Patna High Court
Medical Council Of India vs Dr. Tarunesh Sharma & Ors on 11 January, 2017
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1762 of 2016
Arising out of
Civil Writ Jurisdiction Case No. 6120 of 2016
===========================================================
Medical Council of India, Pocket-14, Sector-8, Dwarka New Delhi-110077.
.... .... Respondent No.5-Appellant
Versus
1. Dr. Sanand Prem, Son of Shri Yogendra Mohan Thakur, resident of Room
No.5, Doctor's Hostel 2, N.M.C.H., Patna and Permanent resident of Thakur
Chowk, Zila School Road, P.O. Purnea, P.S.K. Hat, District-Purnea.
2. Dr. Arvind Kumar, Son of Shri Ramawtar Sharma, resident of Room No.5,
Doctor's Hostel 2, N.M.C.H, Patna and Permanent resident of Govindpur
Fattuah, P.O.+ P.S.-Fatuah, District-Patna.
3. Dr. Majibullah Ansari, Son of Azhar Ali Ansari, resident of Room No. 7,
Doctor's Hostel 2, N.M.C.H, Patna and Permanent resident of village -
Bishambharpur, P.O.-Kudarbadha, P.S.-Garkha, District-Saran at Chapra.
4. Dr. Santosh Kumar, Son of Shri Dindayal Prasad, resident of Village & P.O.-
Rupsagar, P.S.-Nawanagar, District-Buxar.
5. Dr. Navin Kumar, son of Shri Lakhan Prasad resident of Room No.5, Doctor's
Hostel 2, N.M.C.H, Patna and Permanent resident of Marufganj, Nand Gola,
P.O. and P.S., District-Patna.
6. Dr. Anuj Kumar Verma, Son of Late Baleshwar Lal resident of Room No. 103,
Doctor's Hostel 2, N.M.C.H., Patna and Permanent resident at & P.O.-
Sukhasan, P.O. and P.S.-Kumarkhand, District-Madhepura.
.... .... Petitioners-Respondents
7. The State of Bihar through the Principal Secretary, Department of Health,
Government of Bihar, Patna.
8. The Principal Secretary, Department of Health, Government of Bihar, Patna.
9. The Deputy Secretary, Department of Health, Government of Bihar, Patna.
10. The Principal, Nalanda Medical College and Hospital, Patna.
11. The Bihar combined Entrance Competitive Examination Board (BCECE), Patna
though its chairman.
12. Officer on Special Duty, the Bihar Combined Entrance Competitive
Examination Board (BCECE), Patna.
Respondents-Respondents
With
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Letters Patent Appeal No. 1764 of 2016
Arising out of
Civil Writ Jurisdiction Case No. 7410 of 2016
===========================================================
Medical Council of India, Pocket 14, Sector 8, Dwarka Phase - I, New Delhi-
110077.
.... .... Appellant/s
Versus
1. Dr. Sidhant Kumar son of Ram Kumar Sah resident of Bihar Road, P.O. & P.S.
- Hilsa, District - Nalanda.
Patna High Court LPA No.1762 of 2016 dt.11-01-2017
2/10
Petitioner-Respondent
2. The State of Bihar through the Principal Secretary, Department of Health,
Government of Bihar, Patna.
3. The Principal Secretary, Department of Health, Govt. of Bihar, Patna.
4. The Deputy Secretary, Department of Health, Govt. of Bihar, Patna.
5. The Principal, Jawaharlal Nehru Medical College, Bhagalpur.
6. The Bihar Combined Entrance Competitive Examination Board (BCECE),
Patna through its Chairman.
7. Officer on Special Duty, The Bihar Combined Entrance Competitive
Examination Board (BCECE), Patna.
.... .... Respondents-Respondents
With
===========================================================
Letters Patent Appeal No. 1765 of 2016
Arising out of
Civil Writ Jurisdiction Case No. 6522 of 2016
===========================================================
Medical Council of India, Pocket- 14, Sector-8, Dwarka New Delhi- 110077.
