Central Institute Of Education, ... vs Maharashtra University Of Health ...
2022 Latest Caselaw 12854 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH, NAGPUR

                        WRIT PETITION NO. 5056 OF 2022

1. Central Institute of Education, Bhandara
   through its Principal,
   Address for communication:
   Plot No. 47, Vidhya Nagar,
   Wathoda, Nagpur- 440009.

2. Ku. Rajeshwari Kaliram Jamre,
   Aged 20 years, Occ. Student,
   R/o. C/o. Central Institute of Education,
   Plot No. 47, Vidhya Nagar, Wathoda,
   Nagpur- 4400099.                                                     . . . PETITIONERS

                     // V E R S U S //

1. Maharashtra University of Health Science,
   through its Registrar, Mhasrul, Vani-Dindori
   Road, Nashik, Maharashtra-422004.

2. Directorate, Medical Education & Research,
   through its Director, Government Dental
   College and Hospital Building, St. Georges
   Hospital Campus, Fort, Mumbai-01.

3. Admission Regulating Authority,
   Maharashtra State, through its Chairman,
   9th Floor, New Excelsior Building,
   A. K. Nayak Marg, Fort, Near CSMT,
   Mumbai-01.                                                        . . . RESPONDENTS

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Shri Anand Parchure, Advocate for petitioners.
Shri Abhijit Deshpande, Advocate for respondent no. 1.
Shri I. J. Damle, AGP for respondent no. 2/State.
Shri N. A. Gaikwad, Advocate for respondent no. 3.
-----------------------------------------------------------------------------------------------
                 CORAM :-         SUNIL B. SHUKRE &
                                  M. W. CHANDWANI, JJ.

                 DATED :-         12.12.2022
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ORAL JUDGMENT (PER: SUNIL B. SHUKRE, J.):-

             Heard.

2. Rule. Rule made returnable forthwith. Heard finally by

consent of the parties.

3. On 09.12.2022, it was made clear by this Court that

considering urgency involved in this petition, it shall be taken for final

disposal at admission stage on the next date, meaning thereby that no

further adjournment shall be granted on the next date. However,

today again an adjournment has been though sought by Shri A. A.

Choube, learned counsel holding for Shri N. A. Gaikwad, learned

counsel for respondent no.3. It is informed by him that Shri N. A.

Gaikwad, learned counsel is busy in another Court and therefore, he is

unable to attend the matter. He has prayed for taking up the matter

after some time.

4. In regular course, we would have certainly granted such a

short adjournment, as in the normal course of circumstances, the

prayer is considered to be innocuous. But, when the circumstances are

one of the exceptional nature, such a prayer cannot be considered by

us and therefore, we are constrained to reject it. After all Second Year

examination of B.Sc. (Nursing) course is scheduled to commence from 3 12-wp-5056-22j.odt

13.12.2022, and if petitioner no. 2 is to be permitted to appear at

examination, Shri Abhijit Deshpande, learned counsel for respondent

no. 1 would have to get in touch with respondent no. 1- Maharashtra

University of Health Science at Nashik and then the University will

have to give instructions, which will also require some time and it is in

the fitness of the things that in such an eventuality, the University be

given reasonable time to act upon the order of this Court. It is for this

reason, we reject the request of Shri A. A. Choube, learned counsel

holding for Shri N. A. Gaikwad, learned counsel for respondent no. 3,

to keep back the matter considering the urgency involved in this

matter.

5. Be that as it may, now we have to consider the issue

involved in this petition.

6. By the impugned order dated 02.06.2022, it is seen that

the only ground for which the application of the petitioner no. 2 to

regularize her admission to B. Sc. (Nursing) course is rejected is

because she failed to "cure the lacunae". It is not explained as to what

it means and what kind of lacunae were noticed by the Admission

Regulating Authority (ARA)- respondent no. 3. Shri Anand Parchure,

learned counsel for the petitioners submits that lacunae were orally

informed to the petitioners and it was the inability of respondent no. 3 4 12-wp-5056-22j.odt

to register the petitioner no. 2 to B.Sc. (Nursing) course due to her

failure to make on-line payment of the requisite charges. He submits

that this was the only lacuna, on the part of the petitioners, and there

was no opportunity for the petitioners to remove this lacuna for the

reason that it was the failure of process of the on-line payment and this

has been explained in adequate words by the petitioner no. 2 in her

Review Application, but, the same has been ignored by respondent no.

