Delhi High Court
Dr Vivek Kumar vs National Board Of Examination & ... on 3 July, 2020
$~6.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 3rd July, 2020
+ LPA 169/2020 & CM APPL.14059/2020
DR. VIVEK KUMAR ..... Appellant
Through: Ms. Shashi Kiran, Advocate
versus
NATIONAL BOARD OF EXAMINATION & ANR..... Respondents
Through: Mr. Kirtiman Singh, CGSC with
Mr.Rohan Anand & Mr. Waize Ali Noor,
Advocates for R-1
Mr. Jivesh Kr. Tiwari, Sr. Panel Counsel for R-2
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE PRATEEK JALAN
JUDGMENT
: D. N. PATEL, Chief Justice (Oral)
Proceedings of the matter have been conducted through video
conferencing.
CM APPL.14060/2020 (exemption)
Exemption allowed, subject to all just exceptions.
The application is allowed.
LPA 169/2020 & CM APPL.14059/2020 (Stay)
1. This Letters Patent Appeal has been preferred by the appellant
(original petitioner) against judgment and order dated 23rd June, 2020 passed
by learned Single Judge in W.P.(C) 3633/2020 (Annexure A-1 to the memo
of this Letters Patent Appeal).
FACTUAL MATRIX
2. The appellant completed his Bachelor of Medicine and Bachelor of
Surgery (MBBS) from Chaudhary Charan Singh University, Meerut, in
2006. He further completed his Post Graduate Diploma in Child Health
(DCH) from King George Medical University, Lucknow, in 2017.
3. The appellant, on 21st December 2017, appeared in "Diplomate of
National Board, Post Diploma Centralized Entrance Test" (hereinafter
referred to as DNB-PDCET) for January 2018 Admission Session and
thereafter participated in the centralized counseling on 29th May 2018,
wherein he was allotted a seat for specialty in pediatrics in Northern
Railway Central Hospital to pursue DNB (Post Diploma) course for two
years. He joined the said course on 4th June, 2018.
4. Northern Railway Central Hospital informed the National Board of
Examination - respondent No.1, of the unauthorized absence of the
appellant and subsequently, a show cause notice dated 20th July, 2018 was
issued by respondent No.1 to the appellant on account of his unauthorized
absence from the hospital. Northern Railway Central Hospital vide e-mail
dated 21st July, 2018 requested the respondent No.1 for withdrawal of the
candidature of the appellant on the basis of his unauthorized absence.
5. Vide communication dated 24th September, 2018 the respondent No.1
requested the Northern Railway Central Hospital to allow the appellant to
rejoin the course and consider the period of his absence as leave. This
communication was made by the respondent No.1 to the hospital on the
basis of e-mail received from the appellant requesting permission to rejoin
the said course.
6. In reply to the aforementioned communication dated 24 th September,
2018, the said hospital on 27th September, 2018, informed the respondent
No.1 that the appellant is an employee of the South Delhi Municipal
Corporation (SDMC) and was placed under suspension since 1st May, 2018.
7. Thereafter, the respondent No.1 on 14th November, 2018, cancelled
the candidature of the appellant on the ground of non-disclosure of
information and non-production of No Objection Certificate (NOC) from his
employer (SDMC) during the DNB counseling.
8. The appellant appeared in DNB-PDCET, 2020 on 20th December,
2019, and subsequently participated in the First Round of the counseling
conducted by the respondent No.1 between 8th May, 2020 to 31st May, 2020.
The appellant thereafter was allotted a seat in Swami Dayanand Hospital
with specialty of pediatrics. The appellant, however, did not freeze the seat
allotted to him in the First Round of counseling and instead opted for
Second Round of Counseling.
9. The appellant was informed that he is not eligible for All India
Examination - 2020 (DNB-PDCET, 2020) vide communication dated 14th
June, 2020 issued by respondent No.1 and his candidature was cancelled.
This communication was challenged by the appellant in W.P.(C) 3633/2020.
