Dr.Palem Teja Sree vs The State Of Andhra Pradesh
2022 Latest Caselaw 4997 AP

          THE HON'BLE SRI JUSTICE A.V.SESHA SAI
                           AND
     THE HON'BLE SRI JUSTICE G.RAMAKRISHNA PRASAD

                 WRIT PETITION No.13299 OF 2022

ORDER: (Per Hon'ble Sri Justice A.V.Sesha Sai)

      Challenging the action of respondent No.2-Dr. N.T.R.University

of Health Sciences, Vijayawada, in denying the seat to the petitioner in

M.D.Dermatology, Venereology and Leprosy (DVL) in the vacancy in

respondent No.3-College, vide letter No.1236/EA2/PG/2021 dated

30.04.2022, the present Writ Petition has been instituted.

2. The petitioner herein appeared for PG-NEET Examination,

2021, and secured All India rank of 64571 and State rank of 4701.

She got a seat in M.S. (Obstetrics and Gynecology) in Sri ASRAMS

College, Eluru, and respondent No.2-University issued a provisional

allotment order dated 24.02.2022. ASRAM College issued a

provisional admission order dated 26.02.2022.

3. It is the further case of the petitioner that in the aforesaid

Phase-I Counselling under Management Quota (S2), four meritorious

candidates secured seats in Dermatology, Venereology and Leprosy

(DVL) stream in respondent Nos.3 to 5-Colleges and Gayatri Vidya

Parishad, Visakhapatnam. Since the said individuals secured the

seats in other States and Deemed Universities, the said seats

remained vacant, as such, notification for Phase-II Counselling from

16.04.2022 to 18.04.2022 came to be issued. According to the

petitioner, she applied in Phase-II. It is further stated that on

21.04.2022 evening, All India Quota and All India Deemed

Universities Mop Up round results and Phase-II Management Quota of

respondent No.2-University were announced. It is also stated that the

two candidates, viz., Mool Chand Suthar and Dantham Gayathri, have

secured the seats in NRI Quota in All India Deemed Universities as

well as in 2nd respondent-University and College of 3rd respondent. In

the above background, earlier, the petitioner herein filed

W.P.No.11706 of 2022, seeking the following relief:-

"To issue a writ, direction, order or orders more particularly one in the nature of writ of Mandamus, directing the Respondent No.2 to fill up the unfilled seats of M.D. Dermatology, Venereology and Leprosy (DVL) in the medical colleges of respondent Nos.3 to 5 in Management quota (S-2) with the petitioner in the event of non-reporting/non-joining by the respective allotted candidates in the respective Medical Colleges of respondent Nos.3 to 5 in the same order of preference without devoiding of merit otherwise illegal, arbitrary, contrary to law, unjust, unconstitutional and violative of constitutional right of education and the judgments of the Hon'ble Supreme Court of India."

4. This Court, by way of order dated 25.04.2022, disposed of

the said Writ Petition No.11706 of 2022 and the operative portion of

the said order at paragraph Nos.5 to 7 reads as follows:

"5. Now, the grievance of the petitioner is that, when these students joined in All India Deemed Universities, there will be two seats to be filled up in Phase-II counselling. According to him, having regard to the rank she secured, there is every likelihood of she getting a seat in the vacancies, which arose due to two students leaving 3rd and 4th respondent colleges. Since the authorities are

proceeding further without notifying the vacancies, the present Writ Petition to be filled.

6. Sri B. Vijaya Kumar, learned Standing Counsel for the 2nd respondent, on instructions states that in view of the judgment of Hon'ble Apex Court in W.P. (Civil) No.174 of 2022, wherein, it was ordered that students who have joined in round 2 of the State quota or round 2 of the All India Quota, shall not be eligible to participate in the Mop-up round for All India Quota. But, the situation herein is something different. Here, the second round of counselling is not yet over. Hence, we feel that if the petitioner is otherwise entitled to in the two vacancies which arose, due to two students opting seats in All India Quota and if the petitioner fulfils all the requirements, the second respondent may deal her application in accordance with law.

