Gummadi Nageswara Rao vs The State Of Andra Pradesh,
2022 Latest Caselaw 3427 AP

          HIGH COURT OF ANDHRA PRADESH: AMARAVATI

HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE
                                         &

               HON'BLE MR. JUSTICE D.V.S.S. SOMAYAJULU

                       WRIT PETITION No.6521 OF 2022
                              (Through physical mode)

Kuchibhotla Srivatsa,
S/o Kuchibhotla Ravi Sankar,
R/o D.No.24A-23-10, S4,
Vijaya Towers, Ashok Nagar,
Pathebada, Eluru, Venkata Rao Peta,
West Godavari, Andhra Pradesh, 534002.
                                                                  ... Petitioner
       Versus

The State of Andhra Pradesh,
Rep., by its Principal Secretary to Government,
Health, Medical & Family Welfare Department,
Secretariat, Velagapudi,
Amaravathi and two others.
                                                                 ... Respondents

Counsel for the petitioner         : N.Ashwani Kumar

Counsel for the respondents        : N.Harinath (Assistant Solicitor General)


                                   JUDGMENT

Date: 05.07.2022

(per D.V.S.S.Somayajulu, J)

This writ petition is filed for the following reliefs:

"..to issue an appropriate Writ or order or direction more particularly in the nature of Writ of Mandamus or any other appropriate writ order or direction, A. To declare the Revised Notice vide F.AIIMS/E. S./4-12/(INI-SS-JAN-2022/2021) dated 09.02.2021 issued by the 2nd respondent, thereby prohibiting the allotment of sponsored/reserved seats to general candidates in the event of a vacancy as being illegal, arbitrary, unjust, violative of Articles 14, 19(1)(g), 21 and 47 of the Constitution of India, contrary to the Order dated 25.01.2022 passed by this Hon'ble Court and the principles established by the Hon'ble Supreme Court in Index Medical College Hospital and Research Centre v. State of Madhya Pradesh reported in (2021) SCC Online SC 318, and B. To declare the Proceedings vide F.No.AIIMS/Exam. Sec./4-12/(INI-SS-JAN-22/2022) dated 17.02.2022 issued by

the 2nd Respondent and Proceedings vide DM/M.Ch/1TRG/2022/451 dated 25.02.2022 issued by the 3rd Respondent, thereby rejecting the request of the petitioner for De-reserving one sponsored seat in the course of DM Pediatrics Critical Care at PG Institute of Chandigarh i.e., the 3rd respondent herein as being illegal, arbitrary, unjust, violative of Articles 14, 19(1)(g), 21 and 47 of the Constitution of India, contrary to the Order dated 25.01.2022 passed by this Hon'ble Court and the principles established by the Honble Supreme Court in Index Medical College, Hospital and Research Centre v. State of Madhya Pradesh reported in (2021) SCC Online SC 318 and C. Consequently, set aside the Revised Notice (Proceedings) issued by the 2nd respondent vide F.AIIMS/E.S./4-12/(INI- SS-JAN-2022/2021) dated 09.02.2021 and D. Further Consequently, Set-aside the Proceedings vide F.No.AIIMS/Exam. Sec./4-12/INI-SS-JAN-2022/2022 dated 17.02.2022 issued by the 2nd Respondent and Proceedings vide DM/M.Ch/1TRG/2022/451 dated 25.02.2022 issued by the 3rd Respondent and E. Consequently direct the Respondents more particularly 2nd & 3rd respondent to allot/admit the Petitioner in the course of DM Pediatrics Critical Care while converting the vacant reserved into General category seat (without stipend) and F. Pass such other order...."

This Court has heard Sri Y.V.Ravi Prasad, learned senior

counsel for Sri N.Ashwani Kumar, learned counsel for the petitioner

and Sri N.Harinath, learned Assistant Solicitor General appearing for

the respondents.

The learned senior counsel appearing for the petitioner submits

that the facts are not really in dispute. He points out that the

petitioner appeared for an entrance exam called the Institute of

National Importance Super Speciality Entrance Test (INI-SS) seeking

admission in DM Pediatrics Critical Care course. The test was

conducted by the 2nd respondent AIIMS. The test was held on

07.12.2021, the results were declared on 31.12.2021 and the

courses were to commence from 01.01.2022. The petitioner secured

fourth rank in the exam held on 07.12.2021.