10. The Second Round of the counseling was conducted by the
respondent no. 1 on 30th June, 2020 and the results have already been
declared on 2nd July, 2020.
ARGUMENTS CANVASSED BY THE COUNSEL FOR APPELLANT
11. Counsel appearing for the appellant submitted that the judgment and
order dated 23rd June, 2020 passed by the learned Single Judge in W.P.(C)
3633/2020 is not tenable at law and several factual aspects of the matter
have not been properly appreciated by the learned Single Judge.
12. It is further submitted by the learned counsel for appellant that
counting of two years‟ period for appearing in Diplomat of National Board,
Post Diploma Centralized Entrance Test (DNB-PDCET) has not been
properly appreciated by the learned Single Judge. She submitted that the
appellant had initially appeared for the very same entrance test in 2018 and
was admitted in a course, which he joined on 4th June, 2018, hence is
entitled to appear in the aforesaid entrance test in the year 2020 especially
when the period of two years has ended.
13. It is also submitted by the learned counsel for appellant (original
petitioner) that in fact this appellant had appeared in the aforesaid entrance
test for the year 2020. He cleared the examination (DNB-PDCET) and was
already given admission in the specialty of Paediatrics at Swami Dayanand
Hospital, Shahdara, New Delhi in the First Round of counselling. This
appellant, however, opted for Second Round of counselling for upgradation,
i.e. getting admission in a better medical college.
14. It is submitted by the learned counsel for appellant that before Second
Round of counselling started, a communication was received by this
appellant (original petitioner) from respondent No.1 dated 14th June, 2020
(Annexure A-9 to the memo of W.P.(C) 3633/2020), wherein, it has been
stated by the respondent No.1 that this appellant (original petitioner) is not
eligible for admission in January, 2020 session. This communication was
under challenge in the writ petition.
15. Earlier the admission was secured, and the appellant joined on 4th
June, 2018 and because of sickness of this appellant, he could not attend the
classes and subsequently a show cause notice was issued by the respondent
No.1 about absenteeism. Explanation along with the medical certificate was
provided by the appellant and subsequently a request was made by
respondent No.1 to Northern Railway Central Hospital to allow this
appellant to join the course vide communication dated 24th September, 2018.
16. As there was lot of delay, this appellant did not want to pursue the
said course further in 2018. The appellant waited for two years as per the
rules of admission. Now the period of two years having elapsed from the
earlier admission in DNB (Post Diploma) Courses January 2018 Session, on
4th June, 2020, this appellant is entitled to get admission in DNB (Post
Diploma) Courses.
17. It is also submitted by the learned counsel for appellant (original
petitioner) that a so-called communication by the respondent No.1 to the
petitioner dated 14th November, 2018 has never been received by this
appellant.
18. Learned counsel appearing for the appellant (original petitioner) has
relied upon the Clause 1.5 and Clause 1.6 of the Handbook for Centralized
Counseling for Admission to DNB (Post Diploma) Courses, January 2018
Admission Session which are annexed as Annexure A-2 to the memo of this
Letters Patent Appeal which is known as "DNB-PDCET Handbook for
Centralized Counseling for Admission to DNB (Post Diploma) Courses,
January 2018 Admission Session" (hereinafter referred as "The
Handbook for Admission to DNB PDECT, 2018"), published by National
Board of Examinations, New Delhi. It is submitted by the counsel for the
appellant (original petitioner), relying on Clause 1.5 and Clause 1.6 of the
aforesaid handbook that, bar to apply afresh is two years and not two
academic years.
19. It is further submitted by the learned counsel for appellant (original
petitioner) that one Dr. Himanshu Gupta is appearing every year for getting
admission in DNB (Post Diploma) Courses without there being gap of two
years. Thus, there is discrimination by the respondent No.1. Learned counsel
for appellant (original petitioner) has referred to Annexures 21, 22 and 23
of the writ petition to substantiate the aforesaid contention. This aspect of
the matter has also not been properly appreciated by the learned Single
Judge and hence the judgment and order dated 23 rd June, 2020 passed in
W.P.(C) 3633/2020 deserves to be quashed and set aside.
