Madras High Court
Jawaharlal Institute Of ... vs Dr.Bharath Kumar Reddy on 6 May, 2021
W.A.No. 1244 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.05.2021
CORAM:
THE HON'BLE MR.JUSTICE R.SURESH KUMAR
and
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
W.A. No. 1244 of 2021
and
C.M.P. No. 7989 of 2021
1.Jawaharlal Institute of Postgraduate
Medical Education & Research
Rep by its Director
Puducherry.
2.The Dean
Jawaharlal Institute of Postgraduate
Medical Education & Research
Rep. by its Director
Puducherry. ... Appellants
vs.
1.Dr.Bharath Kumar Reddy
2.Union of India
Rep. by the Secretary to Government
Ministry of Health and Family Welfare,
New Delhi.
3.The National Medical Commission
Rep by its Chairman,
Pocket – 14, Sector – 8,
Dwarka Phase – 1,
New Delhi – 110 077. ... Respondents
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W.A.No. 1244 of 2021
Prayer: Writ Appeal is field under Clause 15 of Letters Patent, to allow
this Writ Appeal by setting aside the order dated 31.03.2021 in
W.P. No. 4392 of 2021.
For Appellants : Ms. Sunitakumari
For Respondents : Mr. T.Sai Krishnan (For R1)
: Mr. Rajesh Vivekananthan (For R2)
JUDGMENT
(Order of the Court was made by P.D.AUDIKESAVALU, J)
(through video conferencing)
Heard Ms. Sunitakumari, Learned Counsel for the Appellants,
Mr. T.Sai Krishnan, Learned Counsel for the First Respondent and
Mr. Rajesh Vivekanandhan, Learned Counsel for the Second Respondent,
and perused the materials placed on record, apart from the pleadings of
the parties.
2. The Intra Court Appeal arises out of the order dated 31.03.2021 in
W.P. No. 4392 of 2021 passed by the Writ Court. The parties hereinafter
referred to as per the description of the Writ Petition for the sake of
convenience.
3. The Second Respondent is a Medical Institution established by the
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W.A.No. 1244 of 2021
Government of India in Puducherry, imparting undergraduate, post
graduate and super-speciality medical training through a working
hospital. The DM/M.Ch Course for the year 2021 was offered by the
Second Respondent through online process on 16.10.2020 and All India
Entrance Examination had been conducted on 06.12.2020 and merit list
was published in its website on 10.12.2020 showing that the following
eight candidates had been shortlisted in the merit list for filling up two
general seats in DM (Neurology):-
JIPMER DM/M.CH ENTRANCE EXAMINATION – JANUARY
2021 SESSION
RANKED MERIT LIST – 8936 DM Neurology
Sl.No. Name of the Candidate Roll No. Percentage
1. PAKINA KRISHNA 2101442196 57.750
KISHORE
2. KADARLA 2101442202 55.000
SHIVASAIKRISHAN
3. ABINASH SWAIN 2101440481 53.250
4. SHUBHAM GUPTA 2101441308 52.500
5. M. BHARATH KUMAR 2101441666 51.000
REDDY
6. NOEL JAMES E 2101441190 50.750
7. MEERA R 2101441881 50.250
8. HARISWAR PARI 2101441743 50.000
4. According to the Second Respondent, the candidate ranked at
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W.A.No. 1244 of 2021
Serial No.1 in the merit list did not join the course, the candidates ranked
at Serial Nos. 2 and 3 in the merit list, viz., Dr.Kadarla Shivasaikrishan
and Dr.Abinash Swain, completed the admission procedure and joined
the course before 31.01.2021. However, the said Dr.Abinash Swain
discontinued the course on 13.02.2021 after paying the penalty of
Rs. 3,00,000/- plus one month's salary in lieu of notice period. Thereafter,
the Petitioner on 22.02.2021 filed the Writ Petition in W.P. No. 4392
of 2021 for directing the Respondents to admit him in the DM
(Neurology) Super-Specialty Course for the year 2021 in accordance with
his merit in the available vacant seat. The Second Respondent resisted the
Writ Petition that since the admission for the year 2021 had closed on
30.01.2021, the remaining persons ranked in the merit list could not be
admitted in the vacancy that arose after that date, and it was further
explained that the seat would be filled up by non-academic senior
resident trainee.
5. The Learned Judge, who heard the Writ Petition, in the order dated
31.03.2021 did not accept the said contentions of the Second Respondent
and proceeded to hold as follows:-
“11. The selection process for the DM course for the year
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W.A.No. 1244 of 2021
2021 was made by the second respondent Institution
through online process and by conducting Entrance
Examination and based on the Entrance Examination, a
Merit List was also drawn and this petitioner stood as rank
No.5 in the Merit List. A few candidates, who got
accommodation from the Merit List got offers from some
other Institutions such as AIIMS and they had discontinued
the course and joined such Institutions. One student by
name Abinash Swain discontinued the course on
13.2.2021 and joined some other Institution.
