Delhi High Court
Nithya Nair And Ors vs Union Of India And Anr. on 11 September, 2023
2023:DHC:6544
-1-
$-
* IN THE HIGH COURT OF DELHI AT NEW DELHI
BEFORE
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
+ W.P.(C) 10856/2023
Between: -
DR. NITHYA NAIR
D/O: SHRI. P G SASIDHARAN NAIR
RESIDENT OF: L-493, POCKET L,
SARITA VIHAR, NEW DELHI -110076
AND ORS. .....PETITIONERS
(Through:Mr. Arjun Mitra and Ms. Jaskaran Kaur,
Advocates.)
AND
UNION OF INDIA
THROUGH SECRETARY
MINISTRY OF DEFENCE
SENA BHAWAN, NEW DELHI
AND ORS. .... RESPONDENTS
(Through: Mr. Rajesh Kumar, Sr. Panel Counsel
alongwith Ms. Manpreet Kaur Bhasin, G.P with Ms.
Ramneet Kaur, Advocate for respondent Nos. 1 and 2
Mr. Ankur Chhibber, Mr. H.S. Tiwari, Mr. Anshuman
Mehrotra, Mr. Nikunj Arora, Mr. Arjun Panwar, Ms.
Samriddhi Bhatt and Ms. Amrit Koul, Advocates for
Signature Not Verified Signature Not Verified
Digitally Signed
respondent Nos. 3 to 106.)
Digitally Signed
By:PRATIMA
Signing Date:11.09.2023 By:PURUSHAINDRA
19:05:51 KUMAR KAURAV
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% Pronounced on: 11.09.2023
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JUDGMENT
1. The petitioners vide the instant writ petition are aggrieved by
the publication of merit list by respondent no.2 i.e. Director General,
Armed Forces Medical Services (hereinafter referred to as „AFMS)
with respect to Priority III candidates for the counselling process
conducted by the said respondent. The petitioners are also praying for
directions to respondent no.2 to prepare a fresh merit list, strictly in
accordance with the merit of the candidates by including the
petitioners herein, in terms of their respective All India Rank
(hereinafter referred to as 'AIR') and to conduct a fresh round of
counselling for Priority III candidates.
2. The facts of the instant case would indicate that the petitioners
are medical doctors working in different government
departments/organisations. All the petitioners had secured requisite
AIR in the NEET- PG 2023 examination and are desirous of getting
higher medical educational qualifications. Respondent no.2 conducted
counselling for Post Graduate medical courses in various participating
armed forces institutes under different priority categories.
3. On 26.07.2023, a public notice was published inviting
applications for the Post Graduate medical courses by respondent no.2
and all the petitioners applied for their consideration for the same on
the basis of their merit. According to the petitioners, on 10.08.2023,
the merit list for Priority III candidates was published where none of
the petitioners were included, instead, various candidates with lower
Signature Not Verified ranks than those of the petitioners were included. TheSignature
petitioners,
Not Verified
Digitally Signed Digitally Signed
By:PRATIMA
Signing Date:11.09.2023therefore, made representations to respondent no.2 through email.
By:PURUSHAINDRA
19:05:51 KUMAR KAURAV
Since their grievance remained unresolved, therefore, being left with
no other option, they approached this court to ventilate their grievance.
4. This matter was taken up for hearing on 16.08.2023 and the
respondents were directed to take instructions and to file the counter
affidavit. Since the counter affidavit was not filed, therefore, on
21.08.2023, this court stayed further allotment against any of the PG
seats and also admissions against the already allotted seats.
5. On 24.08.2023, the matter was further considered and the
following directions were issued:-
"9. Having considered the submissions made by learned counsel
appearing on behalf of the parties, it is seen that this matter requires
further consideration. It is an admitted position that less meritorious
candidates have been selected for admission and the rejection of the
petitioners‟ candidature is primarily on technical grounds. All
sponsorship certificates do contain the signature of the Competent
Authority and a rubber stamp of the said authority is also affixed. The
certificates are admittedly in the prescribed format. What is missing is
only the Office seal. The genuineness of the certificate is not doubted.
