Rajasthan High Court - Jaipur
State Of Raj And Anr vs Wasim Akram &Ors; on 19 September, 2016
Author: Navin Sinha
Bench: Navin Sinha
988-2015 Special Appeal (W) & Other connected matters
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH, JAIPUR.
1. D.B. CIVIL SPECIAL APPEAL (WRIT) NO.988/2015
IN
S.B.CIVIL WRIT PETITION NO.15287/2013.
1.The State of Rajasthan through
Secretary/Commissioner, Rajasthan Medical Education
Directorate, Secretariat, Jaipur.
2.The Commissioner, Medical Education, Directorate of
Medical Education, Government Secretariat, Jaipur.
...Appellants
Versus
1.Wasim Akram son of Ismail Khan, aged about 25
years, Resident of D-31-32, Sanjay Nagar, Bhatta Basti,
Shastri Nagar, Jaipur.
.....Respondent-writ petitioner
2.The Union of India through Assistant Director General
(ME), Directorate General of Health Services, Nirman
Bhawan, New Delhi.
3.The Medical Council of India through its Chairman,
Pocket-14, Sector-8, Dwarka Phase-1, New Delhi, Delhi
- 110077.
4.The Dental Council of India through its Chairman,
Alwan-E--Galib Marg, Kotla Road, Temple Lane, New
Delhi - 110002.
5.Mahatma Gandhi Medical College and Hospital,
through its Registrar, RIICO Institutional Area,
Sitapura, Tonk Road, Jaipur.
6.National Institute of Medical Sciences and Research
through its Registrar, Shobha Nagar, Jaipur Delhi
National Highway, Jaipur, Rajasthan - 303121.
7.Geetanjali University through its Registrar, N.H.8
byepass, Near Eklingpura Chouraha, Udaipur,
Rajasthan.
8.Rajasthan University of Health Sciences through its
Registrar, Pratap Nagar, Tonk Road, Jaipur.
......2to 8 Proforma-Respondents
2. D.B. CIVIL SPECIAL APPEAL (WRIT) NO.983/2015
IN
S.B. CIVIL WRIT PETITION NO.16412/2013
1.The State of Rajasthan through Principal Secretary,
Medical Education, Government of Rajasthan, Govt.
Secretariat, Jaipur.
2.The Convener, Rajasthan NEET-UG-Admission Board,
2013, Government Dental College, Shastri Nagar,
Jaipur.
988-2015 Special Appeal (W) & Other connected matters
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...Appellants
Versus
1.Anisha Chawla D/o Dr. Raja Chawla, aged about 20
years, by caste Khatik (SC), R/o B-55, Saket Colony,
Adarsh Nagar, Jaipur.
.........Respondent-writ petitioner
2.Central Board of Secondary Education through its
Chairman, Shiksha Kendra-II, Community Centre, Preet
Vihar, New Delhi - 110 301.
3.Joint Secretary (OSD), NEET-UG-2013, Central Board
of Secondary Education, Shiksha Kendra-II, Community
Centre, Preet Vihar, New Delhi - 110301.
4.Medical Council of India through its Secretary,
Pocket-14, Sector-8, Dwarka, New Delhi - 110077.
5.Mahatma Gandhi University of Medical Science and
Technology through its Principal Secretary, RIICO
Industrial Area, Sitapura, Jaipur - 302 022.
6.Convener, Admissions, Professor & Head Department
of Anatomy, Additional Principal Mahatma Gandhi
Medical College & Hospital, Jaipur.
7.Rajasthan Medical Fee Regulatory Committee Headed
by Hon'ble Justice (Retd. S.N. Bhargava Empowered by
Supreme Court through its Chairman, 20/46, Ambedkar
Marg, Renu Path, Mansarovar, Jaipur - 302 020.
8.Miss Harshita Khichi D/o Shri Yogesh Kumar Khichi,
student of MBBS First Year of Sessions 2013-14,
Mahatma Gandhi University of Medical Science and
Technology through its Principal Secretary, RIICO
Industrial Area, Sitapura Jaipur - 302022.
......2 to 8 Proforma-respondents
3. D.B. CIVIL SPECIAL APPEAL (WRIT) NO.1041/2015
IN
S.B. CIVIL WRIT PETITION NO.16412/2013
Chhail Bihari Agarwal S/o. Shri Mohanlal Agarwal, r/o.
21, Patel Colony, Hathroi, Jaipur.
...Appellant
Versus
1.Anisha Chawla D/o. Dr. Raja Chawla, aged 18 years,
B/c Khatik(SC), R/o B-55, Saket Colony, Adarsh Nagar,
Jaipur.
...Respondent/Petitioner
2.The Central Board of Secondary Education through its
Chairman, Shiksha Kendra-II, Community Centre, Preet
Vihar, New Delhi 110301.
3.The Joint Secretary (OSD), NEET-UG-2013, Central
Board of Secondary Education, Shiksha Kendra-II,
Community Centre, Preet Vihar, New Delhi 110301.
