Bombay High Court
Datta Uttam Pawar vs The State Of Maharashtra, Thr. ... on 20 June, 2022
Bench: A.S. Chandurkar, Urmila Sachin Phalke
WP-2585-22(J) 1/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2585 OF 2022
Datta Uttam Pawar,
Aged about 33 years, Occ-Service,
R/o. P.H.C., Loni, Tahsil Arni,
District Yavatmal
....... PETITIONER
...V E R S U S...
1. The State of Maharashtra,
Through its Secretary,
Department of Public Health Service,
Mantralaya, Mumbai-32.
2. The Director,
Commissionorate Health Services,
Office at 6th Floor, Arogya Bhavan,
Saint George Hospital Compound,
P.D'Mello Road, CSMT,
Mumbai-400 001.
3. Santosh s/o Mohanrao Kamble,
Aged Major, Occ. Service,
PHC, Loanbel, Tahsil Arni,
District Yavatmal.
....... RESPONDENTS
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Shri Mohammad Ateeque, Advocate for petitioner.
Ms N. P. Mehta, Assistant Government Pleader for respondent nos. 1 & 2.
Shri Harshal Bobde, Advocate for respondent no.3.
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CORAM :- A.S.CHANDURKAR AND URMILA S. JOSHI-PHALKE, JJ.
ARGUMENTS WERE HEARD ON 16th JUNE, 2022.
JUDGMENT IS PRONOUNCED ON 20 th JUNE, 2022
WP-2585-22(J) 2/11
JUDGMENT (Per A.S.CHANDURKAR, J.)
Rule. Rule made returnable forthwith and heard the learned
counsel for the parties considering the urgency in the proceedings.
2. The petitioner is serving as Medical Officer - Group-A at Primary
Health Center, Loni, Tahsil Arni, District Yavatmal having obtained M.B.B.S.
Degree in 2013. The Primary Health Center where the petitioner is serving is
categorised as a Difficult Primary Health Center. The petitioner appeared in
the NEET-PG-2021 examination that was held on 11.09.2021 with a view to
pursue DNB Degree/Diploma course. The petitioner secured 270 marks and
after considering additional 7% marks per year for rendering service in
"Difficult Public Health Center", his total marks were calculated 345.6. In the
final merit list published on 04.03.2022 he was placed at Serial No.33 from the
VJ-NT category. While submitting his preferences, it was stated by the
petitioner that he would prefer Government Medical College, Akola at Serial
No.1 and Dr. R. N. Cooper Municipal General Hospital, Mumbai at Serial No.2.
Initially cut of marks were fixed at 265 but on 12.03.2022 the same were
reduced to 210. On 07.04.2022 against Serial No.34 the petitioner's name was
shown with the note "choice not available". Same was the position in the case
of the respondent no.3 who was at Serial No.54 and against his name too, it
WP-2585-22(J) 3/11
was stated that the "choice not available". This position of the select list
continued on 26.04.2022. On 06.05.2022 in the selection list it was stated
against the name of the petitioner at Serial No.34 that he was "not willing to
process". The respondent no.3 who shown at Serial No.54 was granted
admission in the subject DNB Surgery at Dr. R. N. Cooper Municipal General
Hospital, Mumbai. Being aggrieved by the refusal to grant admission to the
petitioner and the said seat having been granted to the respondent no.3, the
petitioner has filed the present writ petition challenging non-inclusion of his
name in the final selection list dated 06.05.2022 and grant of that seat to the
respondent no.3.
