Dr. Akshee Batra vs Union Of India & Ors.
2020 Latest Caselaw 2519 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Date of Decision: 28.08.2020

+     W.P.(C) 5527/2020 and CM Nos. 19901-19903/2020

      DR. AKSHEE BATRA                         ..... Petitioner
                   Through    Mr.Sudhir Nandrajog, Sr.Adv. with
                   Mr.Amit Sahni and Ms.Sangeeta Bhalla, Advs.

                         versus

      UNION OF INDIA & ORS.                     ..... Respondents
                    Through     Ms.Archana Gaur, Sr.Panel Counsel
                    with Ms.Ridhima Gaur, Govt. Pleader, for R-1 &
                    2/UOI.
                    Mr.T.Singhdev, Standing Counsel for R-3/MCI.
                    Mr.Mohinder J.S.Rupal, Standing Counsel with
                    Mr.Hardik Rupal, Adv. for R-4/University of
                    Delhi.
                    Mr.Tushar Sannu and Ms.Ankita Bhadouriya,
                    Advs. for R-5/IHBAS.
                    Ms.Amrita Patel, R-6 in person.

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (Oral)

1. This matter came up for hearing on 28.08.2020 when this court passed the following order:-

"1. This hearing is conducted through video conferencing.

2. The counselling held by respondent No.4/University of Delhi for the seat of MD (Psychiatry) in Respondent No.5/IHBAS on 30.07.2020 is set aside.

3. Respondent No.4/University of Delhi will conduct a fresh round of counselling for the said seat of MD(Psychiatry) on Monday i.e. 31.08.2020 after advertising the same on its website.

4. As the time is short the above directions are given without a detailed order. Reasons for the above directions will follow.

5. Petition is disposed of as above. All pending applications, if any, are also disposed of."

2. The reasons for the aforesaid order were to be given subsequently. By this judgment, I am now recording the reasons for the above noted directions.

3. This writ petition is filed by the petitioner seeking an appropriate direction to set aside Annexure P-12 i.e. a letter dated 30.07.2020 issued by University of Delhi allotting a seat in the Stray Vacancy Round of Counselling held on 30.07.2020 for PG (MD Psychiatry) to respondent No.6 as the same was issued in an unfair and biased manner.

4. The case of the petitioner is that she appeared in the National Eligibility-cum-Entrance Test (NEET) conducted by respondent No. 1 through National Board of Examination (NBE) for admission to PG courses and secured an All India Rank of 18786. The petitioner complied with the directions of the authorities and got herself registered with respondent No. 2. In the first round of counselling, the petitioner was allotted a seat in MD (Psychiatry) at Kasturba Medical College, Manipal University. She however locked her choice for the ongoing counselling for Round 2. She also locked her choice for the Mop-Up Round. However, in the said Mop-Up Round, no

seat for MD (Psychiatry) was available with respondent No. 5.

5. It is further pleaded that respondent No. 4, the Faculty of Science, Delhi University, issued a notice on 28.07.2020 regarding PG (MD/MS/MDS) Admission 2020 Stray Vacancy Counselling. The candidates were advised to check regularly website of respondents No. 1 and

2. Respondent No. 4 also issued a list of eligible candidates for Delhi University Stray PG Counselling 2020 wherein the petitioner (All India Rank 18786) and respondent No. 6 (All India Rank 29965) figured at serial No. 75 and serial No. 141 respectively. The seat matrix released by respondent No. 4 for Delhi University Quota for the said Stray Vacancy Round did not mention any vacancy for MD (Psychiatry) at respondent No.

5.

6. In contrast, it is pleaded that RML Hospital which was authorised to conduct counselling on behalf of IP University had issued a notice on 29.07.2020, a day before the counselling indicating availability of two seats at respective hospitals.

7. The grievance of the petitioner is that respondents No. 4 and 5 have admitted respondent No. 6 for the seat of MD (Psychiatry) on 30.07.2020 i.e. on the same day when the counselling was done without issuing any notice about the vacancy position to any of the students. It is pleaded that respondents No. 4 and 5 have acted in an arbitrary and unfair manner while denying fair and transparent opportunity to all eligible candidates without even waiting for the last day i.e. 31.07.2020 as extended by respondent No.

3. It is further pointed out that the Supreme Court has extended the time of admission to PG Medical Courses and the Director General of Health Services has issued a notification dated 31.07.2020 whereby the last date of

admission has been extended till 31.08.2020.

8. Hence, it has been strongly urged that the action of respondents No. 1 to 5 is grossly arbitrary, illegal and manifestly suffers from arbitrariness as without issuing any notice about availability of the seat in question, namely, MD (Psychiatry) in respondent No. 5, the same has been mischievously allotted to respondent No. 6 whose standing on the merit was far below than of the petitioner.

