Principal Darshan Dental Medical ... vs Nitender Kumar Meena Son Of Shri ...
2023 Latest Caselaw 4495 Raj/2

[2023:RJ-JP:23451-DB]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

               D.B. Special Appeal (Writ) No. 937/2021
                                           In
                 S.B. Civil Writ Petition No. 9052/2020
Principal, Darshan Dental Medical College & Hospital, Ranakpur
Road, Village-Loyara, Udaipur-313011.
                                          ----Appellant(Non Petitioner No.4)
                                       Versus
1.       Nitender Kumar Meena Son of Shri Ram Avtar Meena,
         Aged About 21 Years, Resident of Village Nagla Hetram,
         Post Bhootuli, Tehsil Weir District Bharatpur (Rajasthan)
                                                       ----Petitioner/Respondent

2. Rajasthan University of Health Sciences, Through Its Registrar, Sector-18, Kumbha Marg, Pratap Nagar, Jaipur 302033.

3. Comptroller of Examinations, Rajasthan University Of Health Sciences, Sector-18 Kumbha Marg, Pratap Nagar, Jaipur-302033.

4. Chairman, National Eligibility Cum Entrance Test (NEET) (UG), Medical & Dental Admission, Counseling Board - 2019 & Principal & Controller, SMS Medical College & Attached Hospitals, Jaipur-302004.

5. State of Rajasthan, Through Secretary Medical Education Department, Government of Rajasthan, Secretariat, Jaipur-302005

6. Central Board of Secondary Education, Through Its Chairman, Regional Office, PS 1-2, Patparganj, I.P. Extension, Institutional Area, New Delhi - 110092.

----Respondents/Non-Petitioners Connected With D.B. Civil Special Appeal (Writ) No. 942/2021 In S.B. Civil Writ Petition No. 9052/2020 Nitender Kumar Meena S/o Shri Ram Avtar Meena, Aged About 22 Years, R/o Village Nagla Hetram, Post Bhootuli, Tehsil Weir, District Bharatpur (Rajasthan)

----Appellant Versus

1. Rajasthan University of Health Sciences, Through Its Registrar, Sector-18, Kumbha Marg, Pratap Nagar, Jaipur 302033

2. Controller of Examinations, Rajasthan University of Health Sciences, Sector-18 Kumbha Marg, Pratap Nagar, Jaipur-

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302033

3. Chairman, National Eligibility Cum Entrance Test (NEET) (UG), Medical And Dental Admission, Counseling Board - 2019 And Principal And Controller, SMS Medical College And Attached Hospitals, Jaipur-302004

4. Principal Darshan Dental Medical College And Hospital, Ranakpur Road, Village-Loyara, Udaipur 313011

5. State of Rajasthan, Through Secretary, Medical Education Department, Government of Rajasthan, Secretariat, Jaipur-302005

6. Central Board of Secondary Education, Through Its Chairman, Regional Office, PS 1-2, Patparganj, I.P. Extension, Institutional Area, New Delhi - 110092.

----Respondents

For Appellant(s) : Mr. Jai Raj Tantia, Advocate (D.B.

Special Appeal Writ No. 937/2021) Mr. R.D. Meena, Advocate (D.B.

Special Appeal Writ No. 942/2021) For Respondent(s) : Mr. Virendra Lodha, Sr. Advocate assisted by Mr. Rachit Sharma, Advocate Mr. M.S. Raghav, Advocate Mr. Sunil Samdaria, Advocate

HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE ASHUTOSH KUMAR

Judgment

02/09/2023

By this common judgment aforesaid two appeals are being

disposed off as they arise out of order dated 14.09.2021 passed

by learned Single Judge. By impugned order though learned

Single Judge has held that the student/writ petitioner was not

eligible for admission to BDS course, compensation has been

directed to be paid to the writ petitioner both by NEET

Counselling Board and Appellant- Darshan Dental Medical College

& Hospital, Udaipur (For short 'College').

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Aggrieved by the impugned order insofar as it holds that the

writ petitioner was not eligible to be admitted in BDS course,

Nitender Kumar Meena has filed D.B. Civil Special Appeal (Writ)

No. 942/2021.

Aggrieved by the part of the order by which cost of Rs. 10

lacs has been imposed, the College has filed D.B. Special Appeal

(Writ) No. 937/2021.

The appellant-student had applied for BDS course. He

appeared in the National Eligibility Cum Entrance Test (For short

'NEET') (UG) examination on 05.05.2019 and on the strength of

his All India Rank of 416816 with category rank for ST at 13012,

was shortlisted and called for counselling conducted by NEET

Counselling Board. A provisional allotment letter dated

08.07.2019 was issued by which the appellant-student was

allotted Darshan Dental Medical College & Hospital, Udaipur. The

appellant-student deposited requisite fee, hostel fee as also

documents and started undergoing the said course. When he

submitted his application for enrollment in the examination to the

University, it was revealed that the University Authority found that

the appellant-student was in-fact not even eligible for admission in

BDS course as he had failed in the subject of Chemistry at the

Higher Secondary Level. Accordingly, he was not allowed to

appear in the examination. This gave arise to cause of action to

the appellant-student to file writ petition. The main contention of

the appellant-student was that in the mark-sheet of Senior

Secondary Examination (10+2) issued in the year 2017, his result

was shown as "pass" even though in the subject of Chemistry, the

remark was "fail in Theory". Under the rules or bye-laws of the

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Central Board of Secondary Education (For short 'CBSE'), he was

declared "pass" as the aggregate of theory and practical marks

were 39, whereas, the minimum passing marks were 33. This was

fully known and disclosed to the Respondent-NEET Counselling

Board and the College and they, treating the appellant-student as

eligible, granted admission, collected fee and allowed the

appellant-student to pursue study for one year. Therefore, the

action of the Respondent-University in not admitting the appellant-

student to appear in the examination was bad in law.