The issue as per the learned counsel is about the non-

conversion of a sponsored seat into a general seat. Learned senior

counsel submits that in the 2nd respondent-institution (PGIMER,

Chandigarh) there are 2 seats which are called 'sponsored seats'. No

candidate was qualified for allotment of the seat. The petitioner who

is otherwise a brilliant student, therefore, sought admission in this

'vacant' sponsored seat. As the respondents did not grant the seat,

he filed W.P.No.370 of 2022, which was allowed on 25.01.2022 by a

Division Bench of this Court. The Court permitted the petitioner to

make a representation for the seat.

Sequentially, learned senior counsel submits that challenging

the order of the Division Bench, respondent No.3 filed SLP.No.6040

of 2022 before the Hon'ble Supreme Court of India. The Hon'ble

Supreme Court of India did not interfere in the order passed, but it

left open all the questions of law to be agitated including the issues

about the (a) cut-off date (b) jurisdiction of the A.P. High Court etc.

The High Court was also directed to dispose of the writ petition. The

petitioner made a representation seeking a seat but the same was

rejected by respondent Nos.2 and 3. Accordingly, the present writ

petition is filed as a revised notification was issued on 09.02.2022,

wherein the allotment of sponsored seats for general seats was

prohibited and also seeking to set aside the rejection of the

petitioner's request/representation by 2nd respondent vide their

proceeding dated 17.02.2022 and also by respondent No.3 on

25.02.2022. The prayer is to set aside these two rejection orders and

to allot one seat in the pending vacant sponsored seats which were

not filled up. The petitioner, as per the learned senior counsel, is

willing to pursue this course without any stipend.

Coming to the issue of the jurisdiction, the learned senior

counsel argues that the issue of jurisdiction was already decided in

the earlier W.P.No.370 of 2020 by this Court and that the

subsequent objection of the respondents cannot be entertained as it

is hit by the principles of res judicata.

Alternatively, he submits that the two impugned letters dated

17.02.2022 (issued by respondent No.2) and 25.02.2022 (issued by

respondent No.3) were both sent to the petitioner's address at Venkat

Rao Peta at Eluru, West Godavari District, Andhra Pradesh.

Therefore, he contends that a part of cause of action has occurred in

the State of Andhra Pradesh and therefore, the high Court of Andhra

Pradesh has the territorial jurisdiction to entertain the writ petition.

Relying upon the judgement of Nawal Kishore Sharma v. Union of

India1 and in particular paras 16 and 17, learned senior counsel

argues that as a part of or a fraction of cause of action arose within

the State of Andhra Pradesh, this Court has the territorial

jurisdiction to entertain the matter and to decide the same.

With regard to the cut-off date i.e. 28.02.2022, the issue which

was also left open by the Hon'ble Supreme Court of India, learned

senior counsel argues that the cut-off date is a mere technicality;

that no rule or right of the respondents 2 and 3 will be violated, if the

petitioner joins after the cut-off date. He also submits that no fault

is attributable to the petitioner and he has been diligently pursuing

2014 (9) SCC 329

his rights and that relief cannot be denied to him. Merely relying on

the cut-off date to deny admission to a meritorious student would

result in ruining his professional career. He relies upon the

judgment of Hon'ble Supreme Court of India in Asha v. PT.

B.D.Sharma University of Health Sciences and others2. With

regard to the change in the classification or what the learned counsel

calls de-reservation and conversion, he submits that even though

the seat was reserved for a sponsored candidate, the same is

admittedly not filled up and no qualified candidate is there for the

said seat. He argues that leaving behind a vacant or un-filled seat in

a prestigious institution would be a national waste of resources and

that interest of the public are not sub-served if such seats can be

kept vacant. He relies upon Index Medical College, Hospital &

Research Centre v. State of Madhya Pradesh and others3 and

other judgments. In particular he relies on Dr. Sadhna Devi and

others v. State of U.P. and others 4 and Dr. Preeti Srivastava

and another v. State of Madhya Pradesh and others5 in support

of his contentions. He relies upon the judgment of the Punjab and

Haryana High Court reported in Miss Sumedha Kalia and other v.

