Miss. Sayee D/O Prashant Shelke vs The Ministry Of Edu. And Ministry ...
2023 Latest Caselaw 2173 Bom

                                                       1                               20.WP.1422-2023.odt




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

                            WRIT PETITION NO. 1422 OF 2023
                     ( Miss. Sayee d/o Prashant Shelke
                                      Vs.
   The Ministry of Education & the Ministry of Health & Family Welfare
   Govt. of India, Thr. Its Secretary Shashtri Bhavan New Delhi & Ors. )

Office Notes, Office Memoranda                          Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders

                                  Mr. V.A. Kothale, Advocate for the Petitioner.
                                  Mr. S.A. Chaudhary, Advocate for the Respondent Nos. 1 to 5 & 8.
                                  Ms. Tajwar Khan, AGP for the Respondent Nos. 6 & 7/State.



                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 6th MARCH, 2023

Heard.

2. The petition challenges the order below Exh. 5 dated 27.01.2023 (page 36), rejecting the same as well as the judgment in appeal dated 28.02.2023 dismissing the appeal (page 134).

3. The suit is sum and substance seeks the following relief :

"[i] Declare that plaintiff is entitled for getting 514 marks as shown in OMR response Sheet sent by Email to plaintiff on 08.09.2022 instead of incorrect score card of 166 marks;

[ii] Consequently for the act of causing inconvenience and mental agony to the plaintiff from defendants because of their maladministration plaintiff is entitled for appropriate compensation which soever may 2 20.WP.1422-2023.odt

be decided appropriately that deems fit and suitable by this Hon'ble Court;

[iii] Order respondents to confirm admission of plaintiff in MBBS course 2022-2023 in any of the medical college on priority as per preferences given by plaintiff while participating in NEET UG Schedule 2022 in counselling rounds; "

4. Prior filing of the suit, the petitioner who had appeared for NEET 2022 examination for the admission to First Year M.B.B.S. course, had claimed that she had secured 514 marks in the NEET (UG) 2022 examination, which was countered by the authorities contending that in fact the OMR sheet of the petitioner, indicated scoring 166 marks. In Writ Petition filed by the petitioner being Writ Petition No. 5724/2022, initially by an order dated 23.09.2022 (page 68), the petitioner was permitted to take part in the admission process for M.B.B.S. First Year Course in the counselling rounds, subject to the final result of the petition. By the order dated 20.10.2022, in the aforesaid petition, it was made clear, that the participation of the petitioner in the admission process would be subject to the final result of the petition (page 70). Writ Petition No. 5724/2022 filed by the petitioner, came to be dismissed by the judgment dated 15.12.2022, by holding that since the petitioner had made allegations regarding hacking of her e-mail account and tampering with the answer sheet by manipulating it, these were all disputed questions of fact which could not be gone into in writ jurisdiction and the remedy lies somewhere else and the petitioner had 3 20.WP.1422-2023.odt

liberty to approach the appropriate forum (para 8 page

80). The petition therefore came to be dismissed by the judgment dated 15.12.2022, however the interim relief as was granted earlier permitting the petitioner to participate in the counselling process, was continued for a period of three weeks (para 13 page 82). The judgment dated 15.12.2022, since it recorded that the petitioner was admitted, by the order dated 19.12.2022 in Misc. Civil Application No. 862/2022 for review, clarified that the petitioner was permitted only to participate in the counselling round pursuant to the interim order, she was not admitted to the MBBS course. A Petition for Special Leave to Appeal No. 124-125/2023, came to be dismissed by the Hon'ble Apex Court by the order dated 09.01.2023 (page 84).

5. It is in pursuance to this, the petitioner has filed R.C.S. No. 48/2023 claiming the aforesaid relief.

6. The learned Trial Court by the order dated 27.01.2023 (page 36), rejected the application below Exh. 5 on the ground, that the Civil Court at Amravati did not have any jurisdiction, which has been affirmed by the learned Appellate Court by its judgment dated 28.02.2023, in view of clause No. 17.6 contained in NEET Bulletin-2022 which conferred exclusive jurisdiction in the Courts at Delhi.

