Madras High Court
T.Udhaykumar vs The Union Of India on 19 October, 2022
W.A.No.2364 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.10.2022
CORAM :
THE HON'BLE MR.T.RAJA, ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE D.KRISHNAKUMAR
W.A.No.2364 of 2022
T.Udhaykumar .. Appellant
v.
1. The Union of India
rep. by its Secretary to
Ministry of Human Resource Development
122-C, Shastri Bavan
New Delhi-110 001
2. The National Testing Agency
Ministry of Human Resource Development
C-20, 1A/8, IITK Outreach Centre
Sector-62, Noida
Uttar Pradesh-201 309
3. National Medical Commission (Under Graduate)
Pocket-14, Sector-8
Dwarka, Phase-I
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New Delhi-110 077
4. The Principal Secretary
Government of Tamilnadu
Health and Family Welfare (MCA-1) Department
Fort St. George, Chennai-600 009
5. The Secretary
Selection Committee
Directorate of Medical Education
162, Periyar EVR High Road
Kilpauk, Chennai-600 010 .. Respondents
Appeal filed under Clause 15 of the Letters Patent, against the order
dated 13.10.2022 passed in W.P.No.27487 of 2022.
For Appellant :: Mr.R.Sankarasubbu for
Mr.Ilayaraja Kanthasamy
For Respondents :: Mr.K.Ramanamoorthy
Central Government Counsel for R1
Mr.G.Rajagopalan
Senior Counsel for
Mrs.Sunitakumari for R2
Mrs.R.Anitha
Special Government Pleader for R4
Mrs.M.Sneha for R5
JUDGMENT
(Judgment of the Court was made by the Hon'ble Acting Chief Justice)
Mr.T.Udhaykumar, being a Tamil medium student, appeared for the
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NEET(UG)-2022 examination conducted by the respondents for admission
to the M.B.B.S. Degree course for the academic year 2022-23. His
application number and roll number are 20410250158 and 4101310175
respectively. He was also allotted the examination centre, Chinmaya
Vidyalaya at West Anna Nagar, Chennai and thereafter the examinations
were also held on 17.07.2022.
2. Mr.R.Sankarasubbu, learned counsel appearing for the
appellant/writ petitioner stated that the appellant, after appearing for the
examination, duly answered all the answers and has performed fairly.
Therefore, he was confident of getting good results. Finally the respondents
had published the results of the NEET(UG)-2022 examination in its website
along with the key answers for the questions. It is also brought to our notice
that each question being answered would carry four marks and one mark will
be deducted for each wrong attempt. But the appellant, without getting any
negative mark, answered all the questions, except Question No.97 shown in
Section-B. After reading repeatedly the Question No.97 with the key answers
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given therein, being very confident that the said question has been wrongly
framed, in order to avoid negative mark, he chose not to make any attempt,
because the key answers, namely, the four options given by the second
respondent were not at all correct. Therefore, he has just left Question No.97
without answering the same. He was also under the bona fide impression that
he would be granted the grace marks for the wrong Question No.97. Later
on, the second respondent published the results of the NEET-2022
examination in their website on 07.09.2022 showing that the appellant has
secured 92 marks out of 720 marks. On verification it was found that he was
not granted the grace marks for the Question No.97. When the second
respondent has fixed 93 marks as the cut off mark for the candidates
belonging to Scheduled Caste category, it is his grievance that when the
second respondent has framed Question No.97 wrongly, they are bound to
award the four marks, as they have to be held responsible for framing the
wrong question instead of the right Question. The appellant also, setting out
his grievance, sent a representation on 08.09.2022 thru e-mail to the
respondents, which did not evoke any response. Therefore, he was advised to
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file the writ petition.
3. When the matter was taken up, it was indicated by the other side
counsel that only in a case where the candidate made an attempt to any one of
the four key answers given to Question No.97, would be awarded the four
marks. Therefore, to take instructions and also aggrieved by the said
condition 3.2(b)(vi) of the bulletin, the learned counsel for the writ petitioner,
inadvertently, without taking leave/liberty of the Court to prosecute a fresh
writ petition, withdrew the writ petition. The appellant also sent a
representation thru e-mail on 29.09.2022. He also made a detailed
representation to the respondents on 11.10.2022. Again finding no response,
on the next day, he filed the second writ petition. But the learned single Judge
has dismissed the writ petition by holding that the writ petitioner, having
failed to obtain leave/permission to prosecute a fresh writ petition, is not
entitled to file the second writ petition for the same cause of action and for
the same relief. Aggrieved thereby, the present appeal has been filed.
