Madras High Court
M.Shriram vs Government Of Tamil Nadu on 11 October, 2023
W.P.No.29086 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 11.10.2023
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
WP.No.29086 of 2023
& WMP.Nos.28678, 28680 & 28681 of 2023
M.Shriram ... petitioner
vs
1 Government of Tamil Nadu
Represented by its Secretary.
Department of Health and Family Welfare,
Fort St George
Chennai- 600 009
2 The Director of Medical Education and Research,
156, Poonamallee High Rd,
New Bupathy Nagar,
Chetpet, Chennai- 600031.
3 The Secretary
Selection Committee
Directorate of Medical Education and Research
156, Poonamallee High Rd,
New Bupathy Nagar,
Chetpet, Chennai 600031.
4 The Secretary,
Medical Council of India,
Sector -8, Pocket -14, Dwarka,
New Delhi – 110077.
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1
W.P.No.29086 of 2023
5 The Medical Counselling Committee (MCC)
Rep. by Director General of Health Service (DGHS)
Nirman Bhawan,
New Delhi – 110108.
(R4 & R5 suo moto impleaded as per order dated
04.10.2023 by this Court in W.P.No.29086 of 2023)
... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus calling for the records of
the 3rd respondent in Notification No.154/SCS II (1)/2023/2022 dated
27.09.2023 and the consequential re-allotment/allotment issued by the 2nd
respondent for III round of counseling dated 29.09.2023 (published on the
official website of the 3rd respondent) and quash the same as being against the
prospectus issued by the 2nd respondent and consequently direct the
respondents to conduct Mop Up counseling for allotment of Post Graduate seats
in General Medicine strictly by following the conditions of the prospectus more
specifically clause 27 of the prospectus without allowing the candidates who
have joined the seat in the I and II round of counseling and without allowing the
candidate who have been allocated a set in the 3rd round of counseling in the All
India Quota and accordingly allot the petitioner a seat in the PG General
Medicine in any of the Government colleges in the State of Tamil Nadu.
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W.P.No.29086 of 2023
For Petitioner : Ms.Dakshayani Reddy
Senior Counsel
For Ms.Suneetha
.
For Respondents : Mr.KMD.Muhilan (R1 & R2)
Additional Government Pleader
Ms.M.Sneha (R3)
Ms.Shubaranjani Ananth (R4)
ORDER
The All India NEET examinations for Post Graduate (PG) Medical
courses were conducted in the State of Tamil Nadu on 5th March, 2023. The
petitioner has completed MBBS from the Government Medical College at
Chengalpet in the year 2021. He secured All India rank 4479 and State rank
597 in the NEET PG examination.
2. The prospectus for 2023-2024 session for PG courses was issued
under a Government Order in G.O.Ms.No.792 dated 05.07.2023 (in short
‘prospectus’). The prospectus envisioned two rounds of counselling (Round I
and Round II) and registration by the aspirants on the web portal of the
respondents. The two regular rounds were to be followed by a Mop-up Round
and Stray Round of counselling.
3. The counselling was conducted online and clauses 24 and 25 of the
prospectus that deal with the first round of counselling required the candidates,
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if selected in the first round, to join the allotted medical college on or before the
stipulated time with all required documents. The second round of counselling
was to be held thereafter and permitted the following categories of candidates to
apply:
i) a candidate who had not registered or choice locked in the first round
of online counselling.
ii) a candidate who had been allotted a seat and either not joined, or had
resigned the course within the stipulated time.
iii) candidates who retained their allotted seat beyond the stipulated date,
those who had availed a re-allotment seat during the second round or who were
allotted a seat anew during the second round were not permitted to vacate the
seat and thus could not avail the subsequent round of counselling.
iv) candidates who had joined the allotted seat in Round II or further
rounds, i.e., Mop-up and the stray rounds of counselling would not be allowed
to resign and would also be ineligible to participate in further rounds of
counselling.
4. The conduct of Mop-up round as stipulated in the prospectus was as
follows:
27. MOP-UP ROUND
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a. After completion of second round of ONLINE COUNSELLING,
the remaining vacancies will be filled up with the candidates from
the Rank list by MOPUP ONLINE COUNSELLING.
b. If the candidate is allotted any seat from his /her locked
choices in first and second rounds and has joined, then the
candidate is not eligible for the Mop-up counseling and
subsequent rounds of counseling (as per the Gazette Notification
No.MCI-18(1)/2018- Med./100818, Dated 05/08/2018 and the
orders of the Supreme Court of India in W.P.(C)No.
174/2022,dated:31.03.2022). From the Mop up phase onwards,
restriction has been implemented to candidates in order to avoid
lapsing of seats and holding of AIQ seats and State quota seats
thus blocking seats. A candidate allotted a seat in Mop-up round
in State counseling shall be ineligible to participate in any further
counseling. Hence candidates are advised to exercise due
diligence in their options and do not file unwanted options to
seats in which they do not wish to pursue studies.
