The Chairman, Bihar Combined ... vs Dipti Preyasi And Ors
2023 Latest Caselaw 2684 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                      Letters Patent Appeal No. 1369 of 2017
                                         In
                    Civil Writ Jurisdiction Case No.388 of 2017
     ======================================================

Gul Afshan Naz, D/o Shoaib Ahmad, Resident of East of Masjid, Baitul Karim, Isha Nagar, Naya Tola, Phulwarisharif, Patna

... ... Appellant/s Versus

1. The Union of India through the Secretary, Ministry of Health, Govt. of India, New Delhi

2. The Chairman, Central Board of Secondary Education, Education Centre-2, Community Centre, Preet Vihar, Delhi

3. The Secretary, Ministry of Human Resources Development, Govt. of India, New Delhi

4. The Director General, Directorate General of Health Service Nirman Bhawan, New Delhi

5. The Principal Secretary Department of Health and Family Welfare, Govt. of Bihar, New Secretariat, Patna, Bihar

6. The Chairman, Bihar Combined Entrance Competitive Examination Board, I.A.S. Association Building, Near Patna Airport, Patna14

7. The Controller of Examination, Bihar Combind Entrance Competitive Examination Board I.A.S. Association, Building, Near Patna-Airport, Patna-

8. Medical Council of India Pocet- 14, Sector-8, Dwarka New Delhi through its Chairman

9. Arvind Choudhary, the then Controller of Examination BCECEB, IAS Association Building, Near Patna Airport,Patna-14

10. Akbar Kabir S/o Humayum Kabir, SKMC,Muzaffarpur

11. Rishu Kumar S/o Pappu Kumar Pandey SKMC,Muzaffarpur

12. Anil Kumar Yadav S/o Umesh Yadav DMC, Laheriasarai

13. Ashtha Raj S/o Raj Kishor Prasad IGIMS, Patna

... ... Respondent/s ====================================================== with

Letters Patent Appeal No.1075 of 2017 In Civil Writ Jurisdiction Case No.19183 of 2016 ====================================================== Patna High Court L.P.A No.1369 of 2017 dt.03-07-2023

1. The Chairman, Bihar Combined Entrance Competitive Examination Board, IAS Association Building, Near Patna Airport, Patna-14

2. The Controller of Examination, Bihar Combined Entrance Competitive Examination Board, IAS Association Building, Near Patna Airport, Patna-14

3. Arvind Choudhary, The Then Controller of Examination, BCECEB, I.A.S.

Association Building, Near Patna Airport, Patna-14.

... ... Appellant/s Versus

1. Dipty Preyasi, D/o-Diwakar Singh Bahadur, Resident of Village-Nepura, PO and P.S.-Asthawan, District-Nalanda.

2. The Union of India through the Secretary, Ministry of Health Govt. of India, New Delhi.

3. The Chairman, Central Board of Secondary Education, Education Centre-2, Community Centre, Preet Vihar, Delhi.

4. The Secretary, Ministry of Human Resources Development, Govt. of India, New Delhi.

5. The Director General, Directorate General of Health Services, Nirman Bhawan, New Delhi

6. The Principal Secretary, Department of Health and Family Welfare, Govt. of BIhar, New Secretariat,

7. Medical Council of India, Pocket 14, Sector-8, Dwarka, New Delhi, through its Chairman.

8. Akbar Kabir, Son of Humayun Kabir, SKMC, Muzaffarpur.

9. Rishu Kumar, Son of Papu Kumar Pandey, SKMC, Muzaffarpur.

10. Anil Kumar Yadav, Son of Umesh Yadav, DMC, Laheriasarai.

11. Astha Raj Son of Raj Kishore Prasad, IGIMS, Patna.

... ... Respondent/s ====================================================== with Letters Patent Appeal No. 1076 of 2017 In CIVIL WRIT JURISDICTION CASE NO. 19135 OF 2016 ======================================================

1. The Chairman, Bihar Combined Entrance Competitive Examination Board IAS Association Building, Near Patna Airport, Patna-14

2. The Controller of Examination, Bihar Combined Entrance Competitive Examination Board, IAS Association Building, Near Patna Airport, Patna-14

3. Arvind Choudhary, The Then Controller of Examination, BCECEB, I.A.S.

Association Building, Near Patna Airport, Patna-14. Patna High Court L.P.A No.1369 of 2017 dt.03-07-2023

... ... Appellant/s Versus

1. Manisha Gaurav, D/o Sanjay Kumar, Resident of behind Qr. No.30, Road no. 10, Moh-Chakbinda, Gardanibagh, PS-Gardanibagh, District-Patna.