4. Mr.R.Sankarasubbu, learned counsel appearing for the appellant, to
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maintain the writ appeal and also the second writ petition before the learned
single Judge, placed before us the following judgments:-
(1) (1962) 1 SCR 574 - Daryao and others v. State of U.P. and others;
(2) (1983) 4 SCC 309 - Kanpur University thru Vice Chancellor and
others v. Samir Gupta and others;
(3) (2008) 1 SCC 494 - Sarva Shramik Sanghatana (KV), Mumbai v.
State of Maharashtra and others;
(4) (2012) 1 SCC 157 - Sanchit Bansal and another v. Joint Admission
Board and others;
(5) Division Bench judgment of High Court of Orissa, Cuttack dated
24.07.2018 made in W.P.(C) No.9890 of 2018 (Dibya Jyoti Nanda v.
CBSE and another).
Relying upon the said judgments, it is his submission that when a poor
counsel represents a strong and fair case of any litigant, inadvertently
withdraws the writ petition without properly securing leave/liberty to
prosecute a fresh writ petition, for the wrong committed by a
lawyer/Advocate, innocent litigant cannot be made to suffer, which is the
settled legal position. In the present case, when the appellant hails from the
downtrodden community, namely, Scheduled Caste community and has also
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secured 92 marks which is 1 mark below 93 marks, which is the cut off marks
to pass in the NEET examination, and he was wrongly denied four marks on
account of framing a wrong Question No.97, he is entitled to come to this
Court. But his case was not properly presented before the Court by the
earlier counsel and withdrawn the writ petition. Therefore, the writ petitioner
made a representation and filed the instant writ petition for the aforesaid
prayer. Thus the writ petition is maintainable.
5. Again referring to Section 141 of the Code of Civil Procedure, he
argued that the procedure put against the writ petitioner by the learned single
Judge that after filing the writ petition, while withdrawing the same, leave
should have been obtained for filing a fresh writ petition, failing which the
second writ petition cannot be presented, is contrary to the said provision. A
reading of Section 141 clearly shows that the procedure provided in this
Court in regard to suits cannot be made applicable to any proceedings
initiated under Article 226 of the Constitution. This legal aspect has been
overlooked by the learned single Judge, he pleaded.
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6. Again taking support from Article 46 of the Constitution of India, he
once again pleaded that a poor appellant hailing from Scheduled Caste
community, having secured 92 marks in the NEET(UG)-2022 examination
and has got a fair chance of success before this Court to get into the zone of
consideration in the counselling, the learned single Judge ought to have
entertained the writ petition, more particularly, when Article 46 of the
Constitution states that the State shall promote with special care the
educational and academic interest of the weaker sections of the people and in
particular of the Scheduled Castes and Scheduled Tribes. This Court ought to
have protected the interest of the appellant to do social justice. As this aspect
also has been overlooked while dismissing the second writ petition, the
impugned order has to go. Inasmuch as when the appellant's prayer for grant
of four grace marks for erroneously framing the Question No.97 is answered
finally, he would have certainly gone into the zone of consideration to take
part in the counselling. Therefore, no prejudice would be caused to anyone, if
the appeal is admitted and consequently his grievance is heard for awarding
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four grace marks for the wrong framing of Question No.97.
7. Mr.G.Rajagopalan, learned Senior Counsel appearing for the second
respondent, heavily opposing the maintainability of the writ appeal, submitted
that law is applicable to all. When it is trite law that either a suit or writ
petition filed is withdrawn without securing leave/liberty from the Court, for
the same cause of action and also for the same relief, the same party cannot
file the second writ petition. This rule has been evolved only to avoid
multiplicity of proceedings. If the argument advanced by the learned counsel
appearing for the appellant to maintain the second writ petition that was
dismissed for the reasons mentioned therein, is accepted, then every litigant,
who suffered a dismissal by withdrawing the writ petition, will repeatedly
visit the Court that would create multiplicity of proceedings leading to the
arrears of cases. In support of his submissions, he relied upon the judgment of
the Supreme Court in Sarguja Transport Service v. State Transport
Appellate Tribunal, M.P., Gwalior and others, (1987) 1 SCC 5 and the
Division Bench judgment of this Court dated 08.06.2011 made in Review
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Application No.72 of 2011 in Writ Petition No.16933 of 2009 (P.Shanmugam
v. The Registrar General, High Court of Madras and another). Therefore, the
impugned order passed by the learned single Judge dismissing the writ
petition holding clearly that the writ petitioner having failed to secure
leave/liberty to prosecute the second writ petition, is perfectly in order.
