Dr. Arup Mohanta vs Union Of India & Ors
2022 Latest Caselaw 3123 Cal

                  IN THE HIGH COURT AT CALCUTTA
                 CONSTITUTIONAL WRIT JURISDICTION
                         APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI

                             WPA/9685/2022

                            Dr. Arup Mohanta
                                   -Vs-
                           Union of India & Ors.


     For the petitioner:       Mr. Subir Sanyal, Adv.,
                               Mr. Ratul Biswas, Adv,.
                               Mr. Sagnik Roy Chowdhury, Adv.

     For National Medical Commission:
                               Mr. Indranil Roy, Adv.,
                               Mr. Sunit Kumar Roy, Adv.

     For the Union of India: Mr.Nilanjan Bhattacharya, Adv.,

     For the State:            Mr. Nilotpal Chatterjee, Adv.,
                               Mr. Amrit Lal Chatterjee, Adv.

Heard on: June 06, 2022.
Judgment on: June 09, 2022.

BIBEK CHAUDHURI, J. : -


1.   Affidavit-of-service be kept with the record.

2.   The petitioner obtained his post graduate degree in M.S (General

     Surgery) in the year 2020, subsequently he was qualified for the

     West Bengal Medical Education Service in the same year and on

     being selected, he joined as demonstrator/tutor in the department
                                 2



of Urology and Medical Teaching Institution in IPGME&R, Kolkata

on and from 15th February, 2021. While working as such, the

petitioner also appeared in National Eligibility Cum Entrance Test-

Super Speciality (NEET-SS in Short), 2021 for admission to MCH

Course preferably in Urology as a first choice and Neuro Sugery as

second choice. He passed NEET -SS examination securing merit

position 455. As the petitioner has been working under three years

bond applicable in the State of West Bengal after passing NEET-PG

examination and thereafter MS Surgery, the petitioner did not take

part in counseling process for M.Ch course after being qualified in

NEET -SS , the reason being that the IPGME&R, Kolkata has only

18 seats in the department of Urology for MCH. The petitioner after

going through merit list and the vacancy position came to know

that it would not be possible for him to get chance in MCH Urology

in the State of West Bengal. The respondent no.2 declared schedule

of online Mop-Up Round of Super Speciality Counselling , 2021 and

the date of fresh registration/payment was fixed on 17th and 18th

May,2022. It was also stipulated that processing of seat allotment

would be made on 19th May, 2022, the result will be published on

20th May,2022 and the selected candidates would report at the

allotted college during the period between 21st May to 25th May,

2022. The Seat Matrix for DM/M.Ch Mop-Up Round SCC

Counseling-2021 was also published on 16th May 2022.

Subsequently on 23th May, 2022 the petitioner came to know that

two selected candidates namely Siddharta Saxena and Perwez Alam

had left Super Speciality Course in the Discipline of Urology at

IPGME&R, Kolkata on 13th May,2022 and 16th May,2022.However,

in the Seat Matrix of Mop-Up Round, the Medical Council

Committee, respondent no.2 herein did to mention the said vacancy

position. So the petitioner could not register his name for the

counseling in the Mop-Up round of Super Speciality admission -

2021.It is contended by the petitioner that had the said two seats

which were left out by the above named two doctors, were being

published in the Seat Matrix of Mop-Up round, the petitioner could

have got the chance to participate in Mop-Up round counseling and

in such cases the petitioner would have been selected.

3. For the reasons stated above the petitioner has prayed for issuing a

writ in the nature of mandamus commanding the respondent nos.

2,3,4,7 and 8 to forthwith include and publish the said two

vacancies and register the petitioner for special Mop-Up counseling

against the said two vacancies in NEET Super Specialty

course/discipline of Urology 2021-IPGME&R and SSKM Hospital ,

Kolkata and also to admit the petitioner against any of the said two

vacancies in NEET Super Specialty Course /Discipline of Urology,

2021 in IPGME&R and SSKM Hospital Kolkata along with other

reliefs.

4. Mr. Subir Sanyal learned counsel on behalf of the petitioners

submits that the petitioner passed MS Surgery in the year 2020 as

per West Bengal Medical Council Rules, the petitioner has to

remain on bond for three years during the said period of three years

he cannot join any Super Speciality course in other State than West

Bengal. If he wants to suspend his bond, he requires to deposit a

sum of Rs.36 lakhs in favour of the West Bengal University of

Health Science or WBMC. Therefore, the petitioner as a domicile

candidate had to join in the state to pursue Super Specialty Course.

