Dr. Diptanu Sarkar vs Society For Tripura Medical And
2022 Latest Caselaw 511 Tri

                          HIGH COURT OF TRIPURA
                                AGARTALA
                               WP(C)No.398 of 2022

 Dr. Diptanu Sarkar
                                                                   ..........Petitioner(s)
                                       Versus
 Society for Tripura Medical and
 Dr. B.R. Ambedkar Memorial
 Teaching Hospital and Others
                                                                  ..........Respondent(s)

 For Petitioner(s)                 : Mr. S. Lodh, Adv.
 For Respondent(s)                 : Mr. P.K. Dhar, Sr. G.A.
                                     Mr. K. De, Addl. G.A.
                                     Mr. S. Bhattacharjee, Adv.
                                     Mr. U.K. Das, Adv.

                      HON'BLE MR. JUSTICE S. TALAPATRA

                              Judgment & Order(Oral)

 18/05/2022

Heard Mr. S. Lodh, learned counsel appearing for the petitioner as

well as Mr. P.K. Dhar, learned Sr. G.A. assisted by Mr. U.K. Das, learned counsel

appearing for the respondents No.1 to 3 and Mr. S. Bhattacharjee, learned counsel

appearing for the respondent No.4 and Mr. K. De, learned Addl. G.A. appearing for

the respondents No.5 and 6.

2. The petitioner is aspirant of getting admission in the Post Graduate

Course in General Medicine in the academic session of 2021-2022. In the NEET-PG,

2021, the petitioner secured All India Rank of 47947 whereas the respondent No.4

secured the All India Rank of 90237. This is not in dispute that the Director of

Medical Education, Government of Tripura by the notice dated 23.01.2022 had

published the State Merit List of NEET-PG,2021 and in that list, the rank of the

petitioner is 53 whereas the rank of the respondent No.4 is 81. Therefore, it has

been contended by the petitioner that he occupied the better merit position in

comparison to the respondent No.4.

3. On 02.05.2022, one admission notification was published by the

Principal, Tripura Medical College, Hapania, Agartala [Annexure-5 to the writ

petition]. The said notification is in the centre of the present controversy. For

making an incisive reference, the entire text of the said admission notification dated

02.05.2022 is extracted hereunder :

ADMISSION NOTIFICATION

The following seats of Post Graduate Degree (MD/MS) Course of Tripura Medical College and DR BRAM Teaching Hospital for the Academic Session 2021-22 are left vacant after MOPUP round of counselling :-

 Sl.   Discipline                               Seat Category           Category
 No.
 1     General Medicine                         1-Open Category         ST
 2     Pharmacology                             1-State Quota seat      ST

Students who have registered in 1st, 2nd and also MOP UP round of Tripura State NEET PG 2021 counselling, but did not get admitted anywhere are eligible for this stray round. The interested candidates may appear for physical counselling on 5th May, 2022 up to 1-00 PM and contact the Office of the Principal, Tripura Medical College & Dr. BRAM Teaching Hospital, Hapania, Agartala.

In case no candidate turns up for admission on 05-05-2022 up to 1-00 PM, both the seas shall be open for all candidates from all over India. The aspiring candidates shall contact the office of the Principal on 06-05-2022 by 1-00 PM.

Illegible (DR. ARINDAM DATTA) Principal Tripura Medical College Hapania : Agartala

4. The petitioner was only interested in the vacancy available in the

General Medicine but the said post had been shown for ST category. As a result, the

petitioner did not appear for counselling on 05.05.2022 upto 1 p.m., as the

petitioner had understood that until that time, only the ST category candidates

would face the physical counselling. The petitioner appeared after 1 p.m. when the

said seat was supposed to be opened for all candidates from all over India. But to

his uttered dismay, he found that the respondent No.4 had been allotted the said

counseling upon which the said counseling took place before 1 p.m. on the said day

i.e. on 05.05.2022. Hence, he has approached this court urging for setting aside the

nomination of the respondent No.4 and to resume the fresh counselling for the said

seat for post graduate studies in General Medicine.

5. The petitioner, as represented by Mr. S. Lodh, learned counsel has

referred the education notification dated 06.05.2022 as issued by the Principal,

Agartala Government Medical College [a different medical college] for a seat of MD

Physiology which was also shown to be reserved for SC category candidate. For

purpose of reference, the entire text of the said education notification dated

06.05.2022 is extracted hereunder :

No.F.4(12-75)-AGMC/Academic/PG/Admission Committee/2019 Government of Tripura Office of the Principal, Agartala Government Medical College Agartala, Tripura(West)-799006

Dated, Agartala, 06th May, 2022

POST GRADUATE (MD) ADMISSION

EDUCATION NOTIFICATION

The following PG seats have remained vacant in Agartala Govt. Medical College after MOP UP Round.