2. The Union of India through the Secretary Ministry of Health, Govt. of India New Delhi

3. The Chairman, Central Board of Secondary Education, Education Centre-2, Communty Centre, Preet Vihar, Delhi

4. The Secretary, Ministry of Human Resources Development, Govt. of India, New Delhi.

5. The Director General, Directorate General of Health Services, Nirman Bhawan, New Delhi

6. The Principal Secretary, Department of Health and Family Welfare, Govt. of Bihar, New Secretariat, New Secretariat, Patna, Bihar

7. Medical Council of India, Pocket 14, Sector-8, Dwarka, New Delhi, through its Chairman.

8. Akbar Kabir, Son of Humayun Kabir, SKMC, Muzaffarpur.

9. Rishu Kumar, Son of Pappu Kumar Pandey, SKMC, Muzaffapur

10. Anil Kumar Yadav, Son of Umesh Yadav, DMC, Laheriasarai.

11. Astha Raj, Son of Raj Kishore Prasad, IGIMS, Patna.

... ... Respondent/s ====================================================== with Letters Patent Appeal No. 1077 of 2017 In Civil Writ Jurisdiction Case No.17708 of 2016 ======================================================

1. The Chairman, Bihar Combined Entrance Competitive Examination Board IAS Association Building, Near Patna Airport, Patna-14

2. The Controller of Examination, Bihar Combined Entrance Competitive Examination Board, IAS Association Building, Near Patna Airport, Patna-14

3. Arvind Choudhary, The Then Controller of Examination, BCECEB, I.A.S.

Association Building, Near Patna Airport, Patna-14.

... ... Appellant/s Versus

1. Adhishree, D/o Anil Kumar Tiwari, C/o Shri B.N. Tiwari, Behind Sanjay Cinema, Brahmapura (New Colony), P.S.-Brahampura, Post- MIT, District- Muzaffarpur

2. The Union of India through the Secretary, Ministry of Health, Govt. of India, Patna High Court L.P.A No.1369 of 2017 dt.03-07-2023

New Delhi.

3. The Chairman, Central Board of Secondary Education, Education Centre-2, Community Centre, Preet Vihar, Delhi

4. The Secretary, Ministry of Human Resources Development, Govt. of India, New Delhi.

5. The Director General, Directorate General of Health Services, Nirman Bhawan, New Delhi

6. The Principal Secretary, Department of Health and Family Welfare, Govt. of Bihar, New Secretariat, Patna, Bihar

7. Medical Council of India, Pocket 14, Sector-8, Dwarka, New Delhi, through its Chairman.

8. Akbar Kabir, Son of Humayun Kabir, SKMC, Muzaffarpur

9. Rishu Kumar, Son of Pappu Kumar Pandey, SKMC, Muzaffapur

10. Anil Kumar Yadav, Son of Umesh Yadav, DMC, Laheriasarai.

11. Astha Raj, Son of Raj Kishore Prasad, IGIMS, Patna

... ... Respondent/s ======================================================

Appearance :

(In Letters Patent Appeal No. 1369 of 2017) For the Appellant/s : Mr.Deepak Kumar Sinha, Advocate For the Respondent/s : Mr.Gopal Govind Mishra, Advocate Mr. P.K. Shahi, Advocate General Dr. K.N. Singh, ASG Mr. Kumar Priya Ranjan, Advocate Mr. Kumar Brijnandan, Advocate Mr. Prasoon Sinha, Advocate Mr. Vinay Krishna Tripathy, Advocate Mr. Binodanand Mishra, Advocate Mr. Mritunjay Kumar, Advocate (In Letters Patent Appeal No. 1075 of 2017) For the Appellant/s : Mr. P.K.Shahi, A.G.

