Allahabad High Court
Miss Bhavna Tiwari And Another vs Union Of India And 13 Others on 19 January, 2018
Bench: Tarun Agarwala, Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Civil Misc. Writ Petition No.28550 of 2017 Miss Bhavna Tiwari and another Vs. The Union of India and others And Civil Misc. Writ Petition No.37838 of 2017 Vaibhav Kumar Singh Vs. The Union of India and others ************* Hon'ble Tarun Agarwala, J.
Hon'ble Ajay Bhanot, J.
(Per: Tarun Agarwala, J.) Facts of both the writ petitions are common. For facility, the facts of writ petition No.28550 of 2017 is being taken into consideration.
In Dr. Pradeep Jain and others vs. Union of India and others,1984 SCC(3)SC 654, the Supreme Court facing the vexed question of admissions in medical Colleges directed that admissions in medical colleges run by the Union of India or by the State Government or by any municipal or local authority for M.B.B.S. courses shall be granted on the basis of All India Entrance Examination. Since then, the Supreme Court, in a catena of cases, have been scrupulously directing that the time schedule for making admissions in medical colleges should be strictly adhered to.
In Medical Council of India vs. Madhu Singh and others, 2002(7) SCC 258, the Supreme Court held that no admission can be granted after the scheduled date. The Ministry of Health and Family Welfare, Government of India having regard to the decision of the Supreme Court in Madhu Singh's case (supra) laid down a schedule for completion of various stages of admission process, commencing of academic sessions and closure of admissions in the course of medicine and dentistry to be applicable to all medical and dental colleges in the country. The State Governments were also directed to strictly abide by the time frame for completion of each of the stages of admission process indicated in the time schedule. It was also indicated that no student should be admitted after the expiry of the last date prescribed for closure of admission.
The Supreme Court again reiterated strict adherence to the time schedule in Mridul Dhar (Minor) and another vs. Union of India and others, 2005 (2) SCC 65. Certain directions were issued by the Supreme Court in paragraph 35, some of which, which are relevant, are extricated hereunder:
"4. It shall be the responsibility of all concerned including Chief Secretaries of each State/Union Territory and/or Health Secretaries to ensure compliance with the directions of this Court and requisite time schedule as laid down in the Regulations and non-compliance would make them liable for requisite penal consequences.
12. The time schedule for grant of admission to postgraduate courses shall also be adhered to.
15. Time schedule provided in the Regulations shall be strictly adhered to by all concerned failing which the defaulting party would be liable to be personally proceeded with."
In Medical Council of India vs. Manas Ranjan Behera and others, 2010(1)SCC 173, the Supreme Court reiterated the directions passed in the case of Mridul Dhar (supra).
In Priya Gupta vs. State of Chhattisgarh and others, 2012 (7)SCC 433, the Supreme Court re-emphasised the strict adherence to the statutory time schedule for admission in various courses. The Supreme Court held:
" 40. The schedules prescribed have the force of law, in as much as they form part of the judgments of this Court, which are the declared law of the land in terms of Article 141 of the Constitution of India and form part of the regulations of the Medical Council of India, which also have the force of law and are binding on all concerned. It is difficult to comprehend that any authority can have the discretion to alter these schedules to suit a given situation, whether such authority is the Medical Council of India, the Government of India, State Government, University or the selection bodies constituted at the college level for allotment of seats by way of counseling. We have no hesitation in clearly declaring that none of these authorities are vested with the power of relaxing, varying or disturbing the time schedule, or the procedures of admission, as provided in the judgments of this Court and the Medical Council of India Regulations.
41. Inter alia, the disadvantages are:-
1) Delay and unauthorized extension of schedules defeat the principle of admission on merit, especially in relation to preferential choice of colleges and courses. Magnanimity in this respect, by condoning delayed admission, need not be shown by the Courts as it would clearly be at the cost of more meritorious students. The principle of merit cannot be so blatantly compromised. This was also affirmed by this Court in Muskan Dogra & Ors. v. State of Punjab & Ors. [(2005) 9 SCC 186].
2) Midstream admissions are being permitted under the garb of extended counseling or by extension of periods for admission which again is impermissible.
3) The delay in adherence to the schedule, delay in the commencement of courses etc., encourage lowering of the standards of education in the Medical/Dental Colleges by shortening the duration of the academic courses and promoting the chances of arbitrary and less meritorious admissions.
4) Inequities are created which are prejudicial to the interests of the students and the colleges and more importantly, affect the maintenance of prescribed standard of education. These inequities arise because the candidates secure admission, with or without active connivance, by the manipulation and arbitrary handling of the prescribed schedules, at the cost of more meritorious candidates. When admissions are challenged, these students would run the risk of losing their seats though they may have completed their course while litigation was pending in the court of competent jurisdiction.
5) The highly competitive standards for admission to such colleges stand frustrated because of non-adherence to the prescribed time schedules. The admissions are stretched to the last date and then admissions are arbitrarily given by adopting impermissible practices.
