Dr. Akshee Batra vs Union Of India & Ors.
2020 Latest Caselaw 2612 Del

$~A-51
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                              Date of Decision: 11.09.2020


+     W.P.(C) 5527/2020
      DR. AKSHEE BATRA                    ..... Petitioner
                   Through    Mr.Peeyoosh Kalra, Adv. and
                   Mr.Amit Sahni, Adv. with petitioner-in-person.

                             Versus

      UNION OF INDIA & ORS.                 ..... Respondent
                    Through     Mr.T.Singhdev, Adv. Mr.Abhijit
                    Chakravarty, Ms. Puja Sarkar, Advs. 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, Adv. with Ms.Ankita
                    Bhadouriya, Adv. for R-5 IHBAS

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (Oral)

This hearing is conducted through Video-Conferencing.

CM APPL. 21909/2020

1. This application is filed by the petitioner seeking modification/clarification of the order dated 28.08.2020. On 28.08.2020, this court disposed of the writ petition and directed as follows:-

"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."

2. By a detailed order that was signed on 30.08.2020, this court also noted that in the stray round counselling that was held on 30.07.2020, respondent No. 6 was granted a seat in PG MD (Psychiatry). This court set aside the said counselling for the said PG MD (Psychiatry) seat for the reasons stated in the order dated 28.08.2020 and released on 30.08.2020. The court also noted that respondent No. 6 has acted in a bona fide manner and has suffered for no conduct of hers. Accordingly, the following direction was passed regarding respondent No.6:-

"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."

3. The grievance of the petitioner is that such a direction, namely, permitting respondent No. 6 to opt one of the vacant seats available with the respondent University of Delhi was not passed for the petitioner. It is further pleaded that as none had come forward before the court seeking the seat of MD (Psychiatry), therefore the petitioner had a genuine belief that she

would get admission and she did not opt for any other college in the country and all counselling is now over.

4. However when the counselling took place pursuant to the directions passed by this court, one person, above in rank than the petitioner attended the counselling and was allotted the seat in question i.e. MD (Psychiatry). The grievance of the petitioner is that the interest of respondent No. 6 was taken care of by this court while passing the aforenoted orders, however, the petitioner's interest was overlooked by Delhi University who could have offered one of the seats which are still lying vacant to the petitioner.

5. It is pleaded that the petitioner has become a laughing stock at the hands of the system and that the petitioner has continuously faced trauma, harassment, pain and agony for which she cannot be compensated. It is pleaded that respondent No. 6 was permitted by University of Delhi to opt for MD (Gynaecology) at University College of Medical Sciences while there were other vacant seats for MD (Gynaecology) at Lady Hardinge Medical College and others but respondent No.4/University of Delhi did not permit the petitioner to opt for these available vacant seats citing that there was no direction of this court. It is further pleaded that availability of MD (Gynaecology) seat was not mentioned by the learned counsel for University of Delhi in the course of argument. Had such a submission been made, the petitioner would have preferred the said seat. Reliance is placed on the judgment of the Supreme Court in the case of S. Krishna Sradha vs. The State of Andhra Pradesh & Ors., 2019 SCC OnLine Sc 1609, AIR 2020 SC

47. Hence, it is prayed in this application that this court may clarify/modify the order dated 28.08.2020 and permit the petitioner to choose any of the seats which are pending, available and vacant with University of Delhi.

6. I have heard learned counsel for the parties.

7. Learned counsel for the petitioner has reiterated the contentions made in the application, namely, that the petitioner is higher in rank than respondent No. 6 and the same option should be made available to the petitioner as was made available by this court in its order dated 28.08.2020 to respondent No. 6. It is pleaded that there is one more seat of MD (Gynaecology) available with University of Delhi and the same should be allotted to the petitioner.

8. Learned counsel for respondent No. 4 has pointed out that in the course of hearing, it was pointed out to the learned counsel for the petitioner that some seats are still lying vacant and this court may permit the petitioner to opt any of these seats as the seat of MD (Psychiatry) had already been allotted in the counselling held on 30.07.2020 to respondent No. 6 who was the highest rank candidate who turned up for counselling on the said date. However, the petitioner had insisted that she is interested only in MD (Psychiatry) and the counselling held on 30.07.2020 be set aside.

