Rajasthan High Court

Sourabh Kumar Jeengar S/O Shri ... vs State Of Rajasthan on 9 March, 2021

Bench: Ashok Kumar Gaur

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

             S.B. Civil Writ Petition No. 15014/2020

Sourabh Kumar Jeengar S/o Shri Manoj Kumar Jeengar, aged
about 21 years, Resident of 117 Vinayak Nagar, Sector 12, Hiran
Magri, Saveena, Udaipur (Raj.)
                                                                  ----Petitioner
                                   Versus
1.     State of Rajasthan, through the Principal Secretary,
       Medical Education Department, Government of Rajasthan,
       Secretariat, Jaipur.
2.     The Chairman, NEET UG Medical and Dental Admission/
       Counseling Board-2020 and Principal, Government Dental
       College, Jaipur.
3.     The      National       Medical       Commission,           through   its
       Chairperson, Pocket 14, Sector-8, Dwarka, New Delhi.
                                                                ----Respondents


For Petitioner(s)          :   Mr.Manish Parihar, Advocate.
For Respondent(s)          :   Mr.Harshal Tholia, Advocate on behalf
                               of Dr.Vibhuti Bhushan Sharma, Addl.
                               Advocate General. AND Mr.Angad
                               Mirdha     for    National    Medical
                               Commission.


         HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
                                   ORDER
Order Reserved on              :       5th March, 2021

Date of Order                  :       9th March, 2021

By the Court:

The instant writ petition has been filed by petitioner for

seeking direction to give him admission in the MBBS Course in

Government Medical College. The petitioner further challenges

denial of his admission to allot a seat to be arbitrary and illegal

and accordingly, direction is sought against the respondents for

considering the case of the petitioner for allotment of seat on the

(2 of 16) [CW-15014/2020]

basis of his educational qualification in the second round of

counselling for the purpose of admission in MBBS Course.

2. The brief facts of the case are that the petitioner participated

in the admission process for MBBS and BDS Course by appearing

in the National Elligibility-cum-Entrance Test (UG), 2020,

conducted by the National Testing Agency (NTA). The petitioner

claims himself to be fully eligible and in possession of the requisite

qualification and secured NEET All India Rank at 87182 by

securing 499 marks (percentile 93.5709828) and in Scheduled

Caste Category, secured Category Rank at 3641.

3. The petitioner has pleaded that after declaration of the

result, Information Booklet for NEET UG 2020 for the purpose of

counselling for admission to State Quota, seats was issued. The

petitioner got himself registered for counselling under All India as

well as State Quota and he was first considered for allotment of

seat in Government Medical College but he was later denied

allotment of any seat in-spite of his merit on the ground of having

studied Biology, as an additional subject in Senior Secondary

Examination.

4. The petitioner has pleaded in his petition that a Notification

dated 22.01.2018 was issued by the Medical Council of India and

amendments were made in the Regulations of Graduate Medical

Education, 1997 and certain categories of students were excluded

and in particular those who had studied Biology as an additional

subject at or after Class 12 level, were all barred from applying for

NEET 2018.

(3 of 16) [CW-15014/2020]

5. The petitioner has pleaded that those candidates who were

aggrieved by such amendments, approached the Delhi High Court

by way of filing Writ Petition (Civil) No.6773/2018 [Tanishq

Gangwar & Ors. Vs. Union of India & Ors.] and the said writ

petition was allowed by the Delhi High Court vide order dated

17.08.2018.

6. The petitioner has further pleaded that he passed Senior

Secondary Examination with Mathematics in the year 2017 and

thereafter in the year 2018 he passed the additional subject of

Biology and the practical examination as well and as such, he was

eligible having Biology as an additional subject.

7. The petitioner has pleaded in his petition that on the basis of

the judgment dated 17.08.2018 passed by the Delhi High Court in

the case of Tanishq Gangwar, S.B.Civil Writ Petition

No.18546/2018 [Suraj Bansal Vs. Union of India & Ors.] was also

filed before this Court and this Court allowed the benefit of

admission to the candidate on the basis of qualification of Senior

Secondary with Biology as an additional subject.

8. The petitioner has further pleaded that Information Booklet,

which was published by the respondents, specifically provided that

the candidates who have studied Biology as an additional subject,

shall be allowed to appear in the counselling, subject to outcome

of the SLP preferred against the judgment dated 17.08.2018. The

petitioner has pleaded that in-spite of fulfilling the requisite

eligibility and having secured high rank in merit, in Scheduled

Caste Category, he was not granted admission and has been

declared ineligible without any justification.

