Saurabh vs Gnct Of Delhi And Ors
2010 Latest Caselaw 3436 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                                    Date of decision: 22nd July, 2010.

+         W.P.(C) 4782/2010 & CM No.9475/2010 (for interim relief).

%

SAURABH                                                                           ..... Petitioner
                                         Through:             Mr. Sanjoy Ghose, Ms. Mayuri
                                                              Raghuvanshi & Mr. Kaustubh A. Raj,
                                                              Advocates.

                                                           versus

GNCT OF DELHI AND ORS                                                             ..... Respondents
                 Through:                                     Mr. Vinay Tyagi, Advocate for R-1.
                                                              Mr. Mohinder J.S. Rupal & Ms.
                                                              Preeti Maniktalya, Advocates for R-
                                                              2&3.

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, belonging to Scheduled Caste, had appeared for the

examination held by the respondent no.2 University of Delhi for admission

to MBBS course. The petitioner secured rank 217. The petitioner was called

for counseling on 9th July, 2010. The counsel for the respondent University

informs that the counseling was scheduled to be held and held till 1430

hours only on that date. The petitioner failed to attend the counseling

session. Under the Rules of the University of Delhi, a candidate who fails to

attend the counseling forfeits his seat. It is the case of the petitioner that

candidates with rank up to 238 were admitted and hence but for his failure to

attend the counseling he is entitled to be admitted to the MBBS course in the

Maulana Azad Medical College or the University College of Medical

Sciences as per his rank.

2. The petitioner filed this petition stating that he is ordinarily a resident

of Samastipur in Bihar, had gone to Shirdi for pilgrimage and then went to

Mumbai to travel back to Delhi for counseling on 9 th July, 2010; that he

undertook the train journey on 5th July, 2010 and reached Delhi on 6th July,

2010; that on 9th July, 2010 he was suddenly afflicted with severe abdominal

pain and owing whereto he could not attend the counseling. It is further the

case of the petitioner that in the past also he used to suffer frequent

abdominal pains and was under treatment in Moolchand Hospital and had

been referred to All India Institute of Medical Sciences (AIIMS) where he

had remained admitted from 3rd February, 2010 to 14th February, 2010 and

was diagnosed as suffering from irritable bowel disease. Though the Rules

of the respondent University permit the candidates to send somebody else on

their behalf for counseling, the petitioner states that he could not send

anybody else also for counseling because he thought he will himself be able

to attend the same but was unable to do so till 1700 hours and could reach

the designated place for counseling only thereafter but was returned since

the counseling had ended at 1430 hours. The counsel for the petitioner today

also informs that in fact the petitioner had appeared for his Chemistry

Practical Examination for class XII held on 8th February, 2010 while still

admitted to AIIMS as aforesaid.

3. The petitioner in this petition claims the relief of being considered as

a wait listed candidate for further counseling if any to be held by the

respondent University for admission to vacant seats if any.

4. The petition came up before this Court first on 20th July, 2010. The

petitioner on that date relied on the judgment dated 30th July, 2009 of a

Single Judge of this Court in W.P.(C) No.10322/2009 titled Saniya Siddiqui

Vs. University of Delhi. The counsel for the respondent University

appearing on advance notice informed that the said judgment of the Single

Judge had been set aside by the judgment dated 1 st September, 2009 of the

Division Bench in LPA No.396/2009.

5. The Division Bench in Saniya Siddiqui's case (supra) though has set

aside the judgment of the Single Judge was guided in doing so becuase the

seat which Saniya Siddiqui was claiming in that case had already been

allotted to one Zini Chaurasia and who had also preferred LPA No.394/2009

against the order of the Single Judge and which LPA was also decided in

judgment aforesaid dated 1st September, 2009. The Division Bench though

disagreeing with the observation of the Single Judge that the Rule regarding

forfeiture of seat for failure to appear in counseling is irrational,

unreasonable and not in consonance with the merit based criteria,

nevertheless held "Whether in a particular case the University authorities

should be directed to consider the case of the candidate would depend upon

the facts of the case". In view of the said observation of the Division Bench,

the counsel for the respondent University was on 20th July, 2010 when the

matter had come up first as aforesaid asked, to take instructions.