     Sl.           Name of PG seats               No. of vacant seats
     No.
     1.              MD Physiology                       1(1 SC)

These seats are treated as "Stray vacancy" and will be filled up by the eligible candidates from the merit list of waiting candidates of Tripura. In the event of non-availability of candidates of the concerned category the seats will be filled up by eligible candidates from other categories.

Interested candidates are requested to appear before the selection committee on 07.05.2022 at 11.00 a.m. to 12.00 noon in the College Council Room of Agartala Govt. Medical College (AGMC) for selection against the vacant seatrs as per the approval of the concerned departments.

Last date of admission to these vacant seat is 07.05.2022 up to 5.00 p.m.

This is issued in continuation of previous Educational Notification of even No.Dt 5.5.2022.

Illegible Prof.(Dr.) Manjushree Ray Principal Agartala Government Medical College

The petitioner though that the similar mode will be followed by the

respondent No.1.

6. Mr. Lodh, learned counsel has contended that the stray vacancies

was to be filled up by the eligible candidates from the merit list of waiting

candidates of Tripura. In that event of non-availability of candidates of the

concerned category, the seats will be filled up by eligible candidates from all India

categories. By the said admission dated 02.05.2022, the interested candidates were

requested to appear for the physical counseling on 07.05.2022 upto 1 p.m. in the

Office of the Principal, Tripura Government Medical College and Dr. BRAM Teaching

Hospital, Hapania. In this regard, it may be noted that the respondents in the reply

has stated that this court may not interfere because the last date of admission has

lapsed on 07.05.2022. The writ petition had been filed on 07.05.2022. When the

writ petition was filed, the respondent No.4 had taken admission in the college run

by Society for Tripura Medical College and Dr. BRAM Teaching Hospital, the

respondent No.1.

7. Mr. Lodh, learned counsel has submitted that if the injustice is

located and it can be shown that the respondents have acted arbitrarily going

contrary to their own notification, this court is not bereft of power to direct, even

the Medical Council of India to extend the date of admission. In this regard, a

decision of this court in Dr. Bidhan Bhowmik versus State of Tripura and

Others [judgment dated 26th June, 2015 delivered in WP(C)No.208 of 2015] has

been referred where this court had occasion to observe that it would be travesty of

justice, if there is total violation of the law and regulations and the Court finds, as in

the present case, that the petitioner has been denied what was legally due to him

but no relief can be granted because the final order is passed after 10th June, 2015.

The power of judicial review of administrative action is part of the basic structure of

the Constitution. Where there is total illegality, it is the duty of the Court to set it

right. In the present case, as we observed above that the Board did not only act in

violation of Regulation 5.8.1, but misstated the facts in its minutes. The petitioner

approached this Court at the earliest on 6th June, 2015 i.e. much before 10th June,

2015. Obviously the notice had to be issued to the affected parties and the matter

had been decided within 20(twenty) days. This court was of the considered view

that the judgment of the Apex Court referred to by the respondents does not in any

way take away the power of the Constitutional Courts to do justice to the citizens of

the country and to ensure that the fundamental rights of any citizen are not

violated. Accordingly, the direction was issued in that case, as referred by Mr. Lodh,

learned counsel, asking the respondents to provide a seat to the petitioner in

general surgery.

According to Mr. Lodh, learned counsel, this squarely debunks the

petitioner's opposition in respect of the last date of admission.

8. Mr. P.K. Dhar, learned senior counsel assisted by Mr. U.K. Das,

learned counsel appearing for the respondents No.1 to 3 has at the outset

submitted that the petitioner has failed to understand the simple meaning of the

admission notification or he has understood the meaning but he did not appear in

the physical counselling and as consequence of his absence, he was not considered

against the stray vacancy available for nomination. Those respondents No.1 to 3

filed a combined reply on 17.05.2022 stating inter alia that the petitioner had an

erroneous impression or misconception that both the seats mentioned in the

admission notification No.F.3(PO-87)PF-Admission-2021-2022/SFTMC/2021 dated

02/05/2022 were reserved for the Scheduled Tribe candidates. The fact is that the

seats were originally earmarked for the Scheduled Tribe (ST) candidates but

through three counseling, those could not be allotted for non-availability of the

candidates. The Admission Notification has only shown that the seats were originally

reserved for Scheduled Tribe candidates before bringing them to the stray round.