The Supreme Court further held-
"78.4. With all the humility at our command, we request the High Courts to ensure strict adherence to the prescribed time schedule, process of selection and to the rule of merit. We reiterate what has been stated by this Court earlier, that except in very exceptional cases, the High Court may consider it appropriate to decline interim orders and hear the main petitions finally, subject to convenience of the Court. We may refer the dictum of this Court in the case of Medical Council of India v. Rajiv Gandhi University of Health Sciences [(2004) 6 SCC 76, para 14] in this regard.
78.5. We have categorically returned a finding that all the relevant stakeholders have failed to perform their duty/obligation in accordance with law. Where the time schedules have not been complied with, and rule of merit has been defeated, there nepotism and manipulation have prevailed. The stands of various authorities are at variance with each other and none admits to fault. Thus, it is imperative for this Court to ensure proper implementation of judgments of this Court and the regulations of the Medical Council of India as well as not to overlook the arbitrary and colourable exercise of power by the concerned authorities/colleges.
Again in Maa Vaishno Devi Mahila Mahavidyalaya vs. State of Uttar Pradesh and others (2013)2 SCC 617, the Supreme Court held-
"81. Lastly, the question which is required to be discussed in light of the facts of the present cases is adherence to the Schedule. Once the relevant Schedules have been prescribed under the Regulations or under the Judge made law, none, whosoever it be, is entitled to carve out exceptions to the prescribed Schedule. Adherence to the Schedule is the essence of granting admission in a fair and transparent manner as well as to maintain the standards of education. The purpose of providing a time schedule is to ensure that all concerned authorities act within the stipulated time. Where, on the one hand, it places an obligation upon the authorities to act according to the Schedule, there it also provides complete clarity to other stakeholders as to when their application would either be accepted and/or rejected and what will be the time duration for it to be processed at different quarters. It also gives clear understanding to the students for whose benefit the entire process is set up as to when their examinations would be held, when results would be declared and when they are expected to take admission to different colleges in order of merit obtained by them in the entrance examinations or other processes for the purposes of subject and college preference.
82. We are constrained to reiterate with emphasis at our command that the prescribed schedules under the Regulations and the judgments must be strictly adhered to without exceptions. None in the hierarchy of the State Government, University, NCTE or any other authority or body involved in this process can breach the Schedule for any direct or indirect reason. Anybody who is found to be defaulting in this behalf is bound to render himself or herself liable for initiation of proceedings under the provisions of the Contempt of Courts Act, 1971 as well as for a disciplinary action in accordance with the orders of the Court. In the case of Parshavanath Charitable Trust & Ors. V. All India Council for Technical Education & Ors. Civil Appeal @ SLP(C) 26086 of 2012, decided on the same date, this Court held as under :
"26... Time schedule is one such condition specifically prescribed for admission to the colleges. Adherence to admission schedule is again a subject which requires strict conformity by all concerned, without exception. Reference in this regard can be made to Ranjan Purohit and Ors. V. Rajasthan University of Health Science and Ors. (2012) 8 SCALE 71 at this stage, in addition to the judgment of this Court in the case of Medical Council of India v. Madhu Singh, [(2002) 7 SCC 258]."
83. Undoubtedly, adherence to Schedule achieves the object of the Act and its various aspects. Disobedience results in unfair admissions, not commencing the courses within the stipulated time and causing serious prejudice to the students of higher merit resulting in defeating the rule of merit.
84. We may very clearly state here that we adopt and reiterate the Schedule stated by this Court in the case of College of Professional Education (supra) in relation to admission as well as recognition and affiliation. This obviously includes the commencement of the courses in time. However, in order to avoid the possibility of any ambiguity, we propose to state the schedule for recognition and affiliation in terms of the NCTE Regulations 2009 and the judgment of this Court in the case of College of Professional Education (supra) :
..................................."
Based on the aforesaid directives of the Supreme Court issued from time to time a notification was issued by the Medical Council of India with the previous sanction of the Government of India under Section 10(A) read with Section 33 of the Indian Medical Council Act, 1956. For facility, the said notification is extracted hereunder:
"In exercise of powers conferred by Section 33 of the Indian Medical Council Act, 1956 (102 of 1956), the Medical Council of India with the previous sanction of the Central Government hereby makes the following regulations to further amend the 'Postgraduate Medical Education Regulations, 2000', namely:-
1. (i) These regulations may be called the 'Postgraduate Medical Education (Amendment) Regulations, 2015'.
(ii) They shall come into force from the date of their publication in the Official Gazette.
2. In the 'Postgraduate Medical Education Regulations, 2000' further amended till 17/04/2013, the following additions /modifications / deletions / substitutions, shall be as indicated therein.
3. In the appendix in 'Postgraduate Medical Education Regulations, 2000', included vide amendment notification dated 23rd March, 2006, the time schedule for completion of admission process for postgraduate courses stands substituted by the following schedules:-
Time Schedule for completion of Admission Process for PG (Broad Speciality) Medical Courses for All India Quota and State Quota.