Mr. Prasoon Sinha, Advocate For the Respondent/s : Mr. S.D. Yadav-AAG-9 Mr. B.B. Mishra, A.C. to AAG-9 Dr. K.N. Singh, ASG Mr. Kumar Priya Ranjan, CGC Mr. Ansul, Advocate Mr. Anuj Kumar, Advocate Mr. Kumar Brijnandan, Advocate (In Letters Patent Appeal No. 1076 of 2017) For the Appellant/s : Mr. P.K. Shahi, Advocate General Mr. Prasoon Sinha, Advocate For the Respondent/s : Mr. Suryadeo Yadav, AAG-9 Patna High Court L.P.A No.1369 of 2017 dt.03-07-2023

Mr. Prem Ranjan Kumar, A.C. to AAG-9 Dr. K.N. Singh, ASG Mr. Kumar Priya Ranjan, CGC Mr. Anuj Kumar, Advocate Mr. Ansul, Advocate Mr. Kumar Brijnandan, Advocate (In Letters Patent Appeal No. 1077 of 2017) For the Appellant/s : Mr. P.K. Shahi, Advocate General Mr. Prasoon Sinha, Advocate For the Respondent/s : Mr. Suryadeo Yadav-AAG-9 Mr. B.B. Mishra, A.C. to AAG-9 Dr. K.N. Singh, ASG Mr. Kumar Priya Ranjan, CGC Mr. Anuj Kumar, Advocate Mr. Ansul, Advocate

====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY CAV JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 03-07-2023

Medicine as a career option stands out from

others; desired equally by the parents and their wards. Out of the

various disciplines, MBBS occupies the place of pride and the

jostling to procure admission has resulted in the Courts of this

land having spent considerable time in examining the nuances

of selection to ensure fairness, transparency and equality as also

avoid, illegality, arbitrariness and colourable exercise of power.

The Hon'ble Supreme Court has time and again held that in no

case can merit be compromised and rendered a casualty. It is in

the backdrop of the principles enunciated by the Hon'ble

Supreme Court that the alternate/substitute remedy of Patna High Court L.P.A No.1369 of 2017 dt.03-07-2023

compensation granted in the above cases by the learned Single

Judge, to the disappointed candidates who were the petitioners

in the writ petitions, has to be considered in the appeals filed by

the Bihar Combined Entrance Competitive Examination Board,

which carried out the admissions under challenge, on the

directions issued by the Hon'ble Supreme Court.

2. Bereft of the unnecessary details, it has to be

noticed that the admissions were for the academic year 2016-17,

carried out to the MBBS/BDS seats all over the country through

the National Eligibility-cum-Entrance Test [NEET (UG)-2016]

conducted by the Central Board of Secondary Examination, the

results of which were published on 16.08.2016.

3. The writ petitioners, who are the first

respondents in the various appeals, were found eligible for

counselling to the 85% State quota seats and 15% All India

Quota (AIQ) seats. The petitioners, all of them, obtained

admission to the BDS course for the academic year, after which

selection certain seats in the AIQ remained vacant. The States

were carrying on counselling for admissions to the unfilled AIQ

seats reverted to the State quota; when an application was filed

by certain candidates before the Hon'ble Supreme Court. The

Hon'ble Supreme Court passed two orders, dated 03.10.2016 Patna High Court L.P.A No.1369 of 2017 dt.03-07-2023

and 06.10.2016; the first of which directed the States not to fill

up the unfilled seats reverted from the AIQ and the second,

directed the State authority to fill up such vacant seats

remaining unfilled, from the AIQ. The period granted for filling

up such vacancies from the AIQ was a single day; i.e.

