Dr. Bhavya Naithani vs State Of U.P. And Others
2012 Latest Caselaw 3855 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. 38
 

 
Civil Misc. Writ Petition No. 38809 of 2012
 
Dr. Bhavya Naithani 
 
Vs. 
 
State of U.P. & others
 
*****
 
Hon'ble A.P. Sahi,J.

The petitioner originally through the writ petition sought a writ of mandamus to consider the candidature of the petitioner for being admitted in MD (Anaesthesia) Course at Chhatrapati Shahuji Maharaj Medical University, applying the method of extended counselling as well keeping in view the fact that the said seat was vacant and available after having been surrendered by a candidate who had been allotted the seat under the All India Quota. Through an amendment a further challenge has been raised to the resolution of the Counselling Board dated 29.6.2012.

The petition was entertained on 9.8.2012 on which date the learned Standing Counsel who had accepted notice for the State and the Motilal Nehru Medical College, Allahabad was called upon to obtain instructions. The Respondent No. 3 - University represented by Sri Anurag Khanna was also called upon to assist the Court. The petitioner has pointed out in paragraph 29 of the petition that several seats as reflected therein are vacant at Allahabad, Gorakhpur, Jhansi, Meerut and Kanpur Medical Colleges.

The matter was adjourned on a couple of occasions and on 22.8.2012 Sri M.P. Yadav Advocate put in appearance on behalf of the Director General, Medical Education who is the Chairman of the Counselling Board and sought adjournment for a day to enable him to assist the Court. Accordingly, the matter was adjourned for 23rd August, 2012 on which date after arguments were advanced a further adjournment was sought to enable the learned counsel for the Director General to clarify the position and also intimate the Court about the rules of counselling in this regard.

The matter was proceeded with on 24th August, 2012 and after hearing the counsel for the parties this Court formulated the issues that were to be addressed on the basis of the facts that had been brought on record. The order dated 24.8.2012 is extracted herein under:-

Heard Sri Ashwani Kumar Mishra, learned counsel for the petitioner and Sri M.P. Yadav who has obtained instructions from the Joint Director and has today placed before the Court the information brochure of the U.P. Post Graduate Medical Entrance Examination 2012 as well as the minutes of the meeting dated 29.6.2012 of the Counselling Board.

Clause 6 of the said resolution dated 29.6.2012 which is related to the present dispute is reproduced hereinunder.

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The provisions for counselling as contained in the brochure at page 13 thereof entails that the Director General of Medical Education shall conduct the same as per the schedule announced by him.

The procedure for counselling has been given in detail and so far as a vacant seat available during counselling is concerned, the following Clause-11 appears to be applicable. Clause-11 is reproduced hereinunder:

"If candidate is absent in the counselling or does not join any course in a college after allotment of the seat by the due date shall forfeit any right of admission on the basis of said counselling/allotment. However, after second counselling, candidates who have not opted any but wish to keep their name in the waiting list shall indicate their choice of college and in writing to the Chairman, Counselling Board that they should be considered for seat allotment after second counselling on any vacancy on the basis of the choices submitted during counselling according to their merit as and when the vacancies arise but before the last date of admission i.e. 31.05.2012."

The aforesaid dated 31.5.2012 has been extended to 30.6.2012 about which there is no dispute.

Prima facie a perusal of Clause-11 does indicate that the consideration on merit has to be assessed upon the vacancy arising. In the instant case the vacancy itself arose on 29.6.2012 which is undisputed. In such circumstances, the consideration could have been made on 29.6.2012 only and not on any date prior to that. The question is whether the petitioner whose undisputed ranking is 1509 and who stands higher in merit than the rank of 1701 and other later ranks could have been offered the said seat or not on 29.6.2012.

Sri M.P. Yadav submits that this may require a further consideration before the arguments are advanced and he, therefore, seeks a short adjournment to enable him to assist the Court in this matter.

Put up on 29.8.2012."

Learned counsel for the petitioner in the meantime also filed an amendment application praying for quashing of the decision of the Counselling Board dated 29th June, 2012 that was produced by Sri M.P. Yadav wherein it was observed, that since the counselling of the unreserved category had already come to an end on 28.6.2012, therefore the seat which fell vacant on 29th June, 2012 out of All India Quota is not required to be offered for any further counselling. The amendment application, therefore, proceeds to challenge the said resolution on the ground that the petitioner was a candidate available for the said seat for which she had staked her claim and therefore the aforesaid resolution deserves to be set aside. The amendment application was therefore allowed on 29th August, 2012 permitting the petitioner to raise a challenge to the resolution of the Counselling Board dated 29.6.2012.