6. The counsel for the respondent no.2 University of Delhi has today

given break-up of the seats available in Maulana Azad Medical College &

University College of Medical Sciences for MBBS course in the Scheduled

Caste category and states that all the said seats have been filled up. He states

that the vacancy if any shall be filled up by calling the next wait listed

candidate and the petitioner having forfeited his seat cannot get preference

over the next wait listed candidate even though lower in rank than the

petitioner. He further points out that the Rule aforesaid was framed in

accordance with the Scheme formulated by the Supreme Court in Sharwan

Kumar Vs. Director General of Health Services (1993) 3 SCC 332. It is

contended that liberty was given to the candidates to appear for counseling

either themselves or send anybody else and it is only for this reason that the

extreme penalty of forfeiture of the seat has been provided for such non-

appearance. It is further contended that if the petitioner is directed to be

placed in the waiting list as per his rank, the rights under the Rules, of the

other candidates in the wait list would be affected. The counsel for the

respondent University is however unable to state as to how many other

candidates in the Scheduled Caste category are there for admission to the

MBBS course and states that instructions in this regard can be obtained.

7. The counsel for the respondent University has also points out with

reference to the travel documents/train ticket filed by the petitioner that it is

not as if the petitioner was alone - he had travelled with two other persons

and could have sent any of them. It is further stated that the e-mail of the

brother of the petitioner to the College was also sent and received after 1700

hours on 9th July, 2010 and the petitioner himself made the representation

for the first time only on 15th July, 2010. It is contended that the petitioner

has not been prompt and has even otherwise not made out any case for being

given preference as per his rank in the wait list category.

8. The contention of the respondent University is that under the Rules

[framed by the Supreme Court in Sharwan Kumar (supra)], there is no

power whatsoever to undo the forfeiture on failure to attend counseling. It is

thus contended that this Court ought not to direct what is not provided for. I

am unable to accept the said proposition in absolute terms. The law has

always recognized the principle of "act of god" or "force majeure" or

"impossibility beyond human control". A student who owing to his/her

brilliance or sheer dent of hard work has achieved success and entrance to a

coveted Medical College, if for such reasons is prevented from attending

counseling cannot be dealt a double blow by denying him even chance of

admission in wait listed category. It is not as if the Court is unseating

student who has already been admitted or in whom rights have accrued. The

Court would only be putting such student ahead of other students, lower in

rank and who as of today have not secured admission and in whom no rights

have accrued and who as of now have a mere chance of admission. The rule

of forfeiture is intended to prevent the same student from securing

admission in several medical colleges and which may lead to seats

ultimately remaining vacant.

9. The Supreme Court in judgment in Sharwan Kumar has only

provided for forfeiture. The Supreme Court in that case did not consider

whether failure to appear for counseling for reasons beyond control of the

candidate such forfeiture could be waived/set aside or not. The said question

was however expressly for consideration before the Division Bench in

Saniya Siddiqui (supra) and the Division Bench as aforesaid has held that

depending upon the facts of the case, the University can be directed to

consider the case of the candidate. The Division Bench in Saniya Siddiqui

refused to consider the facts of that case (which the counsel for the

respondent University states are similar to this case) for the reason of seat by

that time having already been filled up and the other candidate i.e. Zini

Chaurasia having relinquished seat in another medical college. However that

is not the position here.

10. The counsel for the respondent University has also referred to the

judgment of Division Bench of this Court in Dr. Reema Chawla Vs.

University of Delhi 104 (2003) DLT 868 to contend that even if the

candidates who have failed to appear in counseling are again put in the

waitlist as per their rank, it would have a cascading effect. I do not agree. As

aforesaid, the waitlisted candidates above/before whom the candidate (who

had failed to appear for counseling and is found to have been owing to

reasons beyond his control) is placed, have no rights till then. Their chance

to admission cannot be placed at a higher pedestal than merit. The Division

Bench had given the reason of "chain reaction" which would upset the entire

counseling taken place till then. That is not the position in such cases.

11. The seats in Medical Colleges are highly coveted. The petitioner who

has secured a high rank cannot be said to have voluntarily relinquished his

seat. It is common knowledge that seats in Medical Colleges in Delhi are

preferred over seats in several other Medical Colleges in the country. No

case of the petitioner having voluntarily failed to attend the counseling or

having failed to attend counseling for reasons of having first sought

admission elsewhere is found. The documents filed do show that the

petitioner owing to health reasons was prevented from attending counseling.

The negligence and mistake (in not sending anyone else for counseling)

even if any of the petitioner who is a young lad of 18 years has to be ignored

and cannot come in the way of his career and future. I am satisfied that the

petitioner, for reasons beyond his control, could not attend the counseling

and a case for directing the respondent University to consider the petitioner

as a wait listed candidate as per his rank is made out.

12. The petition is accordingly allowed. The respondent no.2 University

of Delhi is directed as aforesaid. No order as to costs.

Copy of this order be given dasti.

RAJIV SAHAI ENDLAW (JUDGE)

22nd July, 2010 pp