State of Haryana and others6 and prays for similar directions to

be issued in line with the decision of the Punjab and Haryana High

Court which directed the seat to be filled up forthwith.

(2012) 7 SCC 389

2021 SSC Online SSC 318

(1997) 3 SCC 90

(1999) 7 SCC 120

AIR 1990 P.H. 239

The learned senior counsel also points out that both on merits

and on law, the petitioner who is eminently qualified is entitled to a

seat in the course of his choice and that leaving such a seat vacant

would result in a national loss. He points out that the petitioner

does not even want stipend for the period of the course and that he

would pursue the course even without a stipend being paid.

In reply to this, learned Assistant Solicitor General argues that

this Court has no territorial jurisdiction to entertain the matter.

Relying upon the information brochure/prospectus, which is

published by the 2nd respondent, the learned Assistant Solicitor

General submits that as per the clause in this brochure, which is

binding on all the candidates, any dispute arising out of these issues

shall be subject to the jurisdiction of the Delhi Courts alone. Relying

upon the leading judgment of the Hon'ble Supreme Court of India in

A.B.C. Laminart Pvt. Ltd. and Ors. vs. A.P. Agencies, Salem7,

the learned Assistant Solicitor General argues that the use of the

clear words like 'alone' etc., in the brochure/prospectus, (which is

accepted by the petitioner) makes it very clear that it is only the

Delhi Courts that have jurisdiction over the issues arising out of this

litigation. He also submits that no fundamental right of the

petitioner was infringed within the State of Andhra Pradesh for this

Court to have jurisdiction.

With regard to the cut-off date, learned Assistant Solicitor

General argues vehemently that it is a 'sacrosanct' date and it cannot

be relaxed by the Court. According to him, this was the reason why

(1989) 2 SCC 163

the Hon'ble Supreme Court in the SLP left this issue open to be

decided. He points out that midstream admissions are frowned upon

by the Hon'ble Supreme Court of India in more than one decision.

He relies upon the decision of the Medical Council of India v.

Madhu singh and others8, Asha's case (2 supra), Chandigarh

Administration and another v. Jasmine Kaur and others9 and

finally on the judgment of Hon'ble Supreme Court in S.Krishna

Sradha v. State of Andhra Pradesh and others10. It is the

contention of the learned Assistant Solicitor General that this

judgment makes it very clear that the time schedule or the last date

fixed is sacrosanct and that the same cannot be relaxed and that

midstream admissions are not permissible. He also points out that

the second round of counselling through another notification has

already been issued which is also challenged in this writ petition and

that the seat may not actually remain vacant as predicted and that

the process is set in place for the July 2022 session. He points out

that this is an admitted fact as can be seen from the writ petition

and also from the note of propositions (3.6) filed by the petitioner.

Therefore, he submits that as the cut-off date expired on 28.02.2022,

no order can be passed in favour of the petitioner.

With regard to the de-reservation for allotment of a seat,

learned Assistant Solicitor General draws the attention of the Court

to the portions of the prospectus and also to the counter affidavit

(2002) 7 SCC 258

(2014) 10 SCC 521

(2020) 17 SCC 465

filed. According to him, a sponsored seat is not a 'reserved seat' like

those meant for OBC/SC/ST. There is no budgetary sanction for

salary for these seats. Each seat has some basic eligibility criteria

and that the petitioner does not fulfil even one of the points in the

eligibility criteria.

Learned counsel points out that the sponsored seat which is

being sought for by the petitioner is in the 3rd respondent PG

Institute, Chandigarh. Relying on the prospectus issued by this

Institute, learned Assistant Solicitor General points out that such a

candidate applying for this should be (a) a permanent employee of

the institution, which is sponsoring him and he or she should be

continuously working for three years; (b) after getting training at

PGIMER, Chandigarh, the candidate should work at least 5 years at

the sponsoring institution and that all the payments due as

emoluments/stipend should be paid by the sponsoring institutions.

The sponsoring institution can only be a Central or State

Government institution or an Autonomous Body, Public Sector

College etc. He points out that these special category of seats are

created to impart training to in-service doctors to improve their

skills. Therefore, he submits that as the candidate in this case does

not fulfil any of the said criteria, he cannot be considered for the

seat. Hence, learned Assistant Solicitor General submits that both

on merits and as per law, the petitioner is not entitled to any relief.