It is not possible for a post-graduate doctor initially working on

contractual basis and subsequently as demonstrator for few

months to pay the forfeiture amount of Rs.36 lakhs in favour of

WBUHS or WBMC as the case may be. Therefore, the petitioner

appeared in NEET-SS Examination with a view to pursuing his

Super Specialty Course in Urology in IPGME&R, Kolkata.

5. The learned advocate for the petitioner submits final Mop-Up round

result for the year 2021. It appears from the said result that the

candidate having merit rank of 746, 768 and 1033 were allotted

M.Ch Urology seats to different medical colleges. Therefore, it is

submitted by Mr. Sanyal that valuable legal right of the petitioner

to have a seat in Super Specialty Course in the department of

Urology was lost due to failure on the part of the MCC in declaring

vacancy position in respect of the seats in the department of

Urology at IPGME&R, Kolkata.

6. Learned advocate for the respondent no.2 on the other hand

submits that Medical Counselling Committee duly published the

seat matrix for Mop-Up round on 16th May, 2022 on the date of

publication of seat matrix. It was not within the knowledge of

medical counselling committee that two candidates that namely Dr.

Siddharta Saxena and Dr. Perwez Alam would prematurely

discontinue their course in Urology and payment of stipulated bond

penalty. Formalities of discontinuing of Dr. Siddharta Saxena was

completed on 7th May, 2022 and it was informed to ADG (ME) of

Ministry of Health and Family Welfare by e-mail on 18th May, 2022.

Therefore, the said seat matrix cannot be published in the Mop-Up

round counselling of NEET-SS.

7. It is further submitted by the learned advocate for the respondent

no.2 that the NEET-SS course does not have any policy of

surrender of an allotted seat. After first round there were 10

vacancies and as per merit list the last person having 188 rank

and the merit position was allotted with a seat. In the 2nd round,

one vacancy accrued and the candidate having secured 176 rank

was allotted with a seat. On the date of publication of seat matrix

in Mop-Up round there was no vacancy in IPGME&R, Kolkata.

Subsequently, vacancy cannot be considered to be filled up after

Mop-Up round. In support of his contention he refers to a decision

of the Hon'ble Supreme Court in Asish Ranjan and others Vs.

Union of India and others [Misc. Application No.1388/2021 in

WP(C) No.76/2015, decided on 19th May, 2022]. In the aforesaid

order, the Hon'ble Apex Court held that counselling process must

be completed within the stipulated date and subsequently the

process cannot be extended to an unlimited period of time.

8. Therefore, the petitioner cannot claim admission in Super Speciality

Course in the department of Urology at IPGME&R, Kolkata.

9. The learned advocate for respondent nos. 4 to 6 has adopted the

submission made by the learned advocate for the respondent nos.2

and 3. It is further submitted by the learned counsel for the

respondent nos.4 to 6 that counselling process of NEET-SS course

postulates only two rounds. The Mop-Up round was conducted by

the MMC in view of the order passed in Ranjeet Ram Jat and

another Vs. Union of India and others [Writ Petition (Civil)

No.334/2022 dated 9th May, 2022]. The above mentioned writ

petition was disposed of with the following order:-

1. We have heard counsel for the parties.

2. Counsel appearing on behalf of State of Tamil Nadu states

on instructions that the 92 unfilled seats of the in-service quota

of the State shall be surrendered this year to the All India

Quota(AIQ). Consequently, MS Aishwarya Bhati, Additional

Solicitor General states that a mop up round will be held for

completing the process of admission to super specialty medical

courses, occasioned by the surrender of 92 seats by the State

of Tamil Nadu to the AIQ.

3. The mop up round shall be held for all the

unfilled/stray/vacant super specialty seats subject to the

condition that any doctor who has joined a seat in the earlier

round shall not be eligible for participating in the mop up

round. Since the mop up round is being held, a suitable

extension of time may be granted for completing the

admissions.

4. The Petition is accordingly disposed of.

5. Pending applications, if any, stand disposed.

10. Thus, it is submitted by the learned Counsel for the respondents that

Mop-Up round for NEET-SSC-2021 was conducted to fill up 92

unfilled seats of the In-Service Quota of the State of Tamil Nadu by

the order of the Hon'ble Supreme Court. Therefore, the petitioner

cannot take advantage of any subsequent vacancy after Mop-Up

round.

11. It is also submitted by him that after counselling process is directed

to be started again then all the candidates are to be notified.

