Yamini who was much lower in the Government merit list than the petitioner having secured lesser mark of 191.75/200 [Govt.merit list BC rank 4395] than the petitioner who scored 192/200 [Govt. merit list BC rank 4229], was given admission pursuant to the order of the Hon'ble High Court of Madras [Madurai Bench] in a other Medical College called Sri Moogambika Institute of Medical Sciences under Government quota lapsed seat.' (5)With regard to the aforesaid case, we called upon the 3rd respondent -
University to explain their stand. 3rd respondent - University has filed a counter affidavit explaining their stand ; but in the light of the trajectory the hearing has taken today, it may not be necessary to advert to the averments therein. Suffice to reproduce the 2016 Examination Result regarding S.Yamini, which is as follows:
CBSE – NATIONAL ELIGIBILITY CUM ENTRANCE TEST NEET [UG] – 2016 RESULTS Particulars of the candiate:-
Roll Number 83500338 Application 5028601 Natonality INDIAN No Candidate's S.YAMINI Date of Birth 30/08/1998 Name 5/12 http://www.judis.nic.in Rev.Aplw.No.22/2020 Roll Number 83500338 Application 5028601 Natonality INDIAN No Mother's A.KAVITHA Gender Female Name Father's Name M.SRIKUMAR Category/Sub OTHERS/NO Category Marks Obtained Physics [out 13 Chemistry [out 42 Biology [Botany & 117 of 180] of 180] Zoology] [out of 360] Total Marks 172 Percentile Score 58.784119 [out of 720] RANKS Details Overall Rank Category Rank Category-PH Rank NEET All India 300752 144759 ----
Rank
*All India Quota 283179 135597 -----
Rank [for 15% seats]
*As per the options indicated by the candidate in the online Application Form RESULT Qualified in NEET-2016 Not eligible for counselling under 15% All India Quota Seats CUT OFF SCORE for counselling under All India Seats 2016 [as on 16-08-2016] Category Marks No. of Category Marks No. of Range Candidates Range Candidates OTHERS 685-145 171329 OTHERS-PH 474-131 437 OBC 678-118 175226 OBC-PH 510-118 597 SC 595-118 47183 SC-PH 415-118 143 ST 599-118 15710 ST-PH 339-118 36 Candidates seeking admission under State Quota seats, Central 6/12 http://www.judis.nic.in Rev.Aplw.No.22/2020 Institutions, AFMC and other participating institutions etc., are advised to be in touch with the concerned authority viz Medical Education Directorate of the State/UT/Institutions/University/AFMC.
DATE OF DECLARATION OF RESULT:16/08/2016. (6)Learned counsel for the review petitioner very fairly submitted that the above takes the wind out of the sails in the instant review petition and puts an end to the points urged and canvassed on the basis of Yamini's admission in another Private Institution.
(7)This takes us to next aspect of the matter, viz., 'Government quota lapsed seats'.
(8)With regard to what used to be described as Government Quota 'Lapsed Seats', the same came up for consideration before a Hon'ble Full Bench constituted owing to divergence of views expressed by Two Hon'ble Division Benches in WA.Nos.242 of 2017 and 406 of 2017.
(9)Hon'ble Full Bench was called upon to answer reference qua three points ; but one of the three will suffice to answer the issue that is before us in the instant review petition, i.e., the second point of reference which reads as follows:
''2.If the seats have to be filled up by the Government against the Lapsed Seats, what would be the situation and how the seats would be filled up, viz., whether based on NEET examination or Plus-Two Examination?'' 7/12 http://www.judis.nic.in Rev.Aplw.No.22/2020 (10)Hon'ble Full Bench, vide order dated 05.06.2018, while answering the aforesaid reference, held with absolute clarity and specificity that it is a misnomer to refer to seats filled up by Private Institutions as 'lapsed seats' and the correct terminology to be used is 'unutilised / unfilled seats'. Therefore, the question as to whether a Private Institution can fill seats in Government quota in the guise of lapsed seats is no longer res integra as it has been conclusively answered by Hon'ble Full Bench.
The answer of Hon'ble Full Bench is not only in the negative but the answer goes as far as making it clear that there is no concept of lapsed seats and if at all they are only unutilised/unfilled seats. In the light of the authoritative pronouncement and answer to one of the points of reference which is declaratory in nature, the prayer of the review petitioner cannot but be negatived. In other words, the review petitioner cannot be given any relief.
(11)We are constrained to observe that this review petition has come across as over one more strand of legal proceedings in review petitioner's tenacious endeavour to keep the issue alive through one legal proceedings or the other.
(12)As a last effort, which we see as an effort in desperation, two requests 8/12 http://www.judis.nic.in Rev.Aplw.No.22/2020 were placed before this Court. One is, the review petitioner has made a representation dated 12.11.2019 to the Government and the same deserves to be considered. In our considered view, this is clearly misplaced as the Government has no role in the light of the trajectory which these matters have taken and in the light of the authoritative pronouncement made by Hon'ble Full Bench. (13)The second request was leave to seek review of the aforesaid order dated 01.11.2017 made by Hon'ble Full Bench on the ground that review petitioner was not before Full Bench. This, in our considered view, is completely untenable as we cannot even countenance such a request as a Division Bench cannot grant leave to a party to seek review of a Full Bench order, more so, on the ground that a party was not before the Full Bench when a reference was answered by Full Bench. (14)Before we part with this case, it is made clear that three parameters for a review petition, viz., [a] new facts emerging post order ; [b] material which was available, but could not be produced before the Court at the time order that is sought to be reviewed came to made ; and [c] any other reasons, were examined and none exist in the instant case. To be noted, while the first and second grounds for review are self explanatory, the third ground, which is in the nature of usual residuary ground has 9/12 http://www.judis.nic.in Rev.Aplw.No.22/2020 been repeatedly explained by Hon'ble Courts in a catena of case laws and plethora of decisions. Suffice to say that instant case does not fit into any of those categories. Instant review petition on hand could have been dismissed at the threshold on this short ground, but considering the nature of the matter, we embarked upon the exercise of calling upon the University as well as the Medical Council of India [MCI] to give their responses. The responses placed by University and MCI inter alia regarding Yamini's admission [which is the sheet anchor of the review petitioner's case] have already been alluded to supra. To be noted, Full Bench decision is pivotal ponit of response of MCI. (15)Owing to all that have been set out supra, we find no ground to review the order dated 10.03.2017 made in WA.No.242 of 2017. (16)Review Application is dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.
[M.S.N.,J] [M.S., J]
04.03.2020
AP
Internet : Yes
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Rev.Aplw.No.22/2020
To
1.The Secretary
State of Tamil Nadu
Health & Family Welfare Department
Fort St. George, Chennai 600 009.
2.The Secretary
Medical Council of India
Pocket 14, Sector 8,
Dwarka Phase-I
New Delhi 110 077.
3.The Registrar
The Tamil Nadu Dr.MGR Medical University NO.69, Anna Salai, Guindy Chennai 600 032.
4.The Director of Medical Education Directorate of Medical Education, No.162, Periyar EVR High Road Kilpauk, Chennai 600 010.
5.The Secretary Selection Committee Directorate of Medical Education, No.162, Periyar EVR High Road Kilpauk, Chennai 600 010.
6.The Chairman Ponnaiyah Ramajayam Institute of Medical Science Manamai Nellur, Kancheepuram District.
11/12 http://www.judis.nic.in Rev.Aplw.No.22/2020 M.SATHYANARAYANAN, J., AND M.SUNDAR, J., AP Rev.Aplw.No.22/2020 04.03.2020 12/12 http://www.judis.nic.in