.... .... Respondent No.5-Appellant
Versus
1. Dr. Tarunesh Sharma, aged about 29 years, son of Shri Ram Prakash Sharma,
resident of Room No. 106, Doctor's Hostel 1, P.M.C.H., Patna and permanent
resident of F-635, Kamla Nagar, P.O. & P.S. - New Agra, Agra (Uttar Pradesh)
2. Dr. Shista Prayadarshini, daughter of Sachchida Nand, resident of Room No. 57,
Kasturba PG Girl Hostel, PMCH, Patna and permanent resident of Village-
Khawa, P.O. - Kiranpur, P.S. - Medani Chowki, District - Lakhisarai
3. Dr. Binod Kumar, son of Sri Singheshwar Mandal, resident of J/142, 1st floor,
P.C. Cololy, P.O. & P.S. - Kankarbagh, District-Patna
4. Dr. Rupam Kumari, daughter of Sri Hari Shankar Prasad, resident of Room No.
39, Kasturba Girls Hostel, PMCH, Patna and permanent resident of Village-
Pachrukha, P.O. - Mokhlishpur, P.S. - Banjaria, District - East Champaran
5. Dr. Anita Kumari, daughter of Late Raghunath Prasad, resident of Room No. 54,
Kasturba Doctor's Hostel, PMCH, Patna and permanent resident of Lal Bazar,
Nonia Toli, P.O. - Lal Bazar, P.S. - Bettiah, District - West Champaran.
6. Dr. Amar Kumar, son of Sri Mahendra Ram, resident of Room No. 32, Doctor's
Hostel 1, PMCH, Patna and permanent resident of Road No. 1 New Colony,
Chhotki Delha, P.O. & P.S. - Gaya, District - Gaya
7. Dr. Udit Kumar Paswan, son of Sri Siyaram Pawan, resident of Room No. 41,
Doctor's Hostel 1, PMCH Patna and permanent resident of Village- Musepur,
P.O. - Bhewar Sikariya, P.S. - Jehanabad, District - Jehanabad
8. Dr. Ran Parween daughter of Md. Shamsuddin, resident of C/o Md. Shamsuddin,
Bagh Maloo Khan, Amin Colony, Patna City, District - Patna
9. Dr. Nagmani, son of Sri Nand Kishor Sah, resident of Room No. 9, Doctor's
Hostel 1, PMCH, Patna and permanent resident of Village-Faridpur, P.O. -
Jamalpur, District - Munger
10. Dr. Niraj Kumar, son of Shri Shyamta Rai, resident of Room No. 104, Doctor's
Hostel 1, PMCH, Patna and permanent resident at Fazalganj, P.O. & P.S. -
Sasaram, District - Rohtas
Patna High Court LPA No.1762 of 2016 dt.11-01-2017
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11. Dr. Tausif Ahmad, son of Dr. Shafi Ahmad, resident of C/O Dr. Shafi Ahmad,
Shafi Manzil, Shaharzan Colony, P.O. - Mahendru, P.S. - Sultanganj, District -
Patna
12. Dr. Uma Shankar Kumar son of Ram Swaroop Singh, resident of 4H/6,
Bahadurpur Housing Colony, Bhootnath Road, P.S. - Kankarbagh, District -
Patna
13. Dr. Nitisha daughter of Kapil Prasad resident of C/o Gyan Shankar, Road No. 7,
Rajendra Nagar, District - Patna
14. Dr. Hemant Kumar, son of Sri Bindeshwari Prasad Sah, resident of Village- +
P.O. - Babu Bagicha, Via - Mansi, District - Khagaria
15. Dr. Kumar Nitish, son of Sri Raghunath Prasad, resident of Room No. 25
Doctor's Hostel 1, PMCH, Patna and permanent resident of Rental Flat No. 386,
Kankarbagh Colony, P.O. - Kankarbagh, District - Patna
16. Dr. Indramani Prasad Singh, son of Late Ram Narain Singh, resident of New
P.G. Boys Hostel, Room No. 431, PMCH, Patna and permanent resident of
Village-Trilokpur, P.O. - Jamsor (Hathwa), P.S.-Uchakagoan, District-
Gopalganj
17. Dr. Nikki Kumari daughter of Sri Binda Prasad Singh, resident of At-Kharoj,
P.O. - Kalpa, P.S. - Jehanabad District - Jehanabad
18. Dr. Manoj Kumar son of Sri Ramesh Mahto, resident of Nalanda Colony, Lohia
Nagar, P.O. - Lohia Nagar, P.S. - Kankarbagh, District - Patna
19. Dr. Ohm Prakash, son of Sri Brahmdeo Prasad, resident of Transport Nager, P.S.
- Agamkuan, P.O. - Bahadurpur Housing Colony, District - Patna
20. Dr. Avani Raj, son of Sri Sudhir Mishra, resident of Teachers Colony, P.O. &
P.S. - Bhatta Bazar, District - Purnea
Petitioners-Respondents
21. The State of Bihar through the Principal Secretary, Department of Health,
Government of Bihar, Patna.
