Sri Alluri Sitarama Raju ... vs The State Of Andhra Pradesh
2022 Latest Caselaw 8047 AP

                   HIGH COURT OF ANDHRA PRADESH


       MAIN CASE No: W.P.No.33391 of 2022
                            PROCEEDING SHEET
Sl.                                                                     OFFICE
      DATE         ORDER
No                                                                      NOTE

06    28.10.2022
                   AVSS,J & DVR,J

                                  I.A.No.3 of 2022
                         Heard.
                         Having regard to the reasons mentioned
                   in the accompanying affidavit and taking into
                   account the submissions made by the learned
                   counsel, this application is allowed.
                         Office   to    carry   out   the   necessary
                   amendment.
                             I.A.Nos.1, 2 and 4 of 2022
                         First petitioner is an Educational Society
                   and the second petitioner is a Medical College.
                         Challenge in the main Writ Petition is to
                   the      proceedings         bearing      NMC-23
                   (1)(105)/2022-Med./PG/048050-51,            dated
                   25.10.2022,     of     the    National    Medical
                   Commission      and the petitioners herein are
                   also seeking a declaration that the action of
                   the second respondent-University, in failing to

allot the next meritorious candidate in the vacant seat in MS-Obstetrics and Gynecology

(OBGY) to the second petitioner-college, is illegal, arbitrary, unconstitutional and violative of Articles 14, 19 (1) (g) and 47 of the Constitution of India.

One Dr.Palem Teja Sree filed W.P.No.13299 of 2022 before this Court, assailing the action of the second respondent- University in denying seat to her in M.D. Dermatology, Venereology and Leprosy (DVL) in the vacancy in Dr.Pinnamaneni Sidhartha Medical College, Vijayawada. In the said Writ Petition, petitioner in the present Writ Petition was arrayed as fourth respondent.

This Court, vide order, dated 04.08.2022, allowed W.P.No.13299 of 2022, setting aside the letter, dated 30.04.2022, of the second respondent-University and, consequently, directed the University to allot a seat in M.D. Dermatology, Venereology and Leprosy (DVL) in Dr.Pinnamaneni Sidhartha Medical College, Vijayawada. As a consequence of the aforesaid order, second respondent-University issued re-allotment order to the said Dr.Palem Teja Sree in PG course in Dr.Pinnamaneni Sidhartha Medical College, Vijayawada on 03.09.2022 and also directed the second petitioner-college to

relieve her and transfer the certificates and fee paid by her to Dr.Pinnamaneni Sidhartha Medical College, Vijayawada.

According to the writ petitioner, in compliance of the aforesaid allotment order, second petitioner herein had taken action and second respondent-University issued a relieving order on 05.09.2022 and, thereafter, the said Dr.Palem Teja Sree left the second petitioner-college and joined in Dr.Pinnamaneni Sidhartha Medical College, Vijayawada.

As a result of the above situation, the seat in the second petitioner-college, in which Dr.Palem Teja Sree joined earlier, has fallen vacant.

In the above background, petitioner- college addressed a letter bearing No.11/ PG/2021-2022/Admsn/ASRAMS, dated 06.09.2022, requesting the second respondent-University to issue an allotment order to an eligible candidate against the vacant seat. Subsequently, petitioner herein filed W.P.No.29744 of 2022 before this Court and, vide order, dated 14.09.2022, the said Writ Petition came to be disposed of, directing the second respondent-University to verify the

representation, dated 06.09.2022, submitted by the petitioner, and to pass appropriate orders/take appropriate action, strictly in accordance with law, preferably within a period of two weeks from the said date. Thereafter, vide proceedings No.1238/EA2/ PG/2021, dated 27.09.2022, second respondent-University informed the second petitioner-college that the University addressed a letter to the National Medical Commission, seeking clarification on filling up of the vacant MS (Obst/Gynec) S-2 (NRI) seat for the academic year, 2021-2022.

The present Writ Petition came to be instituted on 12.10.2022. Pending the Writ Petition, the National Medical Commission- third respondent herein vide the impugned proceedings, dated 25.10.2022, declined to accept the request of the petitioner.

According to the learned counsel for the petitioners, Sri N.Ashwani Kumar, the order passed by the third respondent, dated 25.10.2022, is highly illegal, arbitrary and violative of Article 14 of the Constitution of India and contrary to the judgments of the Hon'ble Apex Court and this Court. In elaboration, it is further contended that for no

fault on the part of the petitioners herein, a valuable seat cannot be denied.

On the contrary, strongly supporting the impugned order, dated 25.10.2022, it is contended by the learned counsel for the third respondent that, since the cut off date for PG admissions already came to an end, as long back as on 07.05.2022, petitioner is not entitled to any relief from this Court under Article 226 of the Constitution of India. Learned Standing Counsel for the second respondent-University has concurred with the stand taken by the third respondent.