The sponsoring authorities are Government authorities.
10. During the course of hearing, the respondents suggested to offer
41 seats available in different streams to the petitioners without
prejudice to the rights and contentions made in the pleading if the
petitioners are willing to opt for the same. The petitioners, however,
are insistent on better seats as per their merit. They are reluctant to
opt for these seats, as they are less important streams.
11. At this stage, without commenting anything on the merits of the
submissions made by the respective parties, the order dated
21.08.2023 passed by this court is modified to the extent that the
available 41 seats be offered to the petitioners by 25.08.2023, as per
their merit.
12. The petitioners would be at liberty to avail the seats on the basis of
their merit.
13. In case, the petitioners opt for any of the seats being offered to
them, let the allotment be made subject to outcome of the instant
petition.
14. In case, the petitioners opt for any of the offered seats, let the
concerned sponsoring department to also immediately respond to the
Signature Not Verified request to be made by the petitioners for issuance of theSignature
sponsorship
Not Verified
Digitally Signed certificate. Digitally Signed
By:PRATIMA
Signing Date:11.09.2023 By:PURUSHAINDRA
19:05:51 KUMAR KAURAV
15. Let the seal in a round shape be affixed by the concerned
sponsoring department, as insisted by the respondents.
16. Needless to state that the admissions to be made by the
respondents henceforth will remain subject to the outcome of the
instant writ petition. All candidates shall be specifically informed
about the order being passed by this court.
17. In case, the petitioners succeed in establishing that their
candidature is wrongly rejected, the necessary arrangements for their
accommodation will have to be made by the respondents.
18. List this matter on 01.09.2023.
19. Copy of this order be given dasti under signatures of the Court
Master."
6. In pursuance of the above directions, two candidates opted for
the seats offered by respondent no.2, however, the remaining
candidates contested the instant writ petition.
7. The parties, thereafter, completed their pleadings and they were
heard at length.
8. The case of the petitioners is that, for availing the seat under
Priority III, the medical officers are to be sponsored by Para-Military/
other Government of India organisations.
9. In the instant case, all the petitioners are sponsored by
Government of India organisations. The candidates were also required
to have a sponsorship certificate mentioning the subjects for
sponsorship, duly counter-signed by the sponsoring authority in the
respective Ministry of Government of India in which the individual is
employed.
10. The learned counsel for the petitioners, therefore, submits that
as per Clause 20(f)(xiv) of the Information Bulletin, sponsorship
certificates are required to be submitted as per the format placed at
Appendix 'A'. He submits that the sponsorship certificates with
Signature Not Verified Signature Not'A',
respect to all the petitioners were duly submitted as per Appendix Verified
Digitally Signed Digitally Signed
By:PRATIMA
Signing Date:11.09.2023 By:PURUSHAINDRA
19:05:51 KUMAR KAURAV
however, to the utter surprise of the petitioners, their names were not
included in the merit list which was published on 10.08.2023.
11. Learned counsel appearing on behalf of the petitioners pointed
out that the private respondents, who have been arrayed as parties in
the instant writ petition are less meritorious than the petitioners and
the candidature of the petitioners has been rejected solely on the
ground that the sponsorship certificate submitted by some of the
petitioners did not contain an office seal. He, therefore, submits that
the sponsorship certificates are as per Appendix 'A' which is the
prescribed format and putting of the office seal is not in the hands of
the petitioners.
12. Learned counsel submits that all the petitioners have been given
the sponsorship certificate by their respective employers. The
employers in case of all the petitioners are Government Departments
and if the office seal is not affixed, no fault lies on the part of the
petitioners, therefore, they should not suffer because of the lapse on
the part of the sponsoring department. Furthermore, the putting of an
office seal is not so sacrosanct consideration so as to supersede the
merit of the candidates. Once the petitioners are meritorious and are
entitled to allotment of a seat under the respective categories, they
should not be ousted only on technical grounds.