Hence, no interference is called for, he pleaded.
8. Mrs.M.Sneha, learned counsel appearing for the fifth respondent,
taking a pass over for getting written instructions from the fifth respondent,
submitted that for the 6,067 seats available for the M.B.B.S Degree Course
throughout the State of Tamil Nadu, there are 22,404 eligible candidates
securing the cut off marks i.e., 93 marks waiting to take part in the
counselling. She has also submitted that all the 22,404 candidates shown in
the provisional list are entitled to get their names registered as per their
choice so as to take part in the first round of counselling going to commence
from 19.10.2022 and all of them are going to be called as per the ranking
given in the provisional list for certificate verification and this process will
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continue till 28.10.2022. Finally, the allotment orders will also be issued
through online on 30.10.2022. Thereafter, the selected candidates will join
the college of their choice and if for any reason any candidate/candidates
failed to join, these vacancies will also be filled up based on the cut off marks
in the second round of counselling. She further submitted that the available
vacancies for the Scheduled Caste candidates are only 900, whereas 4,112
eligible candidates belonging to Scheduled Caste community are shown in the
provisional list. Therefore, the awarding of four grace marks, she pleaded,
may not help the appellant to secure any seat for the M.B.B.S. Degree course
in the Government seats for this academic year.
9. However, Mr.Sankarasubbu, learned counsel appearing for the
appellant, at this stage, submitted that the writ petition has been filed not only
for getting admission to the M.B.B.S.Degree Course, but also for getting the
appellant eligible for securing admission in the Government/Self financing
private medical colleges, both in the country and outside the country.
Therefore, unless the appellant secures the pass marks in the NEET
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examination i.e., 93 marks, he will not become eligible to secure admission
anywhere for the academic year 2022-23.
10. We have heard the learned counsel appearing for the parties. It is
not in dispute that the appellant/writ petitioner, after finding that he has not
been awarded the four marks for the Question No.97, immediately made a
representation on 8.9.2022 to the authorities and finding no response, filed
the writ petition on 9.9.2022 before this Court. However, the learned counsel
who appeared for the writ petitioner, inadvertently, withdrew the writ petition
to make a representation, without obtaining leave/liberty from the Court.
Thereafter, he sent a representation thru e-mail to the respondents on
29.09.2022 espousing his grievance. He also made a detailed representation
to the authorities on 11.10.2022 by registered post ventilating his grievance
for the award of grace marks as he has got a fair chance of success to
compete with the other eligible candidates. But the authorities did not
respond to any of his representations. Therefore only, on the next day, the
appellant was constrained to file the second writ petition before the Court.
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Therefore, on the peculiar facts and circumstances of this case, since the
authorities concerned have not responded to the grievance of the
appellant/writ petitioner, accepting the bona fide reasons, in the light of the
settled legal position that a litigant should not suffer for the fault committed
by the Advocate, as the appellant who is aspiring to pursue the medical
course during the academic year 2022-23, we are inclined to entertain the
writ appeal.
11. Besides, when the appellant/writ petitioner hailing from
downtrodden community, has secured 92 marks in the NEET-(UG) 2022
examination, in view of the wrong key answers given to Question No.97, he
failed to secure the four marks. It is also the admitted case of both parties
that the key answers to Question No.97 have been wrongly given. It is not
out of context to mention herein that Article 46 of the Constitution of India
says that the State shall protect the economic interests of the weaker sections
of the society, in particular, of the Scheduled Castes and Scheduled Tribes.
In this context, Article 46 of the Constitution of India is extracted as follows:-
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"46. Promotion of educational and economic
interests of Scheduled Castes, Scheduled Tribes
and other weaker sections. The State shall promote
with special care the educational and economic
interests of the weaker sections of the people, and,
in particular, of the Scheduled Castes and the
Scheduled Tribes, and shall protect them from
social injustice and all forms of exploitation."
12. A perusal of the above clearly shows that the State shall promote
with special care the educational and economic interests of the weaker
sections of the people, especially Scheduled Castes and Scheduled Tribes
from social injustice. Therefore, the second respondent being instrumentality
of the State cannot refuse to award the four marks to the appellant who
belongs to the weaker section of the society. Moreover, it is also pertinent to
refer to Section 141 of the Code of Civil Procedure, which is given as under:-
"The procedure provided in this Code in regard to
suits shall be followed, as far as it can be made
applicable, in all proceedings in any Court of civil
jurisdiction.