COURT:

Learned counsels appearing for the petitioner and the

respondents have also filed brief notes of their legal and factual

submissions which were also taken into account by this Court.

(a)Jurisdiction of the A.P. High Court

This is the first issue which has to be decided in this matter.

(i) Learned Assistant Solicitor General relied upon the judgment

in the case of A.B.C. Laminart Pvt. Ltd. (7 supra). It is his

contention that when clear words like 'alone' 'only' etc., are used in a

clause to limit jurisdiction, the parties have to choose that Court

alone in between the two Courts that otherwise have jurisdiction.

Therefore, he argues that by a voluntary action i.e. by accepting the

prospectus, jurisdiction is only conferred on the Delhi Courts. This

argument, at first blush, appears to be interesting. But, this Court

is of the firm opinion that these sort of clauses which limit

jurisdiction to one Court or the other by using explicit language and

words like 'only', 'alone', 'exclusively' etc., will not apply to the

jurisdiction that is being exercised by this Court under Article 226 of

the Constitution of India. These clauses were upheld by the Hon'ble

Supreme Court in cases relating to contract and contractual

disputes only.

In the case of Maharashtra Chess Association v. Union of

India (UOI) and Ors.11, the Hon'ble Supreme Court held as follows:

26. In the present case, the Bombay High Court has relied solely on Clause 21 of the constitution and bye-laws to hold that its own writ jurisdiction is ousted. The Bombay High Court has failed to examine the case holistically and make a considered determination as to whether or not it should, in its discretion,

2020 (13) SCC 285

exercise its powers under Article 226. The scrutiny to be applied to every writ petition under Article 226 by the High Court is a crucial safeguard of the rule of law under the Constitution in the relevant territorial jurisdiction. It is not open to a High Court to abdicate this responsibility merely due to the existence of a privately negotiated document ousting its jurisdiction.

27. It is certainly open to the High Court to take into consideration the fact that the appellant and the second respondent consented to resolve all their legal disputes before the courts at Chennai. However, this can be a factor within the broader factual matrix of the case. The High Court may decline to exercise jurisdiction under Article 226 invoking the principle of forum non conveniens in an appropriate case. The High Court must look at the case of the appellant holistically and make a determination as to whether it would be proper to exercise its writ jurisdiction. We do not express an opinion as to what factors should be considered by the High Court in the present case, nor the corresponding gravity that should be accorded to such factors. Such principles are well known to the High Court and it is not for this Court to interfere in the discretion of the High Court in determining when to engage its writ jurisdiction unless exercised arbitrarily or erroneously. The sole and absolute reliance by the Bombay High Court on Clause 21 of the constitution and bye-laws to determine that its jurisdiction under Article 226 is ousted, is however one such instance.

In view of this clear and categorical enunciation of the law, this

Court is of the opinion that it has to take a holistic view of the matter

and cannot rely on this clause alone to conclude that this Court has

no jurisdiction.

In fact, the Hon'ble Supreme Court clearly said that every writ

petition filed under Article 226 of the Constitution of India should be

holistically scrutinised and it is not open to the High Court to

abdicate this responsibility merely due to the existence of a privately

negotiated document ousting its jurisdiction.

(ii) This Court also agrees with the submission of the learned

senior counsel for the petitioner who relied upon the case of Nawal

Kishore Sharma v. Union of India and others (1 supra).

Admittedly, both the letters which are subject matter of the challenge

and by which the petitioner's request was negatived were addressed

to him at Eluru in West Godavari District, which is within the

jurisdiction of this Court. Therefore, a fraction or part of the cause

of action has arisen within the State of Andhra Pradesh. Therefore,

this Court has the territorial jurisdiction to hear and decide this lis.

(iii) Even if the clause on which the learned Assistant Solicitor

General relies upon is carefully analysed, it says that any dispute in

regard to any matter referred to 'herein' shall be subject to the

jurisdiction of the Delhi Court alone. This is found in clause 9 page

17 of the prospectus. It states that legal and disciplinary action will

be initiated by respondent No.2 for any of the reasons mentioned in

this sub-clause which deal with offering illegal gratification,

impersonation, furnishing false information etc. It does not refer to

other matters mentioned before or use the words 'herein before' or

'herein after'. Therefore, on fact also, this Court is of the opinion

that since this is a clause purporting to oust the Court, it has to be

strictly construed. It is therefore held that it is limited to the 15

issues which are mentioned in sub-clause.