13. While pointing out past practices of the respondents, learned
counsel appearing on behalf of the petitioners submits that sufficient
time was given to the respective candidates whose sponsorship
certificates were not available or were defective. But in the instant
case, no such opportunity was given and decision was taken hastily.
The decision of exclusion of the petitioners is arbitrary and illegal. He
Signature Not Verified Signature Not Verified
Digitally Signed
also pointed out from the relevant clauses of the Information Bulletin
Digitally Signed
By:PRATIMA
Signing Date:11.09.2023 By:PURUSHAINDRA
19:05:51 KUMAR KAURAV
i.e. Clauses 5, 6, 7, 8, 12, 16 and 20(f) that the sponsorship certificate
is required at the stage of counselling. However, in the instant case,
the doors for the petitioners have been shut at the stage of the
preparation of the merit list itself.
14. Learned counsel appearing on behalf of the petitioners further
submitted that the preparation of the merit list has to be done strictly
based on merit and the verification of documents is an activity which
takes place at the stage of counselling. He then contended that even
otherwise, sufficient time should have been provided to them to allow
the petitioners to seek rectification of the deficiency from their
respective Government ministry and submit the sponsorship
certificate.
15. While specifically pointing out the case of one of the candidates
i.e., petitioner no.4, he submitted that the reason for rejection is the
absence of signatures of the sponsoring authority. However, the
petitioner no.4 had submitted two sponsorship certificates through
email within the time slot available for furnishing of the said
certificate. The first certificate which he had sent by an email was
unsigned. However, immediately a second certificate was sent which
was duly signed by the sponsoring authority.
16. Learned counsel appearing on behalf of the petitioners has taken
a categorical stand that with respect to at least three candidates i.e.,
petitioner no.10, namely Dr Vidya Sagar, petitioner no.13, namely Dr.
K Hemanth Kumar and petitioner no.15, namely Dr. Venkatesh G, the
sponsorship certificates of all three petitioners were duly signed and
the office seal was also affixed by the concerned office. It is,
therefore, contended that the action of respondent no.2 is without
Signature Not Verified Signature Not Verified
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By:PRATIMA
Signing Date:11.09.2023 By:PURUSHAINDRA
19:05:51 KUMAR KAURAV
application of mind and the same is arbitrary and illegal and deserves
to be set aside.
17. He has placed reliance on a decision of the Hon'ble Supreme
Court in the case of 'Board of Governors in Supersession of Medical
Council of India vs Dr. Priyambada Sharma & Ors'1 and the decision
of this court in the cases of 'Dr. Shidore Shital Mhatardeo vs National
Board of Examination'2 and 'Dr. Deepika Veerwal vs Union of India &
Ors'3.
18. Learned counsel appearing on behalf of the petitioners further
submitted that since the Hon'ble Supreme Court has extended the
deadline for concluding the Post Graduate medical courses admission
for the Academic Session 2023-24 up till 10.10.2023, therefore, there
is no obstacle in directing the re-counselling. He also submitted that in
any case, the admissions have been directed by this court to remain
subject to the outcome of the instant writ petition.
19. Learned counsel appearing on behalf of respondent no.1 has
filed the counter affidavit on behalf of the said respondent. According
to him, it is a mandatory requirement to submit the sponsorship
certificate mentioning the subjects for sponsorship, duly countersigned
by the sponsoring authority in the respective Ministry of the
Government of India in which the individual is employed. The
mandatory requirement including the format of the sponsorship
certificate includes inter alia the requirement of a rubber stamp of the
sponsoring authority as well as an office seal which is apparently
mentioned in the prescribed format.
