Delhi High Court
Dr Vishnu Todi vs All India Institute Of Medical ... on 30 May, 2022
$~33
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 30th May, 2022
+ W.P.(C) 1994/2022
DR VISHNU TODI ..... Petitioner
versus
ALL INDIA INSTITUTE OF MEDICAL SCIENCES & ANR.
..... Respondent
Present: Mr. Nitin K. Gupta and Ms. Ritika Gautam, Advocates for
Petitioners.
Mr. Sudarshan Rajan, Mr. Ramesh Rawat, Mr. Hitain
Bajaj and Mr. Vijay Kr. Sharma, Advocates for PGIMER.
Mr. Dushyant Parashar and Manu Parashar, Advocates for
AIIMS.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
JUDGMENT
SANJEEV NARULA, J. (Oral):
1. Petitioner - a Nepalese national, is aggrieved with the denial of
admission in M.Ch. (cornea, cataract and refractive surgery) course
[hereinafter, "said course"] by Respondent No. 2 - Post Graduate Institute
of Medical Research and Education, Chandigarh ["PGIMER"], despite
fulfilling the eligibility criteria and being declared as a selected candidate in
the entrance test for Institutes of National Importance Super-Speciality
["INI-SS"] conducted by Respondent No. 1 - Examination Section of All
Signature Not Verified
By:SAPNA SETHI
Signing Date:04.06.2022
16:48:39
India Institute for Medical Sciences ["AIIMS"], pursuant to a Merit List
dated 25th December 2021, on the ground that Respondent No. 2 did not
have any seats reserved for foreign national candidates. He thus seeks
direction to Respondents to grant him admission.
BRIEF FACTS
2. In October, 2021, AIIMS invited applications from eligible
candidates, including foreign nationals, for admission to various degree
courses, including the said course, for the academic session commencing
from January 2022. Pursuant thereto, Petitioner appeared for, and
subsequently cleared the INI-SS Examination. On 25th December, 2021,
AIIMS released a merit list of provisionally qualified candidates, wherein
Petitioner was selected for admission in PGIMER in the said course under
the 'foreign national' category.
3. It is the case of the Petitioner that pursuant to the result, he made
several attempts to contact PGIMER regarding further procedure for
admission. By way of an email communication dated 28th December, 2021,
he was informed by AIIMS that he need not apply for counselling.
Thereafter, as he did not receive any further instructions, aggrieved from the
lack of communication regarding his admission, Petitioner approached the
High Court of Punjab and Haryana at Chandigarh, which, vide order dated
19th January, 2022, directed him to approach the Director of PGIMER, and
accordingly, he made a representation dated 20th January, 2022.
4. Thereafter, on 25th January, 2022, by way of an email communication,
Signature Not Verified
By:SAPNA SETHI
Signing Date:04.06.2022
16:48:39
he was informed by AIIMS that the allocation of seat to him was erroneous
and no seat was available to foreign national candidates at PGIMER. The
said communication reads as follows:
"From: AIIMS INI-SS <[email protected]>
Date: Tue, Jan 25, 2022, 17:05
Subject: Withdrawal of Candidature for M.Ch-Cornea, Cataract &
Refractive Surgery at PGIMER, Chandigarh for January-2022 session
To: Vishnu Todi <[email protected]>
Cc: DMMCh Section <[email protected]>
Dear Candidate,
Attention drawn towards allocation of seat for course M.CH in
subject/specialty of Cornea, Cataract and Refractive Surgery Vide result
notification 205/2021 dated 25.12.2021.
It is informed that seats under Sponsored and Foreign National category
are not interchangeable at PGIMER, Chandigarh and an allocation to you
has been made inadvertently. The mistake has been communicated to you by
the PGIMER on the day of reporting at the Institute.
In continuation of same it is hereby informed that the said allocation on
sponsored seat in M.Ch. Cornea, Cataract and Refractive Surgery stands
cancelled as you have applied under Foreign National Category and there
is no seat available for Foreign National in the said specialty at PGIMER,
Chandigarh.
The inconvenience caused is deeply regretted."
5. Pursuant to AIIMS's communication, PGIMER, vide letter dated 29th
January 2021, withdrew the Petitioner's admission, stating that seats under
the above-noted categories are not interchangeable at PGIMER, Chandigarh.
6. Assailing the two aforesaid communications as arbitrary and unjust,
Petitioner has filed the present writ petition.
Signature Not Verified
By:SAPNA SETHI
Signing Date:04.06.2022
16:48:39
CONTENTIONS OF THE PARTIES
CONTENTIONS ON BEHALF OF PETITIONER:
7. Mr. Nitin K. Gupta, counsel for Petitioner, submits the following:
7.1. The said course is a unique course only offered in one institute across
the country. A total of two seats - one in the unreserved category and one in
the sponsored category - were advertised for the concerned course in
PGIMER.