07.10.2016. The petitioners appeared for counselling, but they

were denied admission. From those who were admitted, the

petitioners impleaded four persons who obtained lesser marks

than the petitioners. We extract the tabular form of the merit-

wise position, as found in the impugned judgment: -

                      All India      Name              Status of Party
                      Ranking
                      13172          Manisha Gaurav Petitioner in CWJC
                                                    No. 19135 of 2016
                      13351          Adhishree         Petitioner in CWJC
                                                       No. 17708 of 2016

                                                       (in all cases)

                                                       (in all cases)
                      14212          Gul Afshan Naz    Petitioner in CWJC
                                                       No. 388 of 2017
                      14439          Dipty Preyasi     Petitioner in CWJC
                                                       No. 19183 of 2016

                                     Yadav             (in all cases)

                                                       (in all cases)

4. From the above, it is clear that two petitioners, Patna High Court L.P.A No.1369 of 2017 dt.03-07-2023

if permitted counselling would have obtained the first two of the

four seats, and the other two petitioners would not have been

admitted at all. Referring to the petitioners by their names,

Manisha Gaurav and Adhishree obtained ranks above the last

four candidates admitted in the counselling conducted on

07.10.2016. The ranks of Gul Afshan Naz and Dipty Preyasi

were above the ranks obtained by the Respondent Nos. 12 & 13

but below that obtained by respondents 10 & 11.

5. By the impugned judgment, Manisha Gaurav

and Adhishree were found to have been illegally denied

admission to the MBBS course and were hence granted Rs. 20

lacs each as compensation. Gul Afshan Naz was found to have

approached the Court only after three months. Finding the delay

to be gross insofar as the Hon'ble Supreme Court having

stipulated specific time for counselling, the relief of

compensation was denied to her. Dipty Preyasi though would

not have secured an admission if the other three petitioners were

also admitted to counselling, was awarded a compensation of

Rs. 10 lacs since two persons, who had received lesser ranks,

were admitted to the MBBS course. The Board along with the

Controller of Examinations challenge the judgment of the

learned Single Judge in three writ petitions and the aggrieved Patna High Court L.P.A No.1369 of 2017 dt.03-07-2023

petitioner, who was deprived of compensation on the grounds of

delay, seek the same in her appeal.

6. The respondents mainly took up three grounds

to justify non participation of the 1 st respondents/petitioners in

the counselling on 07.10.2016. It was first urged that the

petitioners were denied participation since the Hon'ble Supreme

Court had specifically directed that the admissions already

granted shall not be disturbed and the petitioners were already

admitted to the BDS course. Then it was submitted that the

Hon'ble Supreme Court had directed that unfilled AIQ seats of

the MBBS course shall not be reverted to the State quota and

hence, reshuffling of allotted seats were not allowed. Lastly and

surprisingly, a contention was also taken that the petitioners

were unable to produce the original documents/certificates in

the counselling held on 07.10.2016. We say surprisingly since,

the learned Single Judge rightly found that the ground of no

disturbance being permitted to the admission of the petitioners

to the BDS course and that of non-production of original

certificates are mutually destructive. If the appellant-Board was

aware of the admission of the petitioners to the BDS course,

there was no reason for insisting on the production of the

original documents/certificates; especially when the eligibility Patna High Court L.P.A No.1369 of 2017 dt.03-07-2023

for admission to the MBBS/BDS courses are identical, when the

Board itself had granted admission to the petitioners in the BDS

course; which they were fully aware of on 07.10.2016 when

they denied permission to attend the counselling on that specific

ground. We fully agree with the learned Single Judge on this

aspect.

