Delhi High Court
Chauhan Abhinavsingh ... vs All India Institute Of Medical ... on 5 October, 2016
$~19 & 20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : October 05, 2016
+ W.P.(C) 8575/2016
CHAUHAN ABHINAVSINGH
ABHIMANYUSINGH AND ANR. ..... Appellants
Represented by: Mr.Gautam Narayan & Mr.R.A. Iyer,
Advocates.
versus
ALL INDIAN INSTITUTE OF MEDICAL
SCIENCES ..... Respondent
Represented by: Mr.R.K. Gupta & Mr.M.K. Singh,
Advocates for AIIMS.
Mr.T.Singh Dev, Ms.Puja Sarkar &
Ms.Biakthansangi, Advocates for
R-2/MCI.
Mr.Anurag Kalavatiya, Advocate
with Mr.Susshil Daga, Adv.for
Dr.Vipul Agarwal, Appellant in
S.A.Writ (SAW) 1021/2016 before
High Court of Judicature for
Rajasthan at Jaipur Bench, Jaipur.
+ W.P.(C) 9130/2016
JHULANA KUMAR JENA ..... Appellants
Represented by: Mr.Gautam Narayan & Mr.R.A. Iyer,
Advocates
versus
ALL INDIAN INSTITUTE OF MEDICAL
SCIENCES AND ORS. ..... Respondents
Represented by: Mr.R.K.Gupta & Mr.M.K.Singh,
W.P.(C) 8575/2016 & W.P.(C) 9130/2016 Page 1 of 21
Advocates for AIIMS.
Mr.T.Singh Dev, Ms.Puja Sarkar &
Ms.Biakthansangi, Advocates for
R-2/MCI.
Mr.Anurag Kalavatiya, Advocate for
Dr.Vipul Agarwal, Appellant in S.A.
Writ (SAW) 1021/2016 before High
Court of Judicature for Rajasthan at
Jaipur Bench, Jaipur.
+ D.B.SPECIAL APPEAL (WRIT) NO.1021/2016
DR.VIPUL AGARWAL ....Appellant
Represented by: Mr.Anurag Kalavatiya, Advocate
versus
PRINCIPAL OF MSM COLLEGE & ORS. ....Respondents
Represented by: Mr.R.K.Gupta & Mr.M.K.Singh,
Advocates for AIIMS
Mr.T.Singh Dev, Ms.Puja Sarkar &
Ms.Biakthansangi, Advocates for
R-2/MCI
Mr.Gautam Narayan & Mr.R.A. Iyer,
Advocates for Dr.Jhulana Kumar Jena
and Dr.Chauhan Abhinavsingh
Abhimanyusingh
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J. (Oral)
CM No.37023/2016 in WP(C) 8575/2016
1. The writ petitioners pray that Medical Council of India and Vipul
Agarwal be impleaded as respondents No.2 and 3.
2. Vipul Agarwal is the appellant before the High Court of Judicature for
Rajasthan at Jaipur in D.B.S.A.Writ (SAW) No.1021/2016, which intra-
court appeal has been directed by the Supreme Court to be transferred to
this Court vide order dated September 30, 2016 in SLP(C) No.27681/2016.
Mr.Anurag Kalavatiya, Advocate appears for Dr.Vipul Agarwal.
Mr.T.Singh Dev, Ms.Puja Sarkar and Ms.Biakthansangi appear for the
Medical Council of India.
3. Keeping in view the controversy in the writ petition and its inter
connection with D.B.S.A. Writ (SAW) No.1021/2016 with consent of
learned counsel for the parties the application is allowed as prayed for. The
amended memo of parties be filed within a day.
CM No.37025/2016 in WP(C) 8575/2016
1. Events subsequent to the filing of the present writ petition with
reference to Annexure-10 to Annexure 15 are prayed to be brought on
record.
2. Learned counsel for the non applications do not oppose the
application which is allowed
CM No.35305/2016 in WP(C) 8575/2016
Allowed subject to just exceptions.