7. Having regard to the above, the Writ Petition is disposed of. There shall be no order as to costs."

5. Enclosing a copy of the said order dated 25.04.2022, the

petitioner herein made a representation to respondent No.2 on

26.04.2022, and respondent No.2, vide proceedings

No.1236/EA2/PG/2021 dated 30.04.2022, rejected the claim of the

petitioner and the operative portion of the said proceedings reads as

follows:-

"However, after verifying all the records and allotments it is hereby informed that your candidature is not entitled for the benefit since you are not directly eligible for the said MD (DVL) seat as there are 81 meritorious candidates i.e., better NEET rankers in between you and Dr. Dantham Gayathri and as a result you do not fulfill the requirements."

6. In the above background, on 02.05.2022, the present Writ

Petition came to be filed, seeking the relief as indicated in paragraph

No.1 above. This Court on 02.05.2022, passed an interim order and

the said order reads as follows:-

"Notice before admission.

Assailing the letter dt.30.04.2022 in No.1236/EA2/PG/2021 of the Registrar, Dr.NTR University of Health Sciences, A.P., Vijayawada, wherein the request of the petitioner came to be rejected on the ground that there are 81 meritorious candidates i.e., better NEET rankers in between the Petitioner and Dr.Dantham Gayathri, the present writ petition is filed.

It is stated by the learned counsel for the petitioner that out of 18 candidates, serial No.40 Dr. Mool Chand Suthar did not join and as such there is one vacancy and if the said vacancy is to be filled up, the petitioner is entitled for the said seat.

However, Sri Vijay Kumar, learned standing counsel for University submits that the petitioner is not entitled for the said seat, as one more meritorious student above rank of the petitioner by name Dr.Bhargav Krishna in the list.

Sri Venkateswara Rao Gudapati would submit that other candidates have already joined in other colleges, and in so far as dermatology, the petitioner is only candidate available and that she is entitled for the said seat. According to him, Dr.Bhargava Krishna did not report pursuant to the second counselling and as such he is not eligible for the seat at this stage.

It may not be necessary for us to go into all these issues. If the counselling is not yet complete

or the dermatology seat which fell vacant due to non joining of Dr.Mool Cahnd Suthar is not yet allotted to Mop UP counselling, and if the petitioner is entitled for the said seat in dermatology after sliding from gynecology (in view of the plea of the petitioner that Bhargava Krishna has not reported pursuant to counselling), the authorities may deal with the request of the petitioner in accordance with law, provided, there is no other candidate, on merit, above the petitioner."

7. Subsequently, on 04.05.2022, this Court passed another

interim order, directing respondent No.3-College to keep one seat

vacant in M.D. Dermatology, Venereology and Leprosy (DVL). A vacate

petition, I.A.No.5 of 2022 accompanied by a counter affidavit dated

12.05.2022, so also an affidavit have been filed by respondent No.2-

University.

8. Heard Sri Gudapati Venkateswara Rao, learned counsel

for the petitioner, learned Government Pleader for respondent No.1.

Sri G.Vijay Kumar, learned Standing Counsel for respondent No.2 and

Sri Challa Gunaranjan, learned counsel for respondent No.3, apart

from perusing the material available on record.

9. It is contended by the learned counsel for the petitioner

that the action impugned in the present Writ Petition is highly illegal,

arbitrary, unreasonable and violative of the constitutional rights

guaranteed under Chapter-3 of the Constitution of India.

10. On the other hand, it is submitted by Sri G.Vijay Kumar,

learned Standing Counsel for respondent No.2 that there is absolutely

no illegality nor there exists any infirmity in the impugned action and

in the absence of the same, the petitioner herein is not entitled for any

relief under Article 226 of the Constitution of India.

11. The material available on record discloses, in clear and

vivid terms, that initially respondent No.2-University of Health

Sciences brought to the notice of this Court that the candidate

standing at Serial No.40, Mr. Mool Chand Suthar in the Final Not

Reported Candidates List, did not join and respondent No.2 also took

a stand that the petitioner is not entitled for the said seat as one more

meritorious student is there above the rank of the petitioner by name

Dr. Bhargavi Krishna. The fact remains that the said Dr. Bhargavi

Krishna, who stood at Serial No.2537 in the Provisional Final Merit

List, did not join in the M.D. Dermatology, Venereology and Leprosy

(DVL) seat. The said aspects would be evident from the "list of not

reported candidates" after Phase-II of counselling as on 30.04.2022.