Registration fee for Mop-up round: Rs.1000/-
i. Candidates who have been allotted and not joined/resigned/
discontinued with penalty have to pay registration fee to
participate in Mop-up round
ii. Candidates who freshly register for Mop-up round also need to
pay registration fee.
iii. Only Candidates who have not been allotted in round 1 and 2,
need not pay registration fees
ELIGIBILITY CRITERIA FOR MOPUP ROUND:
i. The candidates who have not been allotted in round I and
Round II counselling.
ii. The candidates who have been allotted, but not joined in
Round I & Round II of State Quota and All India Quota are
eligible to participate in this counselling.
iii. A Candidate who has not registered and not choice locked in
the First round or Second round ONLINE COUNSELLING will be
permitted to attend mop up rounds of ONLINE COUNSELING.
NON - ELIGIBILITY CRITERIA FORMOPUP ROUND:
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i. The candidates who have joined PG course in Round I and (or)
Round II of State Counselling are not eligible to participate in
Mop Up Counselling.
ii. The candidates who have joined in Round I & Round II in All
India Quota / Deemed university/DNB (conducted by NBE) are
not eligible to participate in Mop Up counseling.
iii. The candidates who have been allotted in mop up round of All
India Quota/Deemed university/DNB (conducted by NBE) are not
eligible to participate in Mop Up counselling.
As per the directions of Hon’ble Supreme Court of India in
W.P.(c)267/2017 DAR-US-SLAM EDUCATIONAL TRUST and
Ors. Vs. MEDICAL COUNCIL OF INDIA and Ors. Dated 09-05-
2017, the candidates joined in All India Quota Round II
counselling are not allowed to vacate the seat. On similar ground
the candidates who have joined in Round II of State counselling
will not be permitted to vacate the seat.
5. Thus, the non-eligibility criteria for Mop-up round disentitled the
following categories of candidates from participating in the Mop-up round of
counselling:
i) candidates who have joined PG courses in Round I and (or) Round II of
State counselling;
ii) candidates who have joined in Round I and Round II in All India Quota
(AIQ)/Deemed University/Diplomate of National Board (DNB) (conducted by
NDE);
iii) candidates who have been allotted a seat in Mop-up counselling round of
AIQ/Deemed University/DNB (conducted by NDE).
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6. The ineligibility criteria specifically referred to the directions of the
Hon’ble Supreme Court in in the case of Dar-Us-Slam Educational Trust and
others V. Medical Council of India and others 1, pointing out that those
candidates who had joined in AIQ round II of counselling were not permitted to
vacate their seat. Similarly, candidates who had joined the second round of
State counselling would also not be permitted to vacate the seat.
7. The present petitioner was allotted a PG seat in the General Surgery
course in Madras Medical College on 27.07.2023 in Round I of AIQ, but did
not choose to join. He participated in the Round I of State Quota counselling on
08.08.2023 and was allotted MS General Surgery in Stanley Medical College
which allotment too he did not avail. In both instances, he preferred to await his
choices in the subsequent rounds.
8. In Round II of the AIQ counselling, he was allotted a seat in DNB
General Medicine in G.Kuppusamy Naidu Memorial Hospital, Coimbatore on
30.08.2023. Counselling in Round II of the State Quota commenced from
02.09.2023 and results were to be declared on 11.09.2023.
9. Based on the prospectus, the petitioner was barred from participating
in Round II of State counselling till such time the candidate resigned the seat
allotted under the AIQ. The petitioner believed that his prospects for a seat in
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the subsequent rounds of counselling were bright. Thus, he had to make a
choice at that juncture as to whether he wished to participate in Round II of
State counselling and subsequent rounds of counselling by resigning in Round
II of AIQ or whether he wished to remain content with the seat allotted to him
in Round II of AIQ.
10. To be noted, that the last date for resignation of seats allotted under
Round II of AIQ was 07.09.2023. The petitioner analysed the situation that
prevailed then, finding that candidates who had been ranked higher than him in
the NEET had joined the seats allotted to them in earlier rounds of AIQ
counselling and had not resigned the same.
11. He was thus confident of the availability of seats in MD General
Medicine course in Round II and subsequent rounds of State Quota counselling.
In the meanwhile, the time for registration in Round II sans resignation, had
been extended vide proceedings of the Medical Counselling Committee (MCC)
bearing Ref.U-12021/02/2023-MEC dated 12.09.2023.
12. That communication is part of a series of notices issued by MCC
(Notice dated 01.09.2023, 04.09.2023, 12.09.2023 and 18.09.2023) that
modify the Rules for upgradation and the conditions relating to forfeiture and
re-registration from time to time, based on requests from candidtates.