It is absolutely not in controversy that one Dr.Palem Teja Sree initially joined in the petitioner-college and, subsequently, when she sought allotment of a seat in Dr.Pinnamaneni Sidhartha Medical College, Vijayawada, the second respondent-University declined to accept the said request and issued a letter, dated 30.04.2022, to the said effect. Writ Petition No.13299 of 2022 filed by Dr.Palem Teja Sree came to be allowed by this Court vide order, dated 04.08.2022. Obviously, in compliance of the said order, the second respondent-University relieved Dr.Palem Teja Sree from the second

petitioner-college and permitted her to join in Dr.Pinnamaneni Sidhartha Medical College, Vijayawada and further directed transfer of certificates and fee also. It is not in dispute that the second petitioner-college complied with the said directions and relieved the said Dr.Palem Teja Sree, who joined later in Dr.Pinnamaneni Sidhartha Medical College, Vijayawada.

This Court, in the above background, is of the prima facie opinion that for no fault on the part of the second petitioner-college, the subject seat has fallen vacant.

In this context, it would be appropriate to refer to the judgment o the Hon'ble Apex Court in Index Medical College, Hospital and Research Centre v. State of Madhya Pradesh and others1. In the said decision, the Hon'ble Apex court, at paragraph No.26, held as under:

"26. The right to admit students which is a part of the management's right to occupation under Article 19 (1)

(g) of the Constitution of India stands defeated by Rule 12 (8) (a) as it prevents them from filling up all the seats in medical courses. Upgradation and selection of subject of study is pertinent only to postgraduate medical

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course. In so far as undergraduate medical course is concerned, the upgradation is restricted only to a better college. Not filling up all the medical seats is not a solution to the problem. Moreover, seats being kept vacant results in huge financial loss to the management of the educational institutions apart from being a national waste of resources. Interest of the general public is not subserved by seats being kept vacant. On the other hand, seats in recognized medical colleges not being filled up is detrimental to public interest. We are constrained to observe that the policy of not permitting the managements from filling up all the seats does not have any nexus with the object sought to be achieved by Rule 12 (8) (a). The classification of seats remaining vacant due to non-joining may be based on intelligible differentia but it does not have any rational connection with the object sought to be achieved by Rule 12 (8) (a). Applying the test of proportionality, we are of the opinion that the restriction imposed by the Rule is unreasonable. Ergo, Rule 12 (8) (a) is violative of Articles 14 and 19 (1) (g) of the Constitution".

In the case of S.Krishna Sradha v.

State of Andhra Pradesh and others2, the Hon'ble Apex Court, at paragraph Nos.13, 13.1 to 13.5, held as follows:

"13.In light of the discussion/ observations made hereinabove, a meritorious candidate/student who has been denied an admission in

(2020) 17 SCC 465

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 concerned court 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 - 30 th 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 30 th 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.

13.3 In case the Court is of the opinion that no relief of admission can be granted to such a candidate in the very academic year and wherever it finds that the action of the authorities has been arbitrary and in breach of the rules and regulations or the prospectus affecting the rights of the students and that a candidate is found to be meritorious and such candidate/ student has approached the court at the earliest and without any delay, the court can mould the relief and direct the admission to be granted to such a candidate in the next academic year by issuing appropriate directions by directing to increase in the number of seats as may be considered appropriate in the case and in case of such an eventuality and if it is found that the management was at fault and wrongly denied the admission to the meritorious candidate, in that case, the Court may direct to reduce the number of seats in the management quota of that year, meaning thereby the student/ students who was/were denied admission illegally to be

accommodated in the next academic year out of the seats allotted in the management quota.

13.4 Grant of the compensation could be an additional remedy but not a substitute for restitutional remedies. Therefore, in an appropriate case the Court may award the compensation to such a meritorious candidate who for no fault of his/her has to lose one full academic year and who could not be granted any relief of admission in the same academic year.

13.5 It is clarified that the aforesaid directions pertain for Admission in MBBS Course only and we have not dealt with Post Graduate Medical Course".

This Court, in W.P.No.15433 if 2022, relied upon the said judgment of the Hon'ble Apex Court and passed an order on 01.09.2022. As mentioned supra, prima facie, this Court is of the view that there is no fault on the part of the petitioners and the petitioners herein have made out a prima facie case for grant of interim order.

For the foregoing reasons and having regard to the principles laid down in the judgments, referred supra, there shall be a direction to the respondents to confirm the admission of "Penumaka Suchandana"- (NEET Rank:89400, NEET Score: 288 and the next meritorious candidate as per the

petitioners) for the course of MS in Obstetrics and Gynecology (Obgy) in PG course in the second petitioner-college. However, this arrangement shall be subject to the outcome of the Writ Petition.

Post the Writ Petition after six weeks.

_______ AVSS,J

_______ DVR,J

Note:

Furnish C.C. of the order within four days.

B/o Tsy