ARGUMENTS CANVASSED BY THE COUNSEL FOR
RESPONDENT NO.1
20. Learned counsel appearing for respondent No.1 submitted that no
error has been committed by the learned Single Judge while deciding
W.P.(C) 3633/2020 vide judgment and order dated 23rd June, 2020
(Annexure A-1 to the memo of this LPA) and hence this Letters Patent
Appeal deserves to be dismissed.
21. It is submitted by the learned counsel for respondent No.1 that
appellant is relying upon the rules of 2018 which are not applicable to the
facts of the present case, as this appellant (original petitioner) is seeking
admission in DNB (Post Diploma) Courses in the year 2020. The rules
which are annexed at Annexure-3 to the memo of the Letters Patent Appeal
are applicable. These rules of admission are "Handbook for Admission to
DNB (Post Diploma) Courses, 2020, Admission Session" (hereinafter
referred as "The Handbook for Admission, 2020") published by National
Board of Examinations, New Delhi. It is further submitted by the learned
counsel for respondent No.1 that earlier this appellant (original petitioner)
had applied for DNB (Post Diploma) Courses and was given admission, and
he joined on 4th June, 2018. On account of there being suppression of
material facts by this appellant, his candidature was cancelled vide
communication dated 14th November, 2018 (Annexure-G to the reply by
respondent No.1 to memo of W.P.(C) 3633/2020).
22. It is submitted by the learned counsel for respondent No.1 that
Eligibility Criteria for DNB-PDCET, 2020 Admission Session was not
satisfied, especially as per Clause 3.4 thereof, and hence this appellant
(original petitioner) is not eligible to get admission.
23. It is further submitted by the learned counsel for respondent No.1 that
also as per Clause 2.3 and Clause 4.2 of 2020 Admission Session, this
appellant is not eligible for admission in the year 2020. Learned counsel for
the respondent No.1 has taken this Court to these clauses of handbook for
the Admission Session, 2020, which are at Annexure A-3 to the memo of
this Letters Patent Appeal. These aforesaid clauses are to be read with
Clause 3.4 of "Information Bulletin for Diplomate of National Board,
Post Diploma Centralized Entrance Test (PDCET)" (hereinafter
referred as "The Information Bulletin DNB PDCET, 2020), (at
Annexure A-4 to this LPA).
24. Learned counsel appearing for the respondent No.1 submitted that
once this appellant‟s (original petitioner) candidature was cancelled vide
communication dated 14th November, 2018 (Annexure-G of the reply filed
by respondent No.1 in W.P.(C) 3633/2020), this appellant cannot apply for
two years i.e. till the academic session of 2018 is over.
25. Learned counsel appearing for the respondent No.1 submitted that as
per Clause 7 of the rules of admission of the year 2018, this appellant was
bound to disclose that he was employed with South Delhi Municipal
Corporation and he was bound to furnish No Objection Certificate („NOC‟)
and/or relieving letter issued by the competent authority of the employer,
before the cut-off date prescribed to join the DNB Course.
26. Learned counsel for respondent No.1 has relied upon the decisions
rendered by the Hon‟ble Supreme Court in:
Prestige Lights v. State Bank of India (2007) 8 SCC 449;
and
Mabel v. State of Haryana and Others (2002) 6 SCC 318
On the basis of the aforesaid decisions, it has been submitted by the
counsel for respondent No.1 that this appellant had earlier suppressed the
fact that he was serving with South Delhi Municipal Corporation and had
never supplied the No Objection Certificate („NOC‟) from his employer i.e.
SDMC at the time of admission, which ultimately led to cancellation of
candidature of the appellant. Counsel appearing for the respondent No.1 also
pointed out to this Court that the services of this appellant (original
petitioner) were suspended by the South Delhi Municipal Corporation. For
such type of appellant (original petitioner), extraordinary jurisdiction of this
Court may not be invoked by this Court.
