Delhi High Court
Digant Jain vs Guru Gobind Singh Indraprastha ... on 19 September, 2017
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on:13.09.2017
Judgment delivered on:19.09.2017
+ W.P.(C) 7505/2017 and C.M Nos. 30972/2017 and 30973/2017
DIGANT JAIN
..... Petitioner
Through: Mr Anshu Bhanot and Mr Anuj
Mindha, Advs
Versus
GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY & ORS
..... Respondents
Through Ms. Ekta Sikri and Mr. Jasbir Bidhuri,
Advs for R-1 & R-2..
Mr.T. Singhdev, Ms. Puja Sarkar,
Ms. Biakthansangi Das and Mr.Tarun
Verma, Advs for MCI/R-3.
Mr KirtimanSingh, CGSC with
Mr Prateek Dhanda and Mr.
Vikramaditya Singh, Advs for R- 4,
R-6 & R-7
Mr. Siddharth Dutta, Adv for R-8.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
1 The petitioner is a thalassaemia patient. He is entitled to a reservation
under the Rights of Persons with Disabilities Act, 2016 (hereinafter referred
to as the Act of 2016). This Act was promulgated on 28.12.2016 and it was
notified on 19.04.2017. The earlier Act dealing with disabilities had been
repealed. Under the new Act, the earlier disabilities which were 7 in number
were increased and enlarged to 21. Thalassemia was one such disability
which was recognized by the new Act. This Act also increased the
reservation of such category of persons (persons with disabilities -PWD)
from 3% to 5%.
2 In March, 2017, the petitioner had filled in his form for appearing in
the National Eligibility-cum-Entrance Test, 2017 (NEET) under the general
category conducted at all India level. On 24.04.2017, petitioner was issued
an admit card. His result was announced on 23.06.2017. On the petitioner
learning about this new Act (notified in April, 2017), the petitioner on
05.07.2017 filed an appropriate application before the Competent
Authorities/respondents to change his category from general to PWD which
was accepted by the respondents on 06.07.2017 and his status from general
category was converted to PWD category. He was accordingly put in the list
of PWD category on the website of the respondent university. The petitioner
had admittedly participated in the first round of counseling which had taken
place on 23.07.2017. Since his name did not appear after the first round of
counseling, he had been permitted to appear in the second round of
counseling which was conducted on 12.08.2017. The fact that the petitioner
had appeared on 12.08.2017 before respondent No.1 for a session of
counseling is admitted. Even after the second round of counseling, his name
did not appear. Contention of the petitioner is that thereafter the third round
of counseling which was the Mop Up round of counseling took place on
27.08.2014 wherein the petitioner again appeared before the respondent
No.1. This was during the pendency of the writ petition which had been
filed before this Court on 26.08.2017.
3 Learned counsel for the petitioner submits that the very fact that
respondent No.1 had granted permission to the petitioner to participate in all
the aforenoted counselings, the petitioner was under the bonafide impression
that his case was being considered favourably by respondent No.1 for
admission in the PWD category. He was shocked to learn that his name had
not figured in the PWD category at all. Submission being that it was well
within the knowledge of respondent No.1 that the status of the petitioner
from original the general category to PWD category had been changed on
16.07.2017. This fact was well known to respondent No.1. Respondent No.1
thereafter not considering the case of the petitioner under the PWD quota
when the petitioner had a good case on merits was all for the fault of the
respondent. The petitioner being a thalassaemia patient which is a disability
covered by the Act of 2016, cannot be denied an admission.
4 Respondent No.1 has filed a counter affidavit. Pursuant to the
directions of this Court on 07.09.2017, an additional affidavit has also been
filed by respondent No.1. The stand of respondent No.1 is that the original
3% quota in the PWD category has been enhanced to 5% quota and the
details of the same have been annexed along with the additional affidavit.