Sl.
No. Schedule for Admission Broad Speciality All India Quota State Quota
1.
Conduct of Entrance Examination Month of December Month of January
2. Declaration of the Results of the Qualifying Exam/Entrance Exam.
By 15th of January By 15th of February
3. 1st round of counseling/ admission Between 12thMarch to 24th March Between 4th April to 15th April
4. Last date for joining/ reporting the allotted college and the course.
By 3rd April By 22nd April
5. 2nd round of counseling/ admission for vacancies.
Between 23rd April to 30th April Between 11th May to 20th May 6. Last date of joining for the 2nd round of counseling/ admission. By 10th May By 27th May 7. Commencement of academic session/term 1st May 1st May 8.
Last date up to which students can be admitted/ joined against vacancies arising due to any reason.
-
By 31stMay
1. All India Quota Seats remaining vacant after last date for joining, i.e. 10th May will be deemed to be converted into state quota.
2. Institute/college/courses permitted after 28th February will not be considered for admission/allotment of seats for current academic year.
3. In any circumstances last date for admission/joining will not be extended after 31st May."
The said notification and the time schedule was given a stamp of approval by the Supreme Court in the case of Ashish Ranjan and others vs. Union of India and others, 2015(11) SCC 225.
The whole idea of adhering to the time schedule was to maintain a discipline in discharging statutory functions and to minimize any scope of arbitrariness in the decision making process. The Supreme Court and various High Courts were grappling with the situation of giving midterm admission after the last date of admission, thus causing delay and unnecessary extension of the time schedule. Such delay in adherence to the schedule and in the commencement of the courses tends to lower the standards of education in medical colleges by shortening the duration of the academic courses and promoting the chances of less meritorious admissions. It was held, "The maxim Boni judicis est caus as lithium dirimere places an obligation upon the Court to ensure that it resolves the causes of litigation in the country. Thus, the need of the hour is that binding dicta be prescribed and statutory regulations be enforced, so that all concerned are mandatorily required to implement the time schedule in its true spirit and substance. It is difficult and not even advisable to keep some windows open to meet a particular situation of exception, as it may pose impediments to the smooth implementation of laws and defeat the very object of the scheme. These schedules have been prescribed upon serious consideration by all concerned. They are to be applied strict sensu and cannot be moulded to suit the convenience of some economic or other interest of any institution, especially, in a manner that is bound to result in compromise of the above- stated principles."
In the light of the aforesaid and in order to ameliorate the process of selection, the entrance test for Postgraduate courses in private medical colleges in the State of U.P. was held between 5.12.2016 to 13.12.2016 for the academic session 2017-18, which was to commence from 1.6.2017.
The petitioners applied for the Postgraduate Course in the private medical colleges and undertook the National Eligibility-cum-Entrance Test PG-2017 (NEET). The results were declared in January, 2017. Petitioner No.l was declared successful. Her all India rank was 13979 and State rank was 1247. Petitioner No.2 was also declared successful. Her all India rank was 11280 and State rank was 1011.
The Government of Uttar Pradesh issued a Government Order Dated 10.3.2017 which was subsequently modified by Government Order dated 27.3.2017 and 31.3.2017 laying down the procedure for admitting students for the academic year 2017-18. By the same Government Order, the Government of Uttar Pradesh directed the National Informatics Centre (NIC) to conduct the online registration procedure for admission of successful candidates in private medical colleges. In this regard a brochure for online registration was issued by King George's Medical University, Lucknow. The procedure indicated various levels of registration and counseling as under:
IMPORTANT DATES Date of Online registration From 28th March 2017 to 03rd April 2017 Midnight Expected date of declaration of online merit list:
6th April 2017 Date of Medical Board for obtaining physically handicapped certificate:
30th March 2017 Date of commencement of first online counseling (Choice filling) 08th April, 2017 to 12th April 2017 Declaration of result of seat allotment 1st list 14th April 2017 Date for downloading allotment letters.
15th April 2017 to 17th April 2017 Last date for joining the allotted seat from first online counseling:
By 22nd April 2017 Date of commencement of second online counseling (Choice filing):
Between 13th May 2017 to 17th May, 2017.
Declaration of result of seat allotment 2nd list 19th May, 2017 Date for downloading allotment letters 20th May 2017 to 22nd May,2017 Last date for joining the allotted seat from 2nd round online counseling:
23rd to 27th May, 2017 Commencement of the academic session/term 1st May 2017 Date of Mop up Round:
By 30th May, 2017.
Under the heading "Seat Allotment" Clause 4, 5 and 6 are relevant, which is extracted hereunder:
"4.Seat Allotment:
a. Login to website. Your seat allotment status will be displayed.
b. If you choose to accept the Allotment you'll be asked to pay refundable security fee of Rs.5000/- for Govt. college institutes/universities and Rs.one lac, for Pvt. College/ institute/ university respectively.
c. Once online payment is done, you can download the allotment letter.
d. If you don't choose to accept the given allotment of seat, you'ill remain eligible for next round of counseling.
e. If you accept the allotment letter i. but don't join or resign after joining even then you're eligible for next counseling but will forfeit you security deposit.
ii. And join the college you'll remain eligible for next counseling to upgrade your seat without losing your seat.