Signature Not Verified 1 Signature Not Verified
2022 SCC OnLine SC 1442
Digitally Signed 2 Digitally Signed
By:PRATIMA 2019 SCC OnLine Del 10444
Signing Date:11.09.20233 2019 SCC Online Del 10710 By:PURUSHAINDRA
19:05:51 KUMAR KAURAV
20. It is also submitted on behalf of respondent no.1 that 75
applications were received within the stipulated time and the same
were scrutinized for correctness and that out of those 75 applications,
42 applications for Priority-III were found to be correct and 33
candidates were found to be ineligible. It is the contention of the
respondent no.1 that the counselling for eligible Priority-III candidates
was carried out on 11.08.2023 and 38 seats as per the choice and inter
se merit of the candidates were allotted to them.
21. After the conclusion of Priority-III counselling, the counselling
for Priority-IV candidates i.e., Ex-Short Service Commissioned AFMS
Officers released from service after completion of the contractual
period, was carried out on 11.08.2023 and a total of 65 seats were
allotted to Priority-IV candidates as per their inter-se merit.
22. With respect to Priority-V candidates, the counselling for the
same has been kept in abeyance awaiting the outcome of the instant
writ petition.
23. Learned counsel appearing on behalf of respondent no.1,
therefore, submits that the decision of rejection of the candidature of
the petitioners, at the threshold, is strictly in accordance with the
scheme of the Information Bulletin. He explained that the veracity of
the sponsorship certificates is to be examined at the stage of the
preparation of the merit list, so as to restrict the counselling for the
candidates who are eligible for the allotment of a seat. He has also
submitted that once a procedure has been laid down and a format is
prescribed, any candidature opposed to format, cannot be considered
by the respondents as the same would amount to an arbitrary exercise
at their hand.
Signature Not Verified Signature Not Verified
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By:PRATIMA
Signing Date:11.09.2023 By:PURUSHAINDRA
19:05:51 KUMAR KAURAV
24. Reliance has been placed by the learned counsel on behalf of
respondent no.1 on a decision of the Hon'ble Supreme Court in the
case of 'Karnataka State Seeds Development Corporation Limited
and Anr. vs H.L. Kaveri and Ors.'4 to substantiate his argument that
the conditions stipulated in the advertisement are mandatory and will
have to be adhered to by the employer.
25. Reliance has also been placed on behalf of respondent no.1 on a
decision of the High Court of Punjab & Haryana in the case of
'Amardeep Singh Sahota vs State of Punjab'5, to submit that the
prospectus issued by the Department is binding on all concerned and
any direction contrary to the prospectus would not be sustainable in
the eyes of law.
26. Respondent nos.3 to 106 have also filed their common counter
affidavit opposing the submissions made on behalf of the petitioners.
27. The private respondents, largely, have reiterated in their counter
affidavit the averments made by respondent no.2 and additionally,
reliance is placed upon the State Emblem of India (Prohibition of
Improper Use) Act, 2005 (hereinafter referred to as „Act of 2005‟) to
indicate that a seal was not found as per the Act of 2005 and the
Regulations made thereunder; and therefore, the official respondents
have rightly rejected the cases of those candidates who had the
sponsorship certificate with improper seal.
28. Reliance has been placed on behalf of the private respondents
on a decision of the Hon'ble Supreme Court in the case of „Maharshi
Dayanand University vs Surjeet Kaur'6, to contend that neither the
courts nor any Tribunal has the competence to issue any direction
Signature Not Verified 4 Signature Not Verified
(2020) 3 SCC 108
Digitally Signed 5 Digitally Signed
By:PRATIMA 1993 SCC OnLine P&H 397
Signing Date:11.09.20236 (2010) 11 SCC 159 By:PURUSHAINDRA
19:05:51 KUMAR KAURAV
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contrary to the law and to act in contravention of the statutory
provisions. The High Courts under Article 226 of the Constitution of
India are required to enforce the rule of law and not to pass orders or
directions contrary to what has been injuncted by law.
29. Reliance has also been placed on behalf of the private
respondents on a decision of the Hon'ble Supreme Court in the case of
„Alapati Jyotsana and Ors. vs Union of India and Ors.'7, to submit
that when the counselling is over, the Hon'ble Supreme Court had
refused to pass any direction for re-conducting the counselling.