27. Learned counsel appearing for the respondent No.1 also placed
reliance on a decision rendered by Division Bench of this Court reported in
(2015) SCC OnLine Del 8347. On the basis of the aforesaid decision, it has
been submitted by the learned counsel for respondent No.1 that the clauses
of the admission criteria, 2020 especially Clause 3.4 (The Information
Bulletin DNB PDCET, 2020) to be read with Clauses 2.3 and 4.2 (The
Handbook for Admission, 2020) have been accepted by this Court. In any
event, these provisions are not under challenge by the appellant (original
petitioner), hence, this appellant (original petitioner) cannot get admission
till the academic session of the batch in which this appellant got admission
earlier in the year 2018 is over. The two years‟ bar, therefore, will continue
till the academic session of a course of two years in which the appellant
(original petitioner) earlier got admission is over. This aspect of the matter
has been properly appreciated by the learned Single Judge while deciding
W.P.(C) 3633/2020 vide judgment and order dated 23rd June, 2020 and
hence this Letters Patent Appeal may not be entertained by this Court.
ARGUMENTS CANVASSED BY THE COUNSEL FOR
RESPONDENT NO.2
28. Learned counsel appearing for respondent No.2 adopts the arguments
advanced by the learned counsel for respondent No.1 and has submitted that
looking to the rules of admission for the year 2020 which are annexed to the
memo of this Letters Patent Appeal (Annexures A-3 and A-4), no error has
been committed by the learned Single Judge while deciding W.P.(C)
3633/2020 vide judgment and order dated 23rd June, 2020 and hence this
Letters Patent Appeal may not be entertained by this Court.
REASONS
29. Having heard the learned counsel for both the sides and looking to the
facts and circumstances of the case as well as looking to the judicial
pronouncements, we see no reason to entertain this Letters Patent Appeal for
the following facts and reasons:
(i) Looking to the facts of the present case, this appellant is the
original petitioner who challenged the communication dated 14 th
June, 2020 by the respondent No.1 to this appellant (original
petitioner) wherein this appellant was found not eligible to
participate in the counseling in DNB (Post Diploma) Course for
the Academic Session 2020 (Annexure-9 to the memo of the writ
petition). As per this communication, this appellant had earlier got
admission in DNB (Post Diploma) Course and was admitted on 4 th
June, 2018. Thereafter, vide communication dated 14th November,
2018, his candidature was cancelled as he had suppressed the fact
that he was employed with South Delhi Municipal Corporation.
(ii) Looking to Clause 7 of the DNB-PDCET Handbook for
Centralized Counseling for Admission to DNB (Post Diploma)
Courses, January, 2018 Admission Session, this appellant (original
petitioner) was bound to declare the fact that he was employed and
also had to furnish No Objection Certificate („NOC‟)which was
not supplied by this appellant before the course started on 4th June,
2018, and hence his candidature was cancelled. For ready
reference, relevant part of Clause 7 of the aforesaid admission
process (Annexure-2 to the memo of this LPA) reads as under:
"7. LIST OF PRESCRIBED DOCUMENTS
7.1 Candidates have to bring the following documents IN
ORIGINAL.
xx xx xx
If a candidate is employed or under any kind of bond he/she has
to furnish a „No Objection Certificate or/and Relieving letter‟
issued by competent authority of concerned University
/Employer before the cut off date prescribed to join the DNB
course in case he/she decides to opt for a confirmed seat. The
seat allotment letter to such candidates will be issued only after
a copy of „No Objection Certificate or/and Relieving letter‟ is
submitted to NBE."
(emphasis supplied)
In view of the aforesaid procedure, this appellant
(original petitioner) had to disclose the fact about his employment
and suppression of this fact leads to cancellation of his candidature
for Academic Session 2018.
