Sanjay Kumar Patel vs Union Of India
2010 Latest Caselaw 3699 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Date of decision: 9th August, 2010.

+        W.P.(C) No.5357 /2010 & CM.No.10553/2010(for interim relief).

%

SANJAY KUMAR PATEL                                ..... Petitioner
                Through: Ms. Ruchira V. Arora, Advocate

                                      Versus

UNION OF INDIA                                                 ..... Respondent
                            Through: Mr. B.V. Niren, CGSC.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    Yes

2.       To be referred to the reporter or not?             Yes

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

RAJIV SAHAI ENDLAW, J.

1. The petitioner having failed to appear on the scheduled date and time

for counseling for the admission to the medical colleges to pursue MBBS

course has filed this petition for direction to the respondent to allow the

petitioner to participate in counseling in the 2nd round and which is stated to

be underway.

2. It is the case of the petitioner that he could not appear for the

counseling on the scheduled date and time for the reason of misconception;

it is contended that though the petitioner was to appear for counseling as per

his counseling category rank, but remained under the impression that he was

to appear for counseling as per his All India Rank. The counsel for the

petitioner contends that the petitioner is a young boy of about 20 years of

age and even if has committed a mistake, ought not to be penalized for the

same. It is further contended that unless the petitioner is considered in the

2nd round of counseling which is stated to be still underway, the petitioner

would lose one year.

3. The Division Bench of this court in judgment dated 1 st September,

2009 in LPA 396/2009 has disagreed with the observations of the Single

Judge that the rule regarding forfeiture of a seat for failure to appear in

counseling is irrational, unreasonable and not in consonance with the merit

based criteria. The Division Bench nevertheless held that, whether in a

particular case the University authority should be directed to consider the

case of the candidate would depend upon the facts of the case. In that case

no relief was granted to the petitioner Saniya Siddiqui for the reason of the

seat having already been allocated to another candidate Zini Chaurasia who

had also preferred LPA 394/2009 and which was disposed of vide the same

judgment. This court in Archit Vashisht Vs. Guru Gobind Indraprastha

University MANU/DE/8569/2007 has also held that the methodology of

counseling is now a universally accepted procedure conforming to fairness;

it affords maximum opportunity in a symmetrical manner.

4. In view of the aforesaid legal position, I have in judgment dated 22 nd

July, 2010 in WP(C)4782/2010 titled Saurabh Vs. GNCT of Delhi have

held that where the court finds that that candidate has been prevented from

appearing for counseling on the scheduled date and time for the reasons akin

to "act of god" or "force majeure" or "impossibility beyond human control",

notwithstanding the procedure of counseling prescribing for forfeiture of the

seat for non appearance, a direction can be given for the candidate to be

considered in the counseling then remaining.

5. However, in the facts of the present case I do not find the petitioner to

have been prevented by reasons beyond his control from appearing for

counseling on the scheduled date. The petitioner discloses himself to be a

resident of Bhopal; he reached Delhi on 5th August, 2010 well in time for

counseling. The reason given of misconception is also not believable. It is

written in bold letters at two places in the letter issued to the petitioner that

schedule of counseling was as per the counseling category rank number. No

case of the petitioner not understanding the same is made out. Moreover,

upon the petitioner having failed to appear for counseling, the next candidate

has become entitled to be considered for admission and this court cannot

look into the interest of the petitioner only.

6. In view of the aforesaid circumstances, the order allowing the

petitioner to be considered for counseling by disturbing the 2 nd round of

counseling cannot be given. The only relief which can be granted to the

petitioner is to be considered at the end of the list of 2nd round of

counseling, if any vacancy exists. The petition is disposed of. No order as

to costs.

CM.No.10554/2010 (for exemption)

Allowed, subject to just exceptions.

RAJIV SAHAI ENDLAW (JUDGE) 9th August, 2010 M