Delhi High Court
Hrusikesh Panda, Aged About 20 ... vs State Of Odisha And Others on 14 May, 2014
Author: Biswanath Mahapatra
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.23863 of 2013
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Hrusikesh Panda, aged about 20 years,
S/o. Kishore Chandra Panda, resident
of Nigam Nagar, 1st Line, P.O. Ankuli,
P.S. B.N. Pur, Town & Dist. Ganjam.
...... Petitioner
-Versus-
State of Odisha and others ...... Opp. Parties
For Petitioner : Mr. S.K. Pradhan
For opp. parties : Mr. M.S. Sahoo
Addl. Standing Counsel
[For State-O.P. Nos.1 & 4]
M/s. S. Palit, A.K. Mahana,
A.Mishra, Miss. R. Tripathy
& A. Parija
[For O.P. No.2]
Mr. R.C. Mohanty
[For MCI-O.P.No.3]
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE I. MAHANTY
AND
THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA
Date of Judgment: 14.05.2014
B.N. Mahapatra, J. This writ petition has been filed by the petitioner for a direction
to the opposite parties to allot him a seat in MBBS Course on the basis of
his rank in the State at the earliest.
2. Petitioner's case in a nutshell is that he appeared in the
National Eligibility-cum-Entrance Test-UG 2013 (for short, "NEET") and
qualified in the said examination securing 10362 rank in the NEET All
India Rank and 513 rank in the State (Odisha). Considering his rank, the
petitioner was allotted the branch of BDS course in S.C.B. Medical College
and Hospital, Cuttack on 23.07.2013. The final vacancy round counseling
for MBBS/BDS candidates was held on 25.09.2013 and 26.09.2013. As per
the NEET All India Rank of the petitioner, he appeared on 25.09.2013 in
the final vacancy round counseling after depositing counseling fee of
Rs.450/- towards document verification. One candidate, namely, Manisha
Mohanty, Rank No.GE4477 in NEET All India Rank was allotted MBBS and
her name appeared in the final consolidated seat allotment for medical
(MBBS/BDS) as on 26.09.2013. Manisha Mohanty took spot admission in
MBBS, 2013 course at AIIMS, Bhubaneswar on the very same day, i.e.,
26.09.2013 thereby vacating the MBBS seat in S.C.B. Medical College and
Hospital, Cuttack. Further, one Swayam Prakash Dash whose NEET All
India Rank is 10353 and Odisha Rank is 512, i.e., just one above rank as
compared to the petitioner (513) was allotted MBBS course in VSS Medical
College, Burla. Thus, the petitioner securing 513 rank in Odisha is the next
eligible candidate to get allotment in MBBS as one seat has fallen vacant on
26.09.2013 after said Manisha Mohanty joined in AIIMS, Bhubaneswar.
The petitioner reliably learnt that one more seat in MBBS in M.K.C.G.
Medical College, Berhampur has fallen vacant on 10.10.2013 as one of the
students has resigned and discontinued the course. Therefore, at present,
two seats in MBBS-2013 are available to be filled up.
3. The petitioner appeared in person and submitted that as per
the final schedule for All India Quota (NEET) UG Counseling, 2013, the last
date up to which the students can be admitted against the vacancies
arising due to any reason was on 30.09.2013. Therefore, the petitioner
approached in person to opposite party No.2-OJEE-2013 on each day
starting from 26.09.2013 to 30.09.2013 for allotting a vacant MBBS seat to
him but in vain. The action of opposite party No.2 in not allotting one
vacant MBBS seat to the petitioner, which had fallen vacant on 26.09.2013
itself, is absolutely illegal, arbitrary, and opposed to Articles 14 and 16 of
the Constitution of India. No valid and cogent reason has been assigned by
opposite party No.2 in not allotting the vacant MBBS seat to the petitioner.
It was submitted that in the 1st year theory classes of both
MBBS and BDS are same. The difference is only in the practical classes. So
far as the practical classes are concerned, it is more for MBBS course in
comparison to BDS Course.