5. There shall be only TWO COUNSELINGS. Candidates who get seat in 1st counseling shall also be eligible for second counseling for reshuffling of seats with candidates who were either absent or did not opt a seat in the first counseling. Those candidates will also be eligible for 2nd round of counseling who opted in 1st counseling but did not join the allotted college.
6. If seats are left vacant at the end of the second counseling, MOP UP ROUND would be undertaken only for NEET qualified and online registered candidates who were not allotted any seat during the first & second round of online counseling."
The procedure for mop up round was indicated under the heading "mop up round", which is extracted hereunder:
"MOP UP Round
1. In case sufficient number of seats are left un-allotted at the end of the second round of online counselling, then a "mop-up" round of allotment will be organized at a notified date, after due publicity. The purpose of the mop up round of seat allotment will be to ensure that there is no loss of PG seats in the current academic year. Seats will be offered to eligible candidates strictly according to their position in the NEET PG 2017/NEET UPPG 2017 merit list as applicable.
The terms and conditions for participation by candidates in this mop up round will be as follows:-
1. Candidates who are admitted/allotted but not joined/resigned any seat in UP will not be eligible for participation.
2. Any candidate who has taken admission in any PG course in any medical college in India also will not be eligible for participation.
3. Candidates will have to produce certificates in original as well as two self attested photocopies of all the documents.
The aforesaid provisions make it apparently clear that the successful candidates could apply and register online for allotment of a seat in various disciplines and in various private medical colleges. The payment of registration was required to be made online. The candidate was required to give a choice and opt for a particular discipline under the "seat choice filling option". The allotment list was thereafter declared online and if the candidate accepted the allotment, he was required to pay/deposit a refundable security fee of Rs.5000/- for State medical colleges and Rs.1/- Lac for private medical colleges. Upon payment, an allotment letter was generated, which was required to be downloaded by the candidate. On the basis of the allotment letter the successful candidates were required to appear in the first round of counseling for admission in a discipline and college of the choice of the candidate.
In the first round of counseling, if the candidate got the choice of discipline and college, the candidate could take admission and the matter comes to an end. But, in the event, the candidate does not get the choice of his discipline or college, the candidate has an option of not accepting the admission, i.e., not joining the allotted course, in which case, the candidate was still eligible for consideration for admission in the second round of counseling. Where a candidate took admission in the first round of counseling, but subsequently resigned and gave up his seat, he would still be eligible for consideration of admission in the second round of counseling. Further where a candidate took admission in the first round of counseling, he would still be eligible for upgradation of his seat in the second round of counseling.
Clause 5, under the heading "seats allotment", provides only two counseling, i.e., first counseling and second round of counseling. Clause 6 under the same heading provides, that if seats are left vacant at the end of second counseling, in that event, mop up round would be undertaken only for NEET qualified and online registered candidates, who were not allotted any seat during the first and second round of online counseling. Under the heading "mop up round", it was made categorically clear that the candidates, who were admitted were not allowed to appear in the mop up round. Further, the candidates who were allowed, but did not join or had resigned were not eligible in the mop up round.
On the basis of the aforesaid procedure and upon being successful in the entrance test, the petitioners applied for online registration and after deposit of necessary fee appeared in the first round of counseling. Petitioner no.1 had given her first preference in Radiology course and second preference in Pathology. In the first round of counseling the petitioner no.1 could not get her discipline in Radiology and therefore, did not opt for admission in any other discipline and, appeared again in the second round of counseling, in which she again did not get her preferential choice of Radiology course. Having no other option left, the petitioner no.1 took the section option, i.e., Pathology course, which was available in Subharthi Medical College, Meerut.
In so far as petitioner no.2 is concerned, she gave her first preference in Radiology and thereafter in Skin V.D. Course and the third choice was Pediatric. In the first round of counseling, petitioner no.2 could not get her first preferential choice in Radiology course and, therefore, did not take admission. Petitioner no.2 again appeared in second round of counseling and again she did not get her preferential choice of Radiology course. Faced with this situation the petitioner opted for Pediatric course in Rohilkhand Medical College, Bareilly. The petitioners thereafter took admission in their respective colleges and started attending course, which commenced from 1.6.2017.
