Saniya Siddiqui vs University Of Delhi & Anr.
2009 Latest Caselaw 2917 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     Writ Petition (Civil) No.10322/2009

%                        Date of Decision: 30.07.2009

Saniya Siddiqui                                              .... Petitioner

                        Through Mr.Ashok Mathur, Advocate.

                                  Versus

University of Delhi & Anr.                               .... Respondents

                        Through Mr.Mohinder J.S.Rupal, Advocate.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.     Whether reporters of Local papers may be                YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                  YES
3.     Whether the judgment should be reported in              YES
       the Digest?


ANIL KUMAR, J.

*

The petitioner seeks direction against the respondent to allow her

to attend the counseling for admission to medical/dental courses 2009-

2010.

The petitioner appeared in the Delhi University Medical/Dental

Entrance Examination, 2009. The petitioner claimed admission in the

OBC quota. According to her seats are reserved for admission to

medical/dental colleges for OBC candidates.

The petitioner was communicated her merit rank by letter dated

10th June, 2009. The petitioner was placed at a rank of 48A in the OBC

category.

The petitioner has contended that she started from her native

place, Ambikapur, District Surgaja, Chhattisgarh to attend the

counseling against the advice of her family not to travel on 8th July,

2009. However, on account of her medical condition she had to return

back and was admitted to District Government hospital where she

remained under treatment till 10th July, 2009. The petitioner is alleged

to have had faxed the relevant documents for her counseling which was

fixed on 9th July, 2009. She reached Delhi on 11th July, 2009 when she

was told that in the event of any seat becoming vacant her case would

be considered sympathetically.

The petitioner contended that she had come to know that on

account of number of candidates joining AIIMS and other institutions

there were vacancies in the OBC category and, therefore, the petitioner

had made a representation for consideration of her case. However, she

was informed by the respondent that since she had not appeared nor

had anyone appeared on her behalf she had forfeited her right. In these

circumstances, the petitioner has contended that she is a meritorious

student and since seats are vacant in the OBC category, she may be

considered along with other candidates who have been put in the wait

listed category.

The learned counsel for the petitioner has relied on the decisions

of the Single Judge in W.P(C) No.5182/2008 titled Chandershekhar Pal

v. C.B.S.E & Ors and W.P(C) No.5678/2008 titled Subadhra S v. Union

of India & Ors decided on 6th August, 2008 whereby the candidates who

had not appeared at the time of counseling were permitted to be

considered along with other candidates in respect of the seats which

were vacant on account of other candidates not joining the colleges.

The petition is contested by the respondent contending inter-alia

that the writ petition is not maintainable either in the facts and

circumstances of the case or in law. According to the respondent since

the petitioner did not attend the counseling which was scheduled on 9th

July, 2009 either personally or through her authorized representative,

she has forfeited her right. It is contended that only those students who

appeared in the counselling and who did not opt for the course or who

had not been admitted to any course can be granted admission rank

wise and category wise. Since the petitioner did not attend the

counseling, she has no right to be considered. It is further contended

that the respondents were not informed about the illness of the

petitioner on the stipulated date. This was, however, admitted that the

petitioner has total 458 marks out of 800 marks and she is ranked 48A

(49). It is further asserted that as the petitioner was absent on the date

of counseling, the candidates having rank lower than the petitioner who

attended the counseling were offered the available seat for MBBS course

in the respective colleges where seats were available.

The respondents have also contended that OBC category

candidates securing merit position upto 65 have been considered and

the petitioner has to be blamed herself for the situation in which she

has put herself. It is also asserted that the counseling on 9th July, 2009

was only for admission to MBBS course in the medical colleges under

the University, namely Lady Harding Medical College (LHMC) and

University College of Medical Sciences. According to the respondents

there is no reservation of seat for OBC category in Maulana Azad

Medical College and also there is no reservation of seats for OBC

candidates for admission to BDS course.

The learned counsel for the respondents also relied on Sunil

Oraon (Minor) through Guardian v. CBSE and Ors., (2006) 13 SCC 673,

to contend that the petitioner has lost her right even to be considered as

she did not appear nor any authorized representative appeared on her

behalf on the day of counseling.

I have heard the learned counsel for the parties. The learned

counsel for the petitioner at the outset contended that the petitioner is

not seeking consideration for the BDS course or for admission to

Maulana Azad Medical College. The petitioner wants to be considered

for admission to those seats which would be available on account of

candidates not taking admission to various courses pursuant to the

counseling already done by the respondents according to her merit

ranking.

The learned counsel for the petitioner has emphatically relied on

Chandershekhar Pal (supra) and Subadhra S (Supra) and has

contended that if the Single Judge of this Court has allowed candidates

for counseling in similar circumstances, the petitioner should be

consideration for admission to those seats which have become available

on account of the students not taking the courses opted by them or if

the seats have become available for any other reason along with wait

listed candidates.

In Chandershekhar Pal (Supra) the candidate had appeared in

the All India Pre Medical Test and had been placed at 44th rank in the

Scheduled Castes category. He could not appear on the date of

counseling as he had received the letter intimating about counseling on

the same date on which the counselling was fixed. The candidate was a

resident of Singhana, Tehsil Manawar, District Dhar, Madhya Pradesh

which was at a distance of about 1200 km from Delhi where counseling

was to be held and, therefore, he could not appear. Since the candidate

could not appear for counseling for the reasons beyond his control, it

was held that he could not be put to prejudice and he was permitted to

appear in the second round of counselling which was to take place from

25th July, 2008 and the authorities were directed to permit the

candidate to appear in the second round of counseling according to his

rank so that the candidate could be assigned a college subject to

availability of a vacant seat.