The issue of jurisdiction has been left open by the Hon'ble

Supreme Court in this case and therefore, the same is decided once

again. The principle of res judicata will not apply as urged by the

learned senior counsel for the petitioner.

Thus both on fact and in law, this Court holds that it has the

territorial jurisdiction to entertain this writ petition. In view of the

finding on the territorial jurisdiction, the other issues are being dealt

with in seriatim.

(b) Cut-off date:

Admittedly, the cut-off date in this case was 28.02.2022.

W.P.No.370 of 2022 was allowed by this Court on 25.01.2022.

SLP.No.6040 of 2022 was decided on 11.04.2022 but the Hon'ble

Supreme Court clearly held that this aspect must be taken note of

while dealing with the writ petition. The hearing took place in June,

2022 and the orders are reserved.

In the opinion of this Court, the case law relied upon by the

learned Assistant Solicitor General deals specifically with this issue.

The counsel for the petitioner relied upon Asha's case (2

supra), but in view of the conflict between the two judgments of the

Hon'ble Supreme Court in Asha and Jasmine Kaur's cases (2 & 9

supra), the matter was referred to the Hon'ble Supreme Court of

India in S.Krishna Sradha's case (10 supra) and the same is visible

from para 1 which is as follows:

1. The issue arises for consideration is whether a student, a meritorious candidate, for no fault of his/her and who has pursued his/her legal right expeditiously without delay, can be denied admission as a relief, because the cut-off date of 30th September has passed. In such a situation the relief which can be given by the Court is to grant appropriate compensation only?

After hearing the submissions and considering the case law on

the subject, the Hon'ble Supreme Court of India clearly answered the

reference as follows:

13. In light of the discussion/observations made hereinabove, a meritorious candidate/student who has been denied an admission in MBBS course illegally or irrationally by the authorities for no fault of his/her and who has approached the

Court in time and so as to see that such a meritorious candidate may not have to suffer for no fault of his/her, we answer the reference as under:

13.1. That in a case where candidate/student has approached the court at the earliest and without any delay and that the question is with respect to the admission in medical course all the efforts shall be made by the court concerned to dispose of the proceedings by giving priority and at the earliest.

13.2. Under exceptional circumstances, if the court finds that there is no fault attributable to the candidate and the candidate has pursued his/her legal right expeditiously without any delay and there is fault only on the part of the authorities and/or there is apparent breach of rules and regulations as well as related principles in the process of grant of admission which would violate the right of equality and equal treatment to the competing candidates and if the time schedule prescribed -- 30th September, is over, to do the complete justice, the Court under exceptional circumstances and in rarest of rare cases direct the admission in the same year by directing to increase the seats, however, it should not be more than one or two seats and such admissions can be ordered within reasonable time i.e. within one month from 30th September i.e. cut-off date and under no circumstances, the Court shall order any admission in the same year beyond 30th October. However, it is observed that such relief can be granted only in exceptional circumstances and in the rarest of rare cases. In case of such an eventuality, the Court may also pass an order cancelling the admission given to a candidate who is at the bottom of the merit list of the category who, if the admission would have been given to a more meritorious candidate who has been denied admission illegally, would not have got the admission, if the Court deems it fit and proper, however, after giving an opportunity of hearing to a student whose admission is sought to be cancelled. (emphasis supplied)

Para 13.2 thus clearly uses the conjunction 'and' in the para

referred to above. Therefore, this Court is of the opinion that unless

all these factors are present in sequence or in conjunction, no relief

can be granted to a candidate. The Hon'ble Supreme Court also

categorically held in the case that September 30th was the cut-off

date and in no circumstances, the Court can order admission beyond

30th October of that year (1 month). Although this decision is

pertaining to MBBS course, still it is an authoritative pronouncement

of the Hon'ble Supreme Court of India on the issue of cut-off date

etc.

