Regional Institution Of Health vs . Bisakha Goenka
2022 Latest Caselaw 99 Meg

Serial No. 01
Supplementary List    HIGH COURT OF MEGHALAYA
                             AT SHILLONG

     WA No. 7 of 2022
                                                   Date of order: 25.03.2022
     North Eastern Indira Gandhi
     Regional Institution of Health      vs.            Bisakha Goenka
     and Medical Sciences & Anr.
     Coram:
            Hon'ble Mr. Justice Sanjib Banerjee, Chief Justice
            Hon'ble Mr. Justice W. Diengdoh, Judge
     Appearance:
     For the Petitioner/Appellant(s) : Dr. N. Mozika, Sr. Adv. with
                                       Ms. S. Rumthao, Adv.

     For the Respondent(s)           : Mr. H.L. Shangreiso, Sr. Adv. with

Ms. P. Biswakarma, Adv.

     i)      Whether approved for                      Yes/No
             reporting in Law journals etc.:

     ii)     Whether approved for publication          Yes/No
             in press:

JUDGMENT: (per the Hon'ble, the Chief Justice) (Oral)

The challenge here is to an order of March 15, 2022 by which the

respondent writ petitioner has been permitted to participate in the

counselling process for obtaining admission to the MBBS course at the

North Eastern Indira Gandhi Regional Institute of Health and Medical

Sciences (NEIGRIHMS).

2. The facts are not in dispute. The writ court noticed the case to be

that the writ petitioner was not aware that she had been forwarded the

link for e-counselling as the same did not appear in the regular inbox of

her e-mail. However, after the initial round of e-counselling was held, the

writ petitioner discovered that the link sent by NEIGRIHMS via mail had

lodged in her spam mail instead of showing up in the inbox.

3. It appears that the petitioner did not participate in the initial

counselling and was duly marked as absent. Upon such initial e-

counselling, 14 of the 18 seats reserved for the relevant category to which

the writ petitioner belongs were filled up and a notice was issued for

further e-counselling to be held on March 7, 2022 for the remaining four

seats in the category.

4. It was at this stage that the writ petitioner approached the Court.

The impugned order records that on March 9, 2022, the writ court had

directed that the case be kept on hold to await the final acceptance of the

seats for which the candidates would have to indicate their preference by

March 11, 2022. On March 14, 2022 when the matter was taken up again,

the writ petitioner filed an affidavit stating therein that the fourth of the

remaining four candidates, one Arkajyoti Debnath, did not report for the

e-counselling as he had already secured admission elsewhere.

5. An affidavit was filed on behalf of the appellants herein which,

according to the writ court, did not "dispute the fact that one seat is still

vacant." It is in such circumstances that the writ court, upon being

satisfied that the writ petitioner had been prevented by sufficient cause

from tendering her candidature at the initial e-counselling, directed that

the appellants herein shall facilitate counselling for the writ petitioner

within a week from the date of the order, upon notice to the writ

petitioner. The appellants were, thereafter, directed to take into

consideration the merit of the writ petitioner and complete the process of

selection for the fourth seat expeditiously, keeping in mind that the

session had already commenced.

6. The principal ground urged by the appellants is that there is no

dispute that the appellants had forwarded the information in time to the

writ petitioner and it is the petitioner's case that the mail sent by the

appellants had gone to her spam mail folder. The appellants submit that

the writ petitioner ought to have been vigilant as the writ petitioner could

have got the information otherwise from the first appellant's website as

to the date of initial e-counselling. The appellants say that when the

candidate was careless and had missed the bus, other candidates in whom

a right may have vested to participate in the process of obtaining a seat,

could not have been prejudiced.

7. Ordinarily, when there is no mistake on the part of an authority to

do a thing that it was required to do, the indulgence shown to the writ

petitioner as in this case may not have been warranted. However, as it

transpires, the last of the four remaining candidates did not opt for the

final seat in the reserved category at NEIGRIHMS. There is no doubt that

the wait-listed candidates would, thereupon, be offered a chance to apply

for and obtain such seat. However, in such scenario no right vested in the

wait-listed candidates. In the peculiar facts of the case, the writ court

exercised its discretion, particularly since no right had vested in any

other, to allow the writ petitioner to be offered an opportunity to

participate in a further process of counselling.

8. In an intra-court appeal, the element of interference with the

discretion exercised is much more restricted than when appellate

authority is exercised over orders emanating from the district judiciary.

There was an element of discretion available to the writ court, considering

the peculiar facts of this case; and, though the fundamental principle that

ought to have guided the writ court was that upon a default being

committed by a candidate, whatever be the circumstances, the

consequences of the default must rest with the candidate, since the last

placed candidate among the remaining four in this case, quite

fortuitously, did not accept the seat, a window opened up for the writ

petitioner which has been offered by the writ court in exercise of its

discretion. In the circumstances in which the discretion has been

exercised, it cannot be said to be perverse. As such, the order impugned

does not call for any interference.

9. The grounds urged by the appellants that a right had vested in the

wait-listed candidates, does not hold much water. A right inheres in a

wait-listed candidate for his candidature to be considered, upon the

original list not being filled up or one or more from the original list opting

out. In this case, when it was fairly obvious that if the writ petitioner had

merely attended the e-counselling, she would have obtained the seat, and

there is no reason to believe that the writ petitioner would have

deliberately acted to her detriment, the window that opened up

fortuitously permitted the exercise of the discretion by the writ court.

However, though it does not appear that any right vested in any wait-

listed candidate that has been prejudiced as a result of the impugned

order, if any of them lodges a challenge and succeeds, the consequences

have to be borne by the writ petitioner. To such extent, the writ

petitioner's admission, if at all, will be provisional for a period of six

months from date.

10. WA No. 7 of 2022 is disposed of on the above basis.

11. There will be no order as to costs.

           (W. Diengdoh)                            (Sanjib Banerjee)
               Judge                                  Chief Justice


Meghalaya
25.03.2022
"Sylvana PS"