After about 2 months, the petitioners came to know that there had been a deviation in the admission process and candidates who were allotted a seat in the first and second round of counseling were again given a chance to appear in the mop up round. The petitioners further found that a number of seats in Radiology course were available in the mop up round, which were given to the candidates who were less meritorious to the petitioners and also to those candidates who had appeared in the first and second round of counseling. The petitioners also found that on a large scale, seats were blocked which were not filled up in the first and second round of counseling and thus these seats were made available to the extent of 80% to less meritorious candidates in the mop up round. On the basis of the information the petitioners filed the present writ petition praying that Clauses 5 and 6 under the heading "seat allotment" as contained in the brochure be declared ultra vires Articles 14 and 15 of the Constitution of India as it deprives the petitioners of their valuable right to appear in the mop of round. The petitioners have also prayed that based on their merits the petitioners may be admitted in the M.D. course in Radiology and that a direction should be issued for reshuffling of the admissions in postgraduate colleges as per merit and choice of the candidates.
We have heard Sri R.K.Ojha, the learned senior counsel assisted by Sri Akhilesh Kumar Singh, the learned counsel for the petitioner in Writ Petition No.28550 of 2017, Sri Utsav Singh holding brief of Sri A.P. Singh, the learned counsel for the petitioner in Writ Petition No.37838 of 2017, Sri Mahendra Pratap, the learned counsel for Director General of Medical Education and Training, Lucknow, Sri Sunil Sethi Senior Advocate along with Sri Sachchida Nand Ojha, Sri Ravi Kant, the learned Senior Counsel along with Ms. Taniya Pandey and Sri Rakesh Pandey, the learned counsel for the the private candidates and Sri Ajay Singh, the learned counsel for respondent no.1 and Sri Avnish Tripathi, the learned counsel for respondent nos.6 and 11.
The contention of the respondents that the writ petition was not maintainable, on the ground, that the petitioners had already taken admission and, therefore, cannot be allowed to take another stream, is patently misconceived. In our opinion, if an injury has been caused to the petitioners by a wrongful action on the part of the respondents, such injury can always be raked up in a writ jurisdiction. The mere fact, that admission was taken by the petitioners will not debar them from raising their grievance in a writ jurisdiction under Article 226 of the Constitution of India. It is another thing that the Court in exercise of equitable jurisdiction may not grant the relief as claimed by the petitioners inspite of finding that the respondents had caused grave injustice to the petitioners. Thus, we are of the opinion, that the writ petition is maintainable.
The learned senior counsel for the petitioners contended that in the first and second round, only 20 to 30% of the seats were filled up and 70% remained unfilled which were subsequently filled up in the mop up round. It was contended that the petitioners' first choice of preference was Radiology, which was not made available to the petitioners in the first round and second round of counseling, but subsequently 12 seats in Radiology were made available in the mop up round which were given to candidates who were lower in rank to the petitioners. It was contended that if the petitioners were allowed to participate in the mop up round they would have upgraded their seats and denial of this right to upgrade their seats was wholly arbitrary and violative of Article 14 of the Constitution of India. It was further contended by the learned Senior Counsel that the candidates who were allotted seats but did not join were offered to participate in the mop up round in violation of Clauses 5 and 6 of the terms and conditions contained in the brochure and the same was mischievously done after the second round of counseling by issuance of a Government Order dated 26.5.2017, which allowed such candidates to participate in the mop up round. It was thus contended that the petitioners should also have been invited to upgrade her seat. In this regard, the learned Senior Counsel invited the attention of the Court to the admission procedure in the State of Maharashtra and in Uttarakhand where, after the second round of counseling, candidates were given an option to upgrade their seats.
A short counter affidavit, counter affidavit and a supplementary counter affidavit have been filed by respondent no.3, namely, the Director General of Medical Education and Training, Lucknow.
Respondent no.3 in its counter affidavit has basically contended that the writ petition is not maintainable, on the ground, that the petitioners are not entitled for consideration in mop up round as they took their admission in postgraduate courses in the second round of counseling. Further, the choice of admission in a particular discipline cannot be considered after the last date of admission as it would be violating the directions of the Supreme Court. In the short counter affidavit and in the supplementary counter affidavit the respondents admitted that only 20% of the seats were filled up in the first and second round of counseling and that 80% of the seats were made available in the mop up round. It was pointed out that total number of seats for admission were 603 and that only 125 seats were filled up in the first and second round and the remaining seats were made available in the mop up round, which was approximately 480 out of which only 133 seats were filled up and 348 seats have remained vacant after the last date of admission. It was also contended that the scope of judicial review is limited and the decision taken by the experts in academic matters should not be interfered by the High Court.