CM No.36954/2016 in WP(C) 9130/2016
Allowed subject to just exceptions.
W.P.(C) 8575/2016, W.P.(C) 9130/2016 & S.A.Writ (SAW)
No.1021/2016
1. The two captioned writ petitions were listed before the learned Single
Judge of this Court on October 04, 2016 who, had directed listing of the
said petitions before a Division Bench of this Court after obtaining the
orders from the Chief Justice because of an order dated September 30, 2016
passed by the Supreme Court in SLP(C) No.27681/2016 laying a challenge
to orders passed by the Division Bench of the High Court of Judicature at
Rajasthan Jaipur Bench in S.A.Writ (SAW) No.1021/2016, directing the
said writ appeal to be transferred to the Delhi High Court and heard by a
Division Bench along with the two captioned writ petitions.
2. The Chief Justice directed listing of the two writ petitions before this
Bench that is how the two writ petitions were placed before this Bench at
3:45 PM yesterday.
3. Unfortunately, we could not proceed to hear the two writ petitions for
the reason record of S.A.Writ (SAW) No.1021/2016, directed vide order
dated September 30, 2016 in SLP(C) 27681/2016 by the Supreme Court,
had yet to be received in this Court.
4. Suffice it to note that on April 26, 2016, All India Institute of Medical
Sciences (AIIMS) issued the final result notification No.35/2016 listing
therein the names of successful candidates selected in each departments of
AIIMS for admission to, amongst others, M.Ch.(Cardiothoracic and
Vascular Surgery) Course, which is a Super Speciality Course. Six
vacancies being available in the said course, names of six successful
candidates in order of merit were notified; with two names in the wait list.
The two wait listed candidates were Chauhan Abhinavsingh
Abhimanyusingh and Jhulana Kumar Jena. Amongst the six successful
candidates : Anurag Goel and Vipul Agarwal found themselves at serial
No.4 and 5.
5. The two were undergoing Post Graduate Course Studies in Surgery
under the aegis of Rajasthan University of Health Sciences. They were
students of SMS Medical College, affiliated to the said University. The
grievance of the two concerns the university not holding the examination by
July 2016 for the course batch 2013-2016. This affected the two inasmuch
the eligibility prescribed by AIIMS for the course in question was a Post
Graduate Decree from a recognized University in Surgery to be obtained by
31st July, 2016.
6. The writ petitions filed by Vipul Agarwal and Anurag Goel were
dismissed by a learned Single Judge. Whereas Anurag Goel accepted his
fate, Vipul Agarwal carried the mater forward to the Division Bench and
obtained an order favourable to him. The result was certain interim orders
passed by the Division Bench as a consequence of which AIIMS issuing a
letter in favour of Vipul Agarwal and the result was Jhulana Kumar Jena
being ousted. Fearing that Anurag Goel may obtain similar order as were
obtained by Vipul Agarwal, Chauhan Abhinavsingh Abhimanyusingh and
Jhulana Kumar Jena filed WP(C) 8575/2016 in this Court. Jhulana Kumar
Jena also filed WP(C) 9130/2016 in this Court.
7. AIIMS preferred SLP(C) 27681/2016 before the Supreme Court
against the order passed by the Division Bench of the Rajasthan High Court
in which Dr.Chauhan Abhinavsingh Abhimanyusingh and Dr.Jhulana
Kumar Jena sought intervention. The intervention was allowed.
8. Vide order dated September 30, 2016, the Supreme Court transferred
S.A. Writ (SAW) 1021/2016 pending before the Division Bench of the
Rajasthan High Court to the Delhi High Court with a direction that said writ
petition along with WP(C) 8575/2016 would be taken up for hearing on
October 04, 2016 by a Division Bench of this Court.
9. It is in the backdrop aforesaid that the two above captioned writ
petitions were listed before this Bench yesterday.