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Explanation.--In this section, the expression
"proceedings" includes proceedings under Order IX,
but does not include any proceedings under article
226 of the Constitution."
A careful perusal of the above provision would show that the procedure
provided in this Court in regard to suits cannot be made applicable to any
proceedings initiated under Article 226 of the Constitution of India. In this
regard, useful reference can be had from the judgment of the Supreme Court
in the case of Sarva Shramik Sanghatana (KV), Mumbai v. State of
Maharashtra and others, (2008) 1 SCC 494, wherein the Supreme Court,
while considering the issue as to the filing of the application under Section
25-O(1) of the Industrial Disputes Act, 1947 as to the closure of the
undertaking, held that when the application was withdrawn without seeking
liberty to file application, if need be, at a later stage, fresh application is held
maintainable. Therefore, we are of the considered view that the writ appeal
filed by the appellant is certainly entertainable, making it clear that the same
is confined to the appellant alone, as he has diligently approached this Court
without any delay. Further, inasmuch as the date for registration to take part
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in the counselling has started today (19.10.2022), the apprehension shown by
the second respondent that this order would open a Pandora box, cannot hold
the Court back from granting the relief in a genuine and bona fide case, when
this Court has found against the second respondent in framing the key
answers for Question No.97 wrongly. Therefore, the argument advanced by
the learned Senior Counsel citing condition 3.2(b)(vi) of the information
bulletin that unless a candidate makes an attempt, he would not be awarded
the four marks is untenable, for the reason that the appellant, after finding that
wrong answers have been given to the Question No.97, has chosen not to
attempt the said question. Therefore, the said argument made by the learned
Senior Counsel for the second respondent is repelled on the facts and
circumstances of this case. In this context, paragraph-17 of the Division
Bench judgment of the High Court of Orissa in Dibya Jyoti Nanda v. CBSE
and another, W.P.(C) No.9890 of 2018 dated 24.07.2018 is extracted
hereunder:-
"17. A casual submission made by the Director,
NEET, CBSE, that if this Court interferes in this
matter it would open a Pandora box, should not
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hold the Court back from granting relief in a
genuine case where discrepancy in evaluation of
marks has been found and not explained by the
authorities."
13. For the foregoing reasons and conclusions, on consideration of the
facts and circumstances of this case, while rejecting the arguments of the
learned Senior Counsel appearing for the second respondent as to the
maintainability of the writ appeal/second writ petition and also for not
awarding the four grace marks, we hereby direct the respondents to award
four grace marks to the appellant alone for the Question No.97 in respect of
the NEET(UG)-2022 examination, for the reason that the said question has
been wrongly framed as held by us in this order. Since it is represented
before us that the registration for the counselling has started today, the second
respondent is directed to issue the revised mark sheet, so that the appellant
will be able to take part in the counselling, if he is otherwise coming in the
zone of consideration as per the cut off marks fixed for the Scheduled Caste
candidates, conducted by the respondents for securing admission to the
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M.B.B.S. Degree Course in the Government/self financing private medical
colleges to be chosen by him in the State or outside the State, making it clear
that this order is passed in the peculiar facts and circumstances of this case
and may not be treated as a precedent.
14. With the above direction, the impugned order is set aside and the
writ appeal stands allowed. Consequently, C.M.P.Nos.17914, 17915 of 2022
are closed. However, there is no order as to costs.
Speaking order (T.R.,A.C.J.) (D.K.K.,J.)
Index : yes 19.10.2022
ss
To
1. The Secretary to Union of India
Ministry of Human Resource Development
122-C, Shastri Bavan
New Delhi-110 001
2. The National Testing Agency
Ministry of Human Resource Development
C-20, 1A/8, IITK Outreach Centre
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W.A.No.2364 of 2022
Sector-62, Noida
Uttar Pradesh-201 309
3. National Medical Commission (Under Graduate)
Pocket-14, Sector-8
Dwarka, Phase-I
New Delhi-110 077
4. The Principal Secretary
Government of Tamil Nadu
Health and Family Welfare (MCA-1) Department
Fort St. George, Chennai-600 009
5. The Secretary
Selection Committee
Directorate of Medical Education
162, Periyar EVR High Road
Kilpauk
Chennai-600 010
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W.A.No.2364 of 2022
THE HON'BLE ACTING CHIEF JUSTICE
AND
D.KRISHNAKUMAR,J.
ss
W.A.No.2364 of 2022
19.10.2022
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