In Subadhra S (Supra) Clause 7 of the bulletin of information for

admission to the medical colleges had categorically stipulated that if the

candidate or the authorized representative would fail to appear on the

notified date against his rank, he/she shall forfeit the claim for a seat

without any further reference in the matter. The clause in the bulletin

of information of this case was similar to the one in the present case.

The candidate in the said case had obtained an All India rank of 10510

in the General category and the rank of 386 in the Scheduled Caste

category. The candidate under the false impression that he had to

appear for counseling according to her All India rank, did not appear on

the day and time fixed for counseling as per the Category Rank. The

candidate was not entertained by the authorities. The Single Judge

relying on the ratio of the order in Anjevv Nayan Kumar Anjani v. Union

of India & Ors, CWP No.5383/2008 decided on 28th July, 2008 had

allowed the petition of Subadhra S and directed the respondents to

permit the petitioner for counseling and allotment of seat in the second

round.

In Anjevv Nayan Kumar Anjani (Supra) the Single Judge had

again allowed the candidate who was declared to have secured 280th

rank in SC category and he was not entertained on the day of

counseling. On consideration the writ petition of this candidate was

allowed and he was allowed to appear in the second round of counseling

from 25th July, 2008. These orders passed by the Single Judge in

different situations allowing the candidates to appear for subsequent

counseling were not challenged in appeal.

The decision relied on by the respondent, Sunil Oraon (Supra)

pertains to a direction sought by the candidate against Central Board of

Secondary Education to allow him to appear in the examination

conducted by the said board. In this case the school had admitted

students in gross violation of affiliation bye-laws without providing

support in terms of infrastructural facilities and without adequate

provision of qualified teachers and had also admitted students from

unauthorized schools and was sponsoring students of unaffiliated

schools. In the circumstances, the prayer of the students to allow them

to appear in the examination of CBSE was declined. Apparently the

case of the petitioner is quite different and on the ratio of the decision in

Sunil Oraon (Supra) the petitioner cannot be denied the relief claimed

by her.

This has not been disputed by the respondents that in terms of

bulletin of information for undergraduate degree courses, the

candidates who had appeared for counseling and who could not secure

seats on account of their merit position being low or on account of non

availability of seat of their choice, are put in the category of wait listed

candidate. These candidates are entitled for consideration for admission

to those seats which have fallen vacant on account of various reasons.

If the candidates who have not accepted the course offered to

them and other candidates who do not get medical seats on account of

their low ranking can be offered a seat in the medical college, the

petitioner who is having a relatively higher ranking cannot and should

not be declined the right of consideration for admission to the medical

college along with those candidates who have been listed in the wait

listed category according to the relevant clauses of bulletin of

information for medical/dental courses 2009-2010. The Single Judge of

this Court in some cases as detailed hereinabove had directed

consideration of such candidates for counseling. In the circumstances it

will be inappropriate not to allow consideration of the petitioner on the

ground that only wait listed candidates are to be considered and not the

petitioner.

For admission to the medical courses the primary consideration

is merit ranking of the candidates. The next requirement is appearance

for counseling which appears to be the process of verifying the

testimonials of the candidates and offering such a candidate an

available seat in the medical colleges. This administrative step of

`counseling' cannot be raised to such a level so as to completely negate

the merit ranking which is sine qua non for admission to courses in the

medical colleges. In order to give finality to admission in courses in

medical college, the admissions already done are not to be changed on

account of merit ranking of candidates who do not appear for admission

on the date and time fixed for the process of admission. But on account

of non appearance for any sufficient and justifiable reason, the merit

ranking of a candidate cannot be completely ignored. If a candidate who

is not given the intimation of counseling within time and a candidate

who is not considered at the time of counseling for any other reason,

can be considered for unfilled seats or the seats which fall vacant on

account certain students not joining after counseling, then even those

students who are not able to attend counseling on account of sufficient

reasons should be considered for the unfilled seats or the seats which

become vacant on account of certain students leaving the courses after

getting admission. The plea of the counsel for the respondent that only

the wait listed candidates i.e those who had appeared for counseling

and who had been offered seat but who did not opt for the same and

those who did not get the seat on account of their low merit ranking,

are to be considered for unfilled and vacant seats, does not appear to be

rational and reasonable nor is it consonance with the criteria for

admission which is unequivocally merit ranking. The plea of the learned

counsel for the respondent that the orders of this Court relied on by the

counsel for the petitioners are distinguishable, therefore, cannot be

accepted. In all the cases relied on by the counsel for the petitioners,

the candidates who could not appear on the day fixed because of

sufficient reason, had been allowed to be considered for admission later

on, on the basis of their merit ranking without disturbing the

admissions already done by the authorities.

The plea of the learned counsel for the respondent that the

counseling is over therefore, the petitioner cannot be considered, is also

based on a very narrow perception of the process of admission.

Counseling appears to be the process of verifying the testimonials of

merit ranking candidates and offering them available seats in medical

colleges according to their ranking on the date and time fixed for the

purpose. If the seats are available in medical institutions and the last

date for filling the seats has not expired and the candidates can be

admitted, then the petitioner cannot be denied consideration with other

wait listed candidates. The learned counsel for the respondent has

admitted that the process of admission of wait listed candidates has not

been completed.

For the foregoing reasons, the respondents are directed to

consider the petitioner for admission against the vacant seats to the

appropriate course according to her category and merit ranking with

other wait listed candidates. Writ petition is allowed in terms hereof and

the parties are left to bear their own cost.

Dasti.

 July 30, 2009                                          ANIL KUMAR, J.
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