Dr. Satish Wasnik vs Union Of India & Ors.
2009 Latest Caselaw 822 Del

                      IN THE HIGH COURT OF DELHI

        Writ Petition (Civil) No. 1897/2008 & CM No. 3687/2008

                                          Date of decision: 14th March, 2008.

          Dr. Satish Wasnik                          ... Petitioner
                 through: Mr. R.K. Saini, Adv.

                                      VERSUS

          Union of India & Ors.                  ....Respondents

through: Mr. A.K. Bhardwaj, Adv.

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL

1. Whether reporters of local papers may be allowed to see the Judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

GITA MITTAL, J(Oral)

1. This writ petition has been filed by the petitioner pointing out that he had

secured merit rank no. 362 in the All India Entrance Examination conducted by the All

India Institute of Medical Sciences for the Post Graduate (MD/MS/PG Diploma &

MDS) courses for the year 2008 in the scheduled caste category. On a reading of

para 11 of the prospectus issued by the All India Institute of Medical Sciences which

stipulated that three batches of scheduled tribes/scheduled caste candidates must

report in advance to the batches mentioned in the counselling schedule at the venue

for counselling and as per the notified schedule the petitioner had appeared with all

original documents at the venue of the counselling in the morning of 8th March, 2006. Mr. R.K. Saini, learned counsel appearing for the petitioner submits that the batch of

rank nos. from 361 to 375, as per the brochure, was scheduled to appear for

counselling in the morning session of 11th March, 2008. As per the notified

requirement of the candidates appearing with the three batches in advance, the

petitioner had appeared in fact in the morning session of 8th March, 2008 which was

really four batches in advance. Yet he was not permitted to participate in counselling

by the respondents on the ground that the counselling in rank nos. 361 to 375 had

already been held on 7th March, 2008 and consequently he had been marked absent.

The petitioner had again appeared on the next date of counselling on 10th March, 2008

when he was still not permitted to participate necessitating the filing of the present

writ petition.

2. Mr. A.K. Bhardwaj, learned counsel appearing for the respondent has appeared

on advance notice. It has been contended that as per the brochure, the petitioner was

required to appear three batches in advance and consequently ought to have appeared

in counselling in advance, three days before 11th March, 2008. According to the

respondents, the petitioner was required to appear on 7th March, 2008. He not having

appeared on 7th March, 2008, the respondents can not be faulted for treating him as

absent

and proceeding with the counselling. It has been submitted that the second round of

counselling is to be held by the respondent from 22nd March, 2008 to 9th May, 2008.

3. I have heard learned counsel for the parties. I find that clause 11 of the

prospectus wherein the manner in which counselling is to be effected of the prospectus detailed the requirement of candidates appearing in person. The same provides the

manner in which counselling for the seats to the reserved categories shall be effected as

well. It would be appropriate to consider the relevant extract of this clause in extenso

which reads thus :-

"11. ALLOTMENT OF SEATS BY PERSONAL APPEARANCE (COUNSELLING)

(a) The allotment of seats shall be made to the candidates through personal appearance and they will be called in batches in the order of merits as per Time Schedule for 1st round of counselling given in APPENDIX -V. The Time Schedule for 2nd round of counselling will be hosted lter on at the web-sites of Ministry of Health & FW and AIIMS subject to the directions of Hon'ble Supreme Court of India. The Counselling shall only be done according tot he Category Rank (UR,SC,ST) and not by the Overall Rank. No separate intimation regarding counselling (allotment by personal appearance) will be sent to the candidates individually.

Three batches of SC & ST candidates must report in advance in relation to the batches mentioned in the Counselling Schedule, at the Venue for Counselling to avoid non-availability of SC & ST candidates. There may be a possibility that the candidates of Reserved Category who have been called in advance may or may not get the seat allotted on the same day. If seats are not allotted to them on the day of reporting, they will be allotted the seats on the following day of dates be informed in the counselling

schedule.

There may be chances that because of more absentees in the unreserved category, some of the reserved category candidates may have to come even on the next day of their counselling date mentioned in the Prospectus. If SC and ST candidates fails to report in advance he/she will be marked absent and will not be considered for the counselling even on the specified date as mentioned in the counselling schedule.

There may be a possibility that on the last day of 1st counselling : SC & ST candidates may not be available. In this situation, 3200 Reservation Roster cannot be filled, as a result Dte.GHS will not be able to allot the seats even to UR category candidates. These UR candidates will be considered for allotment of seats in the 2nd round of counselling at their rank."

4. I find that the respondents have also in Appendix 5 of the prospectus notified the schedule for the first round of counselling 2008. This schedule provides that

counselling would be conducted in two sessions every day that is the morning session

and the evening session. The respondents have notified the batches of general

category candidates as well as the reserved categories (ST/SC categories) who are

required to appear in the morning session. The respondents have separately

stipulated the merit ranks of the general category and reserved category candidates

who are required to appear in the evening session. The respondents have however

treated the consolidated ranks displayed for the morning and evening session as

forming one batch for one day.

5. The respondents have not defined the expression 'batch' anywhere in the

prospectus. The prospectus also does not stipulate the total number of

candidates or the consolidated merit ranks which is to be considered for counselling on

any particular date. On the contrary, the respondents had clearly earmarked the rank

of the candidates who are required to appear in the morning session and those who

are to appear in the evening session in two separate groups.

6. The expression "batch" has been defined in Shorter Oxford English Dictionary as

'a number of things or persons coming at once and treated as a set'.

7. Even otherwise from the scheme of the schedule for the counselling, as

stipulated in the appendix 5 of the Prospectus issued by the All India Institute of

Medical Sciences, it is evident that one batch of general category and one batch of

reserved category candidates would appear for counselling in the morning session

which was to be held at 9 a.m. to 1 p.m. and a second batch of such candidates was to appear personally for counselling in the evening session which was to be conducted

from 2 p.m. to 6 p.m. No other reading of the schedule prescribed by the respondents

would be proper or permissible.

8. Learned counsel appearing for the respondents could not point out anything to

the contrary which would enable this court to accept the explanation which has been

given for not permitting the petitioner to participate in the counselling when he had

appeared. In this view of the

matter, this writ petition requires to be allowed. The petitioner has been wrongly

prohibited from participating in the first round of counselling.

9. However, there is no substance in the respondent's contention that hundreds of

candidates from all over the country have already participated in the first round of

counselling and any direction to reconsider the allocation of seats to such candidates

would create unwarranted delays inasmuch as it may not be possible to trace out all

the candidates who have to physically appear from remote corners of the country in

any counselling. The schedule of the admissions has been fixed under orders of the

Apex Court. In this view of the matter, this court is not inclined to disrupt or disturb

the allocation of seats as already effected.

10. In order to balance equities and to ensure some justice to the petitioner, it is

directed that the respondents shall permit the petitioner to participate in the second

round of counselling which is to commence from 22nd April, 2008 as per his rank. This

order is being passed in the facts and circumstances of the case and may not be treated

as a precedent in any other case.

11. Having regard to the confusion which has arisen in the instance case, a direction

is also issued to the respondents to consider any further clarification in the Brochure

which may be necessary, so far as the expression batch is concerned in any prospectus

which may be issued in

the future so that any other candidate is not deprived of his rightful placement and

allocation. In this behalf, in case required, the All India Institute of Medical Sciences

may be informed so that appropriate steps in this behalf are undertaken.

This writ petition and application are allowed in the above terms.

Dasti to counsel for the parties.

(GITA MITTAL) JUDGE March 14, 2008 kr