9. University of Delhi have filed a short counter-affidavit. In the counter-affidavit, it is stated that the list of candidates who were supposed to attend the counselling in question was provided by MCC to Delhi University on 28.07.2020. The vacant seat position for the Stray Vacancy Round was published by MCC on its website. It is further pleaded that there was no seat in MD (Psychiatry) in the list provided but on 28.07.2020 at 2.42 P.M. MCC conveyed one seat in MD (Psychiatry) at respondent No. 5 due to surrender of the seat. Accordingly, it is stated that the vacant seat was allotted to the candidate who appeared for the counselling in the Stray Vacancy Round in order of merit. It is stated that the candidates have to keep a watch on the vacancy position in each counselling. The petitioner ought to have been vigilant which she has not been and there is no fault of University of Delhi. It is reiterated that MCC puts the position of vacant seats on its website as the uploaded seat position is conveyed directly by respective colleges to MCC.

10. Respondents No. 1 and 2 have also filed their counter-affidavit. It is stated that in terms of the direction of the Supreme Court in the matter of Anand S. Biji vs. State of Kerala & Ors., the Director General of Health Services has been entrusted with the responsibility to conduct online

counselling for allotment of postgraduate seats to the eligible and qualified candidates participating government medical/dental colleges of the country under 50% quota every year. It is further stated that the role of MCC of DGHS is limited to allotment of seats through three rounds of online counselling being conducted, namely, Round 1 and Round 2 of All India Quota and the Mop UP Round which is conducted for the deemed and central universities/institutions. The seats remaining after the Mop Up Round are then reverted back to the respective deemed and central universities for Stray Vacancy Round which is conducted by the respective central and deemed universities at their level as per their rules and regulations. The seats were reverted back by MCC on 27.07.2020. It is reiterated that MCC has no role to play in conduct/allotment of seats through counselling and preparation of roster for Stray Vacancy Round.

11. It is further stated that on 25.07.2020, respondent No. 5-IHBAS informed respondent No. 1 that a candidate-Dr. Gautam Kumar who was allotted a seat in Round 2 of counselling has expressed his wiliness to surrender his seat. When respondent No. 5 sent the said communication, the allotment and result of the Mop UP round had already been announced and only the reporting stage of the round was going on. Hence, the seat could not be taken up in the Mop Up Round. On 28.07.2020, the MCC informed Delhi University that the seat of Dr. Gautam Kumar has been cancelled and the seat is now included in the Stray Vacancy Round of DU couns elling. The Stray Vacancy was scheduled to be held from 28.07.2020 to 31.07.2020.

12. Hence, it is the stand of the said respondents No. 1 and 2 that there is no relief sought by the petitioner from the answering respondents as the

petitioner has challenged allotment in the Stray Vacancy Round which is not conducted by respondent No. 1 and 2 but is conducted by the college authorities.

13. I may only note that respondents No. 1 and 2 despite several opportunities did not file their counter-affidavit. However, learned counsel for respondents No. 1 and 2 on 28.08.2020 when the hearing was held submitted that the counter-affidavit is ready. The counter-affidavit was shown to the court by being flashed on the screen. A copy of the same has now been received on e-mail.

14. Respondent No.6 has also filed her counter affidavit. She has pointed out in the counter affidavit that on 28.07.2020, seat matrix for the Stray Vacancy Round was released and eligible candidates were directed to appear for the counselling in the Stray Round for admission in MD course till 31.07.2020. It is the case of respondent No.6 that the petitioner and other candidates were directed to be physically present for the said Counselling at 09.00 AM at the Conference Centre, University of Delhi/respondent No.4. The candidates had to sign the attendance and fill up a form provided by respondent No.4 at the time of counselling and document verification. After the candidates join the counselling proceedings, it is stated that information is given to the candidates about available vacancies of different courses of MD and diploma seats. If a candidate accepts the said available course, then it is allotted in favour of the said candidate. It is pleaded that the petitioner has not filed any document to show her appearance before the Counselling Committee. It is also not her case that she appeared before the Counselling Committee for any such purpose and therefore, the entire allegations in the present petition are false and concocted. The petitioner failed to show up

before the Counselling Committee whereas the respondent No.6 appeared before the Counselling C0ommittee along with the required documents and was given the said admission. She has taken admission in a bona fide manner and has joined the classes of Psychiatry course on 31.07.2020 and is still pursuing the said course.

15. I have heard learned senior counsel for the petitioner, learned counsel for respondent No.1 and 2, respondent Nos. 4 and 5, respectively and respondent No.6 in person.