These details have been perused. Additional submission of respondent No.1
is that although thalassaemia is now recognized as a disability under the new
Act of 2016 yet in the absence of the MCI (respondent No.3) giving a go-
ahead signal to respondent No.1 to treat a thalassaemia patient as being
entitled for admission to the MBBS course, the hands of respondent No.1 are
tied. Respondent No.1 had written several emails to respondent No.3/MCI
dated 30.07.2017, 04.08.2017, 10.08.2017, 14.08.2017 & 22.08.2017
seeking guidance of respondent No.3 qua the status of the petitioner but no
response having been received from respondent No.3 on this count,
respondent No.1 had no other option but to convert the unfilled seats in the
PWD category to the general category. Submission is that as on date, all
seats stand filled. The petitioner has even otherwise come very late to the
Court. Attention has been drawn to the circular of respondent No.1 dated
09.08.2017. It is pointed out that on 09.08.2017, it was notified that all seats
which remained vacant in the PWD category were reverted back to the
parent category. This was after the first round of counseling. This fact was
well known to the petitioner and the petitioner admits that on 13.08.2017 he
was aware of this status; he has chosen to file this writ petition only on
26.08.2017 which is after a huge delay as a back to back fight the fight for
these seats is always on and the moment they are notified to be vacant, they
are filled in by those students who are already in queue. It is reiterated that as
on date, no seat is available with the respondent university. The case of the
petitioner must fail.
5 On behalf of respondent No.3/MCI it is pointed out that the
timeline/schedule which has been laid down by the Supreme Court for
admission to an MBBS course has to be adhered to; the last date was
31.08.2017; case of no person for the purpose of admission in the MBBS
course can be extended after the due date of 31.08.2017. Respondent No.3
adopts the arguments of respondent No.1; it is pointed out that the petitioner
has come to the Court late; he was well aware of the fact that the unfilled
PWD seats had been reverted to the parent cadre; this was notified on
09.08.2017 on the website of respondent No.1. Respondent No.1 rightly
could not admit a person with a disability of thalassaemia as Regulations of
respondent No.3 were yet to come into force. It is respondent No.3 alone
which would be in a position to decide as to which particular disability is
eligible admission to an MBBS course. Additionally, it is pointed out that
the Committee of respondent No.2 to regulate these admissions has been set
up in May, 2017 (pursuant to the notification of the Act of 2016 in April
2017) and two meetings of the said Committee have been held in the month
of June, 2017 and July, 2017. Admittedly after July, 2017, no meeting of the
Committee has been held. A specific query on this count has been put to
learned counsel for respondent No.3 who has answered this submission in
the positive.
6 This Court notes that the petitioner has placed on record a judgment of
the Apex Court delivered on 18.08.2017 W.P. (C) No. 620/2017 titled Sruchi
Rathore Vs. Union of India & Others wherein a candidate suffering from a
thalassaemic disability had been held entitled to admission in the MBBS
course. This was a case where the candidate had not been subjected to
counseling; the Apex Court while directing admission of the candidates with
a thalassaemic disability in the MBBS course had directed the respondent
University to complete the counseling within a week from that date. Learned
counsel for the petitioner points out that the case of the petitioner stands on a
better footing as in his case, counseling already stands completed.
7 Arguments have been heard.
8 The petitioner had filled in his form for appearing in the NEET
examination in the general category. This application had been filled in
March, 2017. The Act of 2016 although promulgated in December, 2016 had
been notified only on 19.04.2017. On the petitioner learning about the same,
he had made an application to the respondent university on 05.07.2017; his
status of a general category had been converted to a PWD category on
16.07.2017. This is a matter of record. The fact that respondent No.1/Guru
Gobind Singh Indraprastha University/Delhi University had a joint
counseling session for admission to their respective colleges is also not in
dispute. Respondent No.1 has four colleges with MBBS seats and Delhi
University has three colleges with MBBS seats. The additional affidavit
filed by respondent No.1 reflects the status of the seats available with
respondent No.1.
9 This Court is really concerned with the status of Respondent No. 1 as
the prayer made by the petitioner is qua the unfilled seats in respondent No.1
university. A perusal of this additional affidavit shows that respondent No. 1
has increased the initial reservation from 3% to 5%. Seats in the four
colleges are as under:-
(I) In the Vardhman Mahavir Medical College 1
and Safdarjung Hospital, the total PH seat
was 1; it remained unfilled,
(II) In the North Delhi Municipal Corporation 1
Medical College and Hindu Rao Hospital,
there was 1 seat which remain unfilled,
(III) In the Dr. Baba Saheb Ambedkar Medical 1
College and Hospital, there were two seats
of which one remain unfilled;
10 The status of Army College of Medical Science need not be gone into
as that College has reservation status for Army candidates; the petitioner is
not one such candidate.
