Madras High Court
Hepzhipah Suresh vs Ministry Of Health And Family Welfare on 4 September, 2024
Author: M.Dhandapani
Bench: M.Dhandapani
W.P.No.24058 of 2024 , etc. Batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.09.2024
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P.Nos.24058, 19529,22975, 24504, 26094 and 24856 of 2024
and WMP.Nos.21373, 25045, 28501 and 27205 of 2024
Hepzhipah Suresh
Daughter of G.Suresh ...Petitioner in W.P.No.24058 of 2024
Vs.
1. Ministry of Health and Family Welfare
3rd and 4th floor, Indian Red Cross Society Building,
No.1, Red Cross road, Sansad Marg Area,
New Delhi-110 001.
2.National Testing Agency
Rep by its Senior Director
First Floor, NSIC-MDBP Building,
Okhla Industrial Estate, New Delhi 110 020
3. National Medical Commission
Rep by its Secretary
Pocket-14, Sector-8, Dwaraka
Phase-1, New Delhi 110 077 ...Respondents in W.P.No.24058 of 2024
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
to issue a Writ of Mandamus directing the 2nd respondent to consider the
petitioners representation dated 21.6.2024 and to declare the petitioner as
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W.P.No.24058 of 2024 , etc. Batch
qualified in National Eligibility cum Entrance Test(UG)-2024 based on the
marks secured by the petitioner in the Other Backward Class(OBC) category
For Petitioner : Mr.C.D.Sugumar in all W.Ps'
In W.P.No.24856 of 2024:
For Respondents : Mr.ARL.Sundaresan,
Additional Solicitor General of India
Asst. by Mr.Ksrinivasamoorthy for R1,R2 R3
:Mr.ARL.Sundaresan,
Additional Solicitor General of India
Asst. by M/s.Sunitha Kumari for R5
In W.P.No.26094 of 2024:
For Respondents : Mr.ARL.Sundaresan,
Additional Solicitor General of India
Asst. by Mr.Ksrinivasamoorthy for R1
: Mr.ARL.Sundaresan,
Additional Solicitor General of India
Asst. by M/s.Sunitha Kumari for R3
In W.P.No.19529 of 2024:
For Respondents : Mr.ARL.Sundaresan,
Additional Solicitor General of India
Asst. by Mr.Ksrinivasamoorthy for R1,R2 R3
:Mr.ARL.Sundaresan,
Additional Solicitor General of India
Asst. by M/s.Sunitha Kumari for R5
In W.P.No.22975 of 2024:
For Respondents :Mr.ARL.Sundaresan,
Additional Solicitor General of India
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W.P.No.24058 of 2024 , etc. Batch
Asst. by M/s.Sunitha Kumari for R5
In W.P.No.24504 of 2024:
For Respondents :Mr.ARL.Sundaresan,
Additional Solicitor General of India
Asst. by M/s.Sunitha Kumari for R1
& Mr.R.Subramanian ACGSC
Asst. by M/s.Sunitha Kumari for R1
In W.P.No.24058 of 2024:
For Respondents :Mr.ARL.Sundaresan,
Additional Solicitor General of India
Asst. Mr.Rabu Manohar for R2
: Mr.ARL.Sundaresan,
Additional Solicitor General of India
Asst. by M/s.Sunitha Kumari for R2
COMMON ORDER
The present batch of writ petitions have been filed by the respective
petitioners seeking a direction to the respondents to consider the respective
petitioner’s application under the category of “OBC” and consequently
permit the respective petitioner’s to participate in the Under-Graduate
counselling for MBBS/BDS-2024 by considering the marks secured by the
respective candidates in NEET-2024 under the OBC quota.
2. The respective petitioners have completed their Higher Secondary
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W.P.No.24058 of 2024 , etc. Batch
Examination and had participated in the NEET-UG-2024. However, while
filling up the application form, inadvertently, they have mentioned their
category as “General Category” instead of Backward Community, which
mistake was realised by the petitioners only upon declaration of the results
of the NEET examination.
3. It is the further averment of the respective petitioners that they have
secured the requisite cut-off marks for being considered under the OBC
category, however, due to the error committed by them while filling the
application form, they are not being considered for under the OBC quota.
Therefore, the respective petitioners made a representation to the
respondents requesting to rectify the mistake committed by them with regard
to their community status while applying for NEET (UG) 2024-2025. Since
no response was forthcoming from from the respondents, the petitioners
have filed the present petition.