7.2. Reliance is placed on Clause 7(C)(iv) of the Prospectus issued by
AIIMS, wherein it is provided that "foreign nationals/Overseas Citizens of
India (OCI) will be considered against the seats advertised under the
"sponsored" category for DM/M.Ch. & MD (Hospital Administration)
Entrance Examination courses" to state that Petitioner, if meritorious, would
be eligible for admission against the seat under the sponsored category. As
Respondent No. 1 continuously consulted with the Nodal Officer of
PGIMER, it can be concluded that PGIMER was well-aware of this
stipulation.
7.3. Petitioner had applied for and secured the highest marks in the INI-SS
Examination as a foreign national, and no objection was raised thereto qua
his eligibility by the Respondents. Having declared the Petitioner as a
successful candidate, and consequently, selecting him for admission in
PGIMER under the foreign national category, a right was created in favour
of the Petitioner to be offered admission in the said course by applying the
doctrine of legitimate expectation.
7.4. Petitioner has forgone other opportunities which he would have
otherwise availed had he not been selected for admission in PGIMER. He
also left his fellowship at ASG Eye Hospital, Patna and came to Delhi for
Signature Not Verified
By:SAPNA SETHI
Signing Date:04.06.2022
16:48:39
admission, in light of the fact that PGIMER is the only institute in the
country providing the concerned course, and that the Petitioner possesses
due merit. Thus, decision of Respondents to not admit him is unfair.
7.5. Attention of the Court is also drawn to the prospectus issued by
PGIMER wherein the criterion for eligibility of foreign national students has
been laid down to contend that denial of admission to Petitioner is
tantamount to changing the admission criteria after declaration of result, and
as such, infringes upon the fundamental rights of the Petitioner. Such a
practice greatly prejudices the Petitioner, and has been condemned by the
Supreme Court in a plethora of judgements.
7.6. Reference is also made to prospectuses issued by various institutes
under INI-SS scheme to contend that all institutes have categorically
explained the situation of foreign national students vis-à-vis seats under the
'sponsored' category. It is only JIPMER, Puducherry that has prohibited the
allocation of seats under sponsored category to foreign nationals.
Nonetheless, the prospectus issued by PGIMER is silent on this aspect and
as such, the rules laid down by Respondent No. 1 shall be applicable for
admission of Petitioner.
CONTENTIONS ON BEHALF OF AIIMS:
8. Mr. Dushyant Parashar, counsel for AIIMS, makes the following
submissions:
8.1. AIIMS conducts the exams and counselling for admission to courses
at various institutions and the prospectus issued by it is common to all
participating institutions, subject to rules applicable to respective institutes
as per their own prospectus. The same is stated specifically in the prospectus
Signature Not Verified
By:SAPNA SETHI
Signing Date:04.06.2022
16:48:39
at Pages No. 38 and 39. Therefore, admission to various seats at various
institutions is governed by respective eligibility criteria fixed by these
institutes. Although a common examination was conducted in larger public
interest to draw merit, but admission and seat allocation are regulated by
own rules of each institute. The same has also been reflected in the
prospectus of AIIMS.
8.2. Seats were declared only under two categories in the prospectuses of
AIIMS and PGIMER viz. general and sponsored. No vacancy was advertised
in the foreign national category - which is a separate and distinct category,
and as such, there are no seats available under the same. At no place in the
prospectus of PGIMER has it been mentioned that foreign nationals are
eligible for admission to the seats under sponsored category.
8.3. Since the said course is only available at PGIMER, the allocation of
seats was done directly on the basis of merit, without any counselling
process.
8.4. As Petitioner is a foreign national, the allocation made to him was
inadvertent and under the assumption that rules applicable generally to all
institutes are also applicable to PGIMER, which is not the case.
8.5. Moreover, considering that this is the first time the INI-SS
Examination is being conducted by AIIMS, and based on the experience and
challenges faced in conducting common entrance examinations - where
multitude of rules apply, AIIMS also undertakes to be more cautious and
revise the current rules to provide more clarity in the future.
CONTENTIONS ON BEHALF OF RESPONDENT NO. 2/ PGIMER
9. Mr. Sudarshan Rajan, counsel for Respondent No. 2/PGIMER, states
Signature Not Verified
By:SAPNA SETHI
Signing Date:04.06.2022
16:48:39
the following:
9.1. Every institute under the INI-SS Examination scheme has its own
rules for selection in each course. Thus, while AIIMS is guided by its
prospectus, admission into PGIMER is governed by the procedure
mentioned in PGIMER's own prospectus. The same has also been conceded
to by Petitioner in his writ petition.