4.The Medical Council of India through its Secretary,
988-2015 Special Appeal (W) & Other connected matters
3
Pocket-14, Sector-8, Dwarka, New Delhi, 110077.
5.The State of Rajasthan through Principal Secretary,
Medical Education, Govt. of Rajasthan, Govt.
Secretariat, Jaipur.
6.The Mahatma Gandhi University of Medical Science
and Technology through its Principal Secretary, RIICO
Industrial Area, Sitapura, Jaipur 302022.
7.The Convener, Admission, Professor and Head,
Department of Anatomy, Additional Principal Mahatma
Gandhi Medical College and Hospital, Jaipur.
8.The Convener, Rajasthan NEET-UG Admission Board
2013, Government Dental College, Shastri Nagar,
Jaipur.
9.The Rajasthan Medical Fee Regulatory Committee
headed by Hon'ble Justice (Retd.) S.N. Bhargava
empowered by Supreme Court through its Chairman,
20/46, Ambedkar Marg, Renu Path, Mansarovar, Jaipur.
10.Miss Harshita Khinchi D/o Shri Yogesh Kumar
Khinchi, student of MBBS First Year of Sessions 2013-
14, Mahatma Gandhi University of Medical Sciences and
Technology through its Principal Secretary, RIICO
industrial Area, Sitapura, Jaipur.
..Proforma Respondents/Non-Petitioners
4. D.B. CIVIL SPECIAL APPEAL (WRIT) NO.1042/2015.
IN
S.B. CIVIL WRIT PETITION NO.15287/2013
Chhali Bihari Agarwal S/o. Shri Mohanlal Agarwal, r/o.
21, Patel Colony, Hathroi, Jaipur.
..Appellant
VERSUS
1.Wasim Akram S/o Shri Ismail Khan, resident of D31-
32, Sanjay Nagar, Bhatta Basti, Shasti Nagar, Jaipur.
...Respondent/Petitioner
2.The Assistant Director General (ME), Directorate
General of Health Services, Nirman Bhawan, New Delhi.
3.The Secretary/Commissioner, Rajasthan Medical
Education Directorate, Secretariat, Jaipur.
4.The Chairman, Medical Council of India, Pocket-14,
Sector-8, Dwarka Phase-1, New Delhi, Delhi, 110077.
5.The Chairman, Dental Council of India, Aiwan-E-Galib
Marg, Kotla Road, Temple Lane, New Delhi - 110002.
6.The Registrar, Mahatma Gandhi Medical College and
Hospital, RIICO Institutional Area, Sita Pura, Tonk
Road, Jaipur.
7.The Registrar, National Institute of Medical Sciences
and Research, Shobha Nagar, Jaipur Delhi National
Highway, Jaipur, Rajasthan-303121.
8.The Registrar, Geetnajali University, N.H.8, Bypass,
988-2015 Special Appeal (W) & Other connected matters
4
Near Ekling Pura Chouraha, Udaipur, Rajasthan.
9.The Registrar, Rajasthan University of Health Science,
Pratap Nagar, Tonk Road, Jaipur.
10.The Commissioner, Medical Education, Directorate of
Medical Education, Government Secretariat, Jaipur.
...Proforma Respondents/Non-petitioners.
Date of Order ::19.09.2016.
HON'BLE THE CHIEF JUSTICE MR. NAVIN SINHA
HON'BLE MR. JUSTICE VIJAY KUMAR VYAS
Shri NM Lodha, Advocate General assisted by
Shri Sheetanshu Sharma.
Shri Mahendra Goyal, counsel for the appellants.
Shri Rajendra Soni with
Shri NK Garg, counsel for the respondent in Special
Appeal (W) Nos. 983/2015 & 1041/2015.
Shri Vijay Choudhary counsel for the respondent in
Special Appeal (W) No.1042/2015.
Shri Angad Mirdha, counsel for the respondents.
ORDER The present appeals arise from order dated 17.08.2015 in S.B.Civil Writ Petition No.15287/2013 and analogous petitions. Disposing the writ applications, holding that independent counselling could not have been done for admission in the MBBS course 2013-2014, in the private medical colleges/universities the Learned Single Judge has directed fixation of responsibility against the concerned officials in an inquiry, drawing up of departmental proceedings awarding compensation of Rs.1,00,000/- to the two private respondents and to recover the same from the erring officials placing reliance on an order in SLP 988-2015 Special Appeal (W) & Other connected matters 5 (Civil) No.31900/2013; Krina Ajay Shah & Ors. versus The Secretary, Association of Management of Unaided Private Medical & Dental Colleges, Maharashtra & Ors.
Learned Advocate General submitted that in 2005 (6) SCC 537; PA Inamdar & Ors. versus State of Maharashtra & Ors. it was opined that it would be advisable to hold centralised counselling. No specific mandamus to that effect was issued. In any event of the matter, the Learned Single Judge has himself held that there was confusion in the matter and lack of clarity with regard to one window counselling and even the instructions and booklets in this regard were not clear. The further finding is that there was no material on record to suggest any malafides or connivance. No directions for inquiry, fixation of responsibility and award of compensation was warranted in the facts and circumstances of the case. Respondent No.1 in D.B.Civil Special Appeal (W) No.988/2015 was not even a candidate for admission to a private medical college.