The case took another turn, apart from the merits of the claim of the petitioner, on 29th August, 2012 when it was pointed through an affidavit filed on behalf of the Director General that a communication has been received from the Government of India and from the learned counsel of the Supreme Court of India in Civil Appeal No. 1944 of 1993 referring to orders that were passed by the Supreme Court restraining admissions in the Post Graduate Courses of the Clinical MD/MS Branches vide order dated 10th July, 2012. This affidavit has been filed by the Director General of U.P. himself where it has been stated that according to Clause 11 of the counselling procedure the petitioner could not have been even otherwise considered as she had not staked her option in writing before the last date of admission which stood extended to 30.6.2012. In the aforesaid circumstances, the petitioner's case could not be considered for the reasons apart from the reasons given in the resolution dated 29.6.2012. It has been stated in the affidavit that the petitioner did not fulfil the said precondition of the offer in writing and therefore even if the vacancy occurred on 29th June, 2012 there was no occasion to consider her candidature. The stay order dated 10.7.2012 of the apex court also further blocked the claim of the petitioner.

Another fact that deserves to be noticed at this stage is the statement of the respondent no. 2 Director in paragraph 8 of the counter-affidavit filed by him which is extracted herein under:-

"Paragraph 8. That, the petitioner was present in counselling hall on 29th June, 2012. She also met the deponent on 30th June, 2012. She was told by Board and the deponent as well that every seat will be allotted according to guidelines mentioned in the brochure and direction by M.C.I."

The aforesaid averment contained in the counter affidavit therefore leaves no room for doubt that the petitioner was pursuing her claim before the Chairman of the Counselling Board on the occurrence of the vacancy of the seat on 29th June, 2012. Later on in the affidavit a new turn in the case was reflected under the cover of the communication of the Government of India dated 10th July, 2012 and the letter of the learned counsel of the Supreme Court of India of the same date. According to the said communication since the Supreme Court had stayed any further admissions on 10th July, 2012, therefore, Sri M.P. Yadav states that it will not be possible to consider the claim of the petitioner for admission. This information has been acknowledged by the University and vide communication dated 13th July, 2012 the respondent University has intimated the status of the vacancies including the seat claimed by the petitioner in the said letter. He therefore submits that in the aforesaid background the petitioner cannot now be offered the said seat of M.D. (Anaesthesia) and the same has to remain vacant.

The matter was therefore adjourned for today to enable the learned counsel for the parties to produce the exact orders passed by the apex court.

Sri Ashwani Kumar Mishra, learned counsel for the petitioner has produced the orders passed by the apex court which also deserves to be mentioned keeping in view the nature of the submissions raised by Sri M.P. Yadav. The reason is that the letter of the learned counsel for the Supreme Court dated 10th July, 2012 categorically mentions that the matter was taken up before the Supreme Court and an interim order was passed to the effect that any vacant MD seat in the branch of MD Radio Diagnosis, MD Dermatology, MD Obstetrics and Gynaecology, MS General Surgery or any other clinical MD/MS Branch shall not be filled up by any state till the pendency of the matter. This communication dated 10th July, 2012 is on record as Annexure 1 to the counter affidavit of the Director.

The said letter however recites that a copy of the order passed by the Supreme Court will be sent to the Director General, Health Services, New Delhi to whom the letter was addressed as soon as the learned counsel gets a copy of the same from the Court. It is therefore relevant to mention that the letter had been dispatched by the learned counsel on the basis of his own understanding of the order passed by the apex court and was not accompanied by the actual order passed. It appears that without waiting for a copy of the actual order passed by the apex court the Deputy Director General, Medical, Ministry of Health and Family Welfare, Government of India (Medical Examination Cell) sent a letter on the same day on 10th July, 2012 to the respondent no. 2 informing him about the aforesaid development, and the copy of the letter sent by the learned counsel, for compliance of the orders of the Hon'ble Supreme Court. This letter also does not indicate the contents of the interim order dated 10th July, 2012.

