Disha Keyurkumar Trivedi vs Union Of India
2021 Latest Caselaw 13541 Guj

      C/SCA/11773/2021                                ORDER DATED: 07/09/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 11773 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 11781 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 11783 of 2021
==========================================================
                           DISHA KEYURKUMAR TRIVEDI
                                     Versus
                                 UNION OF INDIA
==========================================================
Appearance:
PRATEEK S BHATIA(8629) for the Petitioner(s) No. 1
. for the Respondent(s) No. 1,2,3
MR.KRUTIK A PARIKH(7268) for the Respondent(s) No. 3
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2
==========================================================

 CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                                Date : 07/09/2021

                             COMMON ORAL ORDER

Heard learned advocate Mr.Prateek S. Bhatia for the petitioners and learned advocate Mr.Krutik A. Parikh for the respondent No.3.

1. By these petitions, the petitioners who are Doctors have prayed for the following reliefs : "(A) Your Lordships be graciously pleased to admit and allow this petition and be further pleased to issue a writ of Mandamus/ Any other writ of appropriate direction directing Respondents to extend the eligibility criteria of cut off date of completion of internship for NEET-PG 2021 examination to be conducted on 11.09.2021 from 30.09.2021 to 20.10.2021 in the interest of Justice.

(B) In the Alternative, Your Lordships may be pleased to direct Respondent No.2 to decide the representation dated 10.08.2021 submitted by the Petitioner:

(C) Any other appropriate order or orders as deemed just be also passed."

C/SCA/11773/2021 ORDER DATED: 07/09/2021

2. As facts of all the petitions are identical, the same are heard analogously and are disposed of by this common order.

3.1. The petitioners have completed their MBBS course in July 2020 and were undergoing Compulsory Rotatory Internship which would get completed on 19th October, 2021.

3.2. The petitioners wish to pursue a Post Graduate Degree after appearing for NEET-PG Examination. The grievance with which the petitioners have approached this Court is that the respondents have fixed 30th September, 2021 as the last date of the completion of the compulsory one year rotational internship to enable the petitioners to participate in the National Eligibility Cum Entrance Test (Post-Graduate) i.e. NEET-PG Examination to be held on 11th September, 2021. The petitioners would complete internship only on 19.10.2021 and therefore, direction upon the respondents is sought to extend the eligibility criteria of cut off date of completion of internship for NEET-PG 2021 Examination to be conducted on 11th September, 2021 from 30th September, 2021 to 20th October, 2021.

4.1. Learned advocate Mr.Prateek Bhatia for the petitioners submitted that due to the

C/SCA/11773/2021 ORDER DATED: 07/09/2021

circumstances arising on account of pandemic Covid-19, the NEET-PG Examination which is normally held in the month of January has been postponed to 11th September, 2021. According to him, the schedule for conducting the Examination is in consistence with completion of the internship by 31st October, 2021 or even later. It was submitted that such a modification to extend the date of eligibility criteria of internship from 30th September, 2021 would not disturb the proposed schedule and would enure to the benefit of several candidates whose internship would not be completed by 30th September, 2021.

4.2. Learned advocate Mr.Bhatia for the petitioners relied upon the Medical Council of India Post Graduate Medical Education Regulation, 2000 (PGMER) to point out that the schedule for completion of admission process for Post Graduate Medical Courses provides that the entrance examination be conducted by 10th January and the result be declared by the end of January and counselling is to be conducted in three months between 12th March and 8th May with 31st May being the last date of admission in Post Graduate Course. It was submitted that in view of the prescribed schedule the last date of completion of internship for the purpose of eligibility for appearing in the NEET-PG Examination was fixed as 31st March, 2021.

C/SCA/11773/2021 ORDER DATED: 07/09/2021

4.3. It was submitted that however, due to pandemic Covid-19, the Medical Council of India, now National Medical Commission respondent No.2- herein by Notification dated 7th April, 2020 extended the last date for completion of internship to 30th April, 2021.