(4 of 16) [CW-15014/2020]

9. Mr.Manish Parihar, counsel for the petitioner has made

following submissions:-

9A. The Information Booklet clearly made a reference of

verdict passed by the Delhi High Court in the case of Tanishq

Gangwar and pendency of SLP before the Apex Court and as

such, the candidates who studied Biology as an additional

subject in Senior Secondary Examination were eligible,

subject to outcome of the pending SLP before the Apex

Court. Thus, the respondents have not followed their own

instructions and conditions of eligibility criteria for seeking

admission in the Government Medical Colleges and as such,

the action of the respondents is absolutely illegal and

arbitrary.

9B. The petitioner has approached this Court by filing writ

petition immediately on 17.12.2020 and no fault can be

attributed to the petitioner and he cannot be denied right of

admission only on account of the fact that counselling

process is over for admission in MBBS Course.

9C. The petitioner had produced the relevant documents

during counselling process and in-spite of having the

requisite documents in support of the qualification, the

petitioner was illegally deprived by the respondents from

admission.

9D. The action of the respondents in depriving the

petitioner to get admission in Government medical College

and giving admission to other candidates with lesser marks

is violative of fundamental rights of the petitioner and merit

(5 of 16) [CW-15014/2020]

of the petitioner cannot be made a casualty only on account

of arbitrary and illegal omission on the part of the

respondents.

9E. The issue of additional subject of Biology in 12 th Class

was no more res integra in view of the decision passed by

the Delhi High Court and till the decision is reversed by the

Apex Court, the admissions were to be governed by the said

decision and to the same effect, the Information Booklet

issued by the respondents.

10. Counsel for the petitioner, in support of his submissions,

placed reliance on a judgment of the Apex Court in the case of

S.Krishna Sradha Vs. The State of Andhra Pradesh & Ors.

reported in AIR 2020 SC 47.

11. The respondents-State has filed reply to the writ petition.

The respondents in their reply initially took a stand that

counselling of the petitioner was done on 13.12.2020 and the

petitioner was asked to submit his 11 th and 12th marksheet, which

he did and in the marksheet of 11 th standard, it was clearly

mentioned that he had done his 11th from Mathematics and in

order to get his admission in MBBS Course, the candidate must

have the Biology as a subject for last two years.

12. The respondents have further averred that all the candidates

reporting for counselling were informed about the required

documents to be submitted before the Counselling Board and the

petitioner was no exception to the same and since the petitioner

did not have requisite qualification, he could not have been

allotted a seat in the Government Medical College in second round

(6 of 16) [CW-15014/2020]

of counselling. The respondents have also mentioned that the

entire admission process was completed on 31.12.2020 and the

mop-up round, is also said to be completed on 03.01.2021.

13. This Court while hearing the writ petition on 19.01.2021 had

directed the counsel for the petitioner to file an affidavit to the

effect as whether the petitioner had produced both the

marksheets of 12th Class, including the marksheet of Biology

subject of 12th Class before the Counselling Board or not.

14. The petitioner has filed an affidavit in pursuance of the

direction of this Court and has averred that he had submitted and

handed over all the required documents at the time of counselling

i.e. marksheets of 10th Class, 11th Class, 12th Class with

Mathematics and 12th Class with Biology as an additional subject

and all the documents were in possession of the petitioner and at

no point of time during counselling on 13.12.2020 or thereafter,

he was told of not having any marksheet of 11 th Class or 12th Class

(Biology or Mathematics). The petitioner has specifically averred

that the stand taken before this court that the petitioner did not

produce the relevant documents, is not correct.

15. This Court during the course of hearing on 04.02.2021

sought an affidavit from the Convener, NEET UG Counselling

Board, 2020 to show complete procedure followed during

counselling process. In pursuance of the order dated 04.02.2021,

the Chairman, Neet UG Counselling Board, 2020 has filed an

additional affidavit and has given the procedure followed during

counselling and mop-up round.

(7 of 16) [CW-15014/2020]

16. Counsel for the respondents-State Mr.Harshal Tholia has

made following submissions:-

16A. The admission to the petitioner was not granted as he

had passed additional subject of Biology only for one year

and as such, the authorities did not commit any illegality in

not considering the case of the petitioner for admission.

16B. The issue of considering the candidates of passing 12 th

Class with Biology as an additional subject is subjudice

before the Apex Court and the authorities were within their

right to not consider such candidates for the purpose of

admission as final view is yet to be taken by the Apex Court.