30. Respondent nos.3 to 106 have also placed reliance on a decision
of the Division Bench of this court in the case of „Varun Kumar
Agarwal vs Union of India & Ors.'8 to substantiate his contention that
the prospectus has certain sanctity to be adhered to. Reliance has also
been placed on behalf of the said respondents on the decision in the
case of 'Priyanka Chaudhary and Ors. vs National Board of
Examination'9, to substantiate his submission, wherein, this court has
placed reliance on a decision of the Hon'ble Supreme Court in the
case of 'Arvind Kumar Kankane vs State of U.P. and Ors.'10.
31. In addition, reliance has also been placed on behalf of the said
respondents on a decision of the High Court of Madras in the case of
'Dr.Sandeep P.S. vs Government of India, Rep. By its Secretary to
Government and Others'11, to indicate that the prospectus is a vital
document which governs the admission procedure.
32. In rejoinder submissions, the learned counsel appearing on
behalf of the petitioners pointed out that there is no nexus between the
(2020) 5 SCC 320
2011 SCC OnLine Del 1133
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2016 SCC OnLine Del 5691
Digitally Signed 10 Digitally Signed
By:PRATIMA (2001) 8 SCC 355
Signing Date:11.09.202311 2020 SCC OnLine Madras 1263 By:PURUSHAINDRA
19:05:51 KUMAR KAURAV
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reason of rejection and the sanctity of the counselling process and the
official respondents have miserably failed to justify their action of
allowing the candidates to submit a No Objection Certificate (NOC)
after the declaration of the merit list with respect to Priority-IV. He
then contended that if a candidate with respect to Priority-IV is
allowed to submit the NOC once the merit list is prepared, there
remains no reason to deny the same benefit to the petitioners.
33. He also submitted that the action of the official respondents of
rejection of the candidature, at the threshold, is contrary to the past
practices. He has pointed out from Annexures P-10 and P-11 that in
the year 2022, the candidates were allowed to furnish proper
sponsorship certificates even after the counselling was conducted. He
specifically referred to candidates, namely Md. Hussain D Page, Anil
Kumar and Shaligram Choudhary, who had not submitted the
sponsorship certificates, however, their names were included in the
counselling in the year 2022.
34. I have heard the learned counsel appearing on behalf of the
parties and perused the record.
35. It is discernible from the Information Bulletin issued in the
month of July, 2023 that AFMS conducts Post Graduate training,
primarily for the doctors of the AFMS in order to fulfil the specialist
requirements. Surplus seats, if any, are offered to sponsored
candidates of Friendly Foreign Countries, Para-Military/ other
Government of India organisations, ex-servicemen (Ex-SSC AMC
Officers) and civilian doctors.
36. The petitioners herein belong to the category of other
Government of India organisations. As per Clause 16(c) of the
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By:PRATIMA
Information Bulletin, the candidates applying under the said category,
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19:05:51 KUMAR KAURAV
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are required to furnish the sponsorship certificate mentioning the
subjects for sponsorship, duly countersigned by the sponsoring
authority in the respective Ministry of Government of India in which
the individual is employed.
37. For the sake of clarity, Clause 16(c) of the Information Bulletin
reads as under:-
"16. Admissions for PG studies are strictly governed by Govt of
India, Ministry of Defence letter No F/PC-851 0/DGAFMS/DG-
1/345/2013/D(Med) dated 6th March, 2013. The admission and
training is controlled by the Office of the DGAFMS in
accordance with prevalent rules. The priority for admission of
candidates is as follows:-
....
.....
(c) Priority-III -Medical Officers sponsored by Para Military
Organization/ other Govt. of India organization. Sponsorship
certificate mentioning the subjects for sponsorship, duly
countersigned by the sponsoring authority in respective
ministry of Govt of India in which the individual is employed,
is mandatory requirement for the candidate to be considered for
counseling."
38. The sponsorship certificate is a mandatory requirement for a
candidate to be considered for counselling.