7. The learned Single Judge looking at the

statutory provisions and the regulations of NEET, found that the

designated authority for counselling in the 15% AIQ is the

Director General of Health Services, Government of India,

whereas under the State quota, it is the authority constituted by

the State Government; which in the State of Bihar is the

appellant-Board. However, keeping in view the paucity of time,

the Hon'ble Supreme Court had directed the appellant-Board

itself to adopt a transparent procedure in making admissions on

the basis of merit in AIQ. It was found that there was no denial

of the fact that the petitioners were present for the counselling at

the Centre on 07.10.2016; which was asserted by all the

petitioners in their writ petitions, without any corresponding

denial by the Board in its counter affidavit. Out of the

petitioners, some had ranks above all the four respondents who

were admitted last and two of them had higher ranks than two of Patna High Court L.P.A No.1369 of 2017 dt.03-07-2023

the admitted candidates. It was held that by preferring the less

meritorious, there is serious infraction of the fundamental right

of equality which not only is the noblest concept for a society,

but also is enshrined in the Constitution. Relying on Mridul

Dhar (Minor) v. Union of India; (2005) 2 SCC 65, the Court

found itself unable to extend the cut-off date, as held in the cited

decision, beyond 30th September, and in this case, beyond

07.10.2016; which was the date stipulated by the Hon'ble

Supreme Court.

8. Having prepared a table based on the merit-

wise position of the petitioners and the Respondent Nos. 10 to

13, the learned Single Judge referred to Asha v. Pt.

B.D.Sharma University of Health Sciences; (2012) 7 SCC

389, wherein it was held that cut-off date cannot be a technical

instrument to deny admission to a meritorious candidate and in

the rarest of rare cases, the Court could mould the relief and

make an exception to the cut-off date; which, however, is

possible only when there is no fault attributable to the candidate,

the candidate was diligent in pursuing his/her rights & remedies

and there is fault found on the part of the authorities or an

apparent breach of rules and regulations or principles, in the

process of selection. It was found that there was no fault Patna High Court L.P.A No.1369 of 2017 dt.03-07-2023

attributable to the petitioners and but for one petitioner, the

others were diligent in pursuing the remedies. It was also found

that the State was in fault for there being an apparent breach of

rules, regulations and principles to be followed in the process of

selection and grant of admission. Finding the case of the

petitioners to be fully covered by the principles enunciated in

Asha (supra) and expressing helplessness to remedy the

illegality visited on the petitioners by a grant of admission, the

learned Single Judge awarded compensation, as stated

hereinabove.

9. Shri P.K.Shahi, learned Advocate General

appearing for the Board, assailed the impugned judgment on the

ground that the learned Single Judge erred insofar as finding

fault on the Board in having acted in breach of rules, regulations

and principles in the process of selection. It is pointed out that in

the present case, there was no question of a cut-off date and the

counselling carried out on a single day was on the basis of a

direction issued by the Hon'ble Supreme Court. The petitioners

themselves were not before the Hon'ble Supreme Court and the

direction issued by the Hon'ble Supreme Court was made

applicable to the entire country, to not only enable admission of

the aspiring candidates to the MBBS course, but also to ensure Patna High Court L.P.A No.1369 of 2017 dt.03-07-2023

that the seats in government colleges are not left vacant. In fact,

the direction of the Hon'ble Supreme Court has to be interpreted

by reading both the orders of the 3rd and 6th of October, 2016. It

is crystal clear that the Hon'ble Supreme Court specifically

directed the admissions already granted to be not disturbed;

quite conscious of the fact that if that was done, there would be

a cascading effect insofar as the seats falling vacant in the BDS

course. The Board, hence, was justified in not considering the

persons who were already admitted and making admissions

from the AIQ, according to the ranks of persons who had not

obtained admission till then. It is argued that though MBBS

course is the most prestigious one, it does not necessarily follow

that there would be loss suffered by a candidate, who completes

the BDS course. The quantification of damages cannot at all be

sustained especially when the entire exercise was on the

directions of the Hon'ble Supreme Court; the interpretation of

which could not be said to be favouring those persons who had

already got admission. A measure of equity made by the

Hon'ble Supreme Court cannot result in grant of compensation

especially when the petitioners are all persons who were

admitted to the BDS course.

10. Shri Ansul, learned counsel for the first Patna High Court L.P.A No.1369 of 2017 dt.03-07-2023

respondent, on the other hand asserts that the compensation

granted is proper and in accordance with the principles as laid

down by the Hon'ble Supreme Court. It is pointed out that the

measure of admission in a subsequent year in Asha (supra) was

frowned upon by a co-ordinate bench in Chandigarh

Administration vs. Jasmine Kaur (2014) 10 SCC 521.