10. Sh.Anurag Kalavatiya, Advocate appeared on behalf of Dr.Vipul
Agarwal. Unfortunately the record had not been received from the
Rajasthan High Court. We had expressed the willingness to proceed ahead
with the matter provided counsel could supply to us a copy of S.A.Writ
(SAW) 1021/2016 but neither counsel had the same.
11. Sh.Anurag Kalavatiya, Advocate stated that by today i.e. October 05,
2016, he would be able to bring a copy of S.A.Writ (SAW) 1021/2016 so
that hearing is facilitated.
12. Today Sh.Anurag Kalavatiya, Advocate has handed over two sets of
D.B.S.A.Writ (SAW) 1021/2016 which he has filed before the High Court
of Judicature for Rajasthan at Jaipur Bench. Copy thereof has been supplied
to learned counsel for the writ petitioners of WP(C) No. 8575/2016 and
WP(C) No.9130/2016.
13. When we had completed hearing and proceeded to dictate the
judgment the Registry of this Court has brought the record of D.B.S.A.Writ
(SAW) 1021/2016.
14. Relevant facts to decide the two captioned writ petitions and the
appeal would be that All India Institute of Medical Sciences is a body
corporate established under the All India Institute of Medical Sciences Act,
1965. Amongst others, the Institute admits doctors for Super Speciality
Courses under its DM/M.Ch./ Fellowship Programmes. Dispute in the
present proceedings concerns admission to M.Ch. (Cardiothoracic Vascular
Surgery) Course for July 2016 Session.
15. On February 19, 2016, AIIMS invited applications for Post Doctoral
Super Speciality Courses for the July 2016 Session. Pertaining to the Post
Doctoral Degree of M.Ch. in Super Speciality of Cardiothoracic Vascular
Surgery, six seats were notified. Educational qualifications stipulated for
the said course was a M.S. Degree in Surgery from a university recognized
by the Medical Council of India. Amongst others, it was stipulated in the
prospectus that the Post Graduate Degree in Surgery had to be obtained on
or before July 30, 2016. It was additionally stipulated that the last date for
joining the course shall be July 31, 2016 and none would be permitted to
join the course thereafter. Relevant would it be to highlight that in the
prospectus, under the column : ELIGIBILITY, It was highlighted:-
The candidates, who are likely to complete three years
requisite tenure and degree by 30th July , 2016 may also
apply. However, the candidates who complete their
three years requisite tenure after 30th July 2016 will not
be eligible to appear in this examination.
16. Further, in the prospectus under the column : METHOD OF
SELECTION, vide note II and III it was indicated:-
"II Candidates who fail to attend any of the two stages
mentioned above will not be eligible for admission.
Selected candidates are required to join on 01/07/2016
or before 15/07/2016. The last date of joining of selected
candidates shall be 15th July, 2016. No Extension will be
given. In case of failure to join course by 15th July,
2016, the offer will be given to wait listed candidate. No
further correspondence will be entertained in this
regard.
III The last date for joining the DM/M.Ch/Fellowship
Programme/MD (HA) will be 31st July, 2016. No
candidate, in any circumstances, shall be allowed to join
after 31st July, 2016."
17. Vide Clause 25 of the prospectus it was stipulated:-
"Any dispute in regard to any matter referred to herein
shall be subject to the jurisdiction of Delhi Courts
alone."
18. For the various Super Speciality Courses a written test was held on
April 02, 2016.
19. On April 26, 2016 AIIMS published the list of candidates selected in
different departments of AIIMS for admission to DM/M.Ch./Fellowship
Programmes for July 2016 Session, and as noted above, for the six vacancies
available in M.Ch.(Cardiothoracic Vascular Surgery) Course for July 2016
Session. It published the names of the six successful candidates in order of
merit as under:-
Sl.No. Roll No. Name
1 6423009 Arun Basil Mathew
2. 6423008 Niwin George
3. 6423029 Sumit Agasty
4. 6423033 Anurag Goel
5. 6423036 Vipul Agrawal
6. 6423028 Nikhil Bansal
20. The two wait listed candidates were Chauhan Abhinavsingh
Abhimanyusingh and Jhulana Kumar Jena, the writ petitioners of the two
captioned two writ petitions.