12. The case of the petitioner is that he he is on the next
in line from the waiting list and the respondent Institution,
who ought to have accommodated the petitioner in the
vacancy that arose on account of resignation of
Dr.Abinash Swain has denied opportunity to the petitioner
by referring the cut-off date as 30.1.2021.
13. The second respondent Institution is an autonomous
Institution and they are fixing the cut-off date on their own
and not by any directions of any court as that of the cut-off
date prescribed by the Hon-ble Supreme Court for MBBS
course. All other Institutions such as AIIMS, who are also
offering the super-speciality courses, have prescribed the
cut-off date for admission of this course as 28.2.2021.
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W.A.No. 1244 of 2021
Even this second respondent had fixed the cut-off date as
29.2.2020 for the previous year selection, however, for this
year alone, the cut-off date for admission has been
prescribed as 30.1.2021. The second respondent is having
a right to make changes in the information provided in
their prospectus and therefore, they ought to have filled up
the vacancy which arose on account of resignation of
Dr.Abinash Swain, by considering the candidature of the
petitioner, however, strangely they have accommodated a
Non-academic Senior Resident Trainee from their
Institution.
14. The respondent Institution has offered the course by
conducting an Entrance Examination and selecting the
candidates and a merit list is also drawn and this
petitioner stood as 5th rank holder. On account of the
vacancy arose after the resignation of one of the
candidates, the petitioner was due to get a seat from the
waiting list, but the petitioner has not been selected by the
Institute by referring the cut-off date in the prospectus. On
the other hand, they have accommodated a Non-academic
Senior Resident Trainee through back door without any
Entrance Examination. It appears that the selection
process in accommodating the vacancy that arose out of
the resignation of Dr.Abinash Swain has not been
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W.A.No. 1244 of 2021
conducted in a fair and transparent manner. Therefore, the
accommodation of Non-academic Resident Trainee, in the
vacancy that arose on account of resignation of
Dr.Abinash Swain, is not made in accordance with the
prospectus. Though the said Non-academic Resident
Trainee is not arrayed as a party in this writ petition, this
court disposes this writ petition holding that he is not in
the selection process and has been accommodated without
any selection process.
15. In the light of the above discussions, this court is
inclined to allow the writ petition with a direction to the
respondents to admit the petitioner in the DM Super-
speciality Course for the year 2021 in the vacancy that
arose on account of resignation of Dr.Abinash Swain on
13.2.2021. Accordingly, the writ petition is allowed. No
costs. The connected Miscellaneous Petition is closed.”
Aggrieved thereby, the Second Respondent has preferred the present Writ
Appeal.
6. The primordial contention of the Learned Counsel for the Second
Respondent is that the Writ Court is not justified in holding that the
cut-off date for admission ought to have been fixed as '28.02.2021' as
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W.A.No. 1244 of 2021
done by certain other institutions, instead of '30.01.2021' that has been
mentioned in the prospectus in this case. It is highlighted that the Second
Respondent in the Counter-Affidavit dated 09.03.2021 had explained this
position as follows:-
“10. It is submitted that AIIMS and other institutions are
free to decide their own admission closing dates as per
their schedule and processes. In fact, the various
institutions participating in the common entrance test
specified and followed different cut-off dates. These
different cut-off dates were announced in advance in the
prospectus of each institution, and were well known to the
candidates, including the petitioner. None of them lodged
any representation about different cut-off dates in
advance. Hence the argument that JIPMER should use the
same date as AIIMS did is an afterthough, which has been
brought in only to avail benefit that is not done.”
There cannot be any dispute that the cut-off date fixed for making
admissions in the courses of study in sacrosanct, which cannot be
normally changed without any acceptable reason. However, it cannot be
said that the cut-off date for completing the admission in all Medical
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W.A.No. 1244 of 2021
Institutions throughout the country has to the same, in the absence of any
statutory requirement or binding ruling of the Hon'ble Supreme Court in
that regard. The circumstance that the Second Respondent had reserved
the right to make changes in the prospectus cannot treated as empowering
the Writ Court to extend the cut-off date from 30.01.2021 to 28.02.2021
merely because certain other Medical Institutions had fixed that date and
the Second Respondent had adopted 29.02.2020 as the cut-off date in the
previous year. Viewed from that perspective coupled with the explanation
of the Second Respondent, which has been extracted, it is not possible to
sustain the conclusion arrived by the Writ Court on that aspect of the
matter.
7. This takes to the next facet as to whether the Second Respondent
has committed any illegality by accommodating a non-academic senior
resident trainee through back door without any entrance examination to
fill up the vacancy that arose. The Second Respondent in the Additional
Affidavit dated 24.04.2021 filed in this appeal has stated as follows:-
“2.1. It is submitted that the DM super Specialty courses
are 3 year courses after MD. It is further submitted that
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W.A.No. 1244 of 2021
MD or equivalent degrees are the essential qualification
required to appear in the entrance examination for these
courses. Any student joining this course is also
simultaneously appointed as a Senior Resident (also called
as Academic Senior Resident) with a basic pay of Rs.67700
(Level 11, Cell 1, plus non-practising and other
allowances), as admissible to temporary employees, per
month in the 1st year. An increment is given at the start of
2nd and 3rd years. Thus, the DM students also work as
doctors and hold a 3-year tenure temporary post of Senior
Resident. Therefore, they have dual status – of a DM
student as well as a temporary employee (Senior Resident).