Therefore, this will be an unending process and the authority will

not be in a position to start the Super Specialty Course.

12. Learned advocate for the respondent nos.4 to 6 also submits that

the order passed by the Division Bench of this Court in A.S.T.A. 16

of 2018, on 2nd July, 2018 is also not applicable under the facts

and circumstances of this case. The petitioner did not take part in

Mop-Up round counselling. He was a 'fence-sitter'. He waited till a

vacancy occurs in Super Specialty course of Urology department in

IPGME&R, Kolkata. At this stage, no relief can be granted to him.

13. Learned advocate for IPGME&R, Kolkata (respondent nos. 7 and 8)

submits a report stating, inter alia, that one seat in the department

of Urology falls vacant as Dr. Siddharta Saxena discontinued his

course as he got a chance of having his Super Specialty course at

AIIMS, Delhi.

14. Having heard the learned advocates for the petitioner and the

respondents and on careful perusal of the entire materials-on-

record, I find the following undisputed factual circumstances:

a. The petitioner secure 455 rank in NEET-SS examination;

b. The petitioner pursued MS (Surgery) from R.G.Kar Medical

College and Hospital and passed the post-graduate course in

2020;

c. He is serving the state of West Bengal under three years bond;

d. The bond can only be forfeited on depositing a sum of Rs.36

lakhs with WBUHS or WBMC;

e. The petitioner could only pursue Super Specialty Course in the

State of West Bengal if he is not in a position to deposit huge

amount of Rs.36 lakhs for forfeiture of bond;

f. At least, one post remains vacant in Super Specialty course in

the department of Urology at IPGME&R, Kolkata.

15. The petitioner did not participate in counseling process because of

the fact that there are 18 seats in the department of Urology in

M.Ch. Considering the rank, the petitioner reasonably thought that

he had no chance to secure a seat in the State of West Bengal. His

opportunity occurs only when one/two candidates prematurely

discontinued their course. Admittedly, the said vacancies were not

included in the seat matrix of Mop-Up round. The petitioner came

to know about the said fact on the date of publication of result, that

is on the date of report at allotted college on 25th May, 2022. The

petitioner filed the writ petition on 26th May, 2022. Therefore, he

cannot be said to be a 'fence-sitter'.

16. Denial of admission to a meritorious candidate in medical course

for no fault of his/her and though he/she approached the court in

time and despite the same not granting any choice and equitable

right would be denial of justice. In Asha vs. Pt. B.D. Sharma

University of Health Science reported in (2012) 7 SCC 389 and

Chandigarh Vs. Jasmin Kaur reported in (2014) 10 SCC 521, it

was held by the Hon'ble Supreme Court that the question is what

relief the court can grant by which right to equal and fair treatment

to a candidate are protected and at the same time neither there is

injustice to other candidate/student and even compromising with

the quality education. Therefore a balance is required to be struck.

However, at the same time, it can safely be said that the view taken

by the Hon'ble Supreme Court in Jasmin Kaur (supra) that the

only relief which can be granted to such a candidate to continue

only is not good law and cannot be accepted. Even granting a relief

to such a candidate or student in the next academic year and to

accommodate him/her in the next year and in the sanctioned

intake may even affect right of some other candidate/student

seeking admission in the next academic year and that too, for no

fault of his/her. Therefore, the Hon'ble Supreme Court was of the

view that in the exceptional and in rarest of rare cases and in case,

the court can grant exceptional relief to the candidate by granting

admission even after the cut-off date is over. In A.S.T.A. 16 of

2018 (The West Bengal University of Health Science and others

Vs. Dr. Paban Mandal and others). The Division Bench of this

Court consider the case of Asha (supra) as to whether a candidate

can be admitted in MBBS course after the cut-off date and held as

hereunder:

We are conscious of the directions made by the Hon'ble

Supreme Court in the aforesaid writ petition; however, prima facie,

we are also of the opinion that such direction may not stand in the

way of making a direction for admission in a case of the present

nature. The Hon'ble Supreme Court may not have intended that a

seat, which could not be filled up by admission before 31st May,

2018 because of laches of authorities, should never be filled up;

more so, when the writ petitioner is not at fault and the blame for

omission to notify the surrendered vacancy for mop up counselling

should be shouldered by the appellants who, despite having

information inform the writ petitioner on 30th May,2018 at 3.28

P.M, were in deep slumber and did not take steps to upload such

vacancy on its website so that the vacant seat in M.S (General

Surgery) which is in great demand, does not go waste. The view

taken by us finds support form the decision of the Hon'ble Supreme

Court reported in (2012) 7 SCC 389: Asha-vs-Pt. B.D Sharma

University of Health Sciences.