22. The Principal Secretary, Department of Health, Government of Bihar, Patna.
23. The Deputy Secretary, Department of Health, Government of Bihar, Patna.
24. The Principal, Patna Medical College and Hospital, Patna.
25. The Bihar Combined Entrance Competitive Examination Board (BCECE),
Patna through its Chairman.
26. Officer on Special Duty, The Bihar Combined Entrance Competitive
Examination Board, (BCECE), Patna.
.... .... Respondent/s
With
===========================================================
Letters Patent Appeal No. 1763 of 2016
Arising out of
Civil Writ Jurisdiction Case No. 6967 of 2016
===========================================================
Medical Council of India, Pocket 14, Sector 8, Dwarika Phase-I, New Delhi
.... .... Respondent No. 5-Appellant
Versus
1. Dr. Amrit Kumar Son of Shri Chandra Prasd Sah, resident of Room No. L3,
PG1 Boys Hostel, DMCH Laheriasarai and permanent resident of At- Chhoti
Bazar Dudhpura, P.O + P.S.- Samastipur, District- Samastipur.
2. Dr. MD Kashif Rizwi son of MD Rizwn Ahmad, resident of Room No. U- 34,
Patna High Court LPA No.1762 of 2016 dt.11-01-2017
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PG1 Boys Hostel, DMCH, Laheriasarai and permanent resident of Baksa Gali
Main Bazar Sabji Market, Jehanabad, P.O + P.S. Jehanabad, District-Jehanabad.
3. Dr. Mukesh Kumar Son of Raghunandan Yadav resident of Room No- L14,
PG2- Boys Hostel, DMCH, Laheriasarai, Darbhanga and permanent resident of
Village- Lalpatti, P.O.- Baghia, P.S.- Triveniganj, District- Supaul.
4. Dr. Rakesh Kumar Son of Shri Prakash Prasad resident of Room No.- M33,
PG Boys Hostel No. 1, DMCH, Laheriasarai, Darbhanga and permanent
resident of At- Patel Colony, P.O.- Dhelwan, Harishchandar Nagar, District-
Patna.
5. Dr. Shambhu Sharan Gupta Son of late Shiv Prasad Tanti, Resident of Room
No- M-15, West Hostel, DMCH, Laheriasarai, Darbhanga and Permanent
Resident of of Village- jalalpur, P.O. + P.S.- Sohsarai, District- Nalanda.
6. Dr. Sanjeev Diwakar Son of Shri Bishnudeo Prasad Singh, resident of Rom No.
S/12, East Hostel, DMCH, Laheriasarai, Darbhanga and pemanent resident of
Village- Bahuarwa, P.O- Uteshra, P.S.- Salkhua, District- Saharsa.
7. Dr. Raja Avinash Son of Chandra Bhanu Sharan resident of Room No- M- 36,
PG-1 Boys Hostel, DMCH, Laheriasarai, Darbhanga and permanent resident of
AT + P.O.- Bangpur, Via- Parwalpur, District- Nalanda.
8. Dr. Shailendra Kumar Son of Uttam Lal Yadav resident of Room No- M1, PG2
Boys Hostel DMCH, Laheriasarai, Darbhanga and permanent resident of AT-
Khairamath G.P.O- Bela Via- Jaynagar, District- Madhubani.
9. Dr. Sheeren Saba daughter of Abdul Ghaffar Ansari resident of Mohalla-
Dumduma, Laherisarai and Permanent resident of C/o- Dr. Qamruddin Ansari,
Mohalla- Dumduma, Laheriasarai, District- Darbhanga.
10. Dr. Tanya Priya daughter of Ashok Kumar Room No. U/10 PG2 Boys Hostel
DMCH Laherisarai, Darbhanga and permanent resident of Village- Bhorambag,
P.O- Itpakwa, P.S. Kauwakol, District- Nawada.
Petitioners-Respondents
11. The State of Bihar through the Principal Secretary, Department of Health
Government of Bihar, Patna.
12. The Principal Secretary, Department of Health, Govt. of Bihar, Patna.
13. The Deputy Secretary, Department of Health Govt. of Bihar, Patna.
14. The Principal, Darbhanga Medical College and Hospital, Laheriasarai,
Darbhanga.