Concluding his argument, learned counsel for the petitioner
submitted that the petitioner should not have been made to suffer for no
fault of his own.
4. Mr. M.S. Sahoo, learned Additional Standing Counsel for the
State-opposite party No.4 submitted that no MBBS admission can be made
beyond 30th September of any year. Ms. Manisha Mohanty was admitted
into MBBS Course on 27.07.2013 and she was issued with College Leaving
Certificate (CLC) on 26.09.2013 on her request to study elsewhere. After the
CLC was issued to Manisha Mohanty, the same was communicated to the
Chairman, OJEE through FAX and post vide letter No.6979 dated
28.09.2013. In course of hearing, an affidavit was filed by the Dean and
Principal of S.C.B., Medical College-Prof. (Dr.) Prakash Chandra Mohapatra,
wherein it has been stated that on 03.05.2014 a meeting was conducted
among the Professors and Heads of the Departments of Anatomy,
Physiology & Biochemistry to discuss regarding the possibility of transfer of
a student from BDS course to MBBS course. In the proceeding of the
meeting held on 03.05.2014, it has been stated that the syllabus of MBBS
and BDS are different. In BDS syllabus, Physiology and Biochemistry
constitute one paper whereas in MBBS there are separate papers. The
teaching hours and depth of knowledge imparted to a BDS student is much
less than a MBBS student. As per their syllabus, BDS students don't study
the anatomy of extremities. They are not taught in detail regarding other
systems except head and neck, as per their requirement. It would not be
possible to organize extra classes for one BDS student to make up the
course in a short period of time as the first professional MBBS examination
will start in 1st week of July.
5. Mr. Palit, learned counsel appearing for opposite party No.2-
OJEE submitted that due to short time, OJEE could not be held in respect
of one seat about which the opposite party No.4 communicated to the
Chairman, OJEE on 28.09.2013 through FAX.
6. Mr. R.C. Mohanty, learned counsel for the Medical Council of
India submitted that no admission can be made to MBBS course after the
cut-off date, i.e., 30th September, 2013. In support of his contention, he
relied upon the decision of the Hon'ble Supreme Court in the case of Mridul
Dhar (Minor) and another vs. Union of India and others, (2005) 2 SCC 65.
Placing reliance upon the judgment of the Hon'ble Supreme Court dated
30th August, 2013 in the case of Aneesh D. Lawande & Others vs. The State
of Goa and others (Writ Petition (C) No.598 of 2013), Mr.Mohanty submitted
that a seat cannot be carried forward to the next year.
7. On the rival contentions of the parties, the only question that
arises for consideration by this Court is whether the petitioner is entitled to
get admission in MBBS Course for the academic year 2013-14 after the cut-
off date, i.e., 30th September, 2013.
8. On the rival contentions of the parties, the only question arises
for consideration by this Court is whether the petitioner is entitled to take
admission in MBBS course for the academic year 2013-14 after the cut-off
date of the admission, i.e., 30th September, 2013.
9. At this juncture, it would be appropriate to refer to the
judgment of the Hon'ble Supreme Court in the case of Asha vs. Pt. B.D.
Sharma, University of Health Sciences and others, AIR 2012 SC 3396.