16. Learned senior counsel for the petitioner has vehemently urged that University of Delhi at no stage advertised the seat in question, namely, MD (Psychiatry) at respondent No.5/College. Reliance is placed on a notice dated 28.07.2020 issued by respondent No.4/University of Delhi which announces the Stray Vacancy Counselling for PG 2020. The notice communicates the venue of the Couns elling, namely, Conference Centre, University of Delhi. Reliance is placed on para B of this notice which states that the vacancy position for the Stray Vacancy Counselling will be available on the faculty website and the candidates are also advised to check regularly website of Medical Counselling Committee, Ministry of Health and Family Welfare, Government of India. It is strenuously pleaded that neither the University of Delhi nor did respondent No.1 and 2, Medical Counselling Committee advertise the vacant seat for the Stray Vacancy Round for MD (Psychiatry). It is also pleaded that in contrast, Dr.Ram Manohar Lohiya Hospital of IP University had on 29.07.2020 issued a public notice giving the list of seats which are available in the Stray Round Counselling. Two seats that were mentioned included MD (Paediatrics) and MD (Medicine). Hence, it is pleaded that the aforesaid action of the

respondent dated 30.07.2020 giving the seat in question to respondent No.6 should be struck down by this court and a fresh counselling be done immediately for the said seat. Reliance is placed on the judgment of the Supreme Court in the case of Priya Gupta vs. State of Chhattisgarh & Ors., AIR 2012 SC 2413

17. Learned counsel appearing for respondent No.4/University of Delhi has stressed that advertising the vacancy position for the seats in question is the responsibility of the Medical Counselling Committee and that Delhi University does not advertise the vacancy position. It is stated that the petitioner did not come for the counselling when her name was called out. Hence, the seat was given to respondent No.6. He further states that 112 seats were released for the said round of counselling and Delhi University did not issue any advertisement for the same.

18. Learned counsel for respondents No.1 and 2 has stressed that MCC does not take any steps for the Stray Round counselling. It is the responsibility of the concerned college/university to take appropriate steps as per its rules to advertise the seats in question. It is stated that Delhi University should have advertised the vacancy position and it was not the responsibility of MCC. Prof. Srinivasan from MCC was also personally present and has reiterated the above position.

19. I may note that the matter was heard in length. It was in fact also passed over as learned counsel for respondent No. 1 and 2 was finding it difficult to upload on the screen the contents of the counter affidavit. When the court had dictated the operative portion of the order at around 05.00PM, respondent No.6 in person submitted that she is being penalised for no faults of her. She pleaded that her counsel is unable to log in due to technical

reasons. However, the counsel did not at any stage inform this issue to the Court Master on phone which is provided in the cause list. She has reiterated that she has already joined the course on 31.07.2020 and is regularly attending classes and her act was bona fide.

20. I may first have a look at the notice issued by Delhi University on 28.07.2020. Para B of the said notice states as follows:-

"Eligibility for Mop-up round of counselling and tentative vacancy position: List of eligible candidates which was provided by Medical Counseling Committee, Ministry of Health & Family Welfare, Government of India for Stray Vacancy round counselling and tentative vacancy position for Stray Vacancy counseling will be available on faculty website www.fmsc.ac.in. ln this regard, candidates are advised to check regularly website of Medical Counseling Committee, Ministry of Health & Family Welfare, Government of lndia (www.mcc.nic.in)

...."

21. Clearly, as per the said notice, the list of eligible candidates has been provided by MCC. The tentative vacancy position for the Stray Vacancy Counselling was to be available at the website of Delhi University. The candidates have also been advised to check up the website of Medical Counselling Committee, Ministry of Health and Family Welfare. The site details of both are stated. Admittedly, respondent No.4 Delhi University and respondents No. 1 and 2 confirm that neither Delhi University nor Medical Counselling Committee have advertised the vacancy position for the Stray Vacancy Round. Delhi University in its counter-affidavit categorically states that the vacant seat position for Stray Vacancy Round was published by MCC on its website. Respondents No. 1 and 2 in their counter-affidavit

categorically hold that the Mop UP round is conducted by the concerned college/university and that they have no say in the same. In fact, learned counsel for respondents No. 1 and 2 had clearly stated that they have not advertised the vacancy position and it was for Delhi University to have done the same.

22. The fact that it was not the responsibility of MCC to advertise the vacancy position for the Stray Round Counselling is also apparent from the act of RML Hospital who have on 29.07.2020 issued a circular advertising the vacancies available for the Stray Round of Counselling.

23. What follows from the facts above is that despite the public notice issued by University of Delhi on 28.07.2020, they have not advertised the vacancy position for the Stray Round of Counselling. The procedure followed, namely, of calling out the names at the time of counselling and allotting the same to candidates present was wholly contrary to the procedure stated in their own notice dated 28.07.2020.