(iii) Much has been argued by the learned counsel for appellant that,
No Objection Certificate („NOC‟) was not marked as one of the
essential documents to be uploaded/supplied by this appellant at
the time of admission process when this appellant (original
petitioner) got admission in the year 2018 in DNB (Post Diploma)
Course. For this, the learned counsel for appellant has relied upon
Annexure-34 to the memo of this writ petition. This contention is
not accepted by this Court mainly for the reason that as per Clause
7 of admission rule of the year 2018 (Annexure A-2 to the memo
of this LPA), this appellant (original petitioner) was bound to
disclose that he was employed with South Delhi Municipal
Corporation. Moreover, this appellant (original petitioner) was
bound to give No Objection certificate prior to start of the
Academic Session 2018. Thus, uploading of the documents is one
thing, whereas disclosure is altogether another thing. Because of
the violation of Clause 7 of the rules of the Handbook for
Admission to DNB PDECT, 2018, his candidature was cancelled
from the earlier batch of the year 2018 vide communication dated
14th November, 2018. Further, the appellant has never challenged
the cancellation of his admission in the batch of the year 2018.
Hence no error is committed by the respondent in issuing
communication dated 14th June, 2020 (Annexure 9 to the memo of
W.P.(C) 3633/2020) which was under challenge in the writ
petition. No error has been committed by the learned Single Judge
in appreciating these clauses of the admission process.
(iv) Now looking to the eligibility criteria for DNB-PDCET, 2020
Admission Session, till the two years of the Academic Session are
over from the earlier admission, a candidate cannot get admission
in next batch. For ready reference Clause 3.4 of Information
Bulletin DNB-PDCET, 2020 (Annexure A-4 to the memo of this
LPA) reads as under:
"ELIGIBILITY CRITERIA FOR DNB-PDCET 2020
ADMISSION SESSION
xx xx xx
3.4 Candidates already pursuing a MD/MS/DNB course
are not eligible to appear for DNB-PDCET till such time
they have completed the duration of prescribed course or
have been discharged from the course. Candidates who
have joined DNB (Post Diploma) course in or after
January 2018 Admission session are not eligible to
appear in DNB-PDCET 2020 admission session. This
shall be irrespective of their resignation or
discontinuation from the course due to any reason."
(emphasis supplied)
The aforesaid Clause 3.4 of Information Bulletin DNB
PDCET, 2020 is to be read with Clause 2.3 and 4.2 of Handbook
for Admission to DNB (Post Diploma) Course 2020 Admission
Session (Annexure A-3 to the memo of this LPA). For ready
reference Clauses 2.3 and 4.2 of Handbook for Centralized
Counseling for Admission to DNB (Post Diploma) Courses, 2020
Admission Session read as under:
"2. ELIGIBILITY CRITERIA FOR ADMISSION TO
DNB (Post DIPLOMA) 2020 ADMISSION SESSION
(Broad specialty Courses):
xx xx xx
2.3 Candidates already pursuing a DNB course or any
other Postgraduate medical course are not eligible for
admission to DNB (Post Diploma) 2020 Admission
Session till such time as they complete the entire duration
prescribed for the said course. Resignation or
discontinuation from the said course due to any reason
shall not make the candidate eligible for admission to the
DNB (Post Diploma) 2020 Admission Session.
(emphasis supplied)
xx xx xx
4. ELIGIBILITY FOR ONLINE CENTRALIZED
MERIT BASED COUNSELING -- DNB (POST
DIPLOMA) 2020 ADMISSION SESSION.
xx xx xx
4.2 Candidates already pursuing a DNB course or any
other Postgraduate medical course are not eligible for
admission to DNB (Post Diploma) 2020 Admission
Session till such time as they complete the entire duration
prescribed for the said course. Resignation or
discontinuation from the said course due to any reason
shall not make the candidate eligible for admission to the
DNB (Post Diploma) 2020 Admission Session."