It is pertinent to note that the said Dr. Bhargavi Krishna secured

64571. The fact remains that, though this Court passed an order on

02.05.2022, directing to consider the request of the petitioner,

respondent No.2 herein shifted the vacant seats to Mop Up round and,

in fact, on noticing the same, this Court directed respondent No.3 to

keep one seat vacant. It is also clear from the pleadings available on

record that the candidates, viz., Mahesh Kumar and Harish Kumar

exercised web options for the M.D. Dermatology, Venereology and

Leprosy (DVL) in the Mop Up round in respondent No.3-College.

However, the fact remains that the said Mahesh Kumar did not report.

Another objection was taken by respondent No.2 with regard to Harish

Kumar, who secured M.D. Dermatology, Venereology and Leprosy

(DVL) in respondent No.3-College. It is to be noted that when the

notice was taken in I.A.No.6 of 2022, filed for impleading the said

Harish Kumar, the said Harish Kumar sent a message and the said

message is filed along with a memo dated 19.07.2022 by the learned

counsel for the petitioner. The said message reads as follows:

"My self Dr. Harish kumar s is not willing to take dermatology seat in psims or willing to attend to the court for the same as I have got decent rank of 28617 in the neet 2022. So kindly consider this as I'm going to attend the counselling this year and take the seat in merit."

12. As observed supra, though this Court on 02.05.2022

passed an interim order to deal with the request of the petitioner in

accordance with law, totally ignoring the same, respondent No.2-

University authorities shifted the seats to Mop Up round. It is also

not in dispute that the petitioner herein is the next meritorious

candidate after Dr. T.Bhargavi Lakshmi and respondent No.2-

University authorities grossly went wrong in shifting the seats to Mop

UP round, thereby denying the seat to the petitioner herein. This

exercise undertaken by respondent No.2-University authorities is

liable to be deprecated. Though an attempt is made to justify their

action by citing a judgment of this Court in W.P.No.1081 of 2021 and

Batch dated 29.01.2021, having regard to the conduct of respondent

No.2-University authorities and having regard to the factual and

circumstantial variation, this Court is of the opinion that the said

judgment would not render any assistance to the petitioner herein.

The fact remains that as on date, one seat of M.D. Dermatology,

Venereology and Leprosy (DVL) is lying vacant in respondent No.3-

college. Having arbitrarily and in contravention of the orders of this

Court, shifted the seats to Mop Up round, respondent No.2 is not

justified in taking shelter on the ground that the seats were

transferred to Mop Up round. Since the candidates above the

petitioner did not express consent to join in the subject seat,

respondent No.2 should have offered the same to the petitioner.

Admittedly, the seat which this Court directed to be kept vacant, is

lying vacant and due to mode and manner adopted by respondent

No.2-University authorities, this situation, obviously, has cropped up

and if it is kept vacant, it is beneficial to none.

13. For the aforesaid reasons, this Writ Petition is allowed,

setting aside the letter No.1236/EA2/PG/2021 dated 30.04.2022 of

respondent No.2 and consequently, respondent No.2 herein is directed

to allot a seat in M.D. Dermatology, Venereology and Leprosy (DVL) in

respondent No.3-College to the petitioner. There shall be no order as

to costs of the Writ Petition.

As a sequel, interlocutory applications, if any, pending in this Writ Petition, shall stand closed.

___________________ A.V.SESHA SAI, J

_______________________________ G.RAMAKRISHNA PRASAD, J Date: 04.08.2022 Note: Issue cc in two days B/O siva

THE HON'BLE SRI JUSTICE A.V.SESHA SAI AND THE HON'BLE SRI JUSTICE G.RAMAKRISHNA PRASAD

WRIT PETITION No.13299 OF 2022

Date: 04.08.2022

siva