S.Krishna Sradha vs. State of Andhra Pradesh (2017) 4 SCC

516 referred the question to a larger bench finding apparent

conflict between Jasmine Kaur and Asha (both supra). A larger

bench of three judges in S.Krishna Sradha (2) v. State of

Andhra Pradesh (2020) 17 SCC 465, held that in exceptional

circumstances, in addition to the relief of restitution there could

also be compensation granted. It was argued, based on the above

decisions, that as of now by virtue of declaration in S.Krishna

Sradha (2) (supra), the compensation as granted by the learned

Single Judge is perfectly sustainable.

11.The learned counsel for the petitioner, who

was denied the relief of damages, contends that three months

cannot be said to be a gross delay and even a person ranked

below her, one of the petitioners, was awarded a lesser

compensation; while even that amount was denied to her.

12. We have given anxious consideration to the Patna High Court L.P.A No.1369 of 2017 dt.03-07-2023

grounds raised in the impugned judgment and the facts

emanating therefrom as also the records, the arguments of the

learned counsel and the precedents placed before us. We first

looked at the decisions placed before us. In Asha (supra), the

Hon'ble Supreme Court had granted admission to the appellant

therein to the MBBS course in the year in which the matter was

disposed of by the Hon'ble Supreme Court. In Jasmine Kaur

(supra) another co-ordinate Bench frowned upon the directions

issued; telescoping unfilled seats of one year into the permitted

seats of the subsequent year, however meritorious a candidate is.

It was also held that there cannot also be a direction to enhance

the number of seats to accommodate such a candidate who

deserved admission in the earlier year. The Supreme Court

found that in such cases, it is appropriate that a compensation be

granted to offset the loss caused. S.Krishna Sradha (supra)

referred the question to a larger Bench finding apparent conflict

between Jasmine Kaur and Asha (both supra). A larger bench

of three Judges in S.Krishna Sradha (2) (supra) held that there

could be a relaxation of cut-off date in exceptional

circumstances when there is illegal and arbitrary denial of

admission to a meritorious candidate. In addition to the relief of

restitution it was held that there could also be compensation Patna High Court L.P.A No.1369 of 2017 dt.03-07-2023

granted. Compensation, it was held is an additional relief and

not a substitute for equitable and restitutionary relief. This was

further affirmed in Maharshi Markandeshwar University v.

Akriti Sharma 2022 SCC Online SC 1420. It has to be

emphasized that the facts of these decisions turned specifically

on the manner in which the authority regularly conducted

admissions, before the cut-off date, when the regulations of

NEET as to how admissions are to be granted based on merit

and the options exercised by each of the successful candidates

were squarely applicable.

13. As we observed at the outset, the ground that

the Hon'ble Supreme Court had specifically restrained the

disturbance of already admitted candidates and the ground of

petitioners having not produced their original

documents/certificates cannot be sustained together. The

appellant-Board being aware of the admission of the petitioners

to the BDS course, there was absolutely no requirement for

production of original documents/certificates, which were

verified by the Board itself before the admission to the BDS

course was granted. However, the interpretation of the directions

in the Supreme Court judgment assumes relevance and we agree

with the learned Advocate General appearing for the Board that Patna High Court L.P.A No.1369 of 2017 dt.03-07-2023

it has to be looked at holistically on a conjoint reading of both

the orders passed by the Hon'ble Supreme Court.

14. We desist from extracting the orders since

they are produced along with I.A. No. 5745 of 2017 in LPA No.

1075 of 2017. At the outset, the submissions made by the

learned Additional Solicitor General that 91 seats; 87 in MBBS

and 04 in BDS in the Government colleges in Madhya Pradesh

were lying vacant was recorded. It was directed that the State of

Madhya Pradesh shall fill up the 91 seats from the Government

quota and it was also directed that the admissions already

granted shall not be disturbed. Noticing that the interlocutory

applications of other States are being listed on 06.10.2016, it

was also directed that the seats which were reverted to the State

quota and remained unfilled, shall not be filled up till then. On

06.10.2016, the operative portion of the order dated 03.10.2016

was noticed and the chart proffered by the learned Additional

Solicitor General was extracted. As in the other States; in the

State of Bihar also, for the MBBS course, there were 68 seats

reverted from 15% AIQ after counselling on 23.09.2016.