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13. Specifically notice dated 12.09.2023 refers to 'many requests from
PG candidates who have been allotted seats through Round – II of State
counselling' for resignation of their seats. The notice permits them to resign
stating thus:
'Since, many States have declared their Round - II results
after the start of Round-III of PG counselling being conducted by
MCC, candidates who have been allotted in Round II of State
counselling now want to resign their Round – II seats allotted
through MCC so that they are able to join in State counselling'.
14. The facility of resignation was thus additionally extended to such
candidates to be exercised within a stipulated time and the seat so vacated were
to be added to the seat matrix of Round – III, to be available to participating
candidates.
15. While the petitioner now awaited the Mop-up round of State
counselling, proceedings came to be issued on 27.09.2023 pursuant to a
decision of this Court in W.P.No.28341 of 2023 dated 25.09.2023 that I shall
advert to presently.
16. The first version of the ‘Information bulletin and counselling
scheme for AIQ’ was issued by the Director General of Health Services
(DGHS), MCC on 24.07.2023. The conduct of NEET and the
procedure/schedule of counselling proposed to be followed every year are
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required to be placed before the Hon’ble Supreme Court by the MCC for
approval.
17. The Hon’ble Supreme Court in Dar-Us-Slam (supra) by order dated
09.05.2017 had stipulated the basis upon which counselling for AIQ and seats
in Government Medical Colleges is to be conducted by the DGHS. Such
counselling was also to include Deemed Universities, since they have an All
India character, including those run by Religious Linguistic Minorities.
18. As regards State Quota, seats in Government, private and Deemed
Universities, common counselling was to be conducted by the State or by the
authority designated by the State in that regard. Referring to the judgment in
Ashish Ranjan V. Union of India and others 2, the Court mandated that there
shall be two rounds of common counselling each, conducted by the DGHS and
the State/Designated Authority for All India Quota including Deemed
University and State Quota respectively. The Court made the procedure clear in
the following terms:
‘4.After the second round of counselling for All India
Quota seats, the students who take admission in All India Quota
seats should not be allowed/permitted to vacate the seats. This
would ensure that very few seats are reverted to the State Quota
and also All India Quota seats are filed by students from the all
India merit list only. The students who take admission and secure
admission in Deemed Universities pursuant to the second round
2 ((2016) 11 SCC 225)
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of counselling conducted by the DGHS shall not be eligible to
participate in any other counselling.’
19. The Bench also provided for manual counselling in order to fill the
seats that remained vacant after the State counselling. Post that stage, the State
Government was to determine the total number of available seats and forward a
list of students in order of merit, equalling ten times the number of vacant seats
to the medical colleges, so that stray vacancies arising in any college may be
filled in from that merit list.
20. In Nihila P.P. V. The Medical Counselling Committee and others 3,
three Judges of the Hon’ble Supreme Court permitted the DGHS to conduct
four rounds of AIQ counselling, effective from 2021-22 onwards for both NEET
UG-PG as per the modified policy. The salient features as noted by the Court
are:
a) There are four rounds of online counselling i.e., AIQ Round I,
Round II, AIQ Mop-up and AIQ Stray Vacancy Round.
b) Seats which had earlier reverted to the respective States after
completion of Round II of AIQ will continue to be filled in the AIQ
Mop-up Round and AIQ Stray Vacancy Round, to be conducted
by MCC online.
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c) Such rounds would only relate to AIQ seats having All India
character contributed by the seats towards 15% UG and 50% PG
seats.
d) Fresh registration was to be allowed in AIQ Round I, Round II and
AIQ Mop-up Round, while no fresh registration was to be allowed
in AIQ Stray Vacancy Round.
e) Option for upgradation and free exit was permitted only in Round I
of AIQ counselling. There was no option for upgradation to Mop-
up Round from Round II.
f) Candidates who had joined the allotted seat in Round II or further
Rounds of counselling were not permitted to resign and were also
ineligible to participate in further rounds of any type of
counselling.
g) Candidates who have not joined the allotted seat in Round II were
eligible for further rounds of counselling subject to forfeiture of
security deposit and fresh registration in only the Mop-up round.
The above was the procedure approved by the Court for the year 2021-22.
21. For the academic year 2022-23 a unique event had transpired in that,
some Government Medical Colleges had increased their seat capacity. Thus,
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146 new seats became available for allocation in the Mop-up round that were
unavailable in the earlier rounds, i.e., Round I or II for AIQ seats.
22. Thus, students who had participated and been allotted seats in
Rounds I and II had missed the opportunity to participate in the counselling for
these seats. The inclusion of these seats in the Mop-up round had presented a
new opportunity to those students who were, in fact, lower in merit when
compared to the students who had been successful in Rounds I and II.
23. In Anjana Chari S N V. The Medical Counselling Committee (MCC)
and others 4, three Judges of the Hon’ble Supreme Court noted the incongruity
in the situation, as students higher in merit had not been given the opportunity
to seek admission for 146 seats that were being offered specifically only to
students who were lower in merit. These students were all in Government
colleges.