21. Vipul Agarwal and Anurag Goel faced a problem, the origin whereof
was interim orders passed by the Supreme Court in a petition filed by
Christian Medical College which resulted in the decision reported as 2014
(2) SCC 305 Christian Medical Colllege vs. UOI & Ors. being passed.
Suffice it to note that due to the interim orders passed by the Supreme Court
the National Eligibility Entrance Test (NEET) got delayed in the year 2013
and the result was that in the various medical colleges affiliated to the
University of Rajasthan, the admission process for Post Graduate Courses
in the discipline of Medicine and Surgery which had to otherwise take place
by July 31, 2013 got delayed to September, 2013. Other Universities in
India mange to complete the admission process by July 31, 2013. Having
joined Post Graduate Course i.e. M.S.Surgery in the SMS Medical College,
Jaipur in the year 2013, the three years' course would come to an end in the
year 2016 and because students were admitted by the said college between
July 2013 to September, 2013, the University of Rajasthan had taken a
decision to delay the holding of the examination in the year 2016 till the
time the students inducted in September 2013 completed the teaching and
training term of three years. As per the prospectus issued by AIIMS, the
last date for joining was July 31, 2016 as per Note III, contents whereof
have been noted by us in paragraph 16 above with the requirement of degree
to be obtained by July 30, 2016. The two i.e. Vipul Agarwal and Anurag
Goel made representations to the Rajasthan University on May 12, 2016,
May 27, 2016 and June 09, 2016, pleading that unless the examination was
conducted and results declared before July 30, 2016, the two would lose
the benefit of they being empanelled by AIIMS to undergo the Super
Speciality Course : M.Ch.(Cardiothoracic and Vascular Surgery). With
reference to Regulation 13(2) of the Post Graduate Medical Education
Regulations, 2000 issued by the Medical Council of India they pleaded that
since students undergoing Post Graduate Courses had to have 80%
attendance and training as a condition of being awarded the Post Graduate
Degree, the University should conduct the examination forthwith and
declare the result latest by mid-July, 2016 so as to enable the two to join
AIIMS by July 31, 2016.
22. No heed being paid by the University to their demands inspite of the
Controller of Examination of the University seeking clarifications from the
Medical Council of India regarding interpretation placed by the two on
Regulation 13(2), the two filed writ petitions in the Rajasthan High Court
on reopening of the Court on July 05, 2016. The writ petitions filed by the
two were dismissed by the learned Single Judge on July 12, 2016. Whereas
Anurag Goel accepted his fate and did not lay a challenge to the said
decision, Vipul Agarwal filed above captioned appeal before the Division
Bench.
23. Relevant would it be to note that the learned Single Judge opined that
in view of Regulation 10 of Post Graduate Medical Education Regulations,
2000 the period of training had to be three years and since students were
inducted in the year 2013 between the months of July to September, 2013,
no direction could be issued to the University to conduct piecemeal
examinations. Equally relevant would it be to note that in the writ petitions,
though AIIMS was impleaded as a respondent, no challenge was raised to
the prospectus issued and in particular the schedule fixed there under. The
prayers made in the writ petitions were to direct the University of Rajasthan
to conduct the examination for MD/MS Courses for the 2013-2016 batch
before July 30, 2016 and declare the result before said date. Alternative
prayer was to direct AIIMS to provisionally admit Anurag Goel and Vipul
Agarwal in the Super Speciality Course in question till the University of
Rajasthan conducted the examination and declared the result or
alternatively two seats be kept vacant and not allotted to the wait listed
candidates. Further equally relevant would it be to note that the two wait
listed candidates against whom the second alternative to the second prayer
was made were not impleaded as respondents.