....
2.4. It is further submitted that since the DM students
also work as Senior Resident (Academic Senior Resident)
in the hospital, if a seat cannot be filled or becomes
vacant, there is a provision to appoint a doctor with MD or
equivalent degree as a Senior Resident, who is also called
as a Non-Academic Senior Resident, because such a person
is not pursuing an academic DM course. He is a Senior
Resident who provides patient care service but is not
working for a degree against the vacant post. Such a
person is an employee but not a student and no Doctorate
Degree is awarded to him. The entry qualification of a
Non-Academic Senior Resident is similar to that of an
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W.A.No. 1244 of 2021
Academic Senior Resident, and such persons would have
been eligible to appear in the entrance examination for
DM course. They may be appointed for a period of 3 to 6
months and can be reappointed for further spells. They do
similar work in the hospital, but without being registered
for a doctorate degree, and receive the same salary as that
of an Academic Senior Resident.
2.5. It is further submitted that the decision to appoint a
non-academic Senior Resident is based on the volume of
patient care workload in the department. If the patient care
workload is high, the vacant post Senior resident
(Academic) is filled up by a non-academic Senior Resident.
The appointment of such non-academic Senior Resident is
on contract basis and the period of contract appointment
initially may range from 3 months to 6 months and can be
extended. It may be in one spell or in more than one spell.
The decision whether to appoint a non-academic Senior
Resident is taken based on workload in the department and
if it is required in the interest of patient care. If it is
decided to fill up the temporary post (such as one fell
vacant on resignation of Sl.No.3) with a non-academic
Senior Resident, a separate notification is issued to invite
applications from those having the qualification of MD /
DNB (Neurology), MD / DNB (General Medicine and MD /
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W.A.No. 1244 of 2021
DNB (Pediatrics) and selection is based on written
examination / interview.
Hence it is submitted that there is no back-door
method of filling up of vacancy by any candidate as
observed in the order of the Learned Single Judge in the
Writ Petition No. 4392 of 2021. The Appellant is a well-
reputed Institution and has been following the time line
laid down in the prospectus and also ensuring patient care
depending on the work load. Any contractual appointment
against the vacant post is done only to ensure running of
patient care services and is made in keeping with
principles of transparency and equality of opportunity to
all those eligible.”
On a perusal of the cogent reasons stated, this Court is of the considered
view that it is not possible to accept the conclusion arrived by the Writ
Court that the Second Respondent has accommodated a non-academic
senior resident trainee through back door without any entrance
examinations, which is also not supported by any materials in that regard.
There does not appear to be any infirmity in that decision-making process
followed by the Second Respondent requiring interference by this Court.
8. The last question that remains is whether the Petitioner could be
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W.A.No. 1244 of 2021
admitted to the course after 30.01.2021 having regard to his rank in the
merit list, as noticed earlier. It is pointed out by the Second Respondent
that the discontinuance of the said Dr.Abinash Swain on 13.02.2021 after
the cut-off date that had lapsed on 30.01.2021, is a fortuitous
circumstance, meaning thereby that such vacancy arising during the
course of study after that cut-off date cannot confer any legal right to a
candidate in the waiting list to be admitted to the course. That apart, it is
also borne out from the record that even if it was decided to fill up the
vacancy with the next candidate in the waiting list, it would have to be
offered to the candidate at serial No. 4, viz., Dr.Shubham Gupta, in the
merit list, and the Petitioner at Serial No.5 in that merit list, could not be
admitted overlooking the same.
9. In view of the foregoing discussion, the Writ Appeal is allowed.
The relief granted to the Petitioner in the impugned order dated
31.03.2021 in W.P. No. 4392 of 2021 passed by the Writ Court, which is
erroneous, is set aside and the Writ Petition is dismissed. Consequently,
the connected civil miscellaneous petition is closed. No costs.
(R.S.K., J.) (P.D.A., J.)
06.05.2021
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W.A.No. 1244 of 2021
Index: Yes/No
Internet: Yes/No
dm
Note: Issue order copy by 13.05.2021.
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W.A.No. 1244 of 2021
To
1.The Secretary to Government
Ministry of Health and Family Welfare,
New Delhi.
2.The Chairman,
National Medical Commission
Pocket – 14, Sector – 8,
Dwarka Phase – 1,
New Delhi – 110 077.
http://www.judis.nic.in
W.A.No. 1244 of 2021
R.SURESH KUMAR,J.
and
P.D.AUDIKESAVALU,J.
dm
W.A. No. 1244 of 2021
and
C.M.P. No. 7989 of 2021
06.05.2021
http://www.judis.nic.in