9. Learned counsel for respondent No. 3 has strenuously urged that the judgment relied upon by learned counsel for the petitioner in the case of S. Krishna Sradha vs. The State of Andhra Pradesh & Ors. (supra) has no application to the facts of this case as that judgment was rendered in the context of admissions to MBBS course and does not apply to PG courses. It is further pleaded that in this case, the petitioner has failed to show any right to be allotted a seat from the stray seats which are available with University of Delhi. It is pointed out that every year about 6000 PG seats remain vacant. In fact last year, about 5600 seats had remained vacant. It is further stated that in terms of the order dated 30.07.2020 of the Supreme Court, the

last date for this academic year for admission to post graduate medical courses was 31.08.2020. That date having expired, no relief in any case can be granted to the petitioner.

10. As noted above, the writ was allowed on 28.08.2020. Unfortunately, in the counselling that took place pursuant to the directions of this court on 31.08.2020, the petitioner did not get the seat in question i.e. MD (Psychiatry) on account of the fact that a student with a higher rank than the petitioner also participated in the counselling. The present application now essentially seeks to re-write/review the judgment passed by this court on 28.08.2020. Clearly, the same is not permissible.

11. That apart, the petitioner cannot claim any right for the seats which have remained vacant despite the Stray Vacancy Round counselling that took place on 30.07.2020. The petitioner has failed to elaborate as to how she can claim as a matter of right one of the said seats which are vacant despite the Stray Vacancy Round. The only argument made is that respondent No. 6 has been granted a seat in MD (Gynaecology) and that the same option should also be given to the petitioner. This plea is misplaced. There is no parity of facts between the petitioner and respondent No. 6. Respondent No. 6 bonafidely in the counselling that took place for the Stray Vacancy Round counselling on 30.07.2020 was allotted the seat of MD (Psychiatry). However on account of the errors/irregular procedure adopted by respondent No. 4 in carrying out the stray round counselling, the said counselling for the said seat of MD (Psychiatry) which was held on 30.07.2020 was set aside. The net effect of this order was that respondent No. 6 who had bonafidely accepted the said admission was left without any seat. It is in those special facts and circumstances, to do justice to respondent

No. 6, an option was given to respondent No. 6 to pick one of the seats that are still vacant with respondent No. 4 University. It is in those circumstances that one of the seats that was available i.e. MD (Gynaecology) has been chosen by respondent No. 6. The facts do not warrant a similar direction to be passed in favour of the petitioner.

12. I may also note that the Supreme Court in the case of Ashish Ranjan & Ors. Vs. Union of India & Ors., 2016 (11) SCC 225 had fixed the last date for completion of admission procedure for PG (Broad Speciality) medical courses for the All India Quota and State Quota i.e. by 31.05.2020. The Supreme Court in the special circumstances given the Covid 19 situation had extended the time line up to 31.08.2020 vide order dated 30.07.2020.

13. In this context reference may also be had to the judgment of the Supreme Court in the case Priya Gupta vs. State of Chhattisgarh & Ors., 2012 (7) SCC 433. The Supreme Court held as follows:-

"42. The Medical and Dental Councils of India, the Governments and the universities are expected to act in tandem with each other and ensure that the recognition for starting of the medical courses and grant of admission are strictly within the time-frame declared by this Court and the Regulations. It has come to the notice of this Court that despite warnings having been issued by this Court and despite the observations made by this Court, that default and non-adherence to the time schedules shall be viewed very seriously, matters have not improved. Persistent defaults by different authorities and colleges and granting of admission arbitrarily and with favouritism have often invited criticism from this Court.

43. In Arvind Kumar Kankane v. State of U.P. [(2001) 8 SCC 355] the Court observed that the process of counselling cannot go on continuously for a long period and the resultant chain

reaction should be checked. Some seats may have to be left vacant per compulsion, but, the process of admission should stand the test of rationality. There should be exceptional and fortuitous circumstances to justify late admission. In Chhavi Mehrotra v. DG of Health Services [(1994) 2 SCC 370] the Court was even compelled to issue notice of contempt to the Director General of Health Services as to why proceedings under the Contempt of Courts Act, 1971 be not taken for non- compliance with the scheme framed by the Court for consideration of applications for transfer of students between colleges and they be not punished accordingly."

14. Clearly, the Supreme Court has stressed that the time lines fixed have to be mandatorily followed and cannot be changed. Given the said legal position and the fact that the last date for granting admission was 31.08.2020, even otherwise, no relief can be given to the petitioner.

15. There are no grounds made out for modification of the order of this court dated 28.08.2020. The present application is misconceived and the same is dismissed.

JAYANT NATH, J SEPTEMBER 11, 2020 rb