It is for this reason that the Court had called upon the learned counsel to produce the actual orders in relation to the aforesaid matter pending before the apex court. A rejoinder affidavit has been filed today by the learned counsel for the petitioner and alongwith the same the actual order passed by the apex court on 10th July, 2012 with reference to context has been brought on record.

Sri Ashwani Kumar Mishra has also produced the other orders passed by the apex court on 23rd March, 2012 in Interim Application No. 16 in Civil Appeal No. 1944 of 1993. It is the same proceeding which has been referred to in the letter of the learned counsel of the Supreme Court of India and the letter of the Deputy Director General referred to hereinabove.

The order passed by the apex court on 23.3.2012 in the aforesaid Interim Application has been placed before the Court.

In between, it appears one Dr. Isha Karwarsa filed writ petition no. 252 of 2012 directly before the apex court. On 9th July, 2012 the following order was passed and the order sheet indicates reference to the Interim Application No. 5 in Interim Application No. 16 of Civil Appeal No. 1944 of 1993:-

"Put up on July 10, 2012 as first case."

The next day i.e. on 10.7.2012, it appears that the interim order in writ petition No. 252 of 2012, on which the argument of the learned counsel for the respondent proceeds, was passed which is quoted hereinunder:-

"I.A. No. 6 of 2012

In case any seat is available in (1) M.D. (Radiodiagnosis), (2) M.D. (Dermatology), (3) M.D. (Obstetrics & Gynaecology) or (4) M.S. (General Surgery), it shall not be filled up till final order is passed by this Court.

I.A. No. 6 is, accordingly, disposed of.

W.P. (C) No. 252 of 2012

A prayer for adjournment is made on the ground that the father-in-law of the advocate-on-record has passed away last evening.

Put up on July 17, 2012."

It may be mentioned that the Interim Application in Civil Appeal No. 1944 of 1993 had been directed to be listed alongwith the writ petition no. 252 of 2012 referred to hereinabove vide order dated 27.6.2012.

Thus writ petition No. 252 of 2012 and the Interim Applications that were pending were being heard together. On 17th July, 2012 some further orders were passed in relation to one candidate Dr. Pankita Mittal and further orders appear to have been passed on 23rd July, 2012.

Suffice it to say that so far as the present dispute is concerned the same is confined to the interim order passed by the apex court on 10th July, 2012 in writ petition no. 252 of 2012 Dr. Isha Karwarsa Vs. Union of India & others extracted hereinabove. No other order of the apex court has been produced or referred to by the learned counsel for either of the parties.

Having heard learned counsel for the parties and having traced the aforesaid facts that were necessary for the adjudication of the present controversy, it would be appropriate to refer to Clause 11 of the counselling rules that have already been extracted hereinabove in the order dated 24.8.2012. The said rules require that after second counselling, the candidates who have not opted, but wish to keep their name in the waiting list, shall indicate their choice of college in writing to the Chairman of the Counselling Board that they should be considered for seat allotment after second counselling on any vacancy on the basis of the choices submitted during counselling, according to their merit as and when the vacancies arise, but before the last date of admission. There is no dispute that the last date of admission according to the respondents was 30.6.2012.

The petitioner appeared for second counselling on 28.6.2012 according to the timetable that was fixed by the respondent. The rank of the petitioner is 1509 of the unreserved category. Inspite of her merit it appears that the seats were filled up and the petitioner could not be accommodated on 28.6.2012.

The petitioner in paragraph 13 submits that the counselling for all categories continued on 29th June, 2012 including the unreserved category from Rank No. 1701 onwards for all eligible candidates. This fact is also evident from the perusal of the schedule of the counselling that was held on 29th June, 2012 in relation to the unreserved categories after Rank 1701.

It is at this stage that a claim by the petitioner was made on the ground that on 29th June, 2012 one of the candidates of the All India Quota namely S.A. Varghese surrendered her right to take admission against M.D. (Anaesthesia) in the respondent Medical College. Thus, the vacancy arose for the first time on 29th June, 2012 when the second counselling was still continuing including that of the unreserved category to which the petitioner belongs.