24. Dr.Vipul Agarwal laid a challenge to the decision of the learned
Single Judge by filing a writ appeal in which, on July 22, 2016, the learned
Division Bench formed a prima-facie view that Vipul Agarwal was not to
be faulted for what happened in the year 2013 and that the derailment took
place due to interim orders passed by the Supreme Court concerning
NEET Examination (PG-2013). The Division Bench opined that Vipul
Agarwal was never at fault but was indeed a victim of the authorities and
thus directed that upon he making a representation it was expected from the
authorities to consider the same sympathetically; and needless to state the
authorities were AIIMS. On August 05, 2016 the Division Bench noted that
the University of Rajasthan had commenced the written examination for the
MS/MD Courses for the batch 2013-2016 and the result was likely to be
declared by August 08, 2016. Once again highlighting that Vipul Agarwal
was a victim and was suffering due to no fault of his and because as per
guidelines framed by the Supreme Court, second counselling had to be held
on August 20, 2016, the direction issued was „that the university of Health
Science shall make the list of internal/external examiners available to the
respective medical colleges by 8.8.2016 and the respective medical colleges
shall hold their practical examination by 9.8.2016 to 16.8.2016‟ so that
the result could be declared by August 19, 2016 and this would enable
Vipul Agarwal to attend the second counselling. It was followed by another
order dated August 19, 2016 in which AIIMS was direct to permit Vipul
Agarwal to appear at the second counselling to be held on August 20, 2016
and the foundation of the direction was a schedule notified by the Medical
Council of India on January 14, 2016, which was approved by the Supreme
Court in the order dated January 18, 2016 in WP(C) No.76/2015 Ashish
Ranjan & Ors. vs. Union of India & Ors. Pertaining to the time schedule
for completion of Admission Process for PG (Super Speciality) Medical
Courses, the approved schedule, with Note 1 and 2 beneath thereunder
which reads as follows:-
"Time Schedule for completion of Admission Process for PG (Super
Speciality) Medical Courses)
S.No. Schedule for admission Super Speciality
1. Conduct of Entrance Examination By 10th July
2. Declaration of result of the qualifying By 15th July
Exam/Entrance Exam
3. 1st round of counseling admission By 31st July
4. Last date for joining the allotted college Between 1st to 7th
and the course August
5. 2nd round of counseling/admission By 20th August
6. Last date of joining for the 2nd round of By 27th August
counseling/admission
7. Commencement of academic 1st August
session/term
8. Last date up to which students can be 31st August
admitted/joined against vacancies
arising due to any reason
Note:
1. Institute/College/courses permitted after 31st May
will not be considered for admission/allotment of seats for
current academic year.
2. In any circumstances, last date for admission/
joining will not be extended after 31st August."
was referred by the Division Bench to opine that as per the same the
second round of counselling for admission had to take place on August 20,
2016. The Division Bench also prima-facie opined that the decision
rendered by the Supreme Court reported as (2012) 7 SCC 389 Asha vs.
Pt.B.D.Sharma University of Health Sciences & Ors. which held that the
principle of strict adherence to the rule of merit had a very limited
exception, warranted the direction in question to be issued.
25. But much before the order dated August 19, 2016 was passed by the
Division Bench of the Rajasthan High Court, on July 30, 2016 AIIMS
issued letters offering a seat in the course in question to the two writ
petitioners requiring them to join on July 31, 2016, informing in the
memorandums offering the seats that the offer was subject to the decision in
the proceedings before the Division Bench of the Rajasthan High Court.
The two accepted the offer and join.
26. Left with no seats, AIIMS obviously held no counselling on August
20, 2016 and this led to contempt applications being filed before the
Division Bench of the Rajasthan High Court and notwithstanding no orders
being passed therein holding anybody guilty of contempt, probably under
the fear of the wrath of the court, AIIMS issued a communication on
September 26, 2016 to Jhulana Kumar Jena withdrawing the seat offered to
him and on the same date issued a memorandum to Dr.Vipul Agarwal
offering the seat to him.