16C. The procedure followed by the Counselling Board was

transparent and there was no arbitrariness on their part and

all the candidates were given full opportunity to show their

eligibility with proof of qualification and if any candidate was

found to be in merit, admission was accordingly given to

him.

16D. This Court, in view of the time line fixed by the Apex

Court, which was extended upto 15.02.2021, may not grant

relief of admission to the petitioner, as the MBBS Course has

already commenced from 01.02.2021.

17. Mr.Angad Mirdha, Counsel for the National Medical

Commission has made following submissions:-

17A. The counselling process is undertaken by the NEET

Counselling Board, appointed by the State and in the present

case the office of the Chairman, NEET UG Medical & Dental

Admission/Counselling Board, 2020 has issued the requisite

(8 of 16) [CW-15014/2020]

Information Booklet and accordingly, admissions were to be

granted as per the merit and preference.

17B. The judgment rendered by the Delhi High Court in the

case of Tanishq Gangwar is the subject matter of challenge

before the Apex Court and final view is yet to be taken by

the Apex Court.

17C. This Court if is inclined to consider the petitioner

eligible for grant of relief of admission, the said relief may

not be granted to the petitioner this year and the petitioner if

at all is eligible for admission, suitable direction can be given

by this Court by giving admission in the next year and one

seat in Scheduled Caste Category, in the next year, may be

accordingly reduced from the total number of seats of

Scheduled Caste Category.

18. I have heard learned counsel for the parties and with their

assistance perused the material available on record.

19. It would be appropriate to quote the eligibility criteria, which

was prescribed in the Information Booklet issued from the office of

Chairman, NEET UG Medical & Dental Admission/Counselling

Board, 2020:-

"1. EDUCATIONAL QUALIFICATION

No candidate shall be allowed to be admitted to the MBBS or BDS course until he or she has passed the qualifying examination as under:

MBBS COURSE

The Higher/Senior Secondary Examination or the Indian School Certificate Examination which is equivalent to 10+2 Higher/Senior Secondary Examination after a period of 12 years study, the last two years of such study comprising of Physics, Chemistry, Biology/Bio-technology (which shall

(9 of 16) [CW-15014/2020]

include practical tests in these subjects) and Mathematics or any other elective subject with English at a level not less than the core course for English as prescribed by the National Council of Educational Research and Training after introduction of the 10+2+3 educational structure as recommended by the National Committee on Education.

Candidates who have passed 10+2 from Open School or as private candidates shall not be eligible to appear for 'National Eligibility Cum Entrance Test'. Furthermore, study of Biology/Biotechnology as an Additional Subject at 10+2 level also shall not be permissible.*

*The candidates who have passed 10+2 level with Biology as an additional subject will also be eligible for MBBS Entrance Examination (as per Hon'ble High Court Order No. 2341/- W/DHC/WRIT/D-1/2019 dated 24/09/2019 in the Writ Petition (C) No. 6773/2019.

If the institute has to consider an examination of an Indian University or of a foreign/university to be equivalent to the 12th Class under 10+2 scheme/intermediate science examination, the candidates shall have to produce a certificate from the concerned Indian University/Association of Indian Universities to the effect that the examination passed by him/her is considered to be equivalent to the 12th class under 10+2 scheme/intermediate science examination.

*(NOTE: The proviso in italics has been subject matter of challenge before the Hon'ble High Court of Delhi, Hon'ble High Court of Allahabad, Lucknow Bench and Hon'ble High Court of Madhya Pradesh at Jabalpur. The provisions of the regulations disqualifying recognised Open School Board candidates and the candidates who have studied Biology/Biotechnology as an additional Subject has been struck down. The Medical Council of India has preferred Special Leave Petitions before the Hon'ble Supreme Court and Appeals in the Hon'ble High Courts. Therefore, the candidature of candidates in the NEET (UG)-2020 who have passed the qualifying examinations i.e. 10+2 from National Institute of Open Schooling or State Open Schools or as private candidates from recognised State Boards; or with Biology/Biotechnology as additional subject shall be allowed but subject to the outcome of Special Leave Petitions/Appeals filed by the Medical Council of India) OR The Intermediate/Pre-degree Examination in Science of an Indian University/Board or other recognised examining body with Physics, Chemistry, Biology/Biotechnology (which shall include practical test in these subjects) and also English as a compulsory subject."

(10 of 16) [CW-15014/2020]

20. This Court finds that as far as eligibility of the candidates in

respect of educational qualification is concerned, the Information

Booklet clearly provides that the candidates who have passed

10+2 level with Biology as an additional subject will also be

eligible for MBBS Entrance Exam as per Delhi High Court order

dated 24.09.2019 passed in Writ Petition (C) No.6773/2019.