According to Clause 11 of the Counselling Rules, if a vacancy arises after the second round of counselling then in that event the candidates have been given the option to claim admission, and according to Sri M.P. Yadav provided the same has been registered in writing. In the instant case, the admitted position is that the petitioner claims to have met the respondent Director General on 29th June, 2012 which fact has been admitted by the Director in paragraph 8 of his counter affidavit. The petitioner also claims to have made an enquiry about the said vacancy. However, the claim of the petitioner was not considered and on 29th June, 2012 the impugned resolution which has been challenged by the petitioner was passed. The reason given in the resolution is that since all the seats relating to unreserved category had been offered and allotted in the counselling on 28th June, 2012, therefore, there was no occasion to offer the seat of All India Quota which came into existence on 29th June, 2012. It is this aspect which has been challenged by the petitioner through the amendment application.

Sri M.P. Yadav learned counsel for the respondent submits that so far as the petitioner is concerned her counselling had already been held on 28th June, 2012 and therefore the said resolution is justified as against the petitioner.

The Court does not find any such plausible reason to agree with the aforesaid submission of Sri M.P. Yadav, inasmuch as, the seat itself fell vacant on 29th June, 2012 which contingency was not in existence on 28th June, 2012. The second round of counselling was admittedly continuing on 29th June, 2012 and therefore applying Clause 11 of the Counselling Rules the said vacancy which came into existence on 29th June, 2012 had to be offered for counselling by the respondents. The seat surrendered by the candidate under the All India Quota stood available to the State. The Counselling Board or the Director General therefore could not have refused to offer the said seat in the circumstances indicated above keeping in view Rule 11 of the Counselling Rules. On the aforesaid ground the resolution dated 29th June, 2012, in my opinion, is unsustainable in law and deserves to be set aside to the extent it refuses to offer the said seat which had fallen vacant from All India Quota on 29th June, 2012 itself.

The next question is as to whether the petitioner was entitled to be offered and admitted against the said seat. The petitioner claims that there was no other claimant or any other candidate and she was the only candidate available who had met the respondent Director General for allotment of the said seat on 29th June, 2012. There is nothing on record to indicate that on 29th June, 2012 the petitioner gave anything in writing, or even prior to that in relation to any seat falling vacant after the second counselling. She has however stated that on 1st of July, 2012 she represented the matter before the Director General and copy of the same has been filed as Annexure 5 to the writ petition. The question is as to whether the petitioner was entitled for consideration on the basis of such a claim and as to whether it conforms to the rules.

In view of the facts that have come on record, the petitioner had admittedly met the Director General on 29th June, 2012. The counter affidavit of the Director General in paragraph 8 as extracted hereinabove admits that the petitioner was informed by the Board that the seats will be allotted according to the guidelines mentioned in the brochure and direction given by the Medical Council of India. It is therefore evident that the petitioner was pursing her counselling and the Director General was aware of the claim of the petitioner. It is surprising that on the one hand an information of implementing the allotment under rules was given to the petitioner and on the other hand a resolution was passed on the same day refusing to offer the seat for counselling.

The subsequent letter/representation dated 1st of July, 2012 sent by the petitioner has therefore to be construed in the aforesaid context, and in my opinion, the petitioner will be presumed to have registered her claim and exercised her option in respect of the aforesaid seat as she had apprised the Director of her claim on 29.6.2012 which is admitted in paragraph 8 of the counter affidavit. This finds support from a legal angle that a candidate has to raise a demand before the Chairman before the last date of admission. The demand therefore is an act to be performed by a candidate in order to avail the benefit of Clause 11 of the rules of counselling. The requirement in writing of such demand appears to be to safeguard the interest of the student to secure his/her claim so that a proof be retained and no one may deny allotment for want of any proof of demand. What is therefore mandatory is that the candidate should have raised a demand for allotment of any seat becoming vacant after second counselling.

In the instant case the precondition of a demand is already established by the admission of the Director General in paragraph 8 of the counter affidavit as noted above. Thus the mandate of staking a claim under Clause 11 had already been complied with by the petitioner by her presence during counselling on 29.6.2012, the date on which the seat fell vacant during the second round of counselling. The petitioner therefore on her own did not default or commit any delay in registering her demand. It was no afterthought as the petitioner was devotedly and fervently pressing her claim as soon as the vacancy was made known within the time schedule specified. The obstruction, which has been found to be legally unsustainable hereinabove, was caused by raising a wall that had no foundation by the respondent, obviously on account of some bona-fide misunderstanding of the provisions of counselling. It can also be said that the resolution dated 29.6.2012 adds or reads something into the rules which does not exist.