24. The second aspect of the matter that caught their attention was an
advisory that had been issued by MCC on 16.03.2022, as a consequence of
which those candidates who had been allotted seats in Round I and II of the
State Quota had been prevented from participating in the Mop-up Round of
AIQ.
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25. The contention of the candidates was that the scheme sanctioned in
Nihila’s case dealt with only the AIQ and there was no bar on candidates in
State Quota participating in AIQ Mop-up Round. Since the advisory dated
16.03.2022 had not been consistently followed across the Country, the Court
felt that the allocation of 146 seats had not been made in a proper or fair
manner. DGHS was given a day’s time to set right the anomaly.
26. When the matter was called on 31.03.2022, the Bench cancelled the
Mop-up Round counselling that had been conducted and directed a fresh round
of counselling to be conducted in respect of the 146 additional seats. The
students who had joined in Round II, both State and AIQ were given liberty to
participate in the counselling for 146 seats without any financial penalty. The
procedure for the allotment of the 146 seats was set out by the Court.
27. In line with the Regulations that had been notified on 05.04.2018,
students who had joined in Round II of either State or AIQ were debarred from
participating in the Mop-up Round of AIQ. One student in that batch,
Subhankar Pattanayak alleged contempt of the direction in order dated
31.03.2022 in the case of Anjana Chari (supra). The allegation of contempt
related to the direction as below:
‘(v)In line with the regulations which have been notified on 5
April 2018, students who have joined in round 2 of the state
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W.P.No.29086 of 2023
quota or round 2 of the AIQ shall not be eligible to participate in
the mop-up round for All India Quota.’
28. In Subhankar Pattanayak V. K.Ramesh Reddy and others 5 the
Supreme Court noticed that the States had complied with order dated
31.03.2022 in varied ways, and inconsistently. The Court refers therein to a
notice issued on 11.07.2022 by the DGHS that read thus:
“Urgent Attention all Participating States/Counselling
Authorities and Candidates:
In compliance of the directions of the Hon’ble Supreme
Court of India vide Order dated 31/03/2022 in W.P.(C) No.174
of 2022, Medical Counselling Committee of DGJS, MoHFW has
developed a software for all the participating
states/counselling authorities for NEET-UG/PG to upload the
names and roll numbers of students who have joined up to
round 2 and further rounds of the state quota or round 2 of the
AIQ on the common portal.
These joined candidates upto round 2 of AIQ or State
Quota shall not be eligible to participate in the further rounds
for All India Quota or for State Quota from the academic year
2022-23 onwards”.
29. At paragraph 7 of that order, the Court notes that MCC has
developed a software for all participating States and counselling authorities for
NEET-UG/PG to ensure that the names and roll numbers of candidates who
had joined upto Round II and further rounds of the State or AIQ are available
on a common portal.
5 (Contempt Petition (C) No.289 of 2022 in W.P.(C) No.223 of 2022 dated 22.07.2022)
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30. Relevantly, in the present case, though the stage-wise procedure
contemplated under the prospectus/instructions require that the list of joined
candidates be put up on the website of the DGHS, it is the contention of the
State that such a list encompassing the results of all rounds of counselling held
upto now have been put up on the MCC/DGHS website only a day ago.
31. As far as the order in contempt is concerned, that order of the
Hon’ble Supreme Court specifically takes note of the DGHS notice that
candidates who have joined upto Round II for AIQ/State Quota are not eligible
to participate in further rounds of AIQ or State counselling from academic year
2022-23.
32. The Instructions that have been issued on 24.07.2023 by the MCC
contains a counselling scheme/flow chart, extracted below:
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33. The procedure as per the flow chart above contemplates a situation
where the candidate is allotted a seat in Round II and reports therein, and is still
permitted to upgrade to Round III. Inherent in this is the eligibility to resign as
well. The petitioner in this case has joined in MD General Medicine in DNB in
Round II of AIQ in G.Kuppusamy Naidu Memorial Hospital, Coimbatore, but
has resigned the seat on 07.09.2023 believing himself poised to obtain a better
seat in the subsequent rounds.
34. As per the flow chart, it is only at the stage of Round III, when, upon
allotment of a seat and once the candidate joins, is there a bar from either
resigning from the same or upgrading. A comparison of the procedures in
Rounds II and III two reveal that the embargo on resignation applies only to
seat allocations in Round III and not the seat allocations in Round II.
35. The second Information bulletin issued on 29.07.2023 by the MCC
makes certain minor amendments. As far as the flow chart is concerned, the
debarment from NEET MCC counselling contemplated for two years in the first
Information bulletin has been reduced to one year in bulletin dated 29.07.2023.