Since no Scheduled Tribe category candidates were found available in the first,

second and MOP UP round of Tripura state NEET PG 2021 counselling, the seats

were brought to the stray round and made open to all categories of candidates who

got registered in the first, second and MOP UP round of Tripura State NEET PG 2021

counselling, but failed to get allotment and therefore they have became eligible for

the stray round in conformity with the information Bulletin issued by the Director of

Medical Education (DME), Government of Tripura regarding eligibility, guidelines,

bond structure, requisite fees, seat matrix, schedule for counselling etc. There is no

ambiguity, doubt or confusion in the words and sentences of the said Notification

dated 02.05.2022. In the said notification, students of all categories who got

registered in all the 3(three) counselling rounds of the State NEET PG 2021 were

asked to appear for the physical counselling on 05/05/2022 up to 01:00 p.m. at

Tripura Medical College and Dr. BRAM Teaching Hospital, particularly in the Office of

the Principal for those 2(two) seats and it was further mentioned that if no

candidates of the State NEET PG 2021 was found available for admission by 01:00

p.m. of 05/05/2022, the seats would be open for candidates from all over India

irrespective of categories on 06/05/2022 up to 01:00 p.m. According to those

respondents, this notification is very clear that on 05/05/2022 the seats will be

made open for all category candidates of Tripura State NEET PG 2021 up to 01:00

p.m. and in case of non availability of candidates of State NEET PG 2021

candidates, those seats would be open for candidates from all over India. So the

claim of the writ petitioner that the seats were meant for the Scheduled Tribe

candidates on 05/05/2022 up to 01:00 p.m. is not sustainable in the eye of law.

Mr. Dhar, learned senior counsel has stated that this writ petition is

completely frivolous and does not require further consideration.

9. Mr. S. Bhattacharjee, learned counsel appearing for the respondent

No.4 has submitted that by the communication dated 05.05.2022 [Annexure-R/6 to

the reply filed by the respondent No.4], the Principal, TMC & Dr. BRAM Teaching

Hospital communicated the nomination to the respondent No.4 to the Director

Medical Education, Government of Tripura, Agartala for admission in the post-

graduate course in General Medicine as per merit. According to Mr. Bhattacharjee,

learned counsel, he is in total agreement with the submission as advanced by Mr.

P.K. Dhar, learned senior counsel inasmuch as the said notification is unambiguously

worded and no different meaning can be churned out from the reading of the said

notification. Since, it is an admitted fact that the petitioner did not participate in the

counselling on 05.05.2022 before 01:00 p.m., the petitioner was not supposed to be

considered, even if the petitioner occupied a higher merit position as noted before.

10. In the notice dated 16.04.2022 [Annexure-R/4 to the reply], it has

been adverted that no seat will be allotted to an absentee candidate after the MOP

UP round. Till the MOP Up round, no ST candidate did appear and as a result, the

earmarked seats did fall in the stray vacancy.

11. Mr. Bhattacharjee, learned counsel has submitted that the

respondent No.4 has all the requisite qualifications and hence, she was selected for

the admission. She has participated in the physical counselling as per the said

notification dated 02.05.2022 [Annexure-R/5 to the reply] within 01:00 p.m. of

05.05.2022, in which the petitioner did not appear. As such, the claim of the

petitioner is unsustainable. That apart, Mr. Bhattacharjee, learned counsel has quite

succinctly stated that the Medical Admission Notice dated 02.05.2022 did clearly

communicate that all students who have registered in the first, the second and in

the MOP UP round of Tripura State NEET PG 2021 counsellling, but did not get

allotment for admission anywhere are eligible for the stray round. It has been

adverted that the interested candidates may appear for physical counselling on 5th

May, 2022 upto 01:00 p.m. and contact the Office of the Principal, Tripura Medical

College & Dr. BRAM Teaching Hospital, Hapania, Agartala. It has been also stated

that if in case no candidates turns up for admission on 05.05.2022 upto 01:00 p.m.,

both the seats shall be open for all candidates from all over India. The latter part of

the admission notification clearly stipulates that if under the Tripura State NEET PG

candidates are not available till 01.:00 p.m., then the admission will be open for all

students from all over India without any provincial restriction.