4.3. It was submitted that National Board of Examination by Notice dated 23rd February, 2021 fixed the NEET-PG Examination on 18.04.2021 and results were to be declared on 31.05.2021. It was submitted that at the relevant time, National Board of Examination also issued an Examination Information Bulletin wherein, it was provided that last date for completion of internship was extended to 30th June, 2021.

4.4. It was submitted that however, due to the second wave of pandemic Covid-19 in the Country, Examination could not be held on 18.04.2021. The Ministry of Health and Family Welfare, Government of India by letter dated 3rd May, 2021, directed to State Government that a NEET-PG Examination was being postponed and would not be held prior to 31st August, 2021 and according to the Directives, the States were called upon to utilize the prospective NEET-PG candidates for Covid-19 work force. The petitioners therefore have been serving in Covid-19 related duties since April, 2021.

C/SCA/11773/2021 ORDER DATED: 07/09/2021

4.5. It was submitted that thereafter, by Notice dated 30th June, 2021, issued by the National Board of Examination, the NEET-PG Examination has now been scheduled for 11th September, 2021 and by further Notice, the National Board of Examination has decided to open a second phase registration for candidates between 16.08.2021 to 20th August, 2021 and further extended the cut off date for completion of internship to 30th September, 2021.

4.6. Learned advocate Mr.Bhatia therefore submitted that though the petitioners have appeared in final MBBS Examination in the month of July, 2020, however, on account of the pandemic Covid-19, results of the final MBBS Examination were declared on 06.10.2020 and after that date only, the petitioners were eligible to start mandatory Compulsory Rotatory Internship and therefore, the eligibility criteria prescribed by the respondent No.2 unfairly excludes the petitioners and similarly other situated students who will complete their internship after 30th September, 2021. It was submitted by learned advocate Mr.Bhatia that the petitioners addressed a representation to the respondent No.2-National Medical Commission on 11th August, 2021 for extension of the eligibility criteria for completion of the internship as due to pandemic Covid-19 situation lot of Examinations and internships of the students were

C/SCA/11773/2021 ORDER DATED: 07/09/2021

affected.

5.1. On the other hand, learned advocate Mr.Krutik Parikh submitted that the issue arising in these petitions are now covered by the judgments of the Madras High Court as well as the Delhi High Court. Reliance was placed on the decision of the Madras High Court dated 9th August, 2021 in Writ Petition No.16526 of 2021 and other allied matters in case of GA Vishwajeet Vs. Union of India and Others as well as the decision of the Delhi High Court dated 18th August, 2021 in Writ Petition No.8429 of 2021 in case of SH ARMAN SINDHU Vs. Union of India and Ors.

5.2. Relying upon the aforesaid decisions, it was submitted that the Delhi High Court has referred to the decision of the Madras High Court and after considering the arguments of both the sides dismissed the petition. It was submitted that the Delhi High Court has also considered the decision in case of Ojasvini Agrawal Vs. Union of India decided on 13th May, 2020 in Writ Petition No.3054 of 2020 of the Delhi High Court which was affirmed by the Division Bench vide judgment dated 27th May, 2020 in Letters Patent Appeal No.147 of 2020 and has held as under :

"16. Having heard learned counsels for the parties, despite some sympathy for the predicament in which the petitioner finds himself, I am of the view that relief cannot be granted in this writ petition. The respondents have already extended

C/SCA/11773/2021 ORDER DATED: 07/09/2021

the cut-off date for completion of the internship, keeping in mind the COVID-19 pandemic and consequent delay in holding the NEET-PG examination. The writ court cannot take upon itself the task of administering the examination and fixation of the schedule. As held in the decisions cited by the respondents, there is a degree of inherent randomness in the fixation of a cut-off date which may, in a given case, cause hardship to a candidate or a group of candidates. That per se does not lead to the conclusion that the fixation itself is arbitrary. The relief sought by the petitioner would lead to an uncertain and cumbersome situation as Supra (note 4) Supra (note 1) Signature Not Verified Digitally Signed By:SHITU NAGPAL Signing Date:18.08.2021 there will always be some candidates who miss the cut-off by a whisker. If this Court were to accede to the petitioner's contentions, the grievances of those whose internships will be completed soon after 31.10.2021 would then come to the fore. The impermissibility of such interference with academic assessments has been emphasised in the Division Bench decisions of this Court in Dr. Rajat Duhan and Others vs. All India Institute of Medical Sciences and Others11 and National Board of Examinations vs. Dr. Rajani Sinha and Others12.