21. The note appended to the educational qualification in the

eligibility criteria clearly provides that the Medical Council of India

has preferred Special Leave Petitions before the Apex Court and

appeals in the High Courts, therefore, the candidates who have

passed the qualifying examinations i.e. 10+2 from National

Institution of Open Schooling or State Open Schools or as private

candidate from recognized State Boards or with

Biology/Biotechnology as an additional subject shall, be allowed

subject to outcome of Special Leave Petitions/Appeals filed by

Medical Council of India.

22. The Information Booklet left no room of doubt in the mind of

the petitioner that he was eligible and possessing the requisite

qualification and accordingly he appeared in the examination and

further participated in the counselling process.

23. This Court finds that the defence of the State Government

that the petitioner did not have Biology as an additional subject in

both the years i.e. 11th Class and 12th Class, was not warranted or

justified at all.

24. This Court further finds that the stand of the State

Government that the petitioner did not produce the relevant

marksheets of 11th Class and 12th Class with Biology as an

(11 of 16) [CW-15014/2020]

additional subject, during counselling process, is also not to be

taken into account as the petitioner has passed his 12 th Class with

Biology as an additional subject and he has a marksheet to this

effect issued in the year 2018 and produced the documents during

counselling.

25. This Court finds that the Counselling Board while considering

the case of the petitioner for admission has not carefully looked

into the eligibility of the petitioner and as such, they have violated

their own Information Booklet/Instructions, depriving the

petitioner from his admission in MBBS Course.

26. The submission of learned counsel for the respondent-State

that the petitioner's eligibility was doubtful in view of the matter,

being subjudice before the Apex Court, suffice it to say that when

Information Booklet specifically provided that the candidates who

have passed their 10+2 Level with Biology as an additional subject

will be allowed, subject to outcome of the Special Leave

Petition/Appeals, the respondent-State could not have treated the

petitioner ineligible for the purpose of admission to MBBS Course.

27. This Court finds that the petitioner is a meritorious candidate

and deprived from getting admission in the MBBS Course for no

fault of his and his right to get admission cannot be denied to him

only on account of cut off date, fixed from time to time in different

years, as per the calendar set out by the respondents and

approved by the Apex Court.

28. This Court, while going through the affidavit filed by the

Chairman, Neet UG Counselling Board, 2020 found that in the

minutes of the meeting of Counselling Board held on 25.12.2020,

(12 of 16) [CW-15014/2020]

a decision was taken on the representations of certain candidates

having Biology as additional subject to include them in the

subsequent allotment process, subject to the qualification

according to judgment dated 17.08.2018 by the Delhi High Court

in Tanishq Gangwar's case.

29. This Court finds that the petitioner in this case has appeared

in the counselling on 13.12.2020 and when he was denied

admission, he filed the present petition on 17.12.2020 and as

such, the petitioner being a meritorious candidate, has pursued

his remedy expeditiously without delay and he cannot be denied

relief because of the cut off date.

30. This Court finds that in normal course the cut off date for

MBBS Admissions is 30th September but this year due to COVID-

19, the Apex Court extended the date of MBBS Admission for the

year 2020-2021 by order dated 28.01.2021 and one week's time

was granted to the Authorities to complete the admission process

and as such the period of one week, as extended by the Apex

Court comes to an end on 05.02.2021. This Court further finds

that the admission in the MBBS Course for the year 2020-21 is

further extended by the Apex Court for a period of one week from

08.02.2021, as per the order passed by the Apex Court in MA

No.240/2021 in Writ Petition (C) No.76/2015 (Ashish

Ranjan & Ors. Vs. Union of India & Ors.) and the period of one

week expired on 15.02.2021. This is also informed to this Court

that IA No.14776/2021 for extension of time for the Academic

Session 2020-20 from 15.02.2021 to 15.03.2021 is still pending

(13 of 16) [CW-15014/2020]

consideration in Writ Petition (C) No.76/2015 before the Apex

Court.

31. The issue with regard to grant of relief to a meritorious

candidate who has pursued his/her legal right expeditiously

without delay, has been considered by the Larger Bench of the

Apex Court in S.Krishna Sradha (supra). The relevant paragraph

of the judgment dated 13.12.2019 is quoted hereunder:-

"In light of the discussion/observations made hereinabove, a meritorious candidate/student who has been denied an admission in MBBS Course illegally or irrationally by the authorities for no fault of his/her and who has approached the Court in time and so as to see that such a meritorious candidate may not have to suffer for no fault of his/her, we answer the reference as under:

(i) That in a case where candidate/student has approached the court at the earliest and without any delay and that the question is with respect to the admission in medical course all the efforts shall be made by the concerned court to dispose of the proceedings by giving priority and at the earliest.