9.2. There is no reservation for foreign national students in PGIMER in
the academic session commencing from January 2022. Each year, two
batches of selections are conducted by PGIMER - in January and July
respectively. The conditions governing seats and vacancies differ in the two
batches and foreign student reservation in PGIMER is available only in the
July batch. To further this submission, reliance is placed on previous
notifications detailing the allocation of seats under different categories for
various courses released by PGIMER.
9.3. Insofar as the question of defining eligibility of a foreign national
student contained in the prospectus for January 2022 batch is concerned, it is
an error, as similar prospectuses are issued for both batches. Nevertheless,
the scheme of reservation of seats differs in both batches and inclusion of
eligibility criteria in the prospectus cannot be read to imply that PGIMER
would accommodate foreign students in the January 2022 batch.
9.4. As this is the first time that the INI-SS Examination is being
conducted for admission into various courses, there has been a bonafide
mistake in publication of prospectus. Unlike AIIMS, there is no provision
for accommodation of foreign students in sponsored category in PGIMER.
9.5. The criteria for admission of foreign nationals and sponsored students
vary greatly. Sponsored candidates are ones whose entire stipend/ salary is
Signature Not Verified
By:SAPNA SETHI
Signing Date:04.06.2022
16:48:39
paid by the sponsoring institute, and thus, there is no financial implication
on PGIMER. Whereas, foreign nationals are persons who have reserved
seats only in the July batch of admission in PGIMER. A sponsored Indian
doctor continues to render services in India after completion of the course,
but the same is not applicable for foreign students. Thus, same criteria
cannot be applied to sponsored candidates and foreign nationals. Similarly, a
request for change in category cannot be entertained after submission of
application as per rules of PGIMER. Therefore, no right accrues in favour of
the Petitioner to seek accommodation under the sponsored category in
PGIMER.
9.6. Even if Petitioner seeks admission in the July 2022 batch, he cannot
be accommodated as the seat allocation chart published for July 2022
discloses that there were no vacancies under the foreign national category
for the said batch as well.
REJOINDER SUBMISSIONS ON BEHALF OF PETITIONER
10. In response to the contentions raised by the Respondents, Petitioner
argues that as this is the first time that the INI-SS exam has been conducted
at the national level, the reliance upon distribution of seats in the preceding
years is wholly incorrect. Prospectuses issued prior to this academic session
are irrelevant as the practice has substantially changed with the introduction
of INI-SS.
ANALYSIS
11. The Court has given due consideration to the submissions advanced
by the counsel.
Signature Not Verified
By:SAPNA SETHI
Signing Date:04.06.2022
16:48:39
12. The examination department of AIIMS undertook to conduct the INI-
SS Examination at the national level by integrating certain institutes of
national importance through a common entrance test. PGIMER is amongst
the said institutes that sought to admit students based on their performance
in the INI-SS into various courses. It is an admitted case that Petitioner was
declared to have been selected by AIIMS for admission to PGIMER in the
academic session beginning in January 2022. However, Respondents
contend that the same was done erroneously as there are no seats reserved
for foreign nationals in PGIMER in the academic session commencing from
January 2022, and thus, admission cannot be allowed to go through.
13. Indeed, there is ambiguity in the prospectus issued by PGIMER in as
much as there is no clarity qua the position of foreign nationals in the said
academic session - which led to allocation of seats under the sponsored
category to a foreign national, i.e., the Petitioner. However, in the facts of
the case, considering that the conducting of the INI-SS Examination by
AIIMS is still at a nascent stage, it is plausible that the same had
inadvertently been done based on the general rules of admission and in the
absence of counselling sessions that are usually held before admission.
14. PGIMER's prospectus for the academic session commencing January,
2022 describes the eligibility criteria for foreign national students in the
following terms:
"A candidate applying for admission as a Foreign National candidate is required to take
form and furnish the the print out of the online application form and furnish the relevant
certificates are required to route their application through the Ministry of Health and
Signature Not Verified
By:SAPNA SETHI
Signing Date:04.06.2022
16:48:39
Family Welfare, Government of India, New Delhi. All foreign nationals will have to take
prior permission from the Medical Council of India/National Medical Commission before
applying for postgraduate Courses in the Institute, as per their Instructions issued vide
office no. MC-202(1) (Gen) Regn-2010/45277 dated 9-12-2010:
A) An advance copy of application form along with relevant documents must be
submitted at PGIMER, Chandigarh before the last date of receipt of applications,
However applications of such candidates will be processed after receipt of the
same through diplomatic channels.
B) These candidates are also required to appear in the entrance examination along
with other candidates. A separate merit list of for these candidates will be prepared
within their own group.
C) Selection of candidates will be made on merit based on their performance in the
entrance examination.