4. The respective learned counsel appearing for the petitioner
submitted that on an earlier occasion the very same issue fell for
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W.P.No.24058 of 2024 , etc. Batch
consideration of this Court, wherein the relief sought for was granted and
which was taken in appeal by the respondents before the Division Bench and
the Division Bench of this Court in W.A.Nos.1109 & 1110 of 2020 upheld
the said decision by holding that the appellants therein, who had also cleared
the NEET Examination, can be included in the mop-up counselling process,
without causing prejudice to any other student and further iF it is not
affecting the admission procedure of any other student. The direction was
given by the Division Bench keeping the wastage of one year of education
by the said students permitted the inclusion of the students in the colleges or
Deemed Universities, wherever they can get admission without affecting the
other person’s rights. Placing reliance on the same, learned counsel prays for
similar relief by directing the respondents to consider petitioners as OBC
category and placing them the bottom of list for being admitted in the
colleges or Deemed Universities, wherever they can get admission without
affecting anybody else's rights prejudicially during the Mop Up counselling.
5. Per contra, the learned Additional Solicitor General submits that as
per the prospectus issued by NEET Authority, it is made clear that the
information provided by the candidates in their respective applications will
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be final and any request for change of particulars furnished by them will not
be reconsidered by National Testing Agency under any circumstances.
Subsequently, considering the difficulties faced by the candidates, two
opportunities were provided. Even then, without properly utilising the said
opportunities, candidates have been approaching this Court after publishing
of the result and that too after first round of counselling and seeking for
correction in category, which is not permissible. Learned Addl. Solicitor
General, placing reliance on the decision of the learned single Judge of the
Madurai Bench as also the order passed by the Division Bench in W.A.
No.2602/2023 dated 25.9.2023 and also the Division Bench of the Madurai
Bench in W.A. (MD) No.739/2019 dated 22.07.2019, wherein, in similar
circumstances, the Division Benches had dismissed the petitions, and
submitted that the relief sought for by the petitioners in the present writ
petitions are not maintainable and accordingly prays for dismissal of the
same.
6. Heard the submissions of the respective learned counsel appearing
for the petitioners and also the learned Addl. Solicitor General and the
learned counsel appearing for the National Medical Commission and
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perused the material placed on record.
7. Admittedly, the petitioners belong to OBC category, but due to
inadvertence, erroneously they have mentioned their community as if they
belong to General Category. It is also not controverted by the petitioners that
they have also not utilized the opportunities provided by the NTA for
carrying out the modification in their applications. Subsequently, result was
published on 04.06.2024 and thereafter revised publication was made on
26.07.2024.
8. There are conflicting views with which this Court cannot deliberate
and give any definitive opinion till the lis is settled by a Bench of higher
composition. However, the present predicament of the petitioners is because
of their very own fault for which this Court could only sympathize with the
petitioners and cannot give any affirmative direction to the respondents, as
adequate opportunity was given to the petitioners even after filing of the
applications, which has not been properly utilised by the petitioners.
However, extraordinary situations though demand extraordinary decisions,
but not all reliefs could be granted as sought for. However, taking a
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sympathetic view, this Court, exercising its inherent power available under
Article 226 of the Constitution of India, grants liberty to the petitioners to
approach the respondents by filing a representation and the respondents, as
an one time measure, subject to the other candidates not being prejudiced,
consider the representation of the petitioners for change of category as a one
time measure and place the petitioners in the bottom of OBC rank list and
subject to the availability of vacancy in the Colleges/Deemed Universities,
the petitioners shall be admitted to the colleges/Deemed Universities,
wherever the petitioners are able to get admission.
9. Though this Court has given the aforesaid direction in the interest
of the education of the students, as an one time measure, however, there is
ambiguity in the decisions passed by the Division Bench in similar
circumstances, as the Division Benches have taken divergent views.
10. In _____ (W.A. No.1109 & 1110 of 2020 – Dated 11.12.2020), a
Division Bench of this Court, in similar circumstances, has granted the
relief, the relevant portion of the judgment is quoted hereunder :-
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“3. Though we are not inclined to disturb the
findins and reasons given by the learned Single Judge in
the order impugned before us, however, wer are of the
opinion that without causing any prejudice to any other
student, if the Writ Appellants, who had also cleared the
NEET Examination, can be included in the mop-up
counselling process, which is not going to affect the
admission procedure of any other student, then to avoid
wastage of their one year of education, they may be
included in the same and admitted to the colleges or
Deemed universities, wherever they can get admission
without affecting anybody else's rights perjudicially.