It was also admitted by the respondents in their supplementary counter affidavit and the short counter affidavit that in the mop up round there were 12 seats available in Radiology course. 4 seats were vacant in Subharti Medical College and 2 seats were available in Rohilkhand Medical College and the remaining in other colleges. The respondents admitted that the candidates lower in rank to the petitioners were given admission in the mop up round in these courses. In paragraph 12 of the supplementary counter affidavit the respondents admitted that 25 candidates were given admission in the mop up round were those candidates who were earlier allotted seats, but did not take admission in the first and second round of counseling. According to the respondents this was done on the basis of Government Orders dated 20.5.2017, 23.5.2017 and 26.5.2017, on the basis of which an advertisement was issued on 29.5.2017, based on which candidates were considered in mop up round on 29th and 30th May, 2017 It was also asserted in the counter affidavit by the respondents that candidates who did not take admission in the first and second round had no distinctive advantage as they took the risk of not being admitted, but were given a choice to appear in the mop up round for admission in the available seats. The respondent no.3 has tried to justify allowing candidates who had appeared in the first and second round to appear again in the mop up round on the basis of certain directives issued by the Supreme Court on 4.5.2017 passed in the case of Educational Promotion Society vs. Union of India and letter dated 11.5.2017 issued by the Ministry of Health and Family Welfare, Government of India. According to the respondents, based on the order of the Supreme Court dated 4.5.2017 and letter of the Ministry dated 11.5.2017, Government Orders dated 20.5.2017, 23.5.2017 and 26.5.2017 were issued. The respondents have thus tried to justify in allowing candidates who had appeared in the first and second round of counseling to appear in the mop up round so that the seats are filled up in compliance of the directives issued by the Supreme Court and Ministry of Health and Family Welfare.
The Court on the basis of the short counter affidavit initially found that there has been deviation in the admission process and, accordingly, directed respondent no.3 to serve notices to all the private medical colleges as well as to the candidates intimating them that their admission was under scrutiny and if they so desire may appear and contest the matter. Based on the directions of the Court dated 4.8.2017 respondent no.3 served the notices, based on which majority of the candidates filed impleadment applications, which were allowed and thereafter counter affidavits have been filed.
In this regard we have heard Sri Sunil Sethi, Senior Advocate along with Sri Sachchida Nand Ojha, Sri Ravi Kant, learned Senior Counsel along with Ms.Taniya Pandey and Sri Rakesh Pandey.
The crux of their submission is, that there has been a delay in the filing of the writ petition. The petitioners should have approached the Court before the last date of admission. The respondents are already attending the classes and if their discipline is disturbed they will face a shortage of attendance, which again would not be permissible at this stage. It was contended by Sri Sunil Sethi, learned Senior Counsel that the admission process should not be disturbed at this stage on account of certain deviation in the admission procedure made by respondent no.3. It was contended that the Court may lay down the criteria for admission process in future so that such deviations are ruled out and that the petitioners may be compensated in terms of money if they have suffered any loss.
According to Sri Ravi Kant, the learned Senior Advocate, it was contended that no admission is permissible after the cut of date and at best the petitioners could be paid compensation, but under no circumstances the admission process could be upset on account of some irregularity found in the admission procedure.
Sri Rakesh Pandey, the learned counsel appearing for 74 candidates contended that they have unnecessarily been issued notices by respondent no.3 as they were admitted in the postgraduate courses in State run medical colleges whereas the present issue relates to admission in private medical institutions.
Sri Anurag Khanna, the learned Senior Advocate assisted by Sri Nipun Singh appeared for respondent no.4, i.e., Subharti Medical College and Sri Avnish Tripathi, the learned counsel has appeared for respondent nos.6 to 11, i.e., for the remaining private medical colleges. The learned counsel has basically adopted the argument led by Sri Ravi Kant, the learned Senior Advocate, contending that no admission is permissible after the cut of date and, in any case, the petitioners cannot be given admission in Radiology Course as now no seats are available. It was also contended that more than 5 months have gone by and candidates have done 5 months of course and, therefore, such delay in approaching the Court becomes fatal and no relief can be granted to the petitioners at this belated stage.
In the light of the rival stands taken by the parties, what we find is, that there had been a large scale blocking of seats by the candidates or through unknown sources, which the Court is unaware. However, the Court finds that only 20% of the seats were filled up in the first and second round of counseling. 80% of the seats were considered in the mop up round, which is startling. The Court further finds that there was a clear stipulation that in clauses 5 and 6 of the brochure under the headings "seat allotment" and "mop up round" that candidates who were invited in the first and second round of counseling were not permitted for consideration for allotment of the seat in the mop up round. Diluting this condition by the respondents by Government Orders dated 20.5.2017, 23.5.2017 and 26.5.2017 and allowing the candidates to appear in the mop up round inspite of appearing in the first and second round of counseling have given the candidates a distinct advantage over the petitioners. If such condition was diluted there was no reason for the respondents in not permitting the petitioners to upgrade their stream in the mop up round. Denying the petitioners to be considered in the mop up round, on the basis of the judgment of the Supreme Court in Dar-us-Slam Educational Trust and others vs. Medical Council of India and others, dated 9.5.2017 was wholly erroneous. On one hand the respondents are taking advantage of the directions of the Supreme Court wherein the Supreme Court clearly stipulated that students who have taken admission should not be allowed to vacate their seats and that they would not be eligible to participate in any other counseling. On the other hand, the respondents are allowing such candidates who have appeared in the first and second round, to appear in the mop up round, which amounts to third counseling for them, which was in gross violation of the direction of the Supreme Court in Ashish Ranjan and others vs. Union of India and others, 2016 (11) SCC 225 wherein the Supreme Court clearly stipulated that there would only be two rounds of counseling.