Apart from this judgement, the Assistant Solicitor General also

relied upon a judgment of Medical Council of India's case (8

supra). This was a case wherein the Hon'ble Supreme Court was

dealing with the desirability of belated admissions both in graduate

and postgraduate courses. This is visible from para 1 of the

judgment itself. In para 17 of this judgement it was held as follows:

17. In Dr. Subodh Nautiyal v. State of U.P. and Ors. (1993 Supp (1) SCC 593, it was observed that in respect of a technical course, to admit a student four months after the commencement would not at all be correct.

Similarly, in para 18 and 19 by relying upon the case law in

State of U.P v. Dr Anupam Gupta (1993 Supp (1) SCC 594), the

Bench of the Supreme Court clearly held that in admitting a student,

four months after commencement of the course, would not at all be

correct and that to maintain excellence, the courses have to be

commenced on schedule and be completed within the schedule.

Admission in the midstream would disturb the courses and also

work as a handicap to the students themselves. Considering this

from a pragmatic point, the Hon'ble Supreme Court held that

vacancies in the seat or the course cannot be a ground to give

admission. In conclusion, in para 23, the Hon'ble Supreme Court

held as follows:

23. ....In conclusion:

(i) there is no scope for admitting students mid-stream as

that would be against very spirit of statutes governing the

medical education;

(ii) even if, seats are unfilled that cannot be a ground for

making mid session admissions;

(iii) there cannot be telescoping of unfilled seats of one year

with permitted seats of the subsequent year;

(iv) ....................

If the facts in this case are viewed against the backdrop of

these two cases, it is clear that the last date for admission into the

courses was 28.02.2022. In the revised notice No.25/2022 dated

09.02.2022, a clause was included stating that candidates who

applied for a general seat would only be eligible for a general seat

and those who applied for sponsored seat will be eligible only for

sponsored seat. There will be no merger of seats from general to

sponsored or sponsored to general. This clause is also subject

matter of challenge.

It is thus clear that the petitioner is seeking a midstream

admission on the ground that vacant seats in such courses should

not be allowed to go un-filled only on the ground that a cut-off date

has expired. He relies upon Asha's case (2 supra) and other

judgments to argue that the petitioner has been agitating his claims

without any delay and is otherwise a meritorious candidate.

Therefore, it is contended that the seat should not be left vacant and

an order can be passed granting the relief. This Court is of the

opinion that the judgment of the Hon'ble Supreme Court of India in

the case of S.Krishna Sradha's case (10 supra), which is a

judgment of three Bench Judges, is clearly held against the

petitioner. Further conclusions on this aspect while relying on para

13.02 of S.Krishna Sradha's case (10 supra) are mentioned at the

end of the judgment.

(c) Sponsored seat/de-reservation:

In line with the case law submitted, learned counsels argued

on this aspect and called it a de-reservation of a seat. In the strict

sense this cannot be called de-reservation, but is more in the nature

of re-classification of a seat. Learned counsel for the petitioner relied

upon Index Medical College's case (3 supra) wherein the Hon'ble

Supreme Court held that not filling up of the medical seats is not a

solution to the issue and that the seats being kept vacant result in a

huge financial loss to the institution apart from being the national

waste of resources. Seats in recognized medical colleges not being

filled up is detrimental to the public interest as per the Hon'ble

Supreme Court. Other judgments which are enclosed to the writ

petition including Dr Sadhna Devi's case (4 supra) and Dr Preeti

Srivastava's case (5 supra) are also relied upon for the same

argument. It was held in Dr Sadhna Devi's case and other cases

that if a seat reserved for SC/ST/OBC candidates cannot be filled up

as there are no qualified candidates, such seats should be given to

the general category candidates.

This is the lynchpin of the argument by the learned senior

counsel. However, a deeper examination of the facts shows that

sponsored candidates have to fulfil certain distinct eligibility criteria

to be considered for admission. For example, the brochure and

rules/procedures relating to the 'sponsored seats' at AIIMS, Delhi

(respondent No.2) clearly states that the seat in D.M/M.ch course in

which the candidate is being sponsored should not be available in

the State to which the candidate belongs. A certificate to this effect

signed by the concerned authority should be furnished. The

sponsored candidate should also be employed by the sponsoring

authorities for 5 years after the training is completed. The candidate

should also be paid the entire emoluments by the sponsoring

authority for the entire training period and AIIMS Delhi is not

responsible for the same. They are also called as "Trainees".

