Vishnu S Kumar vs All India Institute Of Medical ...
2013 Latest Caselaw 4020 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of Decision: 09.09.2013

+      W.P.(C) 5354/2013

       VISHNU S KUMAR                                              ..... Petitioner

                            Through: Mr Sanjeev Narula, Adv. with petitioner in
                            person.

                            versus

       ALL INDIA INSTITUTE OF MEDICAL SCIENCE (AIIMS) & ANR.
                                                                      ..... Respondents

                            Through: Mr Ajay Kalra, Adv for R-1
                            Mr Neeraj Chaudhari, CGSC for R-2
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                            JUDGMENT

V.K.JAIN, J. (ORAL)

The petitioner, who belongs to OBC category, appeared in the entrance

examination held on 01.06.2013 for admission to the MBBS course in All India

Institute of Medical Sciences (AIIMS) and obtained rank 2168.

The following was the schedule of counseling notified by AIIMS:

"1st Round of Counselling

10th July, 2013 for UR seats (for all candidates up to rank 1348 irrespective of the Category.

11th July, 2013 for OBC seats.

12th July, 2013 for SC/ST seats

2nd Round of Counseling-17th August, 2013

3rd AND FINAL ROUND OF COUNSELLING -12TH September, 2013"

2. The instructions contained in the counseling call letter, inter alia, read as

under:-

"3. It is mandatory for all candidates to be present personally in person for counseling on the day as given above. No request for authorized representative on behalf of candidate will be entertained. If a candidate fails to come for counseling in person, she/he will be marked absent and her/his candidature will stand cancelled."

The case of the petitioner is that he reached the counseling centre at 09.00

am on 11.07.2013 along with his father, but, after completion of counseling for the

candidates who had secured rank 1902 to 1960, a notice was displayed on the

projector that the counseling had been closed and rest of the rank holders would be

considered in the second counseling. According to the petitioner, after confirming

the same with the authorities of the respondent, he and his father left the counseling

centre, hoping to be called for the next round of counseling. He has further alleged

that after display of the above-referred notification on the projector, the

respondents decided to resume counseling on 11.07.2013 itself on the request of

some parents who had come from far of places and had difficulty in staying in the

city for more than a month and accordingly the counseling was held on that day till

rank 2314. It is also alleged that when the petitioner checked the list of candidates

eligible for the second counseling on 13.08.2013, he was shocked to find that he

has been shown absent in the first counseling. The petitioner sent an e-mail to the

Dean of the Faculty of Medical Science on 14.08.2013, explaining the

circumstances in which he left the counseling centre on 11.07.2013 and sought

inclusion of his name in the list of eligible candidates. The said e-mail was

responded on the same day and the petitioner was informed that as per record, he

was called at his turn, but he did not appear before the counseling committee and,

therefore, having been marked absent, he was not eligible for the second round of

counseling. Being aggrieved from the said communication, the petitioner is before

this Court by way of this writ petition seeking the following reliefs:

a) Issue an appropriate writ in the nature of certiorari, mandamus or such other appropriate writ, order or direction directing the respondent No. 1 to immediately permit the petitioner to attend the Counseling Session of the respondent No. 1 scheduled on 12th September, 2013 and /or

b) issue an appropriate writ in the nature of certiorari, mandamus or such other appropriate writ, order or direction to hold the entire counseling-cum-admission procedure beyond the rank 1960 held on 11.07.2013 after 2.30 p.m. as void and illegal and further issue directions to hold the counseling process after Rank-1960 afresh."

3. In its counter-affidavit, the respondent AIIMS has stated that the counseling

for OBC seats up to the rank 2134 was held on 11.07.2013 and the petitioner did

not attend the said counseling. The respondent has denied the allegation that a

notice was displayed through the projector informing the candidates that the

counseling on that day was over after candidates up to the rank of 1960 had been

called and the rest of the candidates would be considered in the second round of

counseling scheduled on 17.08.2013. According to the respondents, the counseling

was declared to be over only after all the OBCs seats were allotted and the

availability position was zero.

4. As noted earlier, in terms of the counseling letter issued to the petitioner, it

was mandatory for him to attend the first round of counseling scheduled to be held

on 11.07.2013, he being an OBC candidate and the failure to attend the counseling

was to entail cancellation of the candidature. Though the petitioner claims that a

notification was displayed on the projector, intimating the candidates present in the

counseling hall that the counseling for the candidates having rank beyond 1960,

would be held on the date fixed for the second round of counseling, there is no

material on record to substantiate this claim, which the Sub-Dean Shri Rakesh

Yadav of the respondent -AIIMS has denied on oath. Even otherwise, there would

be no logic behind stopping the counseling midway on 11.07.2013, considering

that the second round of counseling is meant only to fill up the seats which remain

vacant in the first round of counseling. Therefore, I cannot accept the plea that the

respondent had postponed the counseling for the candidates who had secured rank

beyond 1960.