(emphasis supplied)
In view of the aforesaid rules and regulations of the admission
process for the Academic Session 2020, it is explicitly clear that a
candidate already admitted in DNB (Post Diploma) Courses is not
eligible for admission to DNB (Post Diploma) Courses 2020
Admission Session till such time the entire duration prescribed for
the earlier course is over. Nothwithstanding the fact that any
candidate has resigned and left the course or the fact that any
candidate has discontinued from the earlier course for any reason
whatsoever, the candidate shall not be eligible for admission to the
DNB (Post Diploma) Courses 2020 Admission Session.
(v) In the facts of the present case, this appellant‟s candidature was
cancelled when he took admission, earlier in the batch of 2018 for
suppression of material facts of his employment. As he has wasted
the seat for medical education, he is not eligible for DNB (Post
Diploma) Courses 2020. This aspect of the matter has been
properly appreciated by the learned Single Judge.
(vi) Much has been argued out by the learned counsel for appellant that
this appellant (original petitioner) is debarred only for two years.
Earlier admission date in the very same course was 4 th June, 2018
and therefore after expiry of two years i.e. 4th June, 2020, this
appellant is entitled to get admission in the same course again.
This contention is not accepted by this Court for the reason that:
(a) Looking to Clause 3.4 of Information Bulletin DNB
PDCET, 2020 to be read with clauses 2.3 and 4.2 of the
Handbook of Procedure for Admission, 2020, this
appellant (original petitioner) is not eligible till the
earlier academic session is over.
(b) Thus, the bar for getting admission again is not two years
is not to be calculated mathematically but till the study of
the earlier batch is over. Hence, till the study of that
2018 batch is over, this appellant (original petitioner)
cannot get admission.
(vii) This appellant (original petitioner) has neither challenged the
validity of the clause of the admission process which is Clause 3.4
of The Information Bulletin DNB-PDCET, 2020 nor has
challenged the validity of Clause 2.3 to be read with Clause 4.2 of
The Handbook for Admission, 2020.
(viii) Learned counsel for the appellant has relied upon Clauses 1.5 and
1.6 of the Handbook for Admission to DNB-PDECT, 2018,
however, the same are not applicable to the facts of the case as this
appellant (original petitioner) is in search of quashing of
communication by the respondents dated 14th June, 2020
(Annexure 9 to the memo of W.P.(C) 3633/2020). Vide this
communication, this appellant (original petitioner) was found not
eligible. Thus, the Information Bulletin DNB-PDCET, 2020 and
the Handbook of Admission, 2020 are applicable to the facts of the
case of this appellant (original petitioner).
(ix) It has been held by the Hon‟ble Supreme Court in Prestige Lights
Ltd. v. State Bank of India reported in (2007) 8 SCC 449 in
paragraph 35 as under:
"35. It is well settled that a prerogative remedy is
not a matter of course. In exercising extraordinary
power, therefore, a writ court will indeed bear in
mind the conduct of the party who is invoking such
jurisdiction. If the applicant does not disclose full
facts or suppresses relevant materials or is
otherwise guilty of misleading the court, the court
may dismiss the action without adjudicating the
matter. The rule has been evolved in larger public
interest to deter unscrupulous litigants from
abusing the process of court by deceiving it. The
very basis of the writ jurisdiction rests in
disclosure of true, complete and correct facts. If
the material facts are not candidly stated or are
suppressed or are distorted, the very functioning of
the writ courts would become impossible."
(emphasis supplied)
In view of the aforesaid decision, when the party is
invoking extraordinary jurisdiction of this Court under Article 226
of the Constitution of India, the party must disclose full facts. This
rule was evolved in larger public interest to deter unscrupulous
litigants from abusing the process of Court.
(x) It has been held by the Supreme Court in Mabel v. State of
Haryana and Others reported in (2002) 6 SCC 318 in paragraphs
3, 4 and 5 as under:
"3. It is submitted by Mr K.V. Viswanathan, the
learned counsel for the petitioner that clause 18 of the
Information Brochure cannot be so interpreted as to
debar her from seeking admission to the course for all
times to come and if the order is not reviewed she
would be precluded from seeking admission in MBBS
course forever, which is an unintended punishment.