From the affidavits filed by the respondents, it is apparently clear that the candidates who appeared in the first and second round of counseling and who did not take admission were allowed to be considered in the mop up round. Such directions issued by the respondents were per-se illegal and in violation of the terms and conditions of the brochure and also in violation of the orders of the Supreme Court issued from time to time in various decisions. The Court further finds, that on account of large scale blocking of seats, less meritorious candidates who were lower in rank to the petitioners were given admission in the mop up round in preferred stream, which were not made available to the petitioners and other meritorious candidates. Allowing less meritorious students to take admission in preferred courses has created advantage to less meritorious students. Such procedure has an inherent flaw which is required to be cured by the authority.
In the light of the aforesaid, the petitioners undoubtedly have made out a case and undoubtedly grave injustice have been caused to the petitioners. If the preferred seats were made available to the petitioners they would have given the preferred choice of their subjects but the same was not made available on account of a flawed system in the admission procedure. Such grave injustice caused to the petitioners has been totally caused by the flawed system made by the respondents and by diluting the terms and conditions at the last moment.
The question now is, to what relief is the petitioner entitled to at this stage when admissions are over and half of the course of the first year is over. The petitioners have prayed that clauses 5 and 6 of the brochure should be declared ultra vires Articles 14 and 15 of the Constitution of India as it deprives the petitioners' valuable right to appear in the mop up round. The petitioners have also prayed that based on their merit they may be admitted in M.D. Course in Radiology and a direction should be issued for reshuffling of admission of other candidates after giving the petitioners their choice of seats in Radiology.
In our opinion, the relief claimed by the petitioners cannot be granted. Clauses 5 and 6 of the brochure contained a clear stipulation that the candidates who had appeared in the first and second round of counseling would not be allowed to be considered in the mop up round. These directions are in accordance with the directions issued by the Supreme Court from time to time. They are neither arbitrary nor ultra vires Articles 14 and 15 of the Constitution. There is no question of depriving the petitioners' any valuable right to appear in the mop up round. Once an admission has been granted, the matter comes to an end and the candidate cannot be considered in the mop up round unless exceptions are carved out, which are stipulated and indicated in the terms and conditions of the admission procedure.
However the Government Orders dated 20.5.2017, 23.5.2017 and 26.5.2017 have undoubtedly given advantage to such candidates who had appeared in the first and second round of counseling but did not take admission, were allowed to be considered in the mop up round. But, such Government Orders diluting the admission process will not make clauses 5 and 6 arbitrary.
Based on the Government Orders diluting the admission process, the petitioners cannot be given admission in their preferred course of Radiology at this stage as the cut of date is over and change of course in midstream is not permissible as that would tantamount to lowering the standard of excellence. Further, a time schedule is required to be adhered to in order to maintain an educational discipline. Reshuffling of the admission process at this stage would cause havoc. The Court also finds that the seats in Radiology has already been filled up in the mop up round and now no vacant seat in the said subject is available. Shuffling less meritorious students to other disciplines in midstream is neither advisable nor permissible, inasmuch as, a candidate is required to maintain a minimum percentage of attendance in the given subject, which cannot be maintained at this stage if the discipline is changed. Thus, the relief claimed by the petitioners that they should be given admission in Radiology course cannot be granted.
In Bonnie Anna George vs. Medical Council of India and another, 2014(10)SCC 767, the Supreme Court held-
"Having regard to our above conclusions, we are convinced that depriving the petitioner of the opportunity to opt for the available NRI seat in MD General Medicine during the third conselling was wholly unjustified. Having reached the above conclusion when we come to the question of grant of relief as prayed for by the petitioner in this writ petition, the petitioner seeks for mandamus to direct the second respondent to permit her to shift her PG course from MD Pathology to MD General Medicine in the available vacant seat. Though we have found that the second respondent was wholly unjustified in not making available the said vacant seat to the petitioner, as the admission scheduled fixed by Medical Council of India and this Court is being scrupulously followed, we do not find any extraordinary situation to violate the said schedule fixed by us. We have held in various decisions that the time schedule should be strictly adhered to and no midstream admission should be allowed. We are, therefore, not inclined to give such a direction as prayed for the petitioner. However, taking into account the grave injustice caused to the petitioner for which the entire responsibility lies on the second respondent. We are convinced that the second respondent should be mulcted with the liability of payment of appropriate compensation to the petitioner for having snatched away her valuable right. Though, we would have been fully justified in directing exemplary amount by way of compensation. We, feel it appropriate to fix it in a sum of Rs.5,00,000 (Rupees five lakhs only). The second respondent is, therefore, directed to pay the said sum of Rs.5,00,000 apart from refunding the sum of Rs.13,000 which the petitioner had to pay for her readmission to the very same PG course of MD Pathology. We are confident that since the petitioner was only fighting for her lawful rights, the same should not have any reflection in the approach of the second respondent either directly or indirectly which would cause any disruption in her studies or in the completion of her course. It will always be open for the petitioner to approach the appropriate forum or for that matter even this Court to seek for the redressal of her grievance, if any on that score. The compensation of Rs.5,00,000 shall be paid to the petitioner within two weeks from the date of production of copy of this order."