36. On 13.09.2023 MCC issues a third Information bulletin, again
making some changes in the procedure to be followed. At the national level, a
decision was taken reducing the eligibility mark for PG NEET to ‘0’. DGHS
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had also, under communication dated 20.09.2023 revised the entire counselling
scheme, and as against the original permitted scheme of Round I and Round II,
Mop-up Round and Stray Vacancy Round, the schedule that was devised was
Round I, Round II, Round III and Stray Vacancy Round. The fresh schedule
commenced from 22.09.2023 onwards and the revised sequence of dates and
events is as follows:
NEET – PG SCHEDULE – 2023
All India Quota/Deemed/Central/PG-DNB/State Quota for
MD/MS/Diploma/PG DNB Courses
S.No Admission Al India Sharing of State Sharing
. Quota/Deemed Joined Counselling of
& Central candidate Joined
Universities/PG s Data by candida
DNB Institutes MCC tes
Data by
states
1 1st Round of 27 th July to 5th --- 5th Aug., to ---
Counselling Aug., 2023 16 th Aug.,
2 Last date of 13 th Aug., 2023 16 th Aug., 20 th Aug, 21 st
Joining 2023 2023 Aug.,
3 2nd round of 17 th Aug., to 25 th --- 25 th Aug., to ---
Counselling Aug., 2023 6th Sept.,
4 Last date of 4th Sept., 2023 6th Sept., 11 th Sept., 12 th
Joining 2023 2023 Sept.,
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5 Round -3 7th Sept., 2023 26 th Sept.,
2023 to 6th
To 27 th Sept.,
Oct., 2023
6 Last date of 6th Oct., 2023 7th Oct., 10 th Oct., 11 th
joining 2023 2023 Oct.,
7 Stray Vacancy 9th Oct., 2023 to - 13 th Oct., to -
13 th Oct., 2023 16 th Oct.,
8 Last date of 20 th Oct., 2023 20 th Oct.,
joining 2023
9 Last date of 20 th Oct., 2023
PG
Counselling
10 Commenceme 5th Sept., 2023
nt of
Academic
Session for
PG Courses
37. This schedule does not entirely align with the dates supplied earlier,
particularly in relation to Round III. That apart, there is one interesting aspect
of the matter that a comparison of the original schedule and the revised
schedule throw up.
38. The State submits that it was informed of the counselling schedule for
academic year 2023-24 under a communication of the DGHS dated
25.07.2023. By that time, the State prospectus had already been released on
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05.07.2023 providing for Round I, Round II, Mop-up and Stray Vacancy
Round.
39. Though letter dated 25.07.2023 does not refer to any annexure, the
eligibility criteria and rules for upgradation, the Court is informed by the
respondents that the counselling schedule at page 79 of the State compilation
dated 05.10.2023 was sent to the State along with communication dated
25.07.2023.
40. That schedule reveals the conduct of a Round III. Thus, it appears
that even as early as on 25.07.2023 the State was well aware that Round III of
the counselling shall be conducted and not a Mop-up counselling as the
prospectus reveals.
41. However, the State prospectus which is binding upon the parties and
is a Government Order has not been modified till date to reflect this revision.
That apart, the date of State counselling as far as the second round of
counselling is concerned does not align with the dates when the second round
of counselling was actually conducted by the State.
42. To be noted, that the original schedule requires second round of
counselling to be conducted between 25.08.2023 and 06.09.2023, whereas the
counselling in reality took place between 02.09.2023 and 11.09.2023.
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43. Pursuant to the reduction of the qualifying percentile to ‘0’, a Writ
Petition was filed by five candidates in W.P.No.28314 of 2023 seeking a
mandamus directing the State of Tamil Nadu, Director of Medical Education
and Selection Committee to conduct a third round of NEET State counselling
for PG courses with an upgradation option to candidates who have joined in the
seats allotted in the Round I and II.
44. The relief sought has been premised upon the revised rules as
reflected in the third Information bulletin of the MCC dated 13.09.2023. The
aforesaid Writ Petition was disposed vide order dated 25.09.2023. The Writ
Court has crystallised the issue that arose therein, as being the difference
between the nature of counselling as provided under the prospectus for filling in
PG seats of AIQ and State quota after the second round of counselling.
45. The Writ Court has also recorded the specific submission of the
National Medical Commission (NMC) that the change in the schedule for
conduct of counselling was before the Hon’ble Supreme Court for ratification.
The stand of the State in that Writ Petition was that they were unaware of what
was to be done as pursuant to the change in schedule as well as new admission
rules and whether such changes were to be incorporated in the State
procedure/schedule as well.
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46. The State has pointed out that it has written to DGHS on 20.09.2023,
seeking a clarification in this regard, but there had been no response from the
DGHS till date. The Writ Court permitted those petitioners to upgrade their
option in newly introduced Round 3 mostly on the logic that, having been
selected in Round I and II, they have a far better rank than those who may
otherwise compete in Round III and thus fairness required that the candidate
with better marks must secure a better seat.
47. While passing that order, what was before the Court was the interests
of those students falling in one fact situation, i.e., candidates who had been
allotted seats in Round I and II and who had joined those seats and were
continuing to hold those seats, who wanted the benefit of upgradation. The
interests of other candidates who fall within different factual situations were not
before this Court for the Court to be in a position to balance or take note of the
same.