17. The judgment of the coordinate bench in Ojasvini Agrawal13 dealt with a similar situation with regard to the NEET-PG, 2020, wherein it was held as follows:-

"22. I may refer, with advantage, in this context, to the judgement of the Supreme Court in Dolly Chhanda v. Chairman, JEE1, in which a bench, of three Hon‟ble Judgesble Judges of the Supreme Court, underscored the distinction between possession of requisite qualifications, and submission of proof of possession of requisite qualifications, to secure admission. It has been categorically held, in the said decision, that, in regard to possession of requisite eligibility qualifications, by the cut-off date fixed in that regard, there can be no relaxation. Once, however, a candidate possesses the requisite qualifications, by the stipulated cut-off date, depending on individual facts and circumstances, it might be possible to relax the date by which the candidate is required to submit proof of possession of such qualification. In the present case, 31st March, 2020, stands expressly stipulated as the cut- off date by which any candidate, who seeks to obtain admission to a PG medical course, consequent to the NEET PG 2020 examination, is required to complete her, or his, compulsory internship. There can, therefore, be no relaxation in this regard, least of all by a writ court.

xxxx xxxx xxxx

25. The alternative prayer B, in the writ petition, which seeks extension of the period of completion of one-year internship, by one month, to 30 th April, 2020, qua the petitioner, "so that the petitioner was able to gain admission this year", too, requires merely to be urged to

C/SCA/11773/2021 ORDER DATED: 07/09/2021

be rejected. The duty of this Court, while exercising jurisdiction under Article 226 of the Constitution of India, is to administer the law, without fear or favour, and not to ensure that the petitioners, before it, secure the reliefs they seek, irrespective of the law. Ubi jus, as the time- worn adage goes, ibi remedium. The right has, therefore, to precede the remedy. Sans an enforceable legal right, there can be no remedy, in law. The provisions in the Bulletin issued by the NBE, governing the NEET PG 2020 Examination, as extracted hereinabove, reveal repeated emphasis - to the extent that the Bulletin highlights the said clauses - on the cut-off date of 31st March, 2020, for completion of compulsory one-year internship, by MBBS candidates. This Court, in exercise of its writ jurisdiction, does not deem it appropriate to tinker therewith, or to direct that, in the case of the petitioner, the said date should not be treated as sacrosanct. Charity to one, in the teeth of the law, results in injustice to the multitude."

18. The Division Bench affirmed the judgment of the learned Single Judge with the following observations:-

"13. Completion of internship before 31st March, 2020, is therefore, an essential qualification. There is no power to relax the essential qualification. This Court, while exercising the jurisdiction under Article 226 of the Constitution of India cannot alter the essential Emphasis supplied. Signature Not Verified Digitally Signed By:SHITU NAGPAL Signing Date:18.08.2021 qualifications prescribed in the Information Bulletin. The argument advanced by Mr.Kachwaha, learned counsel that students who have completed their internship before commencement of the PG course should also be admitted, cannot be accepted. One more aspect which has to be borne in mind is that several candidates who did not complete their internship before 31st March, 2020 would not have participated in the counseling process for the reason that they were aware of the fact that they did not possess the essential qualifications as prescribed. Any permission granted to the appellant to secure admission in the PG course will amount to changing the rules of the game midstream which is impermissible and cannot be done by the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India.