4. We make it clear that if the concerned Authorities
have any difficulty or anybody else's right ins prejudicially
affected by this permission granted by this Court, they may
apply to this Court for seeking modification of this order”
11. However, contrasting view has been taken by another Division
Bench of this Court in _____ (W.A. No.2602/2023 – Dated 25.09.2023),
wherein the following order has come to be passed :-
“It is not disputed by the learned counsel
for the appellant that after the forms were filled
in, public notice was also issued permitting the
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W.P.No.24058 of 2024 , etc. Batch
candidates to make corrections in the forms. The
corrections were permitted from 8th April to 10
April 2023. However, corrections were not
made. Subsequently, admission process
commenced. The appellant could not secure the
bench mark for the general category. As such,
the name of the appellant did not appear in the
list of candidates to be considered under the
general category. Thereafter, the appellants it
appears realized that the appellant could get
admission from the OBC in the central quota
and as such, it appears that the appellant
applied for admission from OBC category. At
that time first round was over. The writ petition
was filed before the learned Single Judge. The
learned Single Judge under order dated
30.08.2023 dismissed the Writ Petition. Though
the judgment was passed on 30.08.2023, the
appellant filed the Writ Appeal only on
20.09.2023. Thereby allowing three weeks to
pass by. All the rounds are already completed.
Now the last date for admission from the
management quota remains.
7. As the appellant has not participated in
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earlier round, it will not be possible to accede to
the request of the appellant that the appellant
should be directly allowed to participate in the
management quota.”
12. Yet again, a learned single Judge in ______ (W.P. (MD)
No.19051/2024 – Dated 07.08.2024), had relied upon a decision of another
Division Bench of this Court in W.A. (MD) No.739/2019 dated 22.07.2019,
wherein the Division Bench has passed the following order :-
“9. It is pertinent to refer the decision of
Division Bench in W.A(MD).NO.739 of 2019 dated
22.07.2019 as relied on by the learned Standing
counsel appearing for the first respondent. The
relevant portion is extracted hereunder:
“8. The writ petitioner sough for changing
his communal category in the application
submitted for the NEET examination. Admittedly,
such request is made by the petitioner after the
declaration of the results. It is seen that the
authorities have provided two opportunities for the
candidates, to make necessary corrections in the
on-line application, if any, one before the
examination and another, after the examination,
however, before declaration of the results. It is an
admitted fact that the writ petitioner has not chosen
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to utilise both the opportunities and however has
made the request for challenging the communal
category, after the declaration of the results. We
find that the petitioner is not entitled to make such
request, as such request, if considered and
permitted, would certainly affect the All India merit
ranking list, as rightly contended by the learned
Assistant Solicitor General. Therefore, we find that
the writ court is not justified in issuing a direction
as granted in this case. Even otherwise, the fact
remains that the petitioner, in pursuant to the order
passed by the writ court, seems to have not become
successful before the counselling even under the SC
Category.”
13. In view of the conflicting decisions rendered by the Division
Bench of this Court on the very same issue, a quietus needs to be given for
the said issue by the matter being dealt with by a Bench of higher
composition so that the education of the students, who are the pillars of the
next generation is not put to a question mark.
14. However, when there are conflicting decisions with regard to an
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issue, as a single Judge, necessarily, the matter has to be referred to the
Hon’ble Chief Justice for placing before a Division Bench for setting right
the law. However, in the present case, the conflicting view is relatable to the
Division Benches of this Court and necessarily the issue has to be heard by a
Bench of higher composition than the Division Bench.
15. Therefore, in the aforesaid circumstances, this Court directs the
Registry to place the matter before the Hon’ble The Acting Chief Justice for
constituting appropriate Bench for addressing the issue with regard to the
contradictory views having been taken by the different Division Benches in
W.P. (MD) No.19051/2024 , W.A. No.2602/2023 and W.A. No.1109 &
1110 of 2020 on the very same issue, which have been discussed supra.
16. With the above directions, while the prayer sought for by the writ
petitioners are disposed of in the above terms, however, for the reasons
aforesaid, the writ petitions are kept alive on file only for the purpose of
deciding the legal issue, as has been reflected above. No costs.
Consequently, connected miscellaneous petitions are closed.
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W.P.No.24058 of 2024 , etc. Batch
04.09.2024
Index : Yes / No
JAI/GLN
Note: Issue Order copy on 05.09.2024
To
1. Ministry of Health and Family Welfare
3rd and 4th floor, Indian Red Cross Society Building,
No.1, Red Cross road, Sansad Marg Area,
New Delhi-110 001.
2.National Testing Agency
Rep by its Senior Director
First Floor, NSIC-MDBP Building,
Okhla Industrial Estate, New Delhi 110 020
3. National Medical Commission
Rep by its Secretary
Pocket-14, Sector-8, Dwaraka
Phase-1, New Delhi 110 077
M.DHANDAPANI, J.
jai
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W.P.No.24058 of 2024 , etc. Batch
W.P.Nos.24058, 19529,22975, 24504, 26094 and 24856 of 2024
and WMP.Nos.21373, 25045, 28501 and 27205 of 2024
04.09.2024
https://www.mhc.tn.gov.in/judis