12. Mr. Bhattacharjee, learned counsel has referred to para-14 of the

reply filed by the respondent No.4 where it has been stated that in the stray

vacancy round (Round-4) which has been conducted in the offline mode at the

Institutional level one seat has been allotted in favour of the respondent No.4 for

post graduate course in General Medicine. That seat was fallen in the stray vacancy.

Further, he has referred from the Information Bulletin as circulated by the Medical

Counselling Committee where in response to the question No.48- "How many

rounds of counselling are for Deemed and Central Universities ?"

It has been stated in the said information to assure that there will be three rounds

of counselling for deemed and Central University the first, the second and the MOP

UP round. The Stray Vacancy Round (Round 4) which is conducted in the offline

mode at the Institution level for which list of the candidates, ten times the number

of vacancies, will be sent by DGHS to Institutes for conducting the Stray round

which would be exhausted strictly in terms of merit as per the direction laid down in

the Dar-Us-Salam case. Merit is to be ascertained amongst the candidates who

participated in the counselling.

The purpose of referring this passage is to show that in the stray round

selection or nomination is settled solely on the basis of merit.

However, Mr. Lodh, learned counsel appearing for the petitioner has submitted that

that approach is only for the Deemed Universities and the Central Universities, not

for other medical institutions.

13. In Dar-Us-Slam Educational Trust AND Ors. Versus Medical

Council of India and Ors. [the order dated 09.05.2017 delivered in Writ

petition(s) Civil No.267 of 2017], the apex court has observed as follows :

"7. In order to ascertain the number of seats that still remain vacant after the counselling the State Government or the authority designated by the State Government shall conduct manual counselling for allotment of students. After the completion of counselling, the State Government shall determine the number of seats that are still vacant and thereafter shall forward a list of students in order of merit, equaling to ten times the number of vacant seats to the medical college so that in case of any stray vacancy arising in any college the said seat may be filled up from the said list."

On the basis of the said observation, it has been sought to be asserted that

even if the particular category is mentioned following the law as laid down in Dar-

Us-Slam Educational Trust(supra) only merit and solely the merit will be the

criteria for consideration. The physical counselling is therefore necessary for

selecting of the candidates intending any medical course and has appeared in the

physical counselling for stray vacancy.

14. Mr. Lodh, learned counsel appearing for the petitioner has made a

robust attempt to make a comparison between the two notifications, one issued by

the Principal, Agartala Government Medical College and the other was issued by the

Principal, Tripura Medical College and Dr. BRAM Teaching Hospital. The purpose of

this comparison is obvious that the first candidate from the same category will be

considered and thereafter, the other candidates will be considered. This court is

unable to accept the said analogy drawn from the aforesaid comparison as in the

admission notification dated 02.05.2022, it has been clearly stated that students

who have registered in the first, in the second and also in the MOP UP round of

Tripura State NEET PG 2021 counselling, but did not get admission anywhere are

eligible for this stray round. The interested candidates may appear for physical

counselling on 5th May, 2022 upto 1-00 PM and contact the Office of the Principal,

Tripura Medical College & Dr. BRAM Teaching Hospital, Hapania, Agartala.

Therefore, the wishful reading that the petitioner has made is not acceptable, even

though, the petitioner suffered seriously for his erroneous reading but this court

cannot make any accommodation for re-counselling.

15. The other arguments that have been floated are that only after the

reserved category candidates [ST], in the case in hand, are counselled within the

stipulated time on 05.05.2022, another phase of counselling will commence for

open category candidates. This statement also emanates from an erroneous reading

as it is clearly postulated that the seats shall be open for all candidates from all over

India, meaning that shall not be not only confined to the candidates from Tripura

State.

Be that as it may, this court has noticed that in Dar-Us-Slam

Educational Trust(supra) that the stray round will be strictly on the basis of merit.

However, there had been some departure in the educational notification issued by

the Principal, AGMC but such educational notification cannot overshadow the

observation as made by the apex court in Dar-Us-Slam Educational

Trust(supra).

16. This court is not oblivious that procedure may be modified. But if any

modification in the procedure is required, the competent authority shall make such

modification before going for counselling for allotment of any seat.

Thus, on an overall appreciation of the submission of the learned

counsel for the parties, this court does not find any merit in this writ petition.

Accordingly, the same stands dismissed.

There shall be no order as to costs.

JUDGE

Sabyasachi B