27. Since Dr.Anurag Goel did not pursue the matter further, happily
Chauhan Abhinavsingh Abhimanyusingh finds himself in a safe position
because he is the candidate at serial No.1 of the wait list and the battle has
to be fought by Dr.Jhulana Kumar Jena and his antagonist would be
Dr.Vipul Agarwal.
28. Arguments advanced by learned counsel for Dr.Jhulana Kumar Jena
were:-
(i) In view of clause 25 of the prospectus, contents whereof we have
noted in paragraph 17 above, Rajasthan High Court had no jurisdiction to
entertain the petition and hence the appeal by Dr.Vipul Agarwal.
(ii) Dr.Vipul Agarwal had not challenged the prospectus issued by AIIMS
and the admission schedule in the writ petition filed by him and therefore
to determine the rights of the two candidates this Court as also the
Rajasthan High Court, assuming the later had jurisdiction, have to proceed
treating the schedule as legal and valid.
(iii) De-hors the argument No.2, there was no conflict between the
schedule fixed by AIIMS and the schedule notified by Medical Council of
India which was approved by the Supreme Court in Ashish Ranjan case
(supra).
(iv) It was settled law that where a cut off date was prescribed by which
eligibility had to be acquired, the same was sacrosanct.
(v) Orders passed by the Division Bench of Rajasthan High Court could
not adversely affect Dr.Jhulana Kumar Jena because he was not impleaded
as a party therein and were passed behind his back.
(vi) Dr.Jhulana Kumar Jena had acted to his detriment by not joining the
DNB Course at Medanta Medcity Hospital because he had been offered the
seat in question by AIIMS and thus acted to his detriment.
(vii) Dr.Vipul Agarwal having not challenged the schedule fixed by AIIMS
nor having filed a writ petition well in time seeking directions against
University of Rajasthan to conduct the MS/MD examination for the batch
2013-2016 the belated writ petition could not result in any rights being
created in his favour because on February 19, 2016 when AIIMS issued the
prospectus he was made aware that last date for acquiring eligibility was
July 31, 2016.
29. The response of learned counsel for Dr.Vipul Agarwal was that his
client was not at fault for the admission process in the year 2013 being
extended till September 2013 and the university overlooking requirement of
80% attendance as per Regulation 13(2) of Post Graduate Medical
Education Regulations, 2000 could not be to the prejudice to his client.
Learned counsel argued that his client could not have filed the writ petition
before exhausting the alternative remedy of making representations to the
university which his client's did on May 12, 2010, May 27, 2006 and June
09, 2010. Since the university did not pay heed his client filed the writ
petition on the reopening of the Rajasthan High Court. Learned counsel
urged that irrespective of his client not laying a challenge to the schedule
fixed by AIIMS, it being settled that an administration decision if in conflict
with a statutory regulation would require the later to be given effect to, and
thus AIIMS was bound by the statutory regulations i.e. the ones notified
by the Medical Council of India on January 14, 2016, which were accepted
and incorporated by the Supreme Court in the decision in Ashish Ranjan
case. Learned counsel urged that the law declared by the Supreme Court in
Asha's case (supra) which was followed in the decision reported as 2014
(10) SCC 521 Chandigarh Administration & Anr. vs. Jasmine Kaur & Anr.
warranted the two captioned writ petitions to be dismissed and the writ
appeal filed by his client to be allowed.