48. Pursuant to that order of the writ Court, the State has issued
communication dated 27.09.2023 issuing a fresh series of instructions for
counselling. As far as upgradation was concerned, the Instructions state as
follows:
Up-gradation in Mop-up Round (Round 3)
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Candidates who resigned of Round1, Round2 with forfeiture of
security deposit, registration fee will not be allowed to
participate in Mop-up Round (Round-3) and subsequent
round.
Candidates of Round 1 and Round 2 who has not resigned can
go for Up-gradation in Mop-Up Round (Round 3).
Candidates of Round 1 and Round 2 allotted and not joined
can go for up-gradation in Mop-up Round (Round 3)
49. The second bullet point states that candidates of Round I and II who
had not resigned can avail upgradation in Round III and the third bullet point
states that the candidates in Round I and II who were allotted seats but who had
not joined can avail upgradation in Round III.
50. In the third Information bulletin issued on 13.09.2023, the MCC has
come out with a completely revised scheme ‘in supersession’ of the previous
AIQ scheme under the earlier Information bulletin. At paragraph 1.3, they refer
to the order of the Hon’ble Supreme Court in the case of Consortium of
Deemed Universities in Karnataka and another V. Union of India and others 6.
51. At paragraph 1.4, they convey their decision that in supersession of
the previous AIQ scheme, upgradation will be permitted upto third round which
was earlier known as Mop-up round. They state ‘accordingly NMC will
approach the Hon’ble Supreme Court of India for approval in this matter’.
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52. It is thus clear that as on 13.09.2023, there has been no approval
obtained by NMC in respect of the modified scheme of counselling. Learned
counsel for NMC has supplied a copy of the application filed by NMC on
02.08.2023 before the Hon’ble Supreme Court and order dated 14.08.2023
passed therein.
53. The prayer in that application is for a direction, as a one-time
measure, for modification of the time schedule for admission in PG medical
courses so as to extend the last date for admission in PG medical courses to
10.10.2023 in larger public interest.
54. At paragraph 14, they refer to upgradation of seats which decision
had been already been taken. Such a decision is clearly unilateral and without
the approval of the Hon’ble Supreme Court. It is the upgradation in AIQ
counselling that is the basis of the order passed by the learned Judge in
W.P.No.28314 of 2023 dated 25.09.2023, extending such benefit to State
Quota also.
55. If the upgradation in AIQ were itself to be unapproved by the
Hon’ble Supreme Court, any action based on such upgradation would/should
also suffer the same fate, which would include Instructions dated 27.09.2023,
impugned now. This flows from the position admitted by the State before me,
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W.P.No.29086 of 2023
that the State Counselling follows the same pattern of rules as the AIQ
counselling, except that the scheduling of the State counselling rounds would
follow the AIQ rounds.
56. Information bulletin dated 13.09.2023 sets out the procedure for
Round III earlier known as Mop-up round. The eligibility criteria includes those
students who had not registered in Round I or II or those who had resigned
from Round II who were permitted to fill fresh choice. In both categories, the
requirement was payment of full fee.
57. In the present case, the petitioner has resigned from Round II on
07.09.2023. He has been permitted to register for Round III and lock-in his
choice. However, that means little in this case for two reasons. Firstly, the
reduction of eligibility of candidates to ‘0’ percentile has opened the flood gates
as far as the inflow of new candidates are concerned.
58. However, this Court is given to understand from learned counsel for
MCC that due permission has been taken from the Hon’ble Supreme Court for
such reduced eligibility criteria though no order is produced. Secondly, the
permission extended for upgradation in Round III is what really affects this
petitioner, as by virtue of this process, students who had hitherto not been
permitted to upgrade to Round III have now been permitted to upgrade.
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59. The legitimate expectation of the petitioner when he resigned from
Round II was twofold - that he would be entitled to participate in the Mop-up
round of State counselling and that others who had exercised their choices in
Rounds I and II, joined and not resigned, would be barred from seeking
upgradation to Round III.
60. Both the aforesaid expectations were based on the prospectus issued
by the State on 05.07.2023 which remains the same till date. The impugned
instructions have, in fact, amended the rules set out under a Government Order
in several ways which is impermissible in law.
61. The respondents have pointed out that this is a solitary instance
where there is a challenge to Instructions dated 27.09.2023 and that thousands
of students have, in fact, been benefitted by this Instruction. This Court will
not, it has been urged, intervene in larger public interest, particularly when the
policy of the State is seen to be proper and in alignment with the policy for AIQ.
62. The last submission of the State is found to be incorrect. The policy
under the impugned Instructions is a modification of the rules under the
Prospectus which is a Government Order. Further, they differ from the rules
contained in Information bulletin dated 13.09.2023 in relation to Mop-up
round.