39. A perusal of Clause 20 of the Information Bulletin which
provides the methodology for applying would indicate that the list of
certificates to be submitted in original by the selected candidates at the
college on the day of admission includes inter alia the sponsorship
certificate (as per format placed at Appendix 'A'). For the sake of
clarity Clause 20(f)(xiv) is reproduced as under:-
"20. The following methodology will be adopted by candidates:-
.....
.....
Signature Not Verified Signature Not Verified
Digitally Signed (f) List of certificates to be submitted in original by theDigitally
selected Signed
By:PRATIMA
Signing Date:11.09.2023 candidates at the college on the day of admission:- By:PURUSHAINDRA
19:05:51 KUMAR KAURAV
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......
.......
......
(xiv) Priority III candidates (Para-Military Officers/other Govt of
India Org): Subject-specific sponsorship certificate (as per format
placed at Appx 'A') issued by the respective Para-Military/ other
Govt of India organization duly signed by the Competent
Authority in the respective ministry of Govt of India in which the
individual is permanently employed. This has to be produced at
the time of counseling without which candidate shall not be
allowed to attend the counseling. During counseling, eligible
candidates will be considered eligible for only those subjects,
which are mentioned in their sponsorship certificate duly signed by
competent authority in the respective ministry of Govt of India in
which the individual is permanently employed. Ink signed copy of
the sponsorship certificate will be required to be deposited at the
time of admission to the respective AFMS Institution."
40. Appendix 'A', which is the prescribed format for the
sponsorship certificate, requires inter alia signatures of the sponsoring
authority, name, designation, rubber stamp of sponsoring authority
and also office seal. For the sake of clarity, Appendix 'A' is
reproduced as under:-
"Appx 'A'
(Refer para 21 (f)(xiv) of Info Bulletin)
FORMAT OF SPONSORSHIP CERTIFICATE TO BE SUBMITTED
BY PARAMILITARY/GOVT OF INDIA SPONSORED CANDIDATES
(PRIORITY-III)
1. I certify that Dr. ______________ (Rull name) is being sponsored
by the Department of _________________, Ministry of
________________ for training at AFMS PG Institutions, leading to
the award of MD/MS (as applicable) for the academic year 2023-2026
in the following subjects as required by the sponsoring organization:-
(a) _________________ (b) _________________
(c) _________________ (d) _________________
(e) _________________ (f) __________________
2. That Dr. ______________is a bonafide permanent employee of
_________ (name of the Paramilitary Organization/Department of
Golf Ministry etc.). His/Her personal number as per records is
__________ and his/ her address as per records is _______________
Signature Not Verified ______________________________________________________ Signature Not Verified
Digitally Signed ______________________________________________________ Digitally Signed
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Signing Date:11.09.2023 By:PURUSHAINDRA
19:05:51 KUMAR KAURAV
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3. That candidate being sponsored, if eligible for counseling, will only
opt for above subjects (as mentioned in para 1 above} during AFMS
PG counseling.
4. That he/she after receiving the training in the AFMS institution will
be suitably employed by the sponsoring authority in the speciality in
which training is being provided in Armed Forces Medical Services
institution.
5. No financial implications in the form of emoluments/stipend etc.
will devolve upon your institution during the entire period of the
course.
6. That the candidate if allotted a seat during AFMS PG counselling
will be sponsored full time for the entire duration of the course.
____________________
(Signature of sponsoring
authority)
Date:__________ Name __________________
Place:__________ Designation _____________
Office Seal Rubber Stamp of sponsoring
authority
NOTE:-
(i) Addition or alteration in the above certificate is NOT allowed.
(ii) The above certificate will be signed by the Competent Authority in
the respective ministry of Govt of India in which the individual is
permanently employed.
(iii) Subject/Discipline must be specified in the sponsorship certificate
failing which the candidature will not be considered under the
sponsored category."
41. In the instant case, except for the petitioner nos.10, 13 and 15,
the sponsorship certificates of other petitioners do not contain the
office seal.