11 Thus as on 24.07.2017, there were three seats which were yet to be
filled in the PWD/PH category which was after the first round of counseling.
The petitioner had admittedly participated in this first round of counseling on
23.07.2017.
12 On 09.08.2017, a Notification was issued by respondent No.1 wherein
it was notified as under:-
"If the seats of sub-categories (i.e. Defence and PWD/PH) remain
vacant, then they shall first be reverted to the parent category."
13 This Notification states that if the seats of PWD/PH/Defence
categories are vacant they shall be reverted to the parent category. A reading
of this Notification shows that as on 09.08.2017, these seats were yet not
reverted from the PWD/PH category to the parent category.
14 The second round of counseling was effected on 12.08.2017. The
petitioner had admittedly participated. The status of the MBBS seats on
12.08.2017 (as per the additional affidavit of respondent No.1) is also
reflected in the said additional affidavit. In all of the aforenoted 3 colleges
i.e. (a) Vardhman Mahavir Medical College and Safdarjung Hospital, (b)
North Delhi Municipal Corporation Medical College and (c) Dr. Baba Saheb
Ambedkar Medical College and Hospital, no seats were shown in the
PWD/PH category. The submission of respondent No.1 being reiterated that
the unfilled PWD/PH category had reverted to the parent category in terms
of the Notification dated 09.08.2017 on 09.08.2017 itself.
15 The Admitted fact however is that the petitioner had participated not
only in the first round of counseling but also in the second round of
counseling. He had appeared before respondent No.1 on 12.08.2017. He
rightly points out that he was under the bonafide impression that his case was
being considered favourably and that is why he was permitted to appear in
the second round of counseling. If there were no seats available in the
PWD/PH category on 12.08.2017 and these seats had already stood reverted
to the general category on 09.08.2017 itself, then why the petitioner (a
PWD/PH candidate) was permitted to participate on 12.08.2017 in the
second round of counseling is a submission which carries force, for which
this Court is of the view that respondent No.1 has no answer.
16 Submission of respondent No.1 is that respondent No.1 was writing to
respondent No.3/MCI repeatedly asking them to communicate and inform
them whether a thalassaemia patient was covered as a disability entitling
such a candidate to admission in the MBBS course. The letters written by
respondent No.1 to respondent No.3 on this count are dated 30.07.2017,
04.08.2017, 10.08.2017, 14.08.2017 & 22.08.2017. It is thus clear that even
after the second round of counseling (12.08.2017), respondent No.1 was not
clear about the status of the petitioner and that is why even after the
participation of the petitioner in the second round of counseling on
12.08.2017, he continued to communicate with respondent No.3 (emails
dated 14.08.2017 & 22.08.2017) seeking information about the status of the
present petitioner. Petitioner is absolutely right in his submission had all
along he was given the impression by respondent No.1 that his case was
being considered for the purpose of admission in University.
17 Record also shows that after the Act of 2016 had been notified in
April, 2017, the Regulatory Committee of respondent No.3 had been set up
in May, 2017 for the purpose of those disabilities which would entitle a
candidate having the same disabilities to be qualified/eligible for admission
to an MBBS course. The fact that this Committee has met two times after its
creation i.e. in the month of June and July, 2017 and no meeting had taken
place after that is also noted. This Court also notes that in the case of Sruchi
Rathore a similarly placed candidate who was suffering from thalassaemia
and seeking admission in the PWD quota (pursuant to his NEET
examination) had been granted this permission; this was a case where the
said candidate had not even participated in the counseling but the Court had
directed that the counseling shall be carried out within 1 week and the
petitioner candidate would be allotted a seat. The defence of the MCI raised
before this Court was obviously the same defence which was raised before
the Apex Court; as has been pointed out before this Court, the MCI was yet
to come up the Regulations as to whether a thalassaemic patient can be
considered for admission to an MBBS course or not. This Court notes that a
candidate with the same disability as that of the petitioner already having
been granted permission to be admitted in the MBBS course; this defence of
the respondent has no force.