5. The learned counsel for the petitioner submits that even if the Court proceeds

on the assumption that the petitioner did not appear during the first round of

counseling on 11.07.2013, he should be permitted to participate in the third round

of counseling, scheduled to be held on 12.09.2013, so that no candidate holding a

lower rank is offered a seat in OBC category. He also points out that one seat in

OBC category is still available with the respondent at AIIMS, Raipur. The request,

however, was strongly opposed by the learned counsel for the respondent, who

submitted that having not participated in the first round of counseling, the

petitioner forfeited his right to appear in subsequent rounds of counseling.

6. In my view, the request of the petitioner for permission to participate in the

third round of counseling cannot be accepted at this stage for two reasons. Firstly,

the petitioner having remained absent during the first round of counseling forfeited

his right in the second round of counseling and secondly, because there is a

possibility that one or more candidates holding a rank higher than the rank of the

petitioner in OBC category did not participate in the first and/or second counseling

and in case the candidates who did not participate in the first/or second counseling,

are permitted to appear in the third round of counseling, the only available seat in

OBC category must necessarily go to the candidate holding highest rank in his

category.

7. In support of his contention, the learned counsel for the petitioner has relied

upon the following orders passed in various writ petitions:-

Saniya Siddiqui vs University Of Delhi & Anr , W.P.(C) No. 10322/2009, decided

on 30.07.2009, Dr. Seema S. Yadagiri vs Uoi And Anr, W.P.(C) No. 1584/2011,

decided on 10.03.2011, Dr. Sumita Mathur vs. Union of India, Special Appeal

(Writ) No. 212 of 1994, decided on 12.05.1994, Anjeev Nayan Kumar Anjani v.

UOI and Ors. W.P.(C) No. 5383/2008, decided on 28.07.2008, Subadhra S. v.

Union of India, W.P.(C) No. 5678/2008, decided on 06.08.2008.

I, however, find that the orders relied upon by the learned counsel for the

petitioner, I find that they are based on wholly different set of facts and therefore,

do not apply to the case of the petitioner.

In Saniya Siddiqui (surpa), the petitioner on account of her medical

condition had to be admitted in District Government Hospital and, therefore, could

not attend the counseling. That, however, is not the position in the case before this

Court.

In Dr. Seema S. Yadagiri (supra), the petitioner, a resident of District

Gulbarga, Karnataka had travelled all the way to Mumbai to participate in the

counseling and she fell ill on reaching Mumbai and had to be hospitalized. On

discharge from the hospital, she returned at the counseling centre and sought

participation in the counseling. That, however, was denied. The Court noted that

the counseling was being held only at four places and the candidates had to either

appear personally or otherwise a blood relative or spouse on his behalf in the

counseling. The Court felt that it was not always possible that the candidate would

be travelling with such blood relative/spouse. In these circumstances, the petitioner

in that case was permitted to participate in the counseling.

In Dr. Sumita Mathur (supra), which is a decision of Rajasthan High Court,

the petitioner before that Court, was not eligible for admission at the time of first

and second round of counseling. Thereafter, another round of counseling was held

pursuant to a direction given by the Court. The name of the petitioner, however,

was excluded from the said counseling. The petitioner before the High Court

contended that at the time of second counseling, there were two more vacancies,

but this fact was not brought to the knowledge of the Director General and the

petitioner was not considered in the second allotment. The candidate, who was

given seat in the State Quota, had applied for cancellation of his name under the

Central Quota and an order was passed on 19.07.1993 effective from 01.06.1993,

but since the order was passed on 19.06.1993, the petitioner was not considered in

the second allotment. The State Government then passed an order on 13.07.1993,

whereby it came to be known that certain available seats were surrendered to the

State Government. The order surrendering the seats was later withdrawn. It was

submitted by the petitioner before the Court that one seat in the Central Quota was

still lying vacant. In these circumstances, the respondents were directed to

consider the candidature not only of the petitioner, but also of any of the deserving

candidate for admission against the said seat. Proper notice on the Notice Board

was directed to be affixed in all the colleges giving 15 days time for making

application and the seat was directed to be allotted to the meritorious candidates.

Therefore, this judgment is of no help to the petitioner.

In Anjeev Nayan Kumar Anjani (supra), the petitioner did not report for

pre-cancelling three days in advance and, therefore, was not permitted to appear in

the counseling. He submitted that the said fact was not mentioned in the letter,

issued by CBSE. It was in these circumstances that the direction was given to the

respondent to permit the petitioner to appear in the second round of counseling.

In Subadhra S. (supra), the petitioners were under a bona fide impression

that they were required to appear in the counseling according to their All India

Rank, though, in fact they were to appear as per their category rank. It was on these

facts that the petitioners were permitted to appear in the counseling which was still

going on that time. Thus, all the cases relied upon by the learned counsel for the

petitioner are clearly distinguishable on facts.

More importantly, the petitioner having taken a false plea that a notification

was displayed on the projector postponing the counseling for the candidates who

had secured rank beyond 1960, is not entitled to any discretionary relief from the

Court. A person seeking an equitable relief must necessarily disclose a true state of

affairs to the Court instead of taking a plea which he is unable to substantiate and

which on the face of it appears to be false. This reason alone is sufficient to deny

any relief to the petitioner.

For the reasons stated hereinabove, I find no merit in the writ petition and

the same is hereby dismissed.

Dasti under the signature of Court Master.

V.K. JAIN, J

SEPTEMBER 09, 2013 BG