Respondent No. 6 in her counter-affidavit strongly urged that the candidates had to be physically present on the stipulated date for the Stray Round Counselling at the centre and vacant seat were announced there. However, a reading of the notice dated 28.07.2020 issued by University of Delhi does not show any such stipulation in the notice. Such a procedure as adopted by respondent Delhi University cannot be accepted.

24. In the above context, reference may be had to the judgment of the Supreme Court in the case of Priya Gupta vs. State of Chhattisgarh & Ors.(supra). Relevant para of the said judgment reads as follows:-

"30. Thus, the need of the hour is that binding dicta be prescribed and statutory regulations be enforced, so that all

concerned are mandatorily required to implement the time schedule in its true spirit and substance. It is difficult and not even advisable to keep some windows open to meet a particular situation of exception, as it may pose impediments to the smooth implementation of laws and defeat the very object of the scheme. These schedules have been prescribed upon serious consideration by all concerned. They are to be applied stricto sensu and cannot be moulded to suit the convenience of some economic or other interest of any institution, especially, in a manner that is bound to result in compromise of the abovestated principles. Keeping in view the contemptuous conduct of the relevant stakeholders, their cannonade on the rule of merit compels us to state, with precision and esemplastically, the action that is necessary to ameliorate the process of selection. Thus, we issue the following directions in rem for their strict compliance, without demur and default, by all concerned:

xxx

(viii) No college may grant admissions without duly advertising the vacancies available and by publicising the same through the internet, newspaper, on the notice board of the respective feeder schools and colleges, etc. Every effort has to be made by all concerned to ensure that the admissions are given on merit and after due publicity and not in a manner which is ex facie arbitrary and casts the shadow of favouritism."

25. Clearly, in view of the above, it was mandatory on the part of respondent No. 4 to have duly advertised the seat in question. This stipulation was clearly expressed in the notice dated 28.07.2020. Admittedly, no such advertisement about the seat vacancy has been put either on the website or in any newspaper. This court has no option but to set aside the Stray Vacancy Counselling done for the seat of MD (Psychiatry) being arbitrary and illegal. It is also contrary to stated procedure as advertised. The impugned letter dated 30.07.2020, Annexure P-12 is set

aside. Respondents No. 4 and 5 will carry out the necessary counselling as per prescribed procedure for the said seat for the Stray Round on 31.08.2020 after due publication of the details of the availability of the said seat and the mechanism for carrying out the counselling process on its website.

26. One issue that survives, namely, as to whether this court can protect respondent No. 6 in any manner. She no doubt had bonafidely physically appeared in the counselling and was allotted a seat on 30.07.2020. The said allotment now stands cancelled. The grievance of respondent No. 6 is that had she not been selected for this seat in the Stray Round Counselling, she could have taken admission in some other course of her choice. She states that she has to suffer for no fault of hers. It is settled position of law that this court in exercise powers under Article 226 of the Constitution can mould the relief in a manner to do complete justice.

27. Reference in this context may be had to the judgment of the Supreme Court in the case of Air India Statutory Corporation and Ors. Vs. United Labour Union & Ors., (1997) 9 SCC 344, wherein the court held as follows:-

"59. The Founding Fathers placed no limitation or fetters on the power of the High Court under Article 226 of the Constitution except self-imposed limitations. The arm of the Court is long enough to reach injustice wherever it is found. The Court as sentinel on the qui vive is to mete out justice in given facts. On finding that either the workmen were engaged in violation of the provisions of the Act or were continued as contract labour, despite prohibition of the contract labour under Section 10(1), the High Court has, by judicial review as the basic structure, a constitutional duty to enforce the law by appropriate directions. The right to judicial review is now a basic structure of the Constitution by a catena of decisions of this Court starting from Indira Nehru Gandhi v. Raj Narain [1975 Supp

SCC 1 : AIR 1975 SC 2299] to Bommai case [(1994) 3 SCC 1]. It would, therefore, be necessary that instead of leaving the workmen in the lurch, the Court properly moulds the relief and grants the same in accordance with law."

28. Keeping in view the said legal position and the fact that respondent No. 6 should not suffer for a bona fide act done by her, appropriate directions need to be passed.

29. Learned counsel for respondent No. 4 University had informed the court that in the Stray Round of Vacancy, all the seats that were available had not been taken up. One seat in MD Pathology has also fallen vacant which is presently available. Respondent No. 4 may permit respondent No. 6 to choose any one of the seats which are presently available and vacant after conclusion of the Stray Round Counselling. If for some reason, respondent No. 6 does not choose any of the seats, respondents No. 5 College shall refund the entire fees paid by respondent No. 6 to her.

30. The petitioner is disposed of with the above directions. Pending applications also stands disposed of.

JAYANT NATH, J AUGUST 28, 2020/rb Corrected and released on 30.08.2020