Allahabad High Court
Dr. Anand Kumar Singh And Others vs State Of U.P.Thru.Upper Mukhya ... on 27 September, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 4 Reserved Case :- WRIT - C No. - 2756 of 2022 Petitioner :- Dr. Anand Kumar Singh And Others Respondent :- State Of U.P.Thru.Upper Mukhya Sachiv.Medical Edu. And Training And Others Counsel for Petitioner :- Ram Kumar Srivastava, Alok Srivastava, Saima Khan Counsel for Respondent :- C.S.C.,Kshitij Mishra Hon'ble Attau Rahman Masoodi,J.
Hon'ble Om Prakash Shukla,J.
( By Hon'ble Om Prakash Shukla,J.) Heard learned counsel for the parties.
The stream of allopathic medical education in Bharat at the level of post graduate courses is broadly academic or experience oriented. Diplomate of National Board (DNB) at the post graduate level lays more emphasis on experience, therefore, the allocation of selected candidates is preferred in the hospitals and now in the medical colleges as well. The experience oriented course recognised as DNB PG Diploma course is treated at par with PG medical courses recognised by Medical Commission of India Mid session admissions to the medical courses, whether graduate or post-graduate, are impermissible in view of the judgement cited before us reported in (2002) 7 SCC 258 (Medical Council of India vs. Madhu Singh and others).
To buttress the submission put forth on behalf of the opposite parties, placing reliance upon the judgement rendered by the apex court in the case of Dr Astha Goel and others vs. Medical Counselling Committee and others reported in 2022 SCC OnLine SC 734, it was submitted that admission would not be permissible after the session has already begun.
The controversy before us, however, has fallen for consideration under peculiar circumstances. It is worthy to note that the petitioners, for the relief sought herein, have approached this Court promptly and without leaving any scope for the objection of delay.
The brief facts for appreciating the controversy may be set out as under.
The petitioners participated in NEET-2021-22 (PG) while being members of State Medical Services, U.P. All of them have qualified in NEET-21 (PG) whereafter they were to appear in counselling in order to be allotted respective hospitals or State medical colleges. All the petitioners have opted for DNB PG Course, the allotment whereof was based on counselling to be held by U.P Medical Education department as per schedule.
In the counter affidavit placed on record, the scheduled date of counselling started from the month of January and ended on 28.4.2022. The first round of counselling was held in January, 2022; round two was held in February, 2022 and mop-up round was held on 28.4.2022 insofar as State quota seats of which the figure corresponds to 44 and 25 in the respective courses of DNB Diploma and Primary DNB respectively are concerned.
The petitioners who had duly participated in the mop-up round of counselling on 28.4.2022, despite having presented themselves for allotment of State medical colleges, were not allotted the same for want of a NOC being issued by the department of Medical Health. It is for this reason that the colleges were not allotted to the petitioners hence they could not report to the colleges for admission and deposit of fee to pursue their course.
Learned counsel for the petitioners has submitted that once the petitioners had duly qualified NEET-2021(PG) and had participated in the mop-up round of counselling held on 28.4.2022, there was no reason for the department of Medical Education and Training to have withheld the allotment of respective medical colleges merely on account of non-issuance of NOC by the department of Medical Health, U.P. The allotment of colleges being within the sole prerogative of the department of Medical Education, who, according to the petitioners, was vested with such a power ought not to have kept the candidature of the petitioners hanged over on that account particularly when the other candidates similarly situated were allotted the courses based on the same selection result of NEET-21 (PG)..
The petitioners who were not communicated any reason except orally that the colleges cannot be allotted unless NOC is granted by the department of Medical Health, approached this Court at the earliest objecting to the discriminatory treatment which they were meted with. The petitioners have prayed for the relief as under:
"(i) issue a writ order or direction in the nature of mandamus commanding and directing the opposite parties to ignore and suspend the terms and conditions of G.O. dated 10.02.2022 of Para-3(2) for permitting 10 seats and petitioners be allotted DNB PG seats in the colleges for 26 vacant seats, as per G.O. dated 01.11.2021 for DNB (Post M.B.B.S. Diploma) by extending the date of allotment of seats.
(ii) issue a writ order or direction in the nature of mandamus commanding and directing the opposite party nos.2 and 3 to provide the "No Objection Certificate" to petitioners after allotting the seats for DNB (Post M.B.B.S Diploma) course, so that they may submit the same for Post M.B.B.S Diploma Course with immediate effects.
(iii) issue any other order or direction, which this Hon'ble Court may deem, fit, just and proper in the circumstances of the case may also passed in favour of the petitioners."
On the aspect of NOC, the department of Medical Health, U.P. had placed reliance upon a government order dated 10.2.2022 whereunder only ten NOCs were permitted to be granted to the successful candidates for allotment of seats in the medical colleges but the government order having come to be challenged before this Court in Writ-C No. 1624 of 2022 vide judgement dated 4.4.2022, was held to be prospective and inapplicable to the NEET-2021 (PG) held much prior to the issuance of such government order. Likewise an order was also passed in favour of Dr Akansha Verma on 3.6.2022 in Writ-A No. 3395 of 2022 for grant of NOC which was acted upon vide letter dated 18फ/56/2016 dated 14.9.2022.
