Delhi High Court
Dr. Lokesh Kumar Meena vs Union Of India & Ors on 25 April, 2018
$~45
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 25th April, 2018
+ LPA. /2018
DR. LOKESH KUMAR MEENA ..... Appellant
Through Mr. R.K. Saini, Mr. Sitab Ali
Chaudhary, Mr. Azaruddin
Chaudhary, Advocates for the
appellant along with appellant.
versus
UNION OF INDIA & ORS ..... Respondents
Through Mr. Ripu Daman Bhardwaj,CGSC for
respondent no.1./UOI.
Ms.Biakthansangi Das, Advocate for
Mr. T.Singhdev, Advocate for
respondent no.2/MCI.
Ms. Anita Sahani, Advocate for
respondent no.3/GGSIP University.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J. (ORAL)
1. We may note, at the outset, that this Bench has assembled at 9:00
A.M. today pursuant to the matter having been mentioned before the
Hon‟ble Acting Chief Justice.
2. Registry is directed to register the LPA and the applications.
CM.APPL /2018(Exemption)
3. Exemption allowed, subject to all just exceptions.
4. The application stands disposed of.
LPA. /2018
5. The present appeal is directed against the order passed by the learned
Single Judge dated 24.04.2018 in W.P. (C).4131/2018. The writ
petition of the appellant stands dismissed, which has led to the filing
of the present appeal. The urgency expressed before us is that the
second round of counseling for the Post-Graduate Medical Courses is
scheduled at 10:00 A.M. today.
6. Some necessary facts which are required to be noticed for disposal of
this appeal are as under :-
7. The National Eligibility Entrance Test (NEET) 2018 was conducted
on 07.01.2018 for admission to MD/MS and post-graduate diploma
courses. The appellant had also applied online on 23.01.2018 and
secured 274 marks out of 1200 marks, i.e. 38.20 percentile, which is
less than 40 percentile and, thus, the appellant could not qualify. The
grievance of the appellant is that the respondent no.1, Union of India
has failed to comply with Regulation 9 of the Post-Graduate Medical
Education Regulation 2000, as per which, when sufficient number of
candidates fail to secure the minimum marks as prescribed in the
National Eligibility-cum-Entrance Test, the Central Government in
consultation with the Medical Council of India (MCI) may lower the
minimum marks required.
8. The appellant had filed a writ petition W.P. (C).2287/2018. This writ
petition was disposed of by an order dated 12.03.2018 directing the
respondents to dispose of the representation of the appellant within
two weeks. The appellant then made a representation on 15.03.2018
praying that steps be taken for lowering the minimum percentile prior
to the first counseling, failing which, the ST candidates will not be
able to choose the medical subjects of their choice. Since the
representation was not replied, a second writ petition being W.P.
(C).3144/2018 was filed on 02.04.2018, in which, while issuing
notice, an interim order was passed. This writ petition was dismissed
as infructuous, as in the meanwhile, the representation of the appellant
was rejected by an order dated 03.04.2018. Leave was granted to the
petitioner to challenge the order dated 03.04.2018. The appellant then
filed a third writ petition being W.P.(C).4131/2018, which also stands
dismissed by an order dated 24.04.2018.
9. Since the submissions of the learned counsels for the parties revolve
around Regulation 9 of the Post-Graduate Medical Education
Regulation 2000, we deem it appropriate to reproduce the same, which
reads as under:
"9. Procedure for selection of candidate for Postgraduate
courses shall be as follows:
(1) There shall be a uniform entrance examination to all
medical educational institutions at the Postgraduate level
namely „National Eligibility-cum-Entrance Test‟ for admission
to postgraduate courses in each academic year and shall be
conducted under the overall supervision of the Ministry of
Health & Family Welfare, Government of India.
(2) The "designated authority" to conduct the „National
Eligibility-cum-Entrance Test‟ shall be the National Board of
Examination or any other body/organization so designated by
the Ministry of Health and Family Welfare, Government of
India.
(3) In order to be eligible for admission to Postgraduate
Course for an academic year, it shall be necessary for a
candidate to obtain minimum of marks at 50th percentile in the
„National Eligibility-Cum-Entrance Test for Postgraduate
courses‟ held for the said academic year. However, in respect
of candidates belonging to Scheduled Castes, Scheduled
Tribes, and Other Backward Classes, the minimum marks shall
be at 40th percentile. In respect of candidates with benchmark
disabilities specified under the Rights of Persons with
Disabilities Act, 2016, the minimum marks shall be at 45th
percentile for General Category and 40th percentile for
SC/ST/OBC. The percentile shall be determined on the basis
of highest marks secured in the All India Common merit list in
National Eligibility-cum-Entrance Test for Postgraduate
courses.
Provided when sufficient number of candidates in the
respective categories fail to secure minimum marks as
prescribed in National Eligibility-cum-Entrance Test held for
any academic year for admission to Postgraduate Courses, the
Central Government in consultation with Medical Council of
India may at its discretion lower the minimum marks required
for admission to Post Graduate Course for candidates
belonging to respective categories and marks so lowered by
the Central Government shall be applicable for the academic
year only."
10. Mr. Saini, learned counsel appearing on behalf of the appellant
submits that respondents‟ no.1, Union of India, and respondent no.2
MCI must comply with Regulation 9 at this stage before the first
round of counseling. It is contended by Mr. Saini that the seats are
fixed in both the General Category and the Reserved Category.