17. Learned Advocate for the NMC has heavily relied on a judgment

passed by a Coordinate Bench in WPA 8033 of 2022 with WPA 8039

of 2022 on 13th May, 2022.

18. In the aforesaid judgment the writ petitioners prayed for a

mandatory order on the respondent authorities to grant provisional

admission to the petitioners in Kolkata National Medical College and

AIIMS, Kalyani in the MBBS Course, 2021-2022. A Coordinate

Bench of this Court refused the prayers of the petitioners on the

ground that in the case of Ashish Ranjan (supra) the Hon'ble

Supreme Court fixed 28th April, 2022 as the cutoff date for MBBS

admission to the undergraduate medical course. Secondly, the

prayers for the writ petitioners were speculative in nature since the

petitioners' ranks in All India Merit List are in the six lakhs and five

lakhs (respectively). The court also came to the finding that vide

notification dated 25th April, 2022, the Director General of Health

Services, Government of India notified that the MBBS seats of All

India Quota Colleges of West Bengal have been published in the

seat matrix of stray vacancy round of UG Counselling 2021. The

notice proceeds to disclose that there were a certain number of

seats in the stray vacancy which have been duly published in the

seat matrix. Thus, the petitioners contention that the vacant seats

in the above named two colleges were not published in the seat

matrix cannot be held to be true. Thirdly, the petitioners

approached the court at a belated stage. Fourthly, the medical

counselling committee does not have any procedure of manual

processing of seats at any stage of counselling. Fifthly, the

petitioners are not the sole claimants to the said vacant seats.

Sixthly, the interim order passed by the Division Bench of this

Court in West Bengal University of Health Sciences and others

vs. Dr. Paban Mandal & Ors (AST 43 of 2018) dated 2nd July,

2018 is not applicable under the facts and circumstances of the

said case on the ground that there was an admitted inaction on the

part of WBUHS in the matter of notifying the surrendered vacancies

for mop-up counselling.

19. The facts of the instant case is clearly distinguishable from the facts

of WPA 8033 of 2022. There is patent in action on the part of

respondent No.2, 3, 7 and 8 as they failed to disclose the vacancy

occurred in NEET-SS in the department of urology in IPGME & R,

Kolkata. The petitioner could not take part in mop-up counselling

because of such failure of the above named respondents. In the

instant case the petitioner has not come up with the instant

application only to try his luck because the candidate having merit

position of 746, 768, 1033 were allotted seats in M.Ch, urology

through All India Counselling. The rank of the petitioner is 455.

Therefore, there was every possibility for allotment of vacant seat in

IPGME & R, Kolkata in favour of the petitioner had the said vacancy

been declared in the seat matrix of mop-up round counselling. In

the decision of Ashish Ranjan & Ors. (supra), the Hon'ble Supreme

Court fixed the last date for D.M./M.Ch/DNB.SS counselling on

30th April, 2022. In the subsequent judgment in Ranjeet Ram Jat &

Anr. dated 9th May, 2022 the Hon'ble Supreme Court only directed

the MCC(respondent No.2) to conduct mop-up round for

unfilled/stray/vacant super speciality seats. No cut-of date was

fixed vide order dated 9th May, 2022 by the Hon'ble Supreme Court.

20. Coming to the instant case I have already found that the petitioner

could not take part in Mop-Up round counselling because of the

fault of the respondent nos. 7, 8, 2 and 3. Had the seat matrix of

Mop-Up Round was correctly published by the MCC after taking all

sorts of precaution and due diligence so that no seat of any college

might be left out from declaration of seat matrix, the petitioner

could have got an opportunity to take part in the Mop-up round.

21. Considering all the above facts and circumstances, this Court is of

the view that the decision of a Coordinate Bench of this Court in

WPA 8033 of 2022 is not applicable in the instant case.

22. Therefore, the instant writ petition is disposed of directing the

respondents No.2 and 3 to publish the latest vacancy position in

NEET-SS course available after mop-up round in the same manner

as stray vacancy counselling round within two weeks from the date

of communication of this order.

23. The petitioner is permitted to join the said counselling process for

the vacant seats available in IPGME & R Kolkata in NEET-SS

strictly according to his merit position.

24. The instant writ petition is, thus, disposed of, on contest.

25. There shall be no order as to costs.

(Bibek Chaudhuri, J.)