To my mind there exists no substantive breach of procedure on the part of the petitioner and the alleged slight deviation of sending information about the claim that was already lodged, a day later in writing, cannot raise even a slightest doubt or suspicion about the strong link of the petitioner lodging her claim within time personally with the Director on 29.6.2012. The subsequent confirmation in writing was in relation to the preceding claim of the petitioner completing the chain of the transaction, also in writing.

The writing part in such circumstances on the facts of this case became a formality, and directory in nature, that does not attract any penal consequences or disqualification. The seat had been claimed at the right moment and a letter followed on 1.7.2012. The procedure in pith and substance had been therefore substantially complied with and a gap of one day in despatching the letter in writing cannot be so harshly construed so as to disqualify and non-suit the petitioner's candidature in the background that the petitioner was present in person on the last day of counselling of the unreserved category i.e. on 29.6.2012 as honestly and fairly acknowledged by the Director in his affidavit when the vacancy arose. This approach appears to be more rational and logical as it adds to the advantage of the candidate who has secured merit and deserves admission. The purpose of making a request in writing is therefore to achieve the object of benefitting a deserving candidate on the strength of his merit. This is precisely what is desirable to infer in the present case as the Chairman and the Counselling Board on their part had not non-suited the petitioner on any such ground, and had rather declined to offer the vacant M.D. (Anaesthesia) seat for counselling on a vague and palpably wrong decision. Under such circumstances the petitioner took all possible steps within her command to comply with the rules for seeking admission as noted hereinabove.

Sri M.P. Yadav then contends that the last date of admission was 30th June, 2012 and therefore the application dated 1st July, 2012 cannot be treated to be within the time schedule as aforesaid.

In my opinion this is an absolutely peculiar case where the candidate herself was present during counselling on 29.6.2012 as admitted by the Director, and the respondents under an erroneous impression and interpretation, refused to offer the seat that had fallen vacant from All India Quota. As observed hereinabove, the Counselling Board and the Chairman therefore were not right in their decision as on 29th June, 2012 in refusing to offer the seat itself. In such circumstances, there is no fault or default on the part of the petitioner even if she did not move any application in writing on 29th June, 2012, inasmuch as, the said situation had emerged on account of the faulty resolution of the Counselling Board.

Coming to the third question which has taken a turn on account of the information relating to the orders passed by the apex court, there is no doubt that the order of the apex court was only in relation to four specialities as referred to in the order and it does not restrain any admission against the seat of MD (Anaesthesia) or any other Clinical Branch as indicated in the letter of the learned counsel of the apex court.

The order of the apex court dated 10th July, 2012 is categorical and only in relation to four specialities which does not include M.D. (Anaesthesia) or any other Clinical Branch. The information given by the learned counsel on 10th July, 2012 and as communicated by the Government of India through the letter as brought on record, therefore, proceeded on an absolutely wrong premise which appears to have been done in haste without waiting to know the contents of the actual order of the apex court. In the aforesaid circumstances, the stand taken by the Director General respondent no. 2 herein that there is a restraint order is also not sustainable as it is unsupported by facts on record.

Having drawn my conclusions as hereinabove, it is evident that the petitioner in the aforesaid circumstances was entitled to be considered for grant of admission against the seat of M.D. (Anaesthesia) in the respondent no. 3 Medical College.

The petitioner has disclosed the vacancies that were even otherwise available in other disciplines in the Medical Colleges throughout the State which however does not include M.D. (Anaesthesia) and as such it is not necessary to consider any claim of the petitioner as against those seats.

For the reasons aforesaid, the resolution dated 29th June, 2012 to the extent it refuses to offer the seat for counselling is quashed. The writ petition is allowed. The respondent Nos. 2 and 3 are directed to consider and grant admission to the petitioner in the Course of M.D. (Anaesthesia) forthwith without any further delay in the light of the observations made hereinabove. The Court records its appreciation for the efficient and prompt instructions of the Director and the able assistance and frank and candid submissions of his counsel Sri M.P. Yadav.

Order Date: 30.8.2012

Sahu