D) In the event of selection, the candidates have to apply for temporary registration
with the Medical Council of India/NMC for the duration of postgraduate study.
Note:- The Admission of Foreign National Category will be available in July Session
only."
It is also significant to note that in the prospectus of PGIMER issued for
July, 2022 session, under the head 'eligibility of foreign nationals', a note
has been added to state that "admission of foreign national category will be
available in July session only".
15. The Court also finds merit in the contention of PGIMER that the mere
mentioning of eligibility criteria for admission as a foreign national in its
prospectus does not mean that PGIMER advertised seats for foreign
nationals. The pertinent question is qua the seat-allocation as published by
PGIMER for said course, which reads as under:
"3.2 Number of Seats
The facilities for post-doctoral courses are available in the following super specialities
for January 2022 Session:
Name of the Department/Course Seats to be advertised for
January 2022 Session
General Sponsored
xx ... xx ... xx
M.CH. COURSE
xx ... xx ... xx
xx ... xx ... xx
Number of seats are tentative, it may vary."
Signature Not Verified
By:SAPNA SETHI
Signing Date:04.06.2022
16:48:39
16. Furthermore, in terms of the order dated 26th April, 2022, PGIMER
has filed an additional affidavit dated 30th April, 2022 - to affirm that the
past practice of the institute has been to admit foreign nationals only in the
July batch. Having regard to the above-stated affidavit, the seat allocation
and prospectus issued for July 2022 batch, the Court finds justification to
accept the explanation offered by the Respondents regarding the discrepancy
in the eligibility criteria provided for foreign national students in PGIMER's
prospectus. Such an error cannot be taken to have created a right in favour of
the Petitioner to seek admission against the seat allotted for sponsored
students.
17. Private institutions are empowered to formulate their own policies/
schemes governing reservation of seats for foreign national/ NRI students. It
cannot be refuted that it is for PGIMER to ultimately decide the allocation of
seats. The documents brought on record establish that PGIMER provides
reservation of seats for foreign nationals only for the July batch, and not for
the January batch. The prospectus of PGIMER would be the dominant factor
in matters of admission to various courses in the said institute. PGIMER is
well within its powers to lay down the policy of providing reservation to
foreign nationals only in batches commencing from July, and not from
January. In that light, it must also be noted that while laying down the
general scheme of INI-SS, the prospectus issued by AIIMS categorically
provides that the terms and conditions, including matters concerning seat
allocation, for admission into any of the participating institutes (such as
PGIMER) - will be governed by the rules and regulations of the respective
Signature Not Verified
By:SAPNA SETHI
Signing Date:04.06.2022
16:48:39
institutes. The same can be concluded from the following clause contained
in AIIMS' prospectus:
"3. Administration
INI-SS is administered by the Examination Section, AIIMS New Delhi in consultation with
nodal officers from all INIs AIIMS, New Delhi is the sole authority for conduct of all
aspects related to Combined Entrance Test such as application, conduct of exam,
declaration of results, Seat Allocation and its responsibility is limited to these aspects of
INI-SS only.
Admission into any of the participating INI will be governed by the rules and regulation of
respective Institute as applicable and will be administered by the Head of Institutions of
respective INIs (the details are mentioned in Part of the Prospectus of INI-SS, January
2022) All disputes with regards to any matter referred to herein shall be subjected to the
jurisdiction of Delhi Courts only."
18. Therefore, the ambiguity in the prospectus published by AIIMS is not
a compelling ground to direct PGIMER to abide by the stipulations laid
down by AIIMS, which are at variance with their policy.
CONCLUSION
19. In terms of the discussion above, it follows that PGIMER is the
appropriate authority to determine the number of seats to be reserved under
the 'foreign national' category. As held by the Apex Court in the case of
Nilay Gupta (supra), creation of a quota/ category for foreign nationals is
neither sacrosanct nor inviolable. Therefore, it cannot be said that Petitioner
has an inherent right to seek admission in the institute. It was an
administrative decision to provide admission to foreign students only in the
July batch, and the same cannot be tampered with by this Court. In the
present case, PGIMER decided not to allocate any seats to foreign national
candidates, and unfortunately, the declaration of result by the Examinations
Department of AIIMS did not depict a true picture. Undeniably, there has
been a mistake by the Respondents in declaring Petitioner as a selected
Signature Not Verified
By:SAPNA SETHI
Signing Date:04.06.2022
16:48:39
candidate, however, this does not empower the Court to create a seat for the
Petitioner when evidently, none exists and there is no provision for the same
in the scheme of examination decided by Respondents.
20. Accordingly, the present petition is dismissed, along with pending
applications, if any.
SANJEEV NARULA, J
MAY 30, 2022
as
Signature Not Verified
By:SAPNA SETHI
Signing Date:04.06.2022
16:48:39