The Supreme Court held, that even though the claim of the petitioner was justified, still no extraordinary situation existed to violate the time schedule. The Supreme Court held that the time schedule should be strictly adhered to and no midstream admission should be allowed. The Supreme Court further held, that taking into account the grave injustice caused to the petitioner, an appropriate compensation could be paid to the petitioner for snatching away the candidate's valuable rights.
Similarly in Chandigarh Administration and another vs. Jasmine Kaur and others, 2014(10)SCC 521, the Supreme Court held that under exceptional circumstances admission can be granted within the time schedule prescribed, where the candidate has not been selected on account of the fault of the authority. However, the Court could grant appropriate compensation where admission was lost due to eclipse of the time schedule. The Supreme Court held:
"33.2. Under exceptional circumstances, if the court finds that there is no fault attributable to the candidate i.e., the candidate has pursued his or her legal right expeditiously without any delay and that there is fault only on the part of the authorities or there is an apparent breach of rules and regulations as well as related principles in the process of grant of admission which would violate the right to equality and equal treatment to the competing candidates and the relief of admission can be directed within the time schedule prescribed, it would be completely just and fair to provide exceptional reliefs to the candidate under such circumstance alone.
33.3. If a candidate is not selected during a particular academic year due to the fault of the Institutions/Authorities and in this process if the seats are filled up and the scope for granting admission is lost due to eclipse of time schedule, then under such circumstances, the candidate should not be victimised for no fault of his/her and the Court may consider grant of appropriate compensation to offset the loss caused, if any."
The aforesaid view was reiterated by the Supreme Court in S.Nihaal Ahmed vs. Dean, Velammal Medical College Hospital and Research Institute and others, 2016(1)SCC 662 wherein the Supreme Court further held that the petitioners were not entitled to the relief of admission due to lapse of time and that they were entitled for compensation.
The Supreme Court again in Krina Ajay Shah and others vs. Secretary, Association of Management of Unaided Private Medical and Dental Colleges, Maharashtra and others, 2016(1)SCC 666 held that in the given circumstances in view of the long lapse of time admission cannot be granted, but the petitioners would be entitled to public law damages. The Supreme Court held "In the circumstances, though the relief such as the one sought by the petitioners cannot be granted at this stage in view of the long lapse of time but we are of the opinion that the petitioners are certainly entitled to public law damages. The State of Maharashtra is directed to pay an amount of Rs.20 lakhs to each one of these petitioners towards public law damages and such payment should be made within a period of four weeks from today."
In the light of the aforesaid, even though the petitioners have made out a case no relief can be granted at this stage.
In view of the decisions of the Supreme Court no admission can be granted after the cut of date. A time schedule is required to be strictly adhered to. However, in the given circumstances the petitioners are entitled to compensation, which the Court computes at Rs.Ten lakhs each payable to the petitioners. The said amount shall be paid by the Director General of Medical Education and Training, respondent no.3 within four weeks from the date of presentation of a certified copy of the order.
Before we part with the case, we are of the opinion that there is a need to issue further directions as we have found that there has been a large scale blocking of seats. 80% of the seats were filled up in the mop up round. Obviously there is a flaw in the admission procedure.
We, accordingly, direct the Principal Secretary, Medical Education, Government of U.P., Lucknow, respondent no.2 to take this fact into consideration of large scale blocking of seats and come out with a foolproof admission procedure, which would eliminate such blockage of seats and ensure that maximum number of seats are filled up in the first and second round of counseling. We also direct the Principal Secretary to hold an inquiry into the circumstances of diluting the admission procedure and allowing the candidates who had appeared in the first and second round of counseling to be considered again in the mop up round in the garb of misinterpreting the orders of the Supreme Court. Such inquiry shall be made within two months and action be taken against the erring officials.
For future admissions in subsequent academic sessions, we direct that after the first and second round of counseling, a window should be opened for the candidates who had taken admission to upgrade their stream and thereafter allow the remaining seats to be filled up in the mop up round. By this procedure allowing the candidates to upgrade their seats would not amount to third round of counseling. Further, the upgradation of seats of the preferred choice of the candidate would ensure fairness in the admission process and allow the meritorious candidates to take admission not only in the preferred choice of seats but also in better streams and, thus, by doing so, discipline would be maintained.
The writ petitions are disposed of.
A certified copy of this order shall be sent by the Registry to the Principal Secretary, Medical Education, Government of U.P., Lucknow, respondent no.2, within two weeks for necessary compliance.
Date:19.1.2018
AKJ
(Ajay Bhanot, J.) (Tarun Agarwala, J.)