30. The undisputed position is that due to interim orders passed by the
Supreme Court concerning NEET- 2013 the admissions to Post Graduate
Courses in Medicine and Surgery in India got affected and whereas all
States managed to complete the selection process by July 31, 2013, with the
result that on completion of the course of three years duration
examinations could be held and results declared in July 2016, in the State of
Rajasthan the admission process continued in the year 2013 till the month
of September 2013 and since the Regulations issued by Medical Council of
India prescribe three years course and traineeship, the University of
Rajasthan did not take steps to conduct the examination in July 2016 and
probably wanted to conduct the examination in September 2016. Whether
or not Regulation 13(2) of the Post Graduate Medical Education Regulation
2000 would permit the examination to be held when 80% of the course
duration is over is a matter of debate which in the fact of the present case is
not warranted, for the reason whatever may be the cause, the fact of the
matter remains that the university did not proceed to hold the examination,
both written and practical, in the month of July 2016. The issue which
needs out attention therefore would be whether the time schedule fixed by
AIIMS in its notification dated February 19, 2016 fouls the Regulations
framed by Medical Council of India and notified on January 14 2016
which were approved by the Supreme Court in Ashish Ranjan case on
January 18, 2016.
31. In paragraph 16 above, we have noted the schedule fixed by AIIMS
as per which the last date for joining was July 31, 2016 and the selection
was to be by July 15, 2016. The eligibility had to be acquired by July 30,
2016.
32. The time schedule for completion of admission process for PG Super
Speciality Medical Courses, as noted in paragraph 24 above, requires
conduct of entrance examination by 10th July, declaration of qualifying
examination by 15th July, first round of counselling by 31st July, second
round of counselling by 30th August and commencement of academic
session by 1st August; permitting students to join against vacancies arising
due to any reasons by August 31.
33. The word used in the notification is „by‟ and not 'on‟. In other words
the entrance examination has to be held on any date on or before July 10 i.e.
„by 10th July‟. The results have to be declared on or before 15th July i.e. „by
15th July‟. Therefore, we do not find the time schedule fixed by AIIMS to
be in conflict with the notification issued by the Medical Council of India.
To do an act or perform an activity „by a date‟ would mean not on the date
but on or before the date in question.
34. It is settled law that where a date by which an eligibility is prescribed
is fixed, the eligibility has to be acquired by said date and we note only one
authority on the subject. The decision is reported as 2013 (11) SCC 58
Rakesh Kumar Sharma vs. State (NCT of Delhi) & Ors.
35. The eligibility prescribed by AIIMS for the Super Speciality Course
in question is concededly a MD in Surgery with requirement of the degree to
be obtained by July 30, 2016. Admittedly, Dr.Anurag Goel did not obtain
the degree by said date. Whilst it may be true that he is not at fault but
neither is AIIMS nor is the Medical College in which he pursued the MD
Surgery Course nor the University of Rajasthan for the reason the root of the
problem lies in the issue pending before the Supreme Court concerning
NEET-2013 which resulted in delay in admission in medical colleges in
Rajasthan for Post Graduate Courses in the year 2013.
36. Whilst it may be true that as was observed in Asha' case (supra), a
meritorious candidate cannot be denied admission applying the rule of merit,
but the said judgment recognizes exceptions thereto. On facts the exception
in favour of Asha was she not being at fault at the counselling and being a
victim of inefficient, inaccurate and improper method of admission by the
State. Her assertion that she was present at the second counselling, proved
through her attendance marked at the place of the counselling on
September 20, 2011, was found to be correct with reference to the record
and the plea of the Board that when her name and roll number was called
out she did not respond was found to be contrary to normal human conduct.
That is why in paragraph 30 the Supreme Court observed that where no fault
is attributed to a candidate who is denied admission for arbitrary reasons, the
cut off date prescribed cannot be permitted to operate as a bar to admission
because in such a case the rule of merit has to be accorded primacy over
the rule of adherence to the cut off date. In para 32 the Supreme Court also
noted that Asha had pursued her rights and legal remedies expeditiously and
without delay. Notwithstanding these findings, Asha was not granted the
relief she has prayed for because by the time the Supreme Court decided the
issue the year 2013 had come into being and the academic session with
which the cut off date was concerned was 2011-12. Noting that in the
meanwhile Asha take admission in BDS Course where syllabus for the first
six months was near identical to the MBBS course which Asha wanted to
pursue and therefore the possibility of a direction being issued that she
could join the course for the year in question for which she had competed
was looked at by the Supreme Court. Noting that Asha was negligent in not
diligently attending classes and there was a shortage of attendance, the
Supreme Court declined relief to Asha as she had prayed for and granted
the modified relief that she should be admitted in the MBBS course in the
next year. This judgment was followed with approval in Jasmine Kaur case
where the candidate was not found to be diligent in pursuing the legal
remedies.