The Hon'ble Supreme Court in the case of Asha (supra) after taking note of
its earlier judgment in the case of Mriduldhar (minor and another)
(supra) held as under:
"31. There is no doubt that 30th September is the cut-
off date. The authorities cannot grant admission beyond
the cut-off date which is specifically postulated. But
where no fault is attributable to a candidate and she is
denied admission for arbitrary reasons, should the cut-
off date be permitted to operate as a bar to admission to
such students particularly when it would result in
complete ruining of the professional career of a
meritorious candidate, is the question we have to
answer. Having recorded that the appellant is not at
fault and she pursued her rights and remedies as
expeditiously as possible. We are of the considered view
that the cut-off date cannot be used as a technical
instrument or tool to deny admission to a meritorious
students. The rule of merit stands completely defeated
in the facts of the present case. The appellant was a
candidate placed higher in the merit list. It cannot be
disputed that candidates having merit much lower to
her have already been given admission in the MBBS
course. The appellant had attained 832 marks while the
students who had attained 821, 792, 752, 740 and 731
marks have already been given admission in the ESM
category in the MBBS course. It is not only unfortunate
but apparently unfair that the appellant be denied
admission. Though there can be rarest of rare cases or
exceptional circumstances where the courts may have to
mould the relief and make exception to the cut-off date
of 30th September, but in those cases, the Court must
first return a finding that no fault is attributable to the
candidate, the candidate has pursued her rights and
legal remedies expeditiously without any delay and that
there is fault on the part of the authorities and apparent
breach of some rules, regulations and principles in the
process of selection and grant of admission. Where
denial of admission violates the right to equality and
equal treatment of the candidate, it would be completely
unjust and unfair to deny such exceptional relief to the
candidate. "
"36. Now, we shall proceed to answer the questions
posed by us in the opening part of this judgment.
ANSWERS
(a) The rule of merit for preference of courses and
colleges admits no exception. It is an absolute rule and
all stakeholders and concerned authorities are required
to follow this rule strictly and without demur.
(b) 30th September is undoubtedly the last date by
which the admitted students should report to their
respective colleges without fail. In the normal course,
the admissions must close by holding of second
counseling by 15th September of the relevant academic
year (in terms of the decision of this Court in Priya
Gupta (supra). Thereafter, only in very rare and
exceptional cases of unequivocal discrimination or
arbitrariness or pressing emergency, admission may be
permissible but such power may preferably be exercised
by the courts. Further, it will be in the rarest of rare
cases and where the ends of justice would be subverted
or the process of law would stand frustrated that the
courts would exercise their extraordinary jurisdiction of
admitting candidates to the courses after the deadline of
30th September of the current academic year. This,
however, can only be done if the conditions stated by
this Court in the case of Priya Gupta (supra) and this
judgment are found to be unexceptionally satisfied and
the reasons therefor are recorded by the court of
competent jurisdiction.
(c) & (d) Wherever the court finds that action of the
authorities has been arbitrary, contrary to the
judgments of this Court and violative of the Rules,
regulations and conditions of the prospectus, causing
prejudice to the rights of the students, the Court shall
award compensation to such students as well as direct
initiation of disciplinary action against the erring
officers/officials. The court shall also ensure that the
proceedings under the Contempt of Courts Act, 1971
are initiated against the erring authorities irrespective of
their stature and empowerment.
Where the admissions given by the concerned
authorities are found by the courts to be legally
unsustainable and where there is no reason to permit
the students to continue with the course, the mere fact
that such students have put in a year or so into the
academic course is not by itself a ground to permit them
to continue with the course."
(Underlined for emphasis)
10. In the present case, the petitioner has not committed any fault.
He was deprived of taking admission in MBBS Course against the vacant
seat available for the academic year 2013-14 to which he was entitled to
before the cut-off date due to laches on the part of opposite party-
authorities in not holding the counselling for one vacant seat, which fell
vacant in S.C.B. Medical College and Hospital, Cuttack on 26.9.2013, as
one candidate, namely, Manisha Mohanty, took spot admission in MBBS
Course at AIIMS, Bhubaneswar. One Swayam Prakash Dash, whose NEET
All India Rank is 10353 and Odisha Rank is 512 i.e. just one rank above to
the petitioner (Rank No. 513), was allotted MBBS Course in V.S.S. Medical
College, Burla. Thus, the petitioner securing 513 rank in Odisha is the
next eligible candidate to get allotment in MBBS as one seat has fallen
vacant on 26.09.2013 after Manisha Mohanty took admission in AIIMS,
Bhubaneswar. Thus, the petitioner has become the victim of the
circumstances which was beyond his control. Had the opposite parties,
more particularly opposite party No. 2-OJEE, 2013 and opposite party No.