3. Shri Mohammad Ateeque, learned counsel for the petitioner after
referring to the aforesaid facts submitted that the petitioner was more
meritorious than the respondent no.3 for the reason that the petitioner was
shown at Serial No.33 in the State merit list while the respondent no.3 was
placed at Serial No.48 therein. In the selection lists published on 07.04.2022
and 26.04.2022 the petitioner's name was shown at Serial No.34 while the
name of the respondent no.3 was shown at Serial No.54. On those two dates it
was made clear that the choices given by the petitioner and the respondent
no.3 were not available. However to the surprise of the petitioner despite
being more meritorious, he was not granted admission as per the choice given
WP-2585-22(J) 4/11
by him and instead the respondent no.3 who was less meritorious than the
petitioner was granted admission. The reason indicated as per remark "not
willing to process" could not have been the basis for refusing admission to the
petitioner. Inviting attention to the Information Brochure published by the
State CHS PG Cell, Mumbai and various clauses thereof, it was submitted that
it was not stated in the Information Brochure that if the willingness option was
not exercised, the admission would be denied. In other words, the petitioner
had been denied admission in a manner contrary to the Information Brochure
by holding him not eligible for the mop-up round. Since the seat in the subject
of DNB Surgery at Dr. R. N. Cooper Municipal General Hospital, Mumbai was
available on 26.04.2022, it ought to have been offered to the petitioner first as
he was more meritorious than the respondent no.3. It was thus submitted that
the petitioner was deprived of being admitted at the said seat for no justifiable
reason. In support of his submissions, the learned counsel referred to the
decision in Central Coalfields Limited and Anr. vs. SLL-SML(Joint Venture
Consortium) and Ors. AIR 2016 SC 3814 to urge that the admission process
ought to have been conducted in accordance with the Information Brochure
and the respondent nos. 1 and 2 could not have acted in a manner not
stipulated by the Information Brochure. It was thus prayed that the petitioner
was entitled to the reliefs as prayed for.
WP-2585-22(J) 5/11
4. Ms. N. P. Mehta, learned Assistant Government Pleader for the
respondent nos. 1 and 2 opposed the aforesaid submissions by referring to the
affidavit in reply filed on behalf of the respondent no.2. It was submitted that
the admission process was conducted in the manner indicated in the
Information Brochure and the notifications published from time to time.
Inviting attention to Clause 3.8 of the Information Brochure, it was submitted
that it had been clearly indicated that the information given in the Information
Brochure was liable to changes based on decisions of the Competent Authority
and other Authorities from time to time. It was then submitted that on
27.04.2022 a notice had been sent to all candidates including the petitioner by
e-mail informing the candidates that if those who were not allotted any seat
based on their preferences desired to continue in the final mop-up round, they
would have to select the option of willingness by 28.04.2022 so as to proceed
for the final mop-up round. On 04.05.2022 another e-mail was sent to the
candidates informing them that the final mop-up round instructions had been
published on the website and details of the same were given to the candidates.
It was thus submitted that in accordance with the directions issued by the
Commissioner of Health Services and communicated by e-mails, it was
necessary to select the option of willingness which was not done by the
petitioner. It was for this reason the candidature of the petitioner was not
considered eligible. As the respondent no.3 had exercised the necessary option
WP-2585-22(J) 6/11
and had also given the option of willingness, the seat in question was allotted
to him. She referred to the document at page 209 of the record to indicate
that about 13 candidates in the select list who had not given the willingness
option were not granted admission for that reason. It was not the case that the
petitioner alone had been denied the admission on that ground. Since the
respondent no.3 followed due procedure and complied with the instructions,
he was allotted the seat in question. The petitioner himself was responsible for
failure to fill up the willingness form. The petitioner being an in service
candidate, he was aware of the procedure and hence he could not blame the
Authorities for denying the admission to him. It was thus submitted that no
interference was called for in the writ petition.
5. Shri Harshal Bobde, learned counsel for the respondent no.3
supported the submissions as made by the learned Assistant Government
Pleader. In addition, he submitted that under Clause 2.1 of the Information
Brochure the decision of the Authorities if alleged to be inviolation of the
prescribed Rules could be subjected to appeal before the appellate Authority.
That remedy was not availed by the petitioner. He further submitted that by
claiming allotment of the seat without submitting the willingness option, the
petitioner was seeking deviation from the procedure as prescribed by the
Information Brochure. The Information Brochure and the instructions given by
WP-2585-22(J) 7/11
e-mails sent by the Commissioner of Health Services to all candidates ought
have been followed. Since the petitioner failed to exercise the willingness
option, he was denied the admission. The respondent no.3 followed the
prescribed procedure and hence was granted admission. It was not the case of
the petitioner that he did not receive the e-mails sent by the Commissioner of
Health Services. Only on the basis of merit, the petitioner could not seek
admission as he had failed to exercise the willingness option. The learned
counsel placed reliance upon the decision in Ashish Ranjan and others vs.
Union of India and others (2016) 11 SCC 225 to submit that the time schedule
for completing the admission process was required to be scrupulously followed
without making any deviation whatsoever. Hence no interference was called
for in the writ petition.