14. It is also relevant to note that the appellant has not chosen to challenge the time limits prescribed and fixed in the Information Bulletin. In any event, she has not made out any case to demonstrate that the procedure prescribed in the Information Bulletin is violative of Article 14 of the Constitution of India and suffers from the vice of arbitrariness. Knowing that she was ineligible to get admission in terms of the relevant Rules and Regulations, the appellant still proceeded to take part in

C/SCA/11773/2021 ORDER DATED: 07/09/2021

the counseling conducted for seats reserved under All India quota and also in the counselling conducted by the State of Uttar Pradesh for filling up the seats which are reserved for State quota." As noted above, the Supreme Court declined to interfere with the said judgment of the Division Bench."

19. Although Mr. Sharawat is right in saying that the judgment in Ojasvini Agrawal17 was rendered in the context of the regulatory regime and not COVID-19 induced extensions, the observations of the Court regarding the limitations on exercise of the writ jurisdiction would equally apply. In this context, Mr. Sharawat reminded the Court of the plentitude of its powers under Article 226 of the Constitution. However, there are well developed limitations within which the writ court exercises its discretionary jurisdiction. Mr. Sharawat's reliance upon the observations of Krishna Iyer, J. in M/s. Shiv Shankar Dal Mills18 and the Himachal Pradesh High Court in Raju Thakur19 cannot come to his aid. While the Coronavirus pandemic may well be without precedent, the question of whether the writ court can interfere with cut-off dates in academic matters is not. Indeed, the very question raised in the present petition has been considered and answered in the binding decision of the Division Bench in Ojasvini Agrawal20.

20. In this context, I may also refer to the judgment of the Madras High Court in GA Vishwajeet21 which deals with the very same examination which is in issue in this petition, viz., NEET-PG 2021. The petitioner before the Madras High Court will complete his internship by 04.10.2021 - he misses the deadline by five days, as compared to 25 days for the present petitioner. The Court noted as follows:-

"5. The learned counsel for the petitioner submitted that the pandemic situation has brought about a very extra ordinary scenario, where the students are already suffering and there is a delay in the completion of the internship for the petitioner only due to this situation. The learned counsel submitted that the respondents must take into consideration the suffering of the students and one more extension can be given for the completion of the CRRI/Internship. The learned counsel submitted that even though the petitioner cannot claim this as a matter of right, it is always open to the respondents to take into consideration the present situation and sympathetically consider the request made by the petitioner and similarly placed students.

6. This Court is sympathetic to the passionate claim that has been made by the petitioner seeking for the extension of the cut-off date for completion of the internship. However, sympathy by itself cannot be a ground for issuing any positive directions, more particularly, when it comes to education. The cut-off dates are not fixed based on individual claims made and the respondents will have to take into consideration a wide range of options and take a

C/SCA/11773/2021 ORDER DATED: 07/09/2021

decision. The respondents had infact taken into consideration the pandemic situation and had extended the time for the completion of the internship from 30.06.2021 up to 30.09.2021. The learned counsel appearing on behalf of the 2nd respondent has made it clear that there is no further scope for extension of the cut-off date beyond 30.09.2021.

7. It will be very difficult for the Courts to interfere into every decision that is taken on the Administrative side and fixing of a cut off date is completely out of the purview of a writ petition filed under article 226 of Constitution of India. The petitioner is trying to project his individual grievance and is seeking for the extension of the cut-off date. However, if such a claim is entertained, it will open flood gates and every student who was not able to complete the internship on or before 30.09.2021, will approach this Court seeking for a similar direction and it will only end up in chaos. Such directions issued by this Court, will directly impact the further process of the respondents 2 and 3 in completing the admission for the PG courses. Therefore, even though this Court has considered the claim made by the petitioner sympathetically, it will be too difficult for this Court to direct the respondents to extend the cut off date.

8. In view of the above discussion, this Court is not in a position to grant the relief as sought for by the petitioner and accordingly, this writ petition stands dismissed. No costs. Consequently, the connected miscellaneous petitions are closed."

21. I am in respectful agreement with the view taken by the Madras High Court, which is also consistent with the binding precedents of this Court."

6. I am also in agreement with respect to the view taken by the Delhi High Court and the Madras High Court and for the same reasons these petitions are dismissed. Notice is discharged. No orders as to cost.

(BHARGAV D. KARIA, J)

PALAK