42. A perusal of the counter affidavit of respondent no.1 indicates
that out of 75 candidates, the candidature of 33 candidates was
rejected, and out of 33 rejected candidates, the candidature of 31
candidates was rejected on the ground that the office seal was not
found on the sponsorship certificate and the candidature of 2
candidates was rejected on account of non-signature of the sponsoring
authority on the sponsorship certificate.
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43. It is, thus, seen that almost half of the eligible candidates
suffered a setback on account of almost the same reason. All the
candidates have obtained their merit positions and have been
admittedly sponsored by their respective Government Departments.
The admissions against Post Graduate courses have to be made strictly
on the basis of merit. It is, therefore, seen that the instant case depicts
a miserable state of affairs where the meritorious candidates are being
deprived of their consideration on merit without any substantial
reason. However, the fact remains whether the candidates who do not
have the sponsorship certificate with the office seal are entitled for the
inclusion of their names in the merit list and whether the writ court
must exercise its equitable jurisdiction to allow them for consideration
on merits.
44. A perusal of Clause 16(c) of the Information Bulletin requires a
sponsorship certificate which is mandatory for consideration of the
candidature against Priority-III. There is only one sponsorship
certificate that is prescribed in Appendix 'A' and the said format
requires both, the rubber stamp of the Sponsoring Authority as well as
the office seal.
45. For the preparation of a merit list before counselling, if the
respondents have examined the correctness of sponsorship certificate
in a prescribed format and have rejected the candidature of the
candidate whose sponsorship certificate is deficient, in any manner,
the same cannot be held to be arbitrary unless it is alleged to have
been done maliciously. There are no allegations of malafide in the
instant case.
46. In the instant case, a large number of candidates suffered the
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wrath of aforesaid strenuous scrutiny. The same would strengthen the
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Signing Date:11.09.2023 By:PURUSHAINDRA
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fact that the respondents have treated all the candidates uniformly with
the same yardstick.
47. The strict rule of scrutiny has been applied, which cannot be
held to be arbitrary. The same, undoubtedly, is a harsh one. The
instructions in the Information Bulletin clearly require that a candidate
must go through the Information Bulletin carefully before contacting
the AFMS for any query. If the petitioners had any difficulty in
obtaining the requisite certificate with the office seal, they ought to
have immediately pointed out their grievance before submitting the
same to the competent authority for appropriate relaxation.
48. In the instant case, what disentitles the petitioners is the fact that
they had submitted the certificate ignoring the fact that their
sponsorship certificates do not contain office seal. There is only one
format i.e. Appendix 'A', which requires both, a rubber stamp and an
office seal.
49. If the argument of the petitioners that the certificates were to be
submitted at the admission stage is tested on the anvils of the facts of
the present case, it would appear that the petitioners themselves
submitted the certificates prior to the stage of admission. They should
have raised their grievances at the relevant stage itself. Having obeyed
the directions as they understood to be correct, they cannot challenge
the same at the later stage.
50. The argument that in the earlier years relaxations were provided
by the respondents cannot be the reason to extend the benefit to the
petitioners as a matter of right in the present academic year also. There
does not exist a legal right which inheres with the petitioners to claim
a relaxation which was previously given. The same lies in the realm of
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Signing Date:11.09.2023 By:PURUSHAINDRA
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discretion which might have been applied or extended depending upon
the facts prevalent in the earlier year.
51. It is, thus, seen that the candidates who do not have the
sponsorship certificates with the requisite office seal, are not entitled
for their consideration against Priority-III.
52. It is well established that judicial caution and restraint is
required to be maintained when a bonafide decision of State is sought
to be challenged. There might have been a possibility of taking a
different view by respondent no.2 itself considering the rejection of
large number of candidates on the same ground, however, the same
cannot be done by a writ court, which is normally unaware of various
intricacies and nuances of such a decision. The view of the decision
making authority cannot be substituted by the court merely on the
ground that a different view is possible. It would, therefore, be unwise
to take a distinct position to unsettle the view adopted by the said
authority.