15. The Bihar Combined Entrance Competitive Examination Board (BCECE),
Patna through its Chairman.
16. Officer on Special Duty Bihar, The Bihar Combined Entrance Competitive
Examination Board (BCECE), Patna.
.... .... Respondent/s
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Appearance:
(In LPA No.1762 of 2016)
For the Appellant/s : Mr. Kumar Brijnandan, Advocate.
For the Respondent/s : Mr. Gajendra Pd. Yadav, SC-17.
Mrs. Alka Verma, Advocate.
(In LPA No.1764 of 2016)
For the Appellant/s : Mr. Kumar Brijnandan, Advocate.
For the Respondent/s : Mr. Sunil Kumar Mandal, SC-3.
Smt. Neelam Kumari, AC to SC-3.
Mr. Bipin Kumar, AC to SC-3.
(In LPA No.1765 of 2016)
For the Appellant/s : Mr. Kumar Brijnandan, Advocate.
Patna High Court LPA No.1762 of 2016 dt.11-01-2017
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For the Respondent/s : Mr. Vikash Kumar, SC-11.
(In LPA No.1763 of 2016)
For the Appellant/s : Mr. Kumar Brijnandan
For the Respondent/s : Smt. Namrata Mishra, GA-6.
Mr. Alok Ranjan, AC to GA-6.
For the Private Respondent: Mr. Tuhin Shankar, Advocate.
For the B.C.C.E.B : Mr. Vikash Kumar, Advocate.
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
And
HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
ORAL JUDGMENT
(Per: HONOURABLE THE ACTING CHIEF JUSTICE)
Date: 11-01-2017
Re.: I.A. No. 7190 of 2016 in L.P.A. No.1762 of 2016
I.A. No. 7195 of 2016 in L.P.A. No. 1764 of 2016
I.A. No. 7197 of 2016 in L.P.A. No. 1765 of 2016
I.A. No. 7192 of 2016 in L.P.A. No. 1763 of 2016
These applications are for condonation of delay in
filing the Letters Patent Appeals.
For the reasons mentioned in the Interlocutory
applications, we are satisfied that the appellants have shown
sufficient cause to seek condonation of delay in filing the present
Letters Patent Appeals.
Consequently, Interlocutory Applications are allowed
and delay in filing the Letters Patent Appeals is condoned.
Re.: L.P.A. Nos. 1762 of 2016, 1764 of 2016, 1765 of
2016 and 1763 of 2016.
This order shall dispose of L.P.A. Nos. 1762 of 2016,
1764 of 2016, 1765 of 2016 and 1763 of 2016 arising out of a
common order passed by the learned Single Bench on 18.07.2016,
whereby the writ applications were allowed and the order of the
Patna High Court LPA No.1762 of 2016 dt.11-01-2017
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cancellation of admission to the Post Graduate courses in different
medical colleges of Bihar by the Medical Council of India was set
aside.
2. The writ applicants were all successful candidates in
the examination, which was held by Bihar Combined Entrance
Competitive Examination Board for admission in Post Graduate
courses in different Medical Colleges of Bihar. The examination in
question was held in the year 2014. The writ applicants were initially
admitted to the Post Graduate courses before 10th of July, 2014, the
cut-off date fixed for admission. But on account of third counselling,
some of the writ applicants upgraded their admission to other
Medical Colleges or in different disciplines. The writ applicants
were admitted before 08th of August, 2014 in different courses. It is,
thereafter, the Medical Council of India on 21.01.2016 cancelled the
admission of all the writ applicants for the reason that they have been
admitted after the cut-off date 10.07.2014 fixed by the Hon'ble
Supreme Court.
3. The learned Single Bench allowed the writ
applications relying upon the Hon'ble Supreme Court Judgment in
the case of Asha v. PT. B.D. Sharma University of Health Sciences,
reported as (2012) 7 SCC 389 as it found that there is no fault on the
part of the candidates and that present is a case where the Board had
taken the responsibility of not completing the third counseling before
Patna High Court LPA No.1762 of 2016 dt.11-01-2017
7/10
the cut-off date. The learned Single Bench, inter alia, concluded as
under:
"12. if the stand of the Board is understood in
its entirety then there was certain compelling reasons as to
why the exercise of counseling could not be completed
before 10.07.2014, but to the credit of the Board they have
taken the onus upon themselves and have very fairly placed
the factual position before the Court and also taken a plea
that under the above circumstances, the decision of Medical
Council of India should not be acted upon. It is also evident
that many of these petitioners had taken admission on the
basis of the 1st and 2nd counseling well before cut-off date.