7. Mr. Kothale, learned counsel for the petitioner submits, that since the petitioner resided at Amravati and had given the exam from Amravati, the 4 20.WP.1422-2023.odt

Court at Amravati had the jurisdiction to try the suit. That apart he submits, that since the dispute is in respect of the first OMR sheet issued to the petitioner (page 63), which indicated that the petitioner had secured 514 marks in NEET (UG) 2022 examination for MBBS, the petitioner in conjunction with the report of the Forensic Expert (page 87), had demonstrated a prima-facie case for grant of interim relief. It is therefore contended, that second OMR sheet which indicated that the petitioner who had secured only 166 marks in the aforesaid examination (page 66), was a fabricated and manipulated OMR sheet, which was inserted into the system, by hacking the e-mail account of the petitioner on 08.09.2022 (page 62), which according to him, is also evinced from the certificate of the Forensic Expert at page 87. He therefore submits, that a prima-facie case is spelt out for holding that the petitioner had secured 514 marks in the NEET (UG) 2022 examination, and therefore, by way of an interim order, the petitioner was entitled to be granted a seat in First Year MBBS course, subject to the result of the suit. It is further contended, that since no reply was filed before the learned Trial Court to the application below Exh.5, the learned Trial Court ought to have allowed the Exh. 5.

8. Mr. Chaudhary, learned counsel appearing for the respondent Nos. 1 to 5 and 8 and Ms. Khan, learned AGP for the respondent Nos.6 and 7/State, vehemently oppose the submissions and contend, that the OMR sheet indicating scoring of 166 marks by the 5 20.WP.1422-2023.odt

petitioner is the correct OMR sheet as per the records maintained by the respondents and the OMR sheet which indicate the petitioner to have received 514 marks is a forged document.

9. Since there are rival contentions regarding allegations of forgery and fabrication, the matter can only be effectively decided on the basis of evidence, which may be led before the Trial Court at the time of trial. Prima-facie as of now, since it is the contention that the official record of the respondents indicate the OMR sheet in which the petitioner has been shown to have scored 166 marks, is the correct OMR sheet, the Court prima-facie will go with this contention.

10. The learned Division Bench, in its judgment dated 15.12.2022 in Writ Petition No. 5724/2022 was also pleased to observe in para 7 page 80, that since there are allegations of manipulation and tampering as well as of hacking of the e-mail account, these are allegations which indicate disputed facts. In view of these disputed facts, though there is a report of Forensic Expert at page 87, which was also placed before the learned Division Bench, merely on the basis of the said report without testing its veracity, it cannot be said a prima-facie case is made out for permitting the petitioner to claim a direction, of being admitted in the First Year MBBS course. Though, the interim orders dated 23.09.2022 and 20.10.2022 permitted the petitioner to participate in the counselling process, they have subsequently merged into the final judgment dated 6 20.WP.1422-2023.odt

15.12.2022 in Writ Petition No. 5724/2022, which stands affirmed on account of dismissal of Special Leave to Appeal No. 124-125/2023 by the Hon'ble Apex Court on 09.01.2023 (page 84), as indicated above. It is therefore apparent, that this is the case in which the relief claimed by virtue of Exh. 5, cannot be granted to the petitioner unless the allegations of manipulation, tampering and fraud are tested on the anvil of evidence which may be led at the trial of suit. The contention of Mr. Kothale, learned counsel for the petitioner, that the learned Trial Court has considered filing of the contempt proceedings as a forum, clearly is a misnomer for the reason that the contempt petition is not a remedy or a forum. That by itself cannot be a ground to interfere in the impugned order. In fact, since the petitioner had agreed to the terms of NEET 2022 clause No.17.6 in the brochure, would be clearly binding upon the petitioner, which would indicate that the Court at Amravati would not have jurisdiction to entertain and try the suit. The plea therefore regarding jurisdiction as raised by Mr. Kothale, learned counsel for the petitioner is also misconceived. I therefore do not see any reason to interfere in the impugned order and judgment.

11. The Petition is accordingly dismissed. No costs.

Signed By:SHRIKANT
DAMODHAR BHIMTE                                                       JUDGE
             SD. Bhimte
Signing Date:08.03.2023 18:46