Learned counsel for the petitioners has submitted that the bar of ten seats as provided under the government order dated 10.2.2022 has also come to be lifted with the issuance of a subsequent government order dated 9.9.2022 in view of the orders passed by this Court.
It is rather an admitted position before us at this stage that the Director General of Medical Health, U.P. has already granted permission for NOCs vide letter dated 3फ/261/2015 in favour of the petitioners on 16.9.2022, therefore, the grievance that survives is as regards the allotment of the petitioners to the respective colleges against DNB-PG Diploma course for which the options exercised by the petitioners have to be acted upon like other similarly situated candidates.
This Court had granted time to the Director General, Medical Education and Training, U.P. to come up with a solution to the legitimate grievance of the petitioners but despite our order passed on 19.9.2022, the Director General failed to appear before this Court to assist in the matter and instead the Joint Director, namely, Dr V. B Singh. was deputed to attend the proceedings and assist the Court in the matter. This may be on account of some personal difficulty that should not sway away the Court proceedings. The officer present has taken us through the record.
Learned counsel appearing for the Director General, Medical Education vehemently argued that since the academic session has already begun, therefore, the petitioners cannot be accommodated against the vacant seats and there is no mechanism of redressal that can be invoked at this belated stage.
We have carefully gone through the material placed on record. In the first round of counselling held in the month of January, 2022, the start of session was mentioned to be w.e.f. 1.2.2022. Admittedly the second round of counselling proceeded thereafter in February/March and the candidates were allowed to join the respective courses as per the allotment of hospitals/colleges made. Insofar as the seats belonging to State quota against DNB-PG Diploma courses are concerned, the last round of counselling i.e. mop-up round was held on 28.4.2022 and except two candidates, namely, Dr Akansha Verma and Dr Sanjay Singh, no other candidate was allotted a college.
Even the two candidates who were allotted the college could not join before 7.5.2022 which was fixed as deadline for admissions against State quota. Interestingly all the candidates who were allowed to participate in the mop-up round of counselling on 28.4.2022, their commencement of admission as per the own circular of Director General, Medical Education issued on 22.4.2022, was fixed as ''on spot'.
This position is evident from the schedule circulated on 22.4.2022 filed alongwith the counter affidavit. It is according to this schedule that the petitioners had participated in the mop-up round of counselling on 28.4.2022 but due to non-issuance of NOC, they were not allotted the respective colleges of which the list was available with the department in the same circular dated 22.4.2022.
The list of respective colleges and hospitals against which the allotment was to be made were readily opted by the petitioners during counselling process, however, the allotment was not made for want of NOC by the department of Medical Health, which hurdle, does not exist any more with the issuance of government order dated 9.9.2022 placed before us.
Rule of equality is fundamental in a level playing field. Moreover, the rights of a candidate who succeeds on the basis of competition and merit cannot be subjected to discrimination. NEET-21 (PG) is the foundation of rights against available seats.
Ms Saima Khan, learned counsel for the petitioner in support of her argument put forth, has placed reliance on a judgement of the apex court rendered in the case of Dr Rohit Kumar vs Secretary Office of Lt. Governor of Delhi and others (Civil Appeal No. 2739 of 2021) decided on 15.7.2022. Learned counsel for the petitioners invited our attention to para-33 of the judgement which is reproduced below:
"33. The proposition of law which emerges from the judgments of this Court in S. Krishna Sradha (supra) and in National Medical Commission v. Mothukuru Sriyah Koumudi and Others (supra) is that in rare and exceptional cases, a meritorious candidate, who has suffered injustice by reason of his/her inability to secure admission in a medical course, whether under-graduate or post- graduate, due to no fault of his/her own, who has taken recourse to law promptly, without delay, might be granted relief of being accommodated in the same post in the next session."
It is not in dispute that two candidates Dr Akansha Verma and Dr Sanjay Singh who were allotted colleges in the mop-up round held on 28.4.2022 were granted NOCs in September, 2022 and have been allowed to join the medical college in the month of September, 2022 itself. The NOC in favour of Dr Akansha Verma was issued on 14.9.2022 vide letter no. 18फ/56/2016, whereas, NOC in favour of Dr Sanjay Singh was granted vide letter no. 2फ/706/2014 dated 9.9.2022.
The distinction drawn by the department of Medical Education, U.P. that they were allotted the College on 28.4.2022, whereas, the petitioners were not, is superfluous according to learned counsel for the petitioners. The distinction drawn by learned counsel for the department of medical education cannot be accepted for the reason that admission to a course is not dependent on the mere allotment but joining of a candidate on grant of NOC before the deadline. In the present case the ''on spot' presence of the petitioners on 28.4.2022 in the mop-up round stood frustrated due to non-issuance of NOC. The NOCs have now been permitted to be issued on 19th of September, 2022, therefore, equal benefit of the NOCs is bound to be accorded to the petitioners at par with Dr Sanjay Singh and Dr Akansha, who on the basis of same merit and participation, have joined the college after grant of NOCs on 9.9.2022 and 14.9.2022. Moreover, the present is not a case of mid-term admission or subsequent session; the petitioners belong to same very session whose admission schedule got delayed in 2021 due to covid-19.