As far as respondent No.3 PGIMER, Chandigarh is concerned,

(1) the sponsored candidate should also be a regular permanent

employee for at least three years with the sponsoring authority. (2)

The candidate after the training should be employed by the

sponsoring authority for atleast 5 years in the specialty and (3) the

emoluments/stipend etc., will be paid by the sponsoring authority

alone. Lastly, the sponsoring institute can only nominate one

candidate for a specialty. Sponsorship is also accepted from Central

or State Government departments, Institutions, autonomous bodies

of State or Central Government and also Public Sector Colleges etc.,

recognised by the Medical Council of India.

The respondents have also spelt out with clarity why this

sponsored seats have been created. Admittedly, (since there is no

denial in the rejoinder), these seats are created to provide training to

in-service doctors, but would then return and serve the institution

and also the general public throughout the country including remote

areas where proper medical facilities are not otherwise available. As

a matter of practice also State Governments/Central Governments

and others have sent doctors from Government hospitals and

dispensaries to get training and education in specific fields, so that

they can return to the institution after the training and fill the

lacuna in their knowledge by providing medical care in such cases

and thereafter serve the country. The AIIMS states that sponsored

candidates are sent from various States to fill the void or

requirement in the hospitals, dispensaries and colleges.

Therefore, it is clear that the candidates who apply for the

sponsored seats are a distinct category of applicants who have to

fulfil certain eligibility criteria for being treated as a sponsored

candidate and also have to assume certain responsibilities after the

completion of the training. Admittedly, the petitioner does not fit

into this clause. Thus the petitioner and the candidates for

sponsored seats cannot be treated as 'equals' for the petitioner to

allege inequality or a violation of constitutional rights.

The petitioner essentially relied upon the judgments of the

Hon'ble Supreme Court of India like Index Medical College,'s case

(3 supra) Asha's case (2 supra) and Sadhna Devi cases etc., to

argue that seats should not be left un-filled and it would be a

national loss, if such seats left un-filled. However, the case law on

the subject includes the decision in S.Krishna Sradha's case (10

supra). After considering the judgments and the conflict between

the cases of Asha and Jasmine Kaur's cases (2 & 9 supra), three

Hon'ble Judges of the Supreme Court on a reference which is

mentioned earlier clearly answered the reference in 13.1 and in

particular 13.2. The paras are reproduced earlier. If the present case

is examined against the backdrop of finding of larger Bench of

Hon'ble Supreme Court, this Court finds that this Court has to be

convinced on the following five grounds viz., (1) there is no fault

attributable to the candidate, (2) candidate has pursued his legal

remedies without delay, (3) there is a fault only on the part of the

authority, (4) there is a breach of rules and regulations and other

principles for admission which would violate the right of equality and

equal treatment and (5) the time schedule prescribed is not over. If

these conditions are present and the Court is of the opinion that it is

an exceptional circumstance and is a rarest of rare case, the Court

can direct admission in the course by increasing the one or two

seats. However, a note of caution is also sounded that this direction

can only be given within one month from the cut-off date.

This Court finds that in this case all the conditions are not

fulfilled. A perusal of the record reveals that the petitioner is not

eligible to be considered as a sponsored candidate as he does not

have the basic requisite qualifications including employment to be

called a 'sponsored' candidate. The candidate has pursued his

remedies without delay. However, there is no fault on the part of the

authorities because they rightly relied upon the rule position to hold

that the candidate does not fulfil the criteria of a sponsored

candidate. There is no clear and apparent breach of the rules and

regulations let alone the violation of right of equality and equal

treatment. This Court has already held that sponsored candidates

are a distinct class by themselves and cannot be treated on par with

general candidate. The last date has also expired both under the

original notification and the revised notification for January, 2022

sessions. The extra '30 day' period has also expired.

Hence, in conclusion, this Court holds that it has the

jurisdiction to hear and decide this case but on merits, this Court

holds that the petitioner is not entitled to any relief in this writ

petition.

Accordingly the writ petition is dismissed. No order as to costs.

Pending miscellaneous applications, if any, shall stand closed.

PRASHANT KUMAR MISHRA, CJ D.V.S.S. SOMAYAJULU,J

KLP

Note: L.R.Copy be marked.