Similarly, in the BDS course 21 seats were reverted. The

Hon'ble Supreme Court directed that the seats remaining vacant

shall be filled up by the concerned States by adopting a Patna High Court L.P.A No.1369 of 2017 dt.03-07-2023

transparent procedure, regard being had to the criteria followed

for filling up AIQ seats. It was clarified that such filling up of

seats shall be done as per the merit in AIQ and that the entire

process shall be completed by 07.10.2016. Obviously, the

intention was to confer a Pan-India benefit to the candidates

who qualified in the AIQ. We hasten to add that, this does not

disqualify the petitioners who are all residents of the State, as

seen from the address shown. But what assumes relevance is

that, read together, the orders of 03.10.2016 and 06.10.2016, the

Hon'ble Supreme Court intended that the admissions already

granted shall not be disturbed. At first flush, it could be

presumed that the direction to not disturb the admissions already

made cannot work to the disadvantage of the meritorious

candidates, who were admitted to various courses, less

prestigious than the MBBS; especially since merit is the

reigning consideration. But the admissions having been

confined to a single day and the intention being, of not keeping

vacant medical seats in government colleges; if those who are

already admitted to other courses are allowed to participate and

granted admission, then those seats would fall vacant; which

also cannot be filled up.

15. With all the respect at our command, we are Patna High Court L.P.A No.1369 of 2017 dt.03-07-2023

of the opinion that reading the orders together, the Hon'ble

Supreme Court intended that at least the seats in the

Government colleges do not remain vacant; presumably due to

the minimal fees demanded in such Government colleges and

also the shortage of medical personnel in the country.

16. It is also very pertinent that the Hon'ble

Supreme Court while noticing that certain States were granted

extension of time to fill up the seats from the State Quota; which

seats were reverted from AIQ, the seats found vacant in the

other States were directed to be filled up from the AIQ adopting

a transparent procedure. It was specifically directed that the

filling up of such seats should be done based on the AIQ merit.

The order was passed on 06.10.2016 and the time granted was

for a single day, that too on the very next day. The order was

directed to be put in the website of the DGHS and the competent

authority of the Medical Council of India with suitable

information passed on to the competent authorities of the States.

It was clarified that no individual notices shall be given and also

that the extraordinary measure shall be applicable only to the

Government Colleges. This is the context in which we observed

that the Hon'ble Supreme Court would have intended that the

seats in Government Colleges do not remain vacant. Patna High Court L.P.A No.1369 of 2017 dt.03-07-2023

17. It is also very significant that while directing

the AIQ merit to be followed, the Hon'ble Supreme Court was

aware of the fact that there were persons in the State quota who

had higher ranks who would also have taken admission to

Dentistry and in following the AIQ merit probably persons from

other States with lower ranks would be admitted. This was to

ensure that a Pan India effect was ensured in the admissions

especially in those seats which were not filled as per the AIQ

merit. This was an extraordinary measure directed to be carried

out in a single day by a transparent method following the AIQ

criteria, to be carried out by the State authorities; which would

have faced its own problems. The paucity of time and the

extraordinary measure employed would commend us to find no

arbitrariness in the admissions carried out. We also emphasize

the specific direction in the order dated 03.10.2016 where it was

specifically directed that the admissions already taken shall not

be disturbed. This is not to be interpreted as a direction only to

ensure that those persons in the State quota admitted to the AIQ,

after the reversion of vacancies, are not disturbed. The reigning

consideration was to ensure that the AIQ seats are given to the

AIQ candidates and that the vacant seats are all filled up. In the

backdrop of such intention, if the exercise impugned herein is Patna High Court L.P.A No.1369 of 2017 dt.03-07-2023

looked at, the same can be justified.