37. The ratio of law in the two judgments would be that where a qualified
candidate finds a position in the merit list sufficient enough to justify an
admission the principle of merit would supersede the principle of
counselling dates and dates of admission and course commencing notified,
provided it is found that the candidate is not at fault and was diligent in
pursuing the remedy and the wrong was committed by the body conducting
or supervising the selection process and therefore the latter would yield to
the former.
38. In the instant case neither AIIMS nor Dr.Vipul Agarwal is at fault.
But the fact of the matter remains that by the prescribed cut off date to
complete the admission process and the notified date by which the
eligibility had to be acquired, Dr.Vipul Agarwal had not acquired the MS
Surgery degree and thus the decision has to be in favour of Dr.Jhulana
Kumar Jena.
39. We also find merit in the contention that Dr.Vipul Agarwal did not
lay a challenge to the schedule prescribed by AIIMS in the writ petition
filed by him and thus would be estopped from raising any argument qua the
schedule fixed viz-a-viz the schedule fixed by the Medical Council of India,
but in view of the finding above, that we find no hiatus between the two we
deal with this argument no further with reference to reasons to be given.
40. Since we have found on merits in favour of Dr.Jhulana Kumar Jena
we do not comment upon the effect of clause 25 of the prospectus, but
would certainly like to observe that apart from the clause we find no cause
of action accruing outside the territorial jurisdiction of Courts in Delhi for
the reason the examination conducted by AIIMS was at Delhi. Applications
were received at Delhi. The result was declared at Delhi. AIIMS is at
Delhi. Decisions taken by AIIMS were at Delhi. Letters offering seat were
issued were at Delhi. In our opinion centralized admission to institutes must
be questioned in Courts within the jurisdiction of which an institution is
situated lest problems of the kind which candidates faced in the instant case
arise. Dr.Vipul Agarwal and Anurag Goel took recourse to remedies in
Rajasthan. Dr.Chauhan Abhinavsingh Abhimanyusingh took recourse to
remedies in Delhi. There could be a possibility of conflicting decisions and
the Supreme Court had to intervene to transfer the writ appeal from the
Rajasthan High Court to this Court so that the two captioned writ petitions
and the writ appeal could be decided together.
41. Further, we also find merit in the plea that Dr.Jhulana Kumar Jena
has acted to his detriment on account of he being offered the seat on July 30,
2016 and forgoing the seat which was offered to him for the DNB Course
which is equivalent to the one at hand by Medanta Medcity Hospital.
42. To bring the curtains down, D.B.SPECIAL APPEAL (WRIT)
NO.1021/2016 is dismissed and the order passed by the learned Single
Judge in S.B.CWP No.8773/2016 is upheld.
43. WP(C) No.9130/2016 and 8575/2016 are allowed quashing the letter
dated September 26 2016 offering the seat in M.Ch. CTVS Course to
Dr.Vipul Aggarwal. Letter dated September 26, 2016 cancelling the
admission to the seat granted to Dr.Jhulana Kumar Jena is struck down and
letter dated July 30, 2016 offering him the seat is restored.
44. Parties to bear their own costs.
45. Dasti under signatures of Court Master to learned counsel for the
parties.
CM No.35304/2016 & 37024/2016 in WP(C) 8575/2016
CM No.36953/2016 in WP(C) 9130/2016
Dismissed as infructuous.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
OCTOBER 05, 2016
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