Learned Single Judge by impugned order has held that the

appellant-student having failed in theory in the subject of

Chemistry, could not be treated as "pass" and, therefore, it has

been concluded that he was wrongly admitted and such wrong

admission of ineligible candidate could not be protected. At the

same time, learned Single Judge was of the view that without

proper scrutiny of the application, the appellant-student was

granted admission and fee was collected, his one year was

wasted, therefore, cost has been imposed.

Learned counsel for the parties stated at the bar that against

the order of the learned Single Judge imposing cost on University,

writ appeal was filed, which has been dismissed.

The finding of the learned Single Judge after detailed

consideration of the relevant clauses of Bye-Laws of the CBSE and

the condition of eligibility as incorporated in the information

booklet issued by the NEET Counselling Board that a candidate

passing each of the subject was a pre-condition and if the subject

comprises of theory as well as the practical, the candidate was

required to pass in both. The appellant-student was given (E)

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grade in the subject of Chemistry which means fail, specifically

mentioning that the appellant-student failed in Chemistry

(theory). It was further held that the appellant-student was fully

aware of this aspect that he had failed in Chemistry paper and

therefore would not be eligible to get admission as he failed to

fulfill the minimum eligibility criteria for admission to BDS course,

applied for the same.

Therefore, there is no case made out warranting interference

with the finding of the learned Single Judge that the appellant-

student having failed in one of the essential subject of Chemistry

was not eligible for admission to BDS course.

The appeal of the College is directed against the order of

imposition of costs. Learned counsel for the appellant-College

would submit that the costs have been imposed on incorrect

factual premise that it was the mistake of the College in not

properly verifying the credential certificates and mark-sheet of the

appellant-student. According to him, the material on record clearly

revealed that when Counselling Board sent letter to the College for

sending representative to remain present at the time of conselling,

it's officials were present, however, on those days, the appellant-

student was not present. Later on, when the appellant-student

appeared, the NEET Counselling Board and it's officers verified the

credentials and documents and a provisional allotment letter was

sent to the College, therefore, the College was left with no option

but to grant admission on the basis of the declaration given by the

student in the admission form.

The record of the writ petition, the pleadings of the parties

and various documents attached thereto reflect that the NEET

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Counselling Board and College have thrown burden on each other.

While NEET Counselling Board's stand is that it was the

responsibility of the College to verify the documents, the stand of

the College was that the documents were submitted and remained

in possession of the NEET Counselling Board and they had issued

a provisional allotment letter on their own satisfaction which was

binding on the College, therefore, blame could not be passed on

the College, later on it was revealed that the appellant-student

was otherwise not eligible for admission to BDS course.

The record reveals that the writ petitioner was allotted seat

after he reported to NEET Counselling Board and deposited

original documents and demand draft of fee in SMS Medical

College on 11.07.2019 and thereafter the College was informed by

the Principal and Controller that the appellant-student has been

allotted seat in the College, thereafter, he reported and deposited

the original documents and demand draft in SMS Medical College

on 11.07.2019.

We have also perused the E-mail received by the College on

12.07.2019. It is also borne out from the affidavit of the College

that initially on 05.07.2019, a letter was received by the College,

wherein, it was informed that the NEET (UG) Online Counselling

2019 was to be conducted amongst meritorious candidates and

their original documents and requisite fee was to be received from

06.07.2019 to 09.07.2019 in SMS Medical College. The letter

required the College to nominate their representatives and

maximum two employees for taking original documents of the

candidates for the purpose of verification and for receipt of fee to

be paid by the candidate for admission.

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The affidavit further shows that from 06.07.2019 to

09.07.2019, though the staff/representative of the College were

present, the appellant-student did not appear in the counselling.

He appeared before the Counselling Board on a later date on

which date, the College representative were not called.

Sending of a letter for provisional allotment by the

Counselling Board while having custody of the original documents

of the appellant-student clearly shows that in the absence of

representatives of the College, NEET Counselling Board Officials

collected the original records of the appellant-student and sent a

letter for provisional allotment to the College. Even at that point of

time, the original documents/certificates of the appellant-student

were not forwarded to the College. The student submitted

admission form in which he declared himself as "pass". On the

face of provisional letter, the College granted admission.

In view of the above, we are of the view that the blame

could not be laid on the College. Accordingly, imposition of the

cost on the College does not appears to be proper and is,

therefore, set aside.

In the result, the appeal filed by the Nitender Kumar Meena

is dismissed, whereas, the appeal filed by the Principal, Darshan

Dental Medical College & Hospital, Udaipur is allowed.

(ASHUTOSH KUMAR),J (MANINDRA MOHAN SHRIVASTAVA),J

Mohita /22-23

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