6. The writ petition was circulated in the vacation on 09.05.2022.
After hearing the learned counsel for the petitioner, the Court issued notice to
the respondents and by way of an ad-interim direction the respondent nos. 1
and 2 were directed to grant provisional admission to the petitioner in terms of
the preference mentioned by him in his application form. Pursuant to the
aforesaid the petitioner was granted provisional admission making the same
subject to final outcome of the writ petition. The writ petition having been
entertained on account of the urgency as made out, we have proceeded with
WP-2585-22(J) 8/11
its hearing notwithstanding Clause 2.1 of the Information Brochure.
7. Having heard the learned counsel for the parties and having
perused the Information Brochure and other material documents placed on
record, we find that the respondent no.2 was justified in denying admission to
the petitioner for failure to submit the willingness option as was required to be
submitted by the e-mail dated 27.04.2022 issued by the Commissioner of
Health Services, Mumbai. As explained by the respondent no.2 in the affidavit
in reply, the eligible candidates were required to indicate their "willingness to
proceed" for the reason that the same was in the larger interest of all eligible
candidates to enable filling up of seats before the cut of date for admission. If
a candidate did not indicate his/her "willingness to proceed" the seat in
question would not be allotted to such candidate and the seat would be
allotted to the next candidate. The object behind the same appears to be that
only interested and eligible candidates would participate in the final mop-up
round and the seats available for in service candidates do not lapse. It is seen
as per Clause 3.8 of the Information Brochure, it was open for the Competent
Authority to indicate the compliance to be done by the candidates and the
candidates were put to notice that the information furnished was liable to
change based on the decisions of the Competent Authorities. It is not the case
of the petitioner that he did not receive the e-mail message sent by the
WP-2585-22(J) 9/11
Commissioner of Health Services, Mumbai on 27.04.2022 at his email address.
It has been clearly stated therein that a candidate who has not been allotted
any seat as per his preference would be required to select the option of
willingness if such candidate desired to continue in the final mop-up round.
The same was to be done by 28.04.2022 to enable such candidate who had
given the option of willingness to proceed for the final mop-up round. Despite
such clear instructions being given by the Commissioner of Health Services,
Mumbai, the petitioner failed to exercise that option which is thus reflected in
the selection list dated 06.05.2022. It is also not the case of the petitioner that
despite having given such option of willingness, the petitioner has been
deprived of admission. In other words, the petitioner alone is responsible for
failure to get admission in the subject DNB Surgery. The respondent no.3
having exercised such option and the seat at Dr. R. N. Cooper Municipal
General Hospital, Mumbai being available the same was allotted to him. The
candidature of the petitioner after being placed in the merit list was considered
but for failure to exercise the option as required, the petitioner has been
deprived of such admission.
8. Though it was urged by the learned counsel for the petitioner that
the decision of the Commissioner of Health Services, Mumbai to require giving
up an option of willingness by a candidate was arbitrary, we do not find that
WP-2585-22(J) 10/11
the said contention can be accepted. Such willingness was sought from all
eligible candidates and it has been demonstrated that besides the petitioner,
12 other candidates did not give such option of willingness and hence they too
were deprived of admission sought by them. It is also not the grievance of the
petitioner that a candidate who had failed to give such option of willingness
was still granted admission while the petitioner was denied the same. All
candidates have been considered in accordance with the option of willingness
given by them and therefore, the process as adopted by the Competent
Authority cannot be said to be arbitrary. In these facts, the ratio of the decision
in Central Coalfields Limited and Anr.(supra) cannot be made applicable to the
facts of the present case. The respondent no.2 has found that the petitioner was
not eligible to be admitted for failure to exercise the option of willingness to
process. We therefore do not find any merit in the challenge as raised by the
petitioner.
9. For aforesaid reasons, the writ petition stands dismissed. Rule stands
discharged with no order as to costs.
As a consequence of dismissal of the writ petition, the respondent nos.
1 and 2 shall proceed to consider the admission of the respondent no.3 at the
DNB Surgery course as per Selection list dated 06.05.2022 to be final.
WP-2585-22(J) 11/11
10. At this stage the learned counsel for the petitioner prays that for a
period of one week the effect and operation of the judgment be stayed. His
request is opposed by the learned counsel for the respondents.
In the facts of the case, the judgment shall operate after one week
from today.
(URMILA S. JOSHI-PHALKE, J.) (A.S.CHANDURKAR, J.)
Andurkar..
Digitally Signed byJAYANT S
ANDURKAR
Personal Assistant
Signing Date:
20.06.2022 18:23