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W.P.No.29086 of 2023
63. While the MCC permits those who have resigned from Round II to
upgrade to Round III will full payment of fee, and this is what the petitioner has
done in this case, the impugned instructions in bullet points 2 and 3 as
extracted in paragraph No.48 above permit three categories of students to avail
upgradation.
a) Those who have been allotted a seat in Round I and Round II and still
hold the seat
b) Those who have reported to the allotted seat and still hold the seat
c) Those who have not resigned and still hold the seat.
64. Thus, there is a specific embargo only against those students who
have resigned from the seat allotted in Round I/Round II. This is at variance
with the condition under the MCC Information bulletin.
65. In order to explore if there could be a natural quietus given to the
matter, the State was asked to ascertain the number of applicants in Round III
who have secured ranks in excess of 597 which the petitioner has secured and
report to this Court. The following tabulation has been filed by the State:
RANK TOTAL STATUS CATEGORY
MARKS
95 631.00 FRESH ALLOTTED IN OC OC-1
CATEGORY
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W.P.No.29086 of 2023
115 626.00 FRESH ALLOTTED IN OC OC-2
CATEGORY
189 615.00 FRESH ALLOTTED IN OC OC-3
CATEGORY
285 603.00 FRESH ALLOTTED IN OC OC-4
CATEGORY
296 602.00 FRESH ALLOTTED IN OC OC-5
CATEGORY
308 601.00 FRESH ALLOTTED IN OC OC-6
CATEGORY
310 600.00 FRESH ALLOTTED IN OC OC-7
CATEGORY
430 590.00 FRESH ALLOTTED IN OC OC-8
CATEGORY
546 581.00 FRESH ALLOTTED IN OC MBC-1
CATEGORY
66. All candidates are ranked higher than the petitioner who are proposed
to be allotted a seat in Round III. Their status of application is stated to be
‘fresh’, whereas the petitioner, on verification of the DGHS website, would
point out that all those candidates had, in fact, been allotted seats in either
Round I or Round II of the counselling and in some cases have joined the
Institutions. Thus, the description of their application as ‘fresh’ is incorrect.
This is defended by the State to say that their allotments earlier were under AIQ
and it is for the first time that they have applied in State Quota.
67. I have heard the parties in detail and also perused the various
documents produced.
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68. This Court is cognizant of the impact of intervention in the selection
process, since the interests of a large number of students is involved. The
question would be whether such significant public interest must be made
subject to the interests of one candidate. However, it is also my view that not a
single candidate must suffer from a process of selection which has been
established to be unilateral, unclear, opaque and riddled with uncertainty at all
stages of the process.
69. Thus, while I do not propose to quash Notification dated 27.09.2023
for the above reasons, I also believe that the petitioner is entitled to relief on two
counts (i) his meritorious performance in the qualifying examinations and (ii)
the conundrum in the selection process being so apparent and well established.
70. The aberrations that have been found in the process thus far are
summarised as follows:
i) The State prospectus issued on 05.07.2023 provides for selection with
two rounds of regular counselling followed by one round of Mop-up
counselling and one round of Stray Vacancy counselling.
ii) Even as early as on 27.07.2023, the counselling schedule that was
forwarded by DGHS/MCC to the State indicates a third round and the
information bulletin of MCC dated 13.09.2023 refers to a decision
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W.P.No.29086 of 2023
already having been taken relating to upgradation being permitted to
third round. The irregularity and lack of transparency in the process
followed is thus clear.
iii) According to the State, there has been no assistance extended to it or
response to its letter, from the DGHS/MCC and the State is thus in the
dark as to what procedure it is expected to follow.
iv) The State counsel has circulated a detailed communication sent by the
State on 20.09.2023 seeking an opinion from the Assistant Director
General, DGHS and the Chairman, National Medical Commission as to
what the upgradation policy must be as per the orders of the Hon’ble
Supreme Court of India and what procedure should be followed at the
end of Round II. No reply has been received thus far they say.
v) This belies the motto of the MCC which is ‘Ensuring transparency &
fairness in Counselling’. Had this motto been applied in reality and
timely response given to the State, things may have been otherwise.
vi) Information bulletin dated 13.09.2023 makes it clear that the change
in process of selection with regard to upgradation was made even prior to
sanction and approval having been obtained from the Hon’ble Supreme
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W.P.No.29086 of 2023
Court and though a specific query was put to the learned Counsel no
order of approval has been produced before this Court.
71. This Court also considered briefly the possibility that order passed in
W.P.No.28314 of 2023 dated 25.09.2023 be taken to be applicable to those
Writ Petitioners alone. However, since Round III has been conducted with
several candidates participating, I am not inclined to disturb the entirety of the
exercise at this juncture.