18. True, in the present case the Respondent Nos.

10 to 13 were also from the State of Bihar as are the petitioners

herein. However, the petitioners were persons who obtained

admission just prior to the orders of the Hon'ble Supreme Court,

within the cut-off date. If they were permitted to participate in

the extraordinary measure as directed by the Hon'ble Supreme

Court then necessarily there would have been vacant seats in

Dentistry which also could not have been filled up. Considering

the fact that the measure adopted was an extraordinary one and

that the Hon'ble Supreme Court had directed the admissions

already taken to be not disturbed; we do not find any

arbitrariness, illegality or colourable exercise of power on the

part of the State authorities. The learned Single Judge was

absolutely right in holding that there was no fault attributable to

the petitioners and with respect to three petitioners they had

approached the Court without any delay. However, we are

unable to find any breach of rules, regulations and principles in

the process of selection since the admissions were carried out

under the directions of the Hon'ble Supreme Court, which

directions were issued with a specific intention, that too for a

single day and the Hon'ble Supreme Court had specifically Patna High Court L.P.A No.1369 of 2017 dt.03-07-2023

directed that the admissions already taken should not be

disturbed. We are unable to find any valid reasoning for the

compensation awarded; especially not one of a deliberate breach

committed by the appellant-Board.

19. In this context, we also notice that the writ

petitions were disposed of on 29.06.2017 within eight months of

their institution and within the Academic Year. We have to

specifically notice Asha (supra) which observed that for the first

year the syllabus for both the BDS and MBBS courses are more

of less the same; which fact was confirmed on behalf of the

Medical Council of India. It was observed that except for one

paper of anatomy, rest of the subjects and papers are more or

less similar, particularly for the first six months. Hence, if the

petitioners had pursued diligently the BDS Course to which they

were admitted and had attended all the lectures they would have

been eligible to pursue the MBBS Course and such directions

could have been issued by the Writ Court. We are told that

Manisha Gaurav, petitioner in CWJC No. 19135 of 2016

completed internship from Patna Dental College and Hospital in

February, 2023. Adhishree and Dipty Preyasi did not continue in

the Dentistry course and after appearing for the NEET in the

next year joined for MBBS course respectively in Nalanda Patna High Court L.P.A No.1369 of 2017 dt.03-07-2023

Medical College and Hospital, Patna and Shri Krishna Medical

College & Hospital, Muzaffarpur. As far as Gul Afshan Naz is

concerned the learned Counsel was unable to apprise us of the

subsequent conduct of the said student.

20. We have to further notice that even if the

irregularity as pointed out by the petitioners occurred, in a

regular admission within the cut off period, only Manisha

Gaurav and Adhishree would be entitled to be admitted if there

were only four seats available. We say this because if all the

petitioners who asserted that they were present for counselling,

participated along with Respondent Nos. 9 to 13 then Manisha

Gaurav, Adhishree and Respondent Nos. 10 and 11 would have

got admission in which event Gul Afshan Naz and Dipty Preyasi

would not have been admitted to the MBBS course. This is an

additional ground to deny compensation to Gul Afshan Naz and

also Dipty Preyasi; the latter of whom was granted a lesser

compensation by the learned Single Judge, which in any event is

not tenable according to our reasoning. Further since the

directions for filling up the seats was issued by the Hon'ble

Supreme Court, the petitioners ideally ought to have approached

the Hon'ble Supreme Court.

21. On the basis of the above reasoning, we are Patna High Court L.P.A No.1369 of 2017 dt.03-07-2023

convinced that the appeals of the Board LPA Nos. 1075 of 2017,

1076 of 2017 and 1077 of 2017 have to be allowed and the

appeal of one of the appellants LPA No. 1369 of 2017 has to be

dismissed. We do so and leave the parties to suffer their

respective costs.

(K. Vinod Chandran, CJ)

Partha Sarthy, J: I agree

(Partha Sarthy, J)

Sujit/PKP.

AFR/NAFR
CAV DATE                26.06.2023
Uploading Date          03.07.2023
Transmission Date