18 The Petitioner was permitted to participate in the second round of
counseling on 12.08.2017 and again in the mop up counseling on 26.08.2017
he was given permission for participation. Respondent No.1was duly aware
that the petitioner candidate was a PWD category; submission now made
before this Court that these seats of the PWD category stood converted to the
general category on 09.08.2017 is a submission which is not correct. The
Notification of 09.08.2017 states that the seats if vacant in the PWD/PH
category would revert back to their parent category. The status of the
PWD/PH category had not changed. The additional affidavit of respondent
No.1 reflecting the status of seats in their medical colleges on 12.08.2017
reflected no category of PWD/PH. Why and how the petitioner was
permitted participation in this counseling when there was no such category
available with them, is not answered. This stand of Respondent No. 1 also
appears to be incorrect for the reason that even after 12.08.2017, respondent
No.1 was constantly writing to respondent No.3/MCI (emails dated
14.08.2017 & 22.08.2017) asking them about the status of the present
candidate. The judgment of the Apex Court Sruchi Rathore had also been
brought to the notice of respondent No.3. At the cost of repetition, the
Supreme Court had thought it fit that a candidate suffering from thalassaemia
is eligible to get admitted in the MBBS course. A Notification dated
23.08.2017 has been placed on record by the petitioner which shows the
schedule of mop up counseling which again in para 11 reflects the status as
under:-
"If the seats of sub-categories (i.e. Defence and PWD/PH) remain
vacant, then they shall first be reverted to the parent category."
19 The fact that the petitioner had participated in the mop up counseling
is also admitted.
20 If there were no seats available in the PWD/PH category, the question
of putting up this Notification on 23.08.2017 by respondent No.1 again did
not arise. There is no explanation by respondent No.1 on this count.
21 Another objection raised by respondent No.1 is qua the timeline and
the schedule permitted by the Apex Court for admission to an MBBS course;
last date being 31.08.2017; additional submission being that this date has
crossed over. This Court notes this submission. This Court also notes that
the present petition has been filed on 26.08.2017. The matter being lis-
pendens, the submission of the petitioner that the cut-off date of 31.08.2017
would apply is not the correct position; the petitioner already having been
approached this Court before 31.08.2017 i.e. on 26.08.2017 and if he is
successful in showing Court a rightful right in his favour, he would, in the
view of this Court be entitled to a favourable order. The judgment relied
upon by the learned counsel for respondents on this score reported as (2014)
10 SCC 521 Chandigarh Administration and Another Vs. Jasmine Kaur and
Others would not apply to the instant case. That was a case where the
candidate having knowledge about the contents of the prospectus in April,
2013 had sought a clarification qua the same three months later i.e. July
2013. She had taken no steps in that three month period. The facts of the
instant case are different. Reliance by the learned counsel for respondent
No.3 upon (2001) 10 SCC 264 K.S. Bhoir Vs. State of Maharashtra and
Others on an argument that increase in the seats in the professional colleges
cannot be done unless and until it is established that the professional college
has professional expertise to accommodate an increased strength would also
not apply to the facts of the instant case. In that case, there was an intake of
350 students who were to be inducted. The present case is a case of single
candidate who alone has been deprived of his right of admission in the PWD
category for no fault of his.
22 To sum up, it is clear that the status of the petitioner from general
category to the PWD category stood changed on 16.07.2017. The first round
of counseling was held after that date i.e. 24.07.2017. He was not declared
unsuccessful. He was again called on 12.08.2017 for second round of
counseling in which again he was successful. The fact that he was under the
bonafide impression that his case was being considered favourably after
these rounds of counseling was his rightful expectation of the candidate that
he was being considered in the PWD category. The submission of
respondent No.1 that there was no category of PWD at the time of the second
round of counseling is incorrect for the reason that if this was the status, why
in the first place, the petitioner was permitted to participate in the second
round of counsel and secondly why respondent No.1 continued to write
emails to respondent No.3 seeking a clarification about the status of the
petitioner (dated 14.08.2017 & 22.08.2017) goes unexplained. The fact that
the petitioner had also participated in the mop up counseling held on
28.08.2017 is also not in dispute. The mop up counseling schedule was
notified on 23.08.2017 where again it had been mentioned by respondent
No.1 that the seats of PWD/PH categories, if vacant would revert to their
parent category meaning thereby that at that stage also respondent No.1 had
been given the impression that there were seats available in the PWD/PH
category.
23 The petitioner is entitled to the relief prayed for. He be granted
admission in the MBBS course by respondent No. 1 in any of the three
colleges of respondent No.1.
24 Petition allowed and disposed of in the above terms.
25 Order dasti under signatures of the Court Master
INDERMEET KAUR, J
SEPTEMBER 19, 2017
A