Learned counsel for the petitioners has argued that it is rather a case of parity and there is no question of negative parity of which the benefit is claimed.
Learned counsel for the petitioners lastly submitted that there is an age bar for candidates to appear in the NEET-PG and one of the petitioners has now lost the opportunity having become overage, therefore, the benefit of merit cannot be denied to the candidates in absence of a fault attributable to them.
Having considered the entire gamut of facts & circumstances of the present case, this court holds that the case of the petitioners is similarly placed with the case of those two candidates, who have been allowed to join the course in the second half of September, 2022. Thus, this court cannot be oblivious of the fact that an admission in medical course is very important in the professional life of a candidate/student and payment of compensation to such candidate/student would not be a just and equitable relief. Further, a right to equal and fair treatment is imbibed as a component of Article 14 of the Constitution and any denial of fair treatment to the petitioner would not only violate his/her right under Article 14 of the Constitution but would also seriously jeopardize his/her right under Articles 19 & 21 of the Constitution.
Since, no fault is attributable to the petitioners, as they have pursued their rights and legal remedies expeditiously and without any delay and there is obvious fault on the part of the authorities and apparent breach of the rules & regulations, this court is of the view that the petitioners can claim restitution of their rights and must be put back in the original position.
Although, in view of the celebrated judgment of the Hon'ble Supreme Court in Priya Gupta vs. State of Chattisgarh and Ors. reported in (2012) 7 SCC 433 and Asha vs. PT. B.D. Sharma University of Health Sciences and Others reported in (2012) 7 SCC 389 it has been held that in exceptional cases, the time schedule for admissions can be relaxed, however, this court is conscious of the fact that the last date for providing admission in the postgraduate course is declared as 07.05.2022 by the Central Government.
Since this court has noticed that two candidates pursuant to the issuance of NOC by the Directorate of Medical Health, U.P., have recently joined the PG course in the second half of September, 2022, this court, during the course of hearing, enquired from the parties as to how these two candidates were allowed to join even after the cut-off dates, the explanation whatsoever offered, in our opinion, is contrary to the dictum of the apex court. It has been argued at the Bar that as per the decisions of Hon'ble Supreme Court rendered in Priya Darshni Dental College and Hospital vs. Union of India reported in (2011) 4 SCC 623 and in Royal Medical Trust and Ors. vs. Union of India (UOI) and Ors. reported in AIR 2015 SC 3300, the Central Government is now statutorily empowered to modify the schedule for admissions in MBBS and postgraduate courses and as such this Court is also very well within its jurisdiction to modify the schedule in the admissions to P.G. courses.
However, this court being of the considered view that the cut-off dates are sacrosanct and the violation thereof cannot be compromised, therefore, negative parity of any sort does not pursuade us to direct modification of the schedule in PG courses as it may adversely affect the PG admissions calendar and it is open for the authorities to take corrective steps as regards any concession that may have been granted contrary to law. The judgment cited by the learned Counsel of the petitioners has been passed by the Hon'ble Supreme Court in exercise of its plenary power under Article 142 of the constitution of India. Although, the petitioners claiming parity have been successful in demonstrating before this court that they are entitled to be treated equally with candidates, who have been granted NOC by the state Government on 09.09.2022 & 14.09.2022 and have since then joined the PG course as late as in the second week of September, 2022, however the hands of this court are tied and we would not depart from the settled view of academic schedule in order to add further anamolies.
It is tragic that the super-specialty seats in medical courses are being wasted due to the lack of empathy of the state machinery, especially when there is a dearth of trained specialist doctors in our country. While our sympathies are with the petitioners and other similarly placed, we are unable to grant any relief to them or approve of the distinction pointed out; unfortunately, sympathies cannot supplant the law.
We do, however, find that the petitioners were wronged and were unnecessarily compelled to approach this court. Since, there is no claim for compensation by the petitioners as they have sought for allotment of medical colleges to them, this court in the peculiar facts & circumstances grants liberty to the petitioners to pursue for compensation/damages against the erring respondents in a separate proceeding.
The writ petition is accordingly dismissed, with the liberty as aforesaid. In the peculiar facts of the case, the respondent state is additionally burdened with a cost of Rs. 25,000/- to be paid to each petitioner towards the litigation cost of the present writ petition.
Let a copy of this judgment be forwarded to the Director General, Medical Education and Training, U.P, for necessary compliance forthwith. Any apportionment of the financial liability between the two directorates shall be an internal matter of the State but the actual payment of cost to each petitioner shall be made by the Director General, Medical Education & Training, U.P., within a month from today.
Order Date :- Sept. 27, 2022 Fahim/-