3 and respondent no. 3 thus mechanically rejected the Review

Application of the petitioner no. 2 by the impugned order.

7. At this stage, Shri N. A. Gaikwad, learned counsel for

respondent no. 3 made his appearance and we have heard him.

8. According to him, since no payment of the requisite

charges was received by respondent no. 3, the petitioner no. 2 was not

registered with respondent no. 3 and without her registration, her

admission to B.Sc. (Nursing) course could not have been regularized.

This submission deserves outright rejection. The failure of on-line

process is something which is not under the control of a student like

the petitioner no. 2. In fact, the on-line payment process is in control

of the ARA (respondent no. 3) and it is for the ARA to ensure that no

snags are developed in the on-line process and no failure occurs. It is

also the duty of the ARA to consider the reasons given by a student like 5 12-wp-5056-22j.odt

the petitioner no. 2 and to find out if the reasons are correctly stated

or not. Even that effort has not been taken by ARA, when it passed the

impugned order. The ARA has also vaguely noted that the petitioner

no. 2 did not submit the required documents and this is appearant

from the statement made in last paragraph of the impugned order,

which is for the sake of convenience reproduced below:-

"On perusal of the file, it appears that they have not submitted the required documents and thus not cured the lacunae shown during the hearing till now. Hence the Review Application is rejected."

9. It is quite clear that respondent no. 3 itself is not clear as

to whether or not the requisite documents were submitted by the

petitioners. It used the expression "it appears", which is quite

indicative of uncertainty going on in the mind of respondent no. 3.

Even the documents, which were found to be missing, if at all, were

not pointed out in the impugned order.

10. It is clear from the above discussion that the impugned

order has been passed mechanically and without any application of

mind. It also appears to be harsh on a student like petitioner no. 2,

who is presently studying in Second Year of B.Sc. (Nursing) course,

although it is not yet known whether or not she has cleared the First

Year examination during pendency of this petition. When a student

has moved ahead in pursuing the course, where he or she has taken 6 12-wp-5056-22j.odt

admission, the scenario and perception changes and it is necessary for

the Authority like respondent no. 3 to examine the issue from the view

point of changed scenario and perspective. If the respondent no.3 is of

the opinion that certain lacunae have continued in the admission form

submitted by a student, the respondent no. 3 must play proactive role

and come forward for assistance of such a student and allow him/her

to remove the lacunae, if they do not go to the root of the admission of

the student, for example, they do not pertain to the eligibility of the

student.

11. In the present case, the lacunae, whatever are there, if at

all, appear to be of technical nature and certainly of such a nature

which could have been allowed to be removed as the petitioner no. 2 is

pursuing her B.Sc. (Nursing) course. This has not been done by

respondent no. 3 and therefore, we find that it is now for this Court to

remove the injustice that has been caused to the petitioners by

allowing the petition. Hence, we pass the following order:-

i) The petition is allowed in terms of prayer-clause no. (i),

which reads as follows:-

"i) To quash and set aside the order dated 02.06.2022 (Annexure No. IV) issued by the Respondent No. 3/ARA and direct the Respondent No. 3/ARA to grant approval to the admission to the petitioner No. 2/student in Petitioner No. 1 College for B.Sc. (Nursing) course;"

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                             ii)         We direct respondent no.1 to declare the result of First

Year B. Sc. (Nursing) course examination taken by petitioner no. 2 during the course of the day.

iii) We permit the petitioners to complete the formalities relating to their endevour to appear at Second Year examination of B.Sc. (Nursing) course, if petitioner no. 2 is otherwise eligible to appear at the examination and if time permits.

iv) The petitioners are directed to remove the lacunae pointed out by respondent no. 3, if any, within two weeks. We also permit the petitioners to pay requisite charges off-line, if on-line payment process does not work. On removal of lacunae, if any, and payment of charges, petitioner's admission shall be regularized in two weeks thereafter by respondent no. 3.

v) Rule is made absolute in the above terms. No costs.

vi) The steno copy of operative part of the judgment be furnished to learned counsel for the petitioners, learned counsel for respondent no. 1 and learned counsel for respondent on. 3.

                             (M. W. CHANDWANI, J.)                            (SUNIL B. SHUKRE, J.)




          Digitally signed
          by JAISWAL
JAISWAL RAJNESH
        RAMESH
RAJNESH Date:
RAMESH 2022.12.13
          18:19:31
          +0530




    RR Jaiswal