72. One phrase that has been repeatedly used by all learned counsel
before me in the context of the modification to the procedure and rules at
various stages, is the ‘rules of the game being played’. One thing is clear – this
is not a game. Year on year, the uncertainty in admission procedures and
constant modifications are seen to affect not just the academic prospects of the
candidates but their faith in the process. This tells on them in so many ways,
including their state of mind and general health. The State and authorities
cannot be complicit in, and contribute to this deliberating scenario.
73. In light of the narration of events as above, I am of the view that the
petitioner should not be denied his right to a seat based decisions taken by him
premised on the then prevailing rules or equally, subsequent modifications. His
resignation on 07.09.2023 was made anticipating that higher ranked students
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W.P.No.29086 of 2023
(who have upgraded now based on the revised rules) would have already
chosen the seats in Round I and Round II and held on to them.
74. Cases have been cited on both sides that reiterate the position that the
rules must stay consistent throughout the selection process. The latest judgment
in this regard is in the case of State of Uttarpradesh V. Karunesh Kumar &
others 7. Therein, the Hon’ble Supreme Court has held that the principle
governing changing the Rules of the game at the eleventh hour will have only
little application when the change is with respect to the selection process but
become relevant where the changes impact qualification or eligibility.
75. In other words, the Rules relating to qualification of a candidate
cannot be changed after a Notification/advertisement has been made initially. In
the present case, the Rule of eligibility has been modified so as to whittle down
the entitlement of the petitioner. Thus, while not wanting to stand in the way of
those who have received a bonanza from the recent decisions of the
respondents, there is a direction to the State to accommodate the petitioner in a
Government College for MD General Medicine course based on his merit and
ranking. In doing so, those seats vacated by candidates who may be successful
7 (2022 Live Law (SC) 1035)
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W.P.No.29086 of 2023
in Round III (now conducted in place of Mop-up Round) will also be taken into
account.
76. The petitioner has obtained from the DGHS website the following
details in regard to the seats proposed to be allotted to the candidate ranked
higher than him:
S.No. All TN All India COURSE COLLEGE STATUS
India GENERAL
Rank RANK
1. 889 95 MS OBSTETRICS MADRAS JOINED
AND MEDICAL (All India
GYNECOLOGY COLLEGE Round 1)
2. 1036 115 MD GENERAL MADURAI JOINED
MEDICINE MEDICAL (All India
COLLEGE Round 1)
3. 1564 189 MD PAEDIATRICS SRIRAMA JOINED
CHANDRA (All India
BHANJA Round 1)
COLLEGE,
CUTTACK
4. 2303 285 MD GENERAL K.A.P.V. JOINED
MEDICINE GOVERNMENT (All India
MEDICAL Round2)
COLLEGE,
TRICHY
5. 2383 296 MD GENERAL JAWAHARLAL ALLOTED
MEDICINE NEHRU BUT NOT
MEDICAL JOINED
COLLEGE, (All India
ALIGARH, Round 3)
UTTAR Allotment
PRADESH itself not
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W.P.No.29086 of 2023
eligible
6. 2477 308 MD PAEDIATRICS STANLEY JOINED
MEDICAL (All India
COLLEGE Round 2)
7. 2525 310 MD GENERAL VELLORE JOINED
MEDICINE MEDICAL (All India
COLLEGE Round 3)
8. 3273 430 DNB SRM, JOINED
RADIODIAGNOSIS VADAPALANI (All India
Round 3)
77. It is seen that candidates in serial numbers 2, 4 and 7 were initially
allotted MD General Medicine in Madurai Medical College,
K.A.P.V.Government Medical College, Trichy and Vellore Medical College
respectively. Thus, the petitioner can be accommodated in any one of these
seats as well, if vacated now by the candidates by virtue of the upgradation in
Round III.
78. This Writ Petition stands disposed moulding the relief sought for by
the petitioner, as above. No costs. Consequently, connected Miscellaneous
Petitions are closed.
11.10.2023
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Index : Yes
Speaking Order
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W.P.No.29086 of 2023
Neutral citation:Yes
Note: Registry is directed to issue a copy
of this order today (11.10.2023)
To
1 The Secretary
Government of Tamil Nadu
Department of Health and Family Welfare,
Fort St George
Chennai- 600 009
2 The Director of Medical Education and Research,
156, Poonamallee High Rd,
New Bupathy Nagar,
Chetpet, Chennai- 600031.
3 The Secretary
Selection Committee
Directorate of Medical Education and Research
156, Poonamallee High Rd,
New Bupathy Nagar,
Chetpet, Chennai 600031.
4 The Secretary,
Medical Council of India,
Sector -8, Pocket -14, Dwarka,
New Delhi – 110077.
5 The Director General of Health Service (DGHS)
The Medical Counselling Committee (MCC)
Nirman Bhawan,
New Delhi – 110108.
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W.P.No.29086 of 2023
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W.P.No.29086 of 2023
DR.ANITA SUMANTH, J.
sl
WP.No.29086 of 2023
& WMP.Nos.28678, 28680 & 28681 of 2023
11.10.2023
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