But because of options and openings coming their way due
to fresh counseling in courses which in their opinion was a
better opening that they are in this difficulty. It is contended,
therefore, on behalf of the petitioners that it will not be fair
to make these petitioners suffer, merely because they took
admission a second time over when the initial opening or
admission was allowed much before the cut-off date i.e.
10.07.2014.
Xxx xxx
17. If the above principle laid down by the Hon'ble Apex Court is taken into consideration, then the Court does feel that there is no hanky panky in granting admissions to these petitioners after the cut-off date. The reason for delay has been well explained by the authorities, who are saddled with the responsibility of not only holding of examination, but also the counseling and that these petitioners have had no role in delaying the admission after the cut-off date. In fact many of them had already taken admission well before the cut-off date but for sake of argument if it can be said that it is the indiscretion on their part to take admission afresh because of opening which was provided to them then it is not a case of any mischief or an effort made to over-reach the guidelines or the cut-off date Patna High Court LPA No.1762 of 2016 dt.11-01-2017 8/10 fixed by the Hon'ble Apex Court."
4. Aggrieved against the order passed by the learned Single Bench, the Medical Council of India has filed the present appeals under Clause X of the Letters Patent. Learned Counsel for the appellant argued that the Hon'ble Supreme Court in the case of Dr. Fraz Naseem & Ors. Vs. the Union of India & Ors. (Writ petition (Civil) No. 433 of 2013) fixed the time schedule as 14.03.2014 for admission to the Post Graduate courses. It is thus, contended that once the time schedule has been fixed by the Hon'ble Supreme Court, the Board was bound to complete the process of admission before the cut-off date and having failed to do so, the admission of the candidates is contrary to the time schedule fixed by the Hon'ble Supreme Court and thus illegal.
5. On behalf of the respondents, apart from the Asha's case (supra), reference has been made to Chandigarh Admn. V. Jasmine Kaur, (2014) 10 SCC 521, and also the judgment of the Hon'ble Supreme Court in the case of Medical Council of India Vs. Kalinga Institute of Medical Sciences (Civil Appeal No. 4914 of 2016 decided on 6th May 2016, and also the case of Medical Council of India Vs. JSS Medical College & Anr., AIR 2016 SC 588 wherein the Supreme Court has granted admission after the cut-off dates.
6. We have heard learned counsel for the parties and find that no case of interference in the order passed by the learned Patna High Court LPA No.1762 of 2016 dt.11-01-2017 9/10 Single Bench is made out. The admission process is controlled and regulated by a Board established by the State. The delay in admission has taken place on account of non-completion of the third counselling before the Cut-off date. The Board has given reasons as to why the third counselling could not be completed before the cut- off date 10.07.2014, particularly in respect of lack of clarity in the admission process in respect of the candidates who have worked in the remote and difficult areas.
7. Thus, we find that the candidates were not to be blamed for delayed action of completion of the admission process by the Board. The candidates cannot be made to suffer. In terms of the judgment in Asha's case (supra), the Court can mould the relief in rarest of the rare cases or in exceptional circumstances and when the court finds that no fault is attributable to the candidate; the candidates pursued their rights and remedies as expeditiously as possible without any delay and that there is fault on the part of the authorities and apparent breach of some rules, regulations and principles in the process of selection and grant of admission.
8. In the present case, the writ applicants were granted admission by the Board, though after the cut-off date. It was an action on the part of the Board for which the candidates ought not to be blamed. Thus, the present is a case of exceptional circumstances in granting admission after the cut-off date. The candidates were Patna High Court LPA No.1762 of 2016 dt.11-01-2017 10/10 admitted to the course in the year 2014. Their admission was cancelled when they have completed more than half of the course in respect of the candidates admitted to degree course, whereas the candidates admitted in the Diploma Courses have completed the entire course. The right of any other candidate is not adversely affected by the admission of the writ applicants as well.
9. In view of the said fact, mere fact that the admission was not granted within the cut-off date, when the right of no other person is affected, we do not find that any case is made out for interference in the present Letters Patent Appeal. Accordingly, the same is dismissed.
(Hemant Gupta, ACJ) (Dinesh Kumar Singh, J) Mishra/-
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