4-Dean and Principal, S.C.B. Medical College & Hospital, Cuttack acted
with promptitude in filling up the vacant seat before the cut-off date, the
petitioner would have certainly got admission in MBBS Course during the
academic year, 2013-14 before the cut-off date, i.e., 30.09.2013. Knowing
pretty well that a seat in MBBS course is very valuable, opposite party
No.4 has not taken prompt action in communicating the Chairman, OJEE
about vacancy of one seat in MBBS course after the CLC was issued to
Manisha Mohanty on 26.09.2013, which fact intimated to the OJEE, 2013
on 28.09.2013, i.e., two days after the seat fell vacant. Similarly, OJEE,
2013 has not taken any step for holding the counselling before the cut-off
date in respect of such vacant seat about which it was intimated on
28.09.2013. Further, the assertion of the petitioner that he approached the
opposite party no. 2-OJEE, 2013 in person on each date for counselling
starting from 26.09.2013 to 30.09.2013 for allotting a vacant seat to him
was not denied by opposite party no. 2. When the petitioner failed to take
admission in MBBS course against the vacant seat which arose before the
cut-off date to which he is entitled to, he has filed the present writ petition
on 23.10.2013 seeking appropriate relief. Thus, the petitioner is not at
fault and he is diligent in pursuing his rights and legal remedy.
11. The Hon'ble Supreme Court in the case of Medical Council of
India Vs. Manas Ranjan Behera and others, (2010) 1 SCC 173 noticing
that 12 students who were eligible and because of unprecedented situation
they could not secure admission within the prescribed time limit condoned
the delay in giving admission to them as one time measure.
12. It may be noted that a meritorious student if not given
admission in a medical course to which he is entitled to for no fault of his
and the seat remains vacant, it is a national waste as it will not only result
in complete ruining the professional career of a meritorious student but also
make the country to lose a qualified doctor. Needless to say that medical
education is a national wealth and the country is in bare need of Doctors.
13. For the reasons stated above, we are of the considered view
that the petitioner is entitled to get the relief as prayed for in view of the
judgment of the Hon'ble Supreme Court in the case of Asha (supra).
Therefore, in the peculiar and extra-ordinary facts of the case, we feel in
the interest of justice the petitioner deserves admission in MBBS course
for the academic year 2013-14. Accordingly, we direct opposite party-
authorities, more particularly opposite party Nos. 2 and 4 to give
admission to the petitioner against the available vacant seat in MBBS
course at S.C.B. Medical College and Hospital, Cuttack. However, the
petitioner's right to appear in the examination shall be in accordance with
the Examination Rules/Regulations and if the petitioner does not meet the
attendance requirement, he shall be permitted to repeat the academic
year. This order is being passed taking into consideration the peculiar
facts and circumstances of the case.
14. The principle decided by the Hon'ble Supreme Court in the case
of Mriduldhar (minor and another) (supra) has no application to the
facts of the present case in view of the latter judgment of the Hon'ble
Supreme Court in the case of Asha (supra). Similarly, the judgment of the
Hon'ble Supreme Court dated August 30, 2013 in the case of Aneesh D.
Lawande and others -v- The State of Goa and others (W.P. (Civil) No.
598 of 2013) relied upon by Mr.R.C. Mohanty, learned counsel appearing
for the Medical Council of India-opposite party No. 3 is of no assistance
since in the present case, no seat is carried forward to the next year and
our above direction would not affect the other meritorious candidates who
would be aspirants to get admission next year, i.e., 2014-15..
15. In the result, the writ petition is allowed with the aforesaid
observations and directions, but without any order as to costs.
Urgent certified copy of this judgment be granted on proper
application in course of the day and free copies thereof be handed over to
learned counsel for opposite parties for necessary compliance.
...........................
B.N.Mahapatra,J.
I.Mahanty, J. I agree.
............................
I.Mahanty, J.
Orissa High Court, Cuttack
Dated 14th May, 2014/ss/skj/bks