Therefore, in case, Regulation 9 is not invoked, a reserved seat would
be filled up at the stage of first counseling and benefit of Regulation 9
would not fall on the petitioner and similarly situated persons. He
submits that in case, the UOI and the MCI wait for the entire
counseling to be completed and invoke Regulation 9 at a later stage,
serious prejudice would be caused to the rights of the petitioner and
similarly situated persons as they would not be able to opt the subjects
of their own choice and would be left with those subjects, which have
not been accepted by persons of all categories. He submits that even
in the examination held in the previous year, although, the UOI
lowered the percentile in terms of Regulation 9, but the MCI had
opposed the same. Mr. Saini submits that the Regulation 9 was
invoked by the UOI by an order dated 24.05.2017 after the counseling
was over.
11. The learned counsels appearing on behalf of the respondents have
opposed this appeal. Mr. Anita Sahani, learned counsel appearing on
behalf of the respondent no.3, GGSIP University submits that the
appellant had applied based on the Prospectus of the University, as per
which, the University was well within its right to merge the seats of
the reserved category, once the candidates of the reserved category did
not meet the minimum eligibility. Ms. Sahani has relied upon
paragraph 7.2 of the Prospectus, in support of her contention that the
appellant had applied with open eyes and was well-aware about the
stand of the University. Relevant portion of which, is reproduced
below:
"7.2 PGMC (CET Code 102)
.....
4. The University follows a 200 point roster system for
allocation of seats. The starting point for counseling for
admissions shall be from the next point where the counseling
ended in the previous year admissions."
12. It is contended by Ms. Sahani that this Prospectus was available with
the appellant and in case he was aggrieved by any of the conditions, he
should have challenged the same prior to participating in the
examination and once having participated in the examination, the
appellant is estopped from laying challenge to paragraph 7.2 of the
Prospectus, more particularly the para, which has been extracted
hereinabove, to which Mr. Saini, learned counsel for the appellant has
denied the same.
13. Ms. Das, learned counsel appearing on behalf of the MCI submits that
the stand of the MCI has been consistent that the Regulation 9, which
is discretionary in nature, should not be applied and the minimum
marks should not be lowered as the same would affect the standard of
Medical Education. She submits that the minimum percentile fixed in
the General Category is 50 and in the reserved category is 40.
However, the 50 percentile translates to barely 26.7% and for the
reserved category to 23.4% for the present year. She submits that
lowering the marks further would have serious ill-effects on the
Medical Education.
14. Mr. Bhardwaj, learned counsel appearing on behalf of the UOI
submits that the object of Regulation 9, broadly is to ensure that no
seat remains unfilled, which is one of the reasons why in the preceding
year, the percentile was dropped as late in the month of May, 2017.
Counsel further contends that the candidate who does not even meet
the eligibility requirement of 40 percentile, which is 23.4%, cannot
seek a subject of his own choice, which is the prime objective of the
appellant approaching this Court. Learned counsels appearing on
behalf of the respondents submit that the counseling for All India has
already been completed and the seats have been filled up. It is further
submitted that the candidate who does not secure even 40 percentile,
which is 23.4% cannot invoke the extraordinary jurisdiction of this
Court and seek a direction to the respondents to exercise their
discretion in terms of Regulation 9 of the Post-Graduate Medical
Education Regulation 2000. It is submitted that after all the seats are
filled up, only then the cause of action would arise in favour of the
appellant to seek a direction for exercising Regulation 9.
15. We have heard the learned counsels for the parties, who have taken us
to the relevant documents which have been annexed along with the
writ petition and the appeal.
16. Reading of the proviso to Regulation 9 would show that the first stage
of invocation of the proviso would arise, when sufficient numbers of
candidates in their respective categories fail to secure the minimum
marks. Thereafter, the Regulation provides that the Central
Government in consultation with the MCI may, at its discretion, lower
the minimum marks required for admission to the Post-Graduate
Courses. We find force in the submission made by the learned
counsels for the respondents that the aim, purpose and objective of
Regulation 9 of the Post-Graduate Medical Education Regulation 2000
is only to ensure that no seats remain unfilled for the NEET
Examination. In case the interpretation of Regulation 9 is to be
accepted in the manner, in which it has been strenuously urged by Mr.
Saini, learned counsel appearing on behalf of the appellant, it would
mean that in case a candidate who has not even cleared the eligibility
criteria and not even secured 23.4%, would automatically become
eligible for a subject, which any other candidate who is eligible and
has secured a higher percentile would be deprived of. Surely, this is
not the objective of Regulation 9 of the Post-Graduate Medical
Education Regulation 2000. In our view, the appellant cannot
complain of prejudice because the appellant is not even an eligible
candidate, he can neither claim prejudice for the reason that as in the
past in case, all the seats of the NEET Examination are not filled up,
he along with other similarly situated persons who have not even
secured 23.4%, would still have a chance to claim a seat as per
Regulation 9, which we have extracted in paragraph 8 aforegoing.
Even otherwise, we are of the view that the Court cannot substitute its
opinion for the discretion, which has been exercised by the UOI and
the MCI, except in case where the discretion is exercised or not
exercised in a arbitrary or unreasonable manner, which in the present
case, we do not feel which would require interference. The
explanation rendered by the learned counsels for the respondents, in
our view, is reasonable, fair and just.
17. Thus, we find no reasons to interfere in the order dated 24.04.2018
passed by the learned Single Judge. The benefits of Regulation 9 of
the Post-Graduate Medical Education Regulation 2000 will be
extended to the appellant, in case the UOI in consultation with the
MCI decide to exercise their discretion in conformity with Regulation
9.
18. The appeal is dismissed accordingly.
CM.APPL /2018(direction)
19. The application also stands dismissed in view of the order passed in
the appeal.
G.S. SISTANI, J.
SANGITA DHINGRA SEHGAL, J.
APRIL 25, 2018
pst