(ii) Under exceptional circumstances, if the court finds that there is no fault attributable to the candidate and the candidate has pursued his/her legal right expeditiously without any delay and there is fault only on the part of the authorities and/or there is apparent breach of rules and regulations as well as related principles in the process of grant of admission which would violate the right of equality and equal treatment to the competing candidates and if the time schedule prescribed - 30 th September, is over, to do the complete justice, the Court under exceptional circumstances and in rarest of rare cases direct the admission in the same year by directing to increase the seats, however, it should not be more than one or two seats and such admissions can be ordered within reasonable time, i.e., within one month from 30th September, i.e., cut off date and under no circumstances, the Court shall order any Admission in the same year beyond 30th October. However, it is observed that such relief can be granted only in exceptional circumstances and in the rarest of rare cases. In case of such an eventuality, the Court may also pass an order cancelling the admission given to a candidate who is at the bottom of the merit list of the category who, if the admission would have been given to a more meritorious candidate who has been denied admission illegally, would not have got the admission, if the Court deems it fit and proper, however, after giving an opportunity of hearing to a student whose admission is sought to be cancelled.

(14 of 16) [CW-15014/2020]

(iii) In case the Court is of the opinion that no relief of admission can be granted to such a candidate in the very academic year and wherever it finds that the action of the authorities has been arbitrary and in breach of the rules and regulations or the prospectus affecting the rights of the students and that a candidate is found to be meritorious and such candidate/student has approached the court at the earliest and without any delay, the court can mould the relief and direct the admission to be granted to such a candidate in the next academic year by issuing appropriate directions by directing to increase in the number of seats as may be considered appropriate in the case and in case of such an eventuality and if it is found that the management was at fault and wrongly denied the admission to the meritorious candidate, in that case, the Court may direct to reduce the number of seats in the management quota of that year, meaning thereby the student/students who was/were denied admission illegally to be accommodated in the next academic year out of the seats allotted in the management quota.

(iv) Grant of the compensation could be an additional remedy but not a substitute for restitutional remedies. Therefore, in an appropriate case the Court may award the compensation to such a meritorious candidate who for no fault of his/her has to lose one full academic year and who could not be granted any relief of admission in the same academic year.

(v) It is clarified that the aforesaid directions pertain for Admission in MBBS Course only and we have not dealt with Post Graduate Medical Course."

32. This Court considering the law laid down by the Apex Court

in the case of S.Krishna Sradha (spura), in the present facts of the

case comes to the following conclusions:-

(i) No fault is attributed to the petitioner.

(ii) The petitioner has pursued his right and legal remedy

expeditiously without any delay.

(iii) There is an omission on the part of the Authorities and

breach of Rules and Instructions.

(iv) The petitioner is more meritorious than the candidate

who has been given admission in Schedule Caste

Category.

(15 of 16) [CW-15014/2020]

(v) The last date of admission, as has come on record, was

extended by the Apex Court upto 15.02.2021 and the

application for extension of time is still pending.

(vi) The admission process for the Academic Session 2020-

2021 in the State of Rajasthan is said to be completed

on 31.12.2020 and the course is said to have started

from 01.02.2021.

33. This Court has considered the time extended by the Apex

Court and law laid down in the case of S.Krishna Sradha (supra),

where Apex Court, for doing complete justice under exceptional

circumstances and in rarest of rare cases, directed admission in

the same year by increasing the seats but it should not be more

than one or two seats and such admissions are directed to be

ordered within a reasonable time i.e. within one month from 30 th

September i.e. the cut off date and no Court will order any

admission in the same year beyond 30th October.

34. This Court finds that admission in the MBBS Course for the

year 2020-21 is extended by the Apex Court for a period of one

week from 08.02.2021 and the period of one week expired on

15.02.2021 and outer limit, as has been fixed by the Apex Court,

should not be beyond one month to grant admission, accordingly

holds that the petitioner is required to be considered for his

admission in the current academic session by creating one seat in

any of the Government Medical College. The additional seat so

created can be adjusted by reducing one seat in ST Category in

next session.

(16 of 16) [CW-15014/2020]

35. Accordingly, the present writ petition filed by the petitioner is