Page No.# 1/5 vs The State Of Assam And 4 Ors
2023 Latest Caselaw 4233 Gua

                                                                  Page No.# 1/5

GAHC010233112023




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : I.A.(Civil)/3129/2023

         ANURG CHETRY
         SON OF CHANDRA BAHADUR CHETRY, RESIDENT OF SHITOLPUR
         (PHILOBARI), P.O. GABHARUPATHAR, DISTRICT- TINSUKIA, ASSAM, PIN-
         786160.



         VERSUS

         THE STATE OF ASSAM AND 4 ORS.
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
         GOVERNMENT OF ASSAM, MEDICAL AND HEALTH DEPARTMENT,
         DISPUR, GUWAHATI-06

         2:THE DIRECTOR OF MEDICAL EDUCATION
          HENGRABARI
          GUWAHATI-36

         3:THE PRINCIPAL
          KOKRAJHAR MEDICAL COLLEGE
          KOKRAJHAR
          P.O. KOKRAJHAR
          DISTRICT- KOKRAJHAR (BTAD)
         ASSAM
          PIN- 783370

         4:THE UNION OF INDIA
          REPRESENTED BY THE MINISTRY OF HEALTH AND FAMILY WELFARE
          NIRMAN BHAWAN
          NEW DELHI- 110011

         5:MS. SHAYONA KASHYAP
          D/O- SRI ASHISH KUMAR DEY
          R/O- DHEKIAJULI TOWN
                                                                Page No.# 2/5

             P.O. SONITPUR
             P.S. DHEKIAJULI
             DIST.- SONITPUR
             ASSAM
             PIN- 784001
             PRESENT ADDRESS- C/O- GOVT. MIDDLE SCHOOL
             TIPPI
             P.O. AND P.S. BHALUKPUNG
             DISTRICT- WEST KAMENG
             ARUNACHAL PRADESH
             PIN- 79011

Advocate for the Petitioner   : MR. B CHETRI

Advocate for the Respondent : SC, HEALTH




             Linked Case : WA/392/2023

            ANURG CHETRY
            SON OF CHANDRA BAHADUR CHETRY
            RESIDENT OF SHITOLPUR (PHILOBARI)
            P.O. GABHARUPATHAR
            DISTRICT- TINSUKIA
            ASSAM
            PIN- 786160.


             VERSUS

            THE STATE OF ASSAM AND 4 ORS.
            REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
            GOVERNMENT OF ASSAM
            MEDICAL AND HEALTH DEPARTMENT
            DISPUR
            GUWAHATI-06

            2:THE DIRECTOR OF MEDICAL EDUCATION
            HENGRABARI
             GUWAHATI-36
             3:THE PRINCIPAL
            KOKRAJHAR MEDICAL COLLEGE
             KOKRAJHAR
             P.O. KOKRAJHAR
                                                                      Page No.# 3/5

          DISTRICT- KOKRAJHAR (BTAD)
          ASSAM
          PIN- 783370
          4:THE UNION OF INDIA
          REPRESENTED BY THE MINISTRY OF HEALTH AND FAMILY WELFARE
          NIRMAN BHAWAN
          NEW DELHI- 110011
          5:MS. SHAYONA KASHYAP
          D/O- SRI ASHISH KUMAR DEY
          R/O- DHEKIAJULI TOWN
          P.O. SONITPUR
          P.S. DHEKIAJULI
          DIST.- SONITPUR
          ASSAM
          PIN- 784001
          PRESENT ADDRESS- C/O- GOVT. MIDDLE SCHOOL
          TIPPI
          P.O. AND P.S. BHALUKPUNG
          DISTRICT- WEST KAMENG
          ARUNACHAL PRADESH
          PIN- 790114
          ------------

     For the appellant      : Mr. B. Chetri, Advocate
     For the respondents     : Mr. D. Saikia, A.G., Assam
                               Mr. B. Gogoi, S.C., Health
                               Mrs. R. Devi, C.G.G.


                                    -BEFORE-
                           HON'BLE THE CHIEF JUSTICE
                         HON'BLE MR. JUSTICE KARDAK ETE
11-10-2023

The issue raised in the connected intra-Court writ appeal pertains to the ouster of the applicant/appellant from the MBBS- UG course after having been provisionally admitted therein on account of the consequences following from the judgment dated 29.09.2023 passed by the learned Single Judge in WP(C) 5730/2023. The said writ petition came to be preferred by one Smt. Sima Rani Das, mother of Ms. Shayona Kashyap, who had applied in the very same selection Page No.# 4/5

process albeit under the OBC category. The said candidate, later on, made an attempt to change her category to OBC-NCL and when the certificate was not issued, she instituted WP(C) 4510/2023 wherein the order dated 30.08.2023 came to be passed. After the said order, the Deputy Commissioner, Sonitpur issued an order dated 18.09.2023 rejecting the application of the said candidate for grant of OBC-NCL certificate on the ground that her parents had annual income which exceeds Rs.8 lakhs. Another writ petition, being, WP(C) 5730/2023 came to be instituted by Smt. Sima Rani Das wherein the learned Single Bench without providing any opportunity of filing affidavit to the respondents, proceeded to accept the writ petition by order dated 29.09.2023 requiring the Deputy Commissioner to issue Non-Creamy Layer certificate to Ms Shayona Kashyap and also gave a direction to the Director, Medical Education for admission of the said candidate to the MBBS course provided she was entitled on merit in all other respect. Consequent to the said mandatory direction, the OBC-NCL certificate was issued to the respondent No.5 and a revised select dated 29.09.2023 was published cancelling the select list dated 28.09.2023 wherein the applicant/appellant herein was shown selected as an OBC-NCL category candidate.

Mr. B. Chetri, learned counsel representing the applicant/appellant urged that there is no dispute that the applicant/appellant right from the inception had applied under the category of OBC-NCL in the NEET-UG, 2023. Though he was not selected in the first three rounds of counselling, in the stray round (fourth round), the appellant succeeded and was declared selected as per the provisional select list dated 28.09.2023. However, on account of the direction given by the learned Single Judge allowing the respondent No.5 herein to change her category at the last moment and well after the last date for submission of the application forms, she was issued the OBC-NCL certificate and has been selected in the said category leading to the ouster of the appellant without the appellant having been given any Page No.# 5/5

opportunity to show cause.

Being aggrieved by the illegal cancellation of admission, the applicant/appellant preferred WP(C) 5934/2023. However, the learned Single Judge refused to entertain the prayer for interim relief and has posted the matter on 07.11.2023 by which date, the case of the petitioner would become infructuous because no further admissions can be allowed in the medical courses after 30.10.2023.

In view of the imminent urgency in the matter, notice of the interlocutory application seeking interim relief as well as the writ appeal be issued to the respondents.

Learned Advocate General of Assam puts in appearance on behalf of the State authorities as well as Principal of Kokrajhar Medical College, i.e. respondent Nos.1, 2 and 3 and Mrs. R. Devi, learned Central Government Counsel, puts in appearance on behalf of respondent No.4. Thus, process need not be issued to such respondents.

Issue notice to the respondent No.5. It shall be the duty of Mr. B. Gogoi, learned Standing Counsel, Health, to ensure service of notice upon the respondent No.5 is effected through the Principal of Kokrajhar Medical College.

List on 16.10.2023.

Registry shall tag the files of WP(C) 5730/2023 and WP(C) 4510/2023 (both are disposed of) with this appeal.

                    JUDGE                              CHIEF JUSTICE

Comparing Assistant