53. With respect to petitioner nos.10, 13 and 15, their sponsorship
certificates do contain office seal and despite that, their candidature
has been rejected. There is no explanation furnished by the official
respondents as to why the office seal affixed by the concerned
government organisation is deficient in compliance with Appendix
'A'.
54. The private respondents tried to justify that the seal has to be in
the round shape but interestingly, the same is not the stand taken by
respondent no.1.
55. In any case, even if respondent no.1 has to contend that the
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respect to these three candidates. It is up to the concerned Government
Department/ Organisation to decide in which format they affix the
seal. More so, neither the Appendix 'A' nor instructions in the
Information Bulletin require an office seal to be affixed in a particular
shape. If the concerned department has violated any government
instruction regarding the shape of the seal, then appropriate steps have
to be taken by the concerned department. However, the issue cannot
come in the way of meritorious candidates, who otherwise are eligible
for counselling.
56. It is, thus, seen that the rejection of three candidates for the
purpose of including their names in the merit list, is wholly arbitrary
and ex-facie illegal. Their exclusion is, therefore, set aside and
necessary directions for their consideration will have to be passed.
57. With respect to petitioner no.4, even if both the communications
are accepted, in none of the communications there is an office seal
affixed in the sponsorship certificate. Therefore, petitioner no.4 is also
similarly situated with candidates other than petitioner nos.10, 13 and
58. Having considered the submissions and the issues involved in
the instant writ petition, this court finds the less meritorious candidates
than petitioner nos.10, 13 and 15 have been granted admission against
MD/MS (Post Graduation) courses.
59. However, in the interest of justice, while not disturbing all the
admissions already made by respondent no.2 in Priority-III, some
workable directions need to be issued in larger interest of merit.
Therefore, this court finds it appropriate to issue the following
directions:-
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(i) Two petitioners, who have opted for seats as per interim
directions passed by this court, be allowed to continue their courses on
their respective allotted seats as opted by them.
(ii) Petitioner nos.10, 13 and 15 shall be granted admission as per
the priority of subjects and their merit for which the sponsoring
authority had issued the sponsorship certificates to them.
(iii) In case the seats are not vacant in respective courses, the
required number of candidates placed at the bottom of the merit list
against respective MD/MS seats will have to be ousted. The ousted
candidates be offered the remaining available seats, as stated during
the course of arguments by respondent no.2. If in order to work out the
directions, respondent no.2 has to conduct recounselling for Priority
III or IV, let the same be done immediately, as the admissions of the
candidates who may likely to be ousted were already made subject to
the further directions to be passed by this court. The admitted
candidates are parties to this writ petition and were fully aware of the
pendency of the present case.
(iv) This court has held that the petitioners have no right to seek an
opportunity for rectification of their sponsorship certificate. However,
considering the fact that in the previous years the respondents had
permitted the candidates to rectify the deficiencies in the respective
sponsorship certificates, in the peculiar facts of the present case, the
remaining petitioners shall be considered for allotment of vacant seats
before offering a seat to any other candidate, subject to providing
seven days' time to those petitioners for obtaining a fresh sponsorship
certificate from their respective departments in the prescribed format.
(v) This court is also of the view that the respondents should
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the sponsorship certificates are to be scrutinized and whether the
candidates should be permitted to rectify their sponsorship certificate,
if any technical defect is found. This would ensure uniformity,
transparency and avoid unnecessary litigation. Let the respondents
take a final view on the aforesaid aspect, well before the
commencement of the next academic session and incorporate the same
in the subsequent Information Bulletin.
(vi) Let all the steps be taken to complete the counselling and
admission process within the stipulated time, as per the directions
passed by the Hon'ble Supreme Court in MA 1732/2023 in WP (C)
No. 76/2015 titled as „Ashish Ranjan & Ors. vs Union Of India &
Ors.'
60. With the aforesaid observations, the instant petition stands
disposed of.
(PURUSHAINDRA KUMAR KAURAV)
JUDGE
SEPTEMBER 11, 2023
nc/shs/ss
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