Delhi High Court

Dr. Shikha Aggarwal vs Union Of India & Anr. on 24 August, 2011

Author: Kailash Gambhir

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                               Judgment delivered on: 24.08.2011



    W.P.(C) No.6125/2011 and C.M.nos.12365-12366/2011



Dr. Shikha Aggarwal                             ......Petitioner

                Through: Mr.Sushant Kumar and Ms.Shikha
                         Singh, Advocates
                         Vs.
Union of India & Anr.                    ......Respondents

                      Through: Dr. Rakesh Gosain, Advocate for the
                               respondent No.2.
                               Mr.Sachin Dutta, Advocate for the
                               respondent/UOI.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may            Not necessary
     be allowed to see the judgment?
2. To be referred to Reporter or not?                    Not necessary
3. Whether the judgment should be reported               Not necessary
      in the Digest?
KAILASH GAMBHIR, J.Oral :
*

1. By this petition filed under Article 226 of the

Constitution of India, the petitioner seeks quashing of the

counseling procedure adopted by the respondent no.2 in DNB CET

in terms of the guidelines laid down by the respondent No.2-

Board. The petitioner also seeks directions to direct the

respondent No.2 to allow the petitioner to participate in the

second round of counseling which is now scheduled from

25.8.2011 to 29.8.2011.

2. Counsel appearing for the petitioner submits that the

counseling procedure laid down by the respondent No.2 in the

prospectus is not at parity with the procedure laid down for

admission in PG medical courses in AIIMS and the counseling

process laid down by All India Entrance Examination for

admission to PG Medical and Dental courses. Counsel also submits

that the petitioner had duly qualified the DNB-CET and, therefore,

was eligible to participate in the counseling process to seek

admission in the DNB programme in the stream and

college/institute/hospital of her choice. Counsel further submits

that the petitioner in fact had participated in the first round of

counseling and as per her rank in the merit list the petitioner was

allotted a seat in DNB (Psychiatry) in Deva Medical College,

Varanasi and in fact the petitioner had also joined the said

institute for the said course after her admission. Counsel further

submits that the petitioner had no option but to join the said

course as in the event of not joining the said course, the petitioner

would have lost her right to get admission in the said DNB

programme. Counsel thus submits that the counseling process laid

down by the respondent No.2 deprives a meritorious candidate

with a higher rank of an opportunity to participate in the second

round of counseling to opt for a course and institute/hospital as

per her/his choice as the drop outs of the first round of counseling

certainly will be included in the second round of counseling and

then chance will be available to the less meritorious candidates to

opt for seats and institutes of their choice in preference to the

meritorious candidates. Counsel thus states that there should be

no compromise with the merit as in the academics merit can be

the only criteria for selection and allocation of seats for these

courses and the institutes/hospitals.

3. Dr. Rakesh Gosain, counsel for the respondent No.2, on

the other hand, submits that before a candidate participates in the

actual counseling, not only the candidate but also his parents are

counseled by a team of experts so that a candidate later on may

not repent her/his decision and hence the students have an

opportunity to decide which course to undertake. The counsel also

submits that no fault can be found with the procedure laid down

by the Board and the petition thus deserves to be dismissed at this

stage itself.

4. I have heard learned counsel for the parties at

considerable length.

5. Indisputably, after qualifying the DNB CET, the

petitioner had participated in the first round of counseling and

was granted admission in DNB (Psychiatry) in Deva Medical

College, Varanasi according to her rank in the merit list. The

petitioner after taking admission in the said course , now at this

stage seeks to challenge the counseling procedure to get a chance

to participate in the second round of counseling on the ground

that the procedure of counseling laid down by the respondent

No.2-Board is not fair and is not at parity with the procedure laid

down for admission in PG medical courses in AIIMS and the

counseling process laid down by All India Entrance Examination

for admission to PG medical and dental courses.

6. The cause of heartburn of the petitioner is that the first

round of counseling is held for the top in the merit list to pick the

stream and college/institute/hospital of his choice and the second

round is held for the next in the merit list alongwith the

opportunity to the ones who have already participated in the first

round to change their stream in case some seats fall vacant, but

the respondent board does not envisage the participation of the

students who have already participated in the first round to again

participate in the second round and thus robs the candidate the

opportunity to take up another stream which could be available in

the second round and was not available at the first. The

contention of the counsel for the petitioner is that the premier

Institute such as AIIMS and others give provisional admissions in

the first round leaving the window of opportunity open for them to

change their choice in the second round and thus the same should

be the procedure followed by the respondent Board. The National

Board of Examinations administering the DNB degree has the

liberty to frame its own rules and regulations and the rules of

counseling or any other cannot be termed as unreasonable by

comparing with the rules set forth by the AIIMS or any other body

conducting examinations.

7. It is also a settled legal position that a candidate after

participating in the selection process of taking the entrance

examination and the counseling process cannot turn around and

challenge the same as the rules and guidelines framed by the

respondent-Board were within the knowledge of the petitioner

before participating in the same and therefore, the petitioner thus

waives off her right to challenge the said counseling procedure

once having taken the said examination. It would be relevant here

to refer to the judgment of the Apex Court in the case of

Dhananjay Malik vs. State of Uttranchal (2008)4SCC171

which has reiterated the said legal position in the following words:

"In the present case, as already pointed out, the writ petitioners- respondents herein participated in the selection process without any demur; they are estopped from complaining that the selection process

was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done.

9. In a recent judgment in the case of Marripati Nagaraja v. The Government of Andhra Pradesh : JT2007(12)SC407 at p.516 SCR this Court has succinctly held that the appellants had appeared at the examination without any demur. They did not question the validity of fixing the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process."

Therefore the petitioner is estopped to challenge the said

procedure after participating in the same without any demur.

Therefore, this court is of the considered view that any indulgence

by this Court at this stage will reverse the entire clock and lead to

a chaos, as it will not be the case of the petitioner alone, but other

similarly situated candidates with higher rank in the merit list will

also be entitled to seek their participation in the second round of

counseling. Rules were laid down by the Board well prior to the

starting of counseling process and the same were well within the

knowledge of the petitioner and as per the counsel for the

respondent a well thought and conscious decision is taken by the

candidate to not only opt for a particular stream but for a