Learned Counsel for respondent No.1 in Appeal Nos.983/2015 and 1041/2015 submitted that they are not interested in the costs awarded to them and waive it. But the direction for fixation of responsibility and holding of an inquiry with regard to the State Officials who may have connived and acted 988-2015 Special Appeal (W) & Other connected matters 6 malafide need not to be restrained as then only future counselling would be held in a centralised manner and the law as observed in PA Inamdar & Ors. (supra) shall be followed. The Single Judge has aptly relied upon Krina Ajay Shah (supra) awarding compensation as public law damages.
Learned Counsel for respondent No.1 in Appeal No.1042/2015 with reference to a Government letter dated 23.04.2010 submitted that the State itself had written to the Principal of the Geetanjali Private College that they were not authorised to hold individual counselling. Reliance was further sought to be placed on certain file notings that the state authorities were conscious of the requirement not to permit separate counselling by the private colleges and therefore the direction for inquiry called for no interference.
We have heard the Counsel for Medical Council of India also.
The controversy in question related to admission in the MBBS Course during the Session 2013-2014 in pursuance of the National Eligibility Entrance Test (hereinafter called the 'NEET') held for the first time and the separate counselling held by the private colleges pursuant to the same. There can be no two opinions that in appropriate cases when the Court 988-2015 Special Appeal (W) & Other connected matters 7 finds blatant abuse of public power and there are materials to suggest connivance and malafides, appropriate directions can be made against the State authorities for holding of inquiry, fixation of responsibility, consideration of departmental proceedings and award of compensation. In such circumstances the power under Article 226 cannot be fettered and the Court shall not refrain from invoking the same in the given facts of a case.
The writ petitions were filed to stop further counselling on different windows. One of the writ petitioners was not even a candidate for admission in a private medical college. It was the specific case of the State that more than one counselling by different private medical colleges was held due to lack of clarification for counselling by NEET held for the first time and that the mistakes committed where bonafide due to lack of proper instructions in the NEET booklet.
In PA Inamdar (supra) at paragraph 136 it was opined that holding of centralised counselling was highly desirable and advisable. On basis of the observation, the Learned Single Judge held that the holding of separate counselling was not permitted. Simultaneously it was held that the circulars by NEET were without clarity on counselling whether they should 988-2015 Special Appeal (W) & Other connected matters 8 be one widow or separate for each medical college. The learned Single Judge further held that appropriately proper instructions should have been inserted in the instruction booklet in view of PA Inamdar (supra). The act of the private medical colleges/Universities was thus bonafide even though it was not in terms of PA Inamdar (supra). The learned Single Judge further held that there was no material to show or prove any connivance or malafides in admission. No finding was recorded that in what manner the two private respondents were wrongly denied admission.
In Krina Ajay Shah (supra) the allegations related to the admission in the entrance examination conducted by the Association of Management of Unaided Medical Dental Colleges, Maharashtra for selecting eligible candidates under the various courses such as MBBS, BDS Courses etc. A common entrance examination was conducted. Complaints were made that admissions were granted without following the merit in the common entrance examination. The State of Maharashtra appointed a three members Committee to inquire into various aspects of the complaints. Another Committee headed by a former Judge of the Bombay High Court had also been appointed. The reports were forwarded to the State Government which 988-2015 Special Appeal (W) & Other connected matters 9 took no action. The SLP remained pending for years and notwithstanding the same State of Maharashtra did not file an affidavit explaining its stand in the matter. It was in those circumstances that costs came to be imposed.
In view of the conclusions of the learned Sin- gle Judge himself that there was lack of clarity in the instructions issued by NEET held for the first time, that the instruction booklet was wanting in instructions, that there was no material to hold for connivance or malafides the directions for holding a roving inquiry was unwarranted. Krina Ajay Shah (supra) was based on its own facts which were completely distinguishable. A roving and fishing inquiry could not have been or- dered in absence of any findings for malafide and con- nivance was noticed in (2007) 8 SCC 418 (Dhampur Sugar (Kashipur) Ltd. v. State of Uttaranchal) observ- ing as follows :-
"82....If sufficient averments and requisite materials are not on record, the court would not make "fishing" or roving inquiry...."
That a finding was necessary with regard to deliberate malafides or malicious act in denial of admis- sion before compensation could be awarded was con-
988-2015 Special Appeal (W) & Other connected matters 10 sidered in (2014) 10 SCC 521 (Chandigarh Admn. v. Jasmine Kaur) observing :-
"43.......If for any reason, such grant of re- lief is not possible within the time schedule, due to reasons attributable to other parties, and such reasons are found to be deliberate or mala fide the court should only consider any other relief other than direction for ad- mission, such as compensation, etc....."
The directions are therefore held to be un- sustainable in the facts and circumstances of the present case and are accordingly set aside.
The appeals are allowed.
(VIJAY KUMAR VYAS), J. (NAVIN SINHA), C. J. N.Gandhi, P.A./19-22