Mr Sanghi would contend that clause 18 bars a
student who has taken admission in one course, to
seek admission in another course.
4. It will be useful to refer to clause 18 which reads as
under:
"18. The candidates already admitted in any
medical/dental colleges will not be considered
eligible for admission to the course."
5. A plain reading of the aforementioned clause shows
that a candidate who was already admitted in a
medical or dental college would be ineligible for
admission in the other course. The said clause at
times will operate harshly as in the case of the
petitioner but it is meant to ensure that a candidate
who has already secured admission should not
abandon the studies after the commencement of that
course to seek admission in another course which is
in public interest, for otherwise it would result in the
wastage of the seat in the course in which he has
taken admission, and further, such a change would
deprive another eligible candidate from seeking
admission to the other course. Obviously, the
intention of the authority concerned in framing clause
18 appears to be to ensure that a candidate who has
already secured admission with his free will in any
course (MBBS or BDS) should complete that course
and should not change his mind in midstream. It,
therefore, follows that the bar is intended to be
operative during the period of the course in which a
candidate has taken admission. After completing that
course or in the event of abandoning the course
(MBBS/BDS) and not studying for the normal period
(4/5 years, as the case may be) the candidate would
become eligible after the end of such period of the
course to seek admission in the course of his choice
provided other conditions of admission are satisfied.
In other words, the bar under clause 18 in this case
will cease after the BDS course for the academic year
2000-01, in which the petitioner has taken admission
comes to an end after 5 years. In the light of the above
observations the petitioner will be free to seek
admission in the course of her choice after the end of
the BDS course which commenced in 2000-01."
(emphasis supplied)
In view of the aforesaid decision, till the study of batch
of 2018 is over, this appellant (original petitioner) is not eligible to
get admission in 2020 Academic Session of DNB (Post Diploma)
Courses.
(xi) It has been held by the Division Bench of this Court in Nidhi
Goyal v. Medical Sciences University of Delhi reported in (2015)
SCC OnLine Del 8347 in paragraph Nos.2, 9, 11 and 12 as under:-
"2. Clause 9.11 impugned in this petition is as under:
"9.11 A candidate who selects/is allotted a seat
in the last counseling shall have no right to
surrender the seat. If he/she does so, he/she
shall be debarred from appearing in the
subsequent PGMEM till the duration of the
course concerned is over."
xx xx xx
9. We have considered the rival contentions. The hard
fact of the matter is that the petitioner took admission
in the MS (Ophthalmology) course in the year 2014
knowing fully well of Clause 9.11 aforesaid. The
question is, whether she can now be relieved
therefrom. We are of the opinion that the petitioner,
after applying for appearing in AIPGMEE on the
terms and conditions contained in the Bulletin of
Information (supra) and after appearing in the
examination and securing admission, cannot be heard
to contend otherwise. The allegation, of some officials
of the respondent having assured the petitioner that
upon paying the bond amount she would be entitled to
take the examination in the next year, is not only
vague as particulars of any official(s) have not been
given but unbelievable too. In fact, if the petitioner
had been so assured, she would in her letter dated
17th July, 2014 of resigning from the seat would not
have sought the permission of the respondent to
appear in the next round of counselling. Admittedly,
no such permission was granted to the petitioner.
xx xx xx
11. One of us (Rajiv Sahai Endlaw, J.) in Jyoti
Yadav v. Government of NCT of Delhi relying
on Gorak Nath Balu Shinde v. State of
Maharashtra and Amlan Jyoti Borooah v. State of
Assam (2009) 3 SCC 227 held that the terms and
conditions of a brochure of admission are binding on
all persons in the conduct of examination and all are
expected to adhere thereto strictly in order to avoid
prejudice to any person and that candidates who take
part in selection process knowing fully well the
procedure laid down therein, cannot be permitted to
turn back and assail the same after having been
declared unsuccessful. Mention may also be made
of Madan Lal v. State of Jammu & Kashmir (1995) 3
SCC 486 also laying down that if a candidate takes a
calculated chance and appears at the interview, then
only because the result of interview is not palatable,
he cannot turn around and subsequently contend that
process of interview was unfair or the Selection
Committee was not properly constituted; when the
petitioner appears at the examination without protest
and when he finds that he would not succeed at the
examination, he files a petition challenging the
examination, the Court should not grant relief to the
petitioner. Reference in this regard may also be made
to Manish Kumar Shahi v. State of Bihar (2010) 12
SCC 576. Recently also in Chandigarh
Administration v. Jasmine Kaur (2014) 10 SCC 521 it
was reiterated that if the candidate takes a calculated
risk/chance by subjecting himself/herself to the
selection process, after knowing his/her non-selection
cannot turn around and contend that the process of
selection was unfair. It was further held that once the
candidate is aware that he/she does not fulfil the
criteria of the prospectus, he/she cannot be heard to
say that he/she chose to challenge the same only after
preferring the application and after the same was
refused on the ground of eligibility.
12. The Supreme Court in Mabel v. State of
Haryana (2002) 6 SCC 318 was concerned with a
clause which barred a student who had taken
admission in any Medical/Dental College from
seeking admission in another course during the
period of the course in which the candidate had taken
admission. It was held that though such a condition
may appear to operate harshly but is meant to ensure
that a candidate who has already secured admission
should not abandon the studies to seek admission in
another course and that such a condition is in public
interest for otherwise it would result in the wastage of
the seat in the course in which the candidate had
taken admission and that further such a change would
deprive another eligible candidate from seeking
admission to other courses. It was also held that such
a condition could not be held unreasonable since the
bar was with respect to that university/college only
and that too only for the duration of the course in
which the admission had been taken."
(emphasis supplied)
In view of the aforesaid decision, when the clauses of
admission process which are 3.4 of the Information Bulletin DNB-
PDCET, 2020 and Clauses 2.3 and 4.2 of the Handbook of
Admission, 2020 which are not under challenge, this appellant
(original petitioner) cannot get admission because he was earlier
admitted to a seat in medical admission process of the year 2018
and he had wasted the seat.
(xii) Much was argued out by the learned counsel for appellant that one
Dr. Himanshu Gupta who was applying consecutively for last three
years was never found ineligible by the respondent No.1. The
learned counsel for appellant has relied upon the Annexures 21,
22 and 23 of W.P.(C) 3633/2020 and argued about the
discrimination faced by the appellant in this regard. This
contention is not accepted by this court for the reason that there is
no need to maintain equality in illegality. Even if Dr. Himanshu
Gupta was permitted every year to participate in the admission
process by the respondent No.1, it cannot be a ground for this
appellant (original petitioner) to urge that similar type of illegality
should be continued by the respondent No.1 for this appellant
(original petitioner). Moreover, as per submission of Respondent
No.1, there are as many as three other candidates for the Academic
Session 2020, whose candidature has been cancelled for the very
same reasons, as those of this appellant (original petitioner). Thus,
if this appellant (original petitioner) is allowed to participate in
admission process for the Academic Year 2020, it will cause
injustice to other candidates.
(xiii) It is submitted by the learned counsel for respondent No.1 that the
Second Round of the counseling was conducted by the respondent
No.1 on 30th June, 2020 and the admission process of the Second
Round of counseling has already ended on 2nd July, 2020.
30. In view of the above reasons and judicial pronouncements, there is no
substance in this Letters Patent Appeal. No error has been committed by the
learned Single Judge in deciding W.P.(C) 3633/2020 vide judgment and
order dated 23rd June, 2020. Hence, the present Letters Patent Appeal is
hereby dismissed. The pending application also stands disposed of.
CHIEF JUSTICE
PRATEEK JALAN, J
JULY 03, 2020
ns\
