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Himachal Pradesh High Court · body

2001 DIGILAW 147 (HP)

CHANDAN SHARMA v. STATE OF H. P.

2001-07-16

A.K.GOEL, C.K.THAKKER

body2001
JUDGMENT C.K. Thakker, C.J.—Both the petitions have been filed by the petitioners for an appropriate writ, direction or order quashing and setting-aside the action of the respondent-authorities in not admitting the petitioners in first MBBS course in Dr. Rajinder Parshad Government Medical College, Tanda in District Kangra and to direct them to give admission in the College. 2. To appreciate the controversy raised in the present petitions, few facts in the first matter, i.e. CWP No. 289 of 2001 may now be stated. According to the petitioner, he appeared for the Common Entrance Test for admission to MBBS Course for the year 1999-2000. The petitioner secured 234 marks out of 300 marks in the Common Entrance Test. He could not get admission in Indira Gandhi Medical College, Shimla in order of merit. According to him, however, he was sure to get admission in Dr. Rajinder Parshad Government Medical College, Tanda. But no admission was given to him. There was no admission during the year 2000-2001 also. It was stated by the petitioner that some of the candidates approached this Court by filing a writ petition for getting admissions, but the petition was dismissed. Being aggrieved by the judgment and order passed by this Court, some of the candidates preferred Special Leave Petition in the Honble Supreme Court. Leave was granted and it was registered as civil appeal No. 6618 of 2000. Finally, by a judgment, dated April 10, 2001, the appeal was disposed of by the Honble Supreme Court. After hearing the parties, certain directions were issued by the Apex Court. Relevant part of the directions read as under: "1. That against 50 available seats in the medical college at Tanda for the session 2000-2001, admissions be made in the order of merit from the list of the qualified candidates who had appeared in the CPMT held in 1999. The cases of the present appellants (17 in number) shall be considered in accordance with their respective merit position in the CPMT held in 1999. 2. In the event any seat is left unfilled, the same be made available to the qualified candidates, who had appeared in the CPMT held in 2000 for other medical colleges. This shall also be done strictly in accordance with merit on the basis of the merit list prepared for the CPMT held in 2000. 2. In the event any seat is left unfilled, the same be made available to the qualified candidates, who had appeared in the CPMT held in 2000 for other medical colleges. This shall also be done strictly in accordance with merit on the basis of the merit list prepared for the CPMT held in 2000. The State and the medical college shall take all immediate steps to admit the students and commence studies. The State shall undertake the entire exercise of admission in the terms suggested above in one go and we are assured by the State that the exercise can be completed on or before 20 April, 2001 so that the classes can commence w.e.f. 23rd April, 2001, as suggested by learned Counsel for MCI as well as learned Counsel representing the State. We wish to make it clear that the order has been made in the peculiar facts and circumstances of this case and it should not be construed as any precedent for not filling up the seats by the batches of students who qualify in the CPMT for the session in question and we have no quarrel with the propositions laid down in the earlier judgments of the court including Dr. Indu Kant and others etc. v. State of U.P. and others etc., 1993 Supp. (2) SCC 71, (which case on facts is distinguishable from the facts of the present case. The appeals and the intervention applications are disposed of in the above terms but with no order as to costs. Learned Counsel appearing for the State of H.P. shall communicate this order, pronounced in the open Court, to the State so that appropriate steps are commenced forthwith.” 3. According to the petitioner, respondents through newspaper reports informed the student community about the decision of the Supreme Court by giving Roll numbers who had been recommended for admission. Roll number of the petitioner did not find place in the newspaper report. He, therefore, approached the authorities and came to know that he was also entitled to get admission as he was qualified and eligible. But he was not granted admission on the ground that the last date as per the decision of the Supreme Court was April 20, 2001 and since the petitioner failed to get himself admitted within the outer limit of April 20, admission was given to other candidate. Hence, the petition. 4. But he was not granted admission on the ground that the last date as per the decision of the Supreme Court was April 20, 2001 and since the petitioner failed to get himself admitted within the outer limit of April 20, admission was given to other candidate. Hence, the petition. 4. So far as CWP No. 404 of 2001 is concerned, a similar case is set up as that of petitioner on CWP No. 289 of 2001. According to her, she was also not aware of the order passed by the Supreme Court and when she came to know about the judgment of the Apex Court, steps were taken by her to get admission. But her prayer was also rejected on the ground that the last date for getting admission was April 20, 2001 and since she had failed to get admission before that date, admission was given to other candidate. Being aggrieved by the said action, she has also approached this Court. 5. Notices were issued, pursuant to which the respondents appeared. We have heard Mr. Rajnish Maniktala (CWP No. 289 of 2001) and Mr. M.S. Chandel (CWP No. 404 of 2001) learned Counsel for the petitioners. Mr. Sanjay Karol, learned Advocate General instructed by Mr. M.L. Chauhan, Deputy Advocate General for respondent No. 1; Mr. S.S. Mittal, Advocate for respondent No. 2 and Mr. Rajiv Sharma for respondent No. 3 in CWP No. 404 of 2001. 6. It was contended by the learned Counsel for the petitioners that as held by the Supreme Court in Uni Krishanan v State of A.P., (1993) SCC 645, admission to medical course should be given only on the basis of merits. Since the petitioners were eligible and qualified to get admission on merits, they ought to have been admitted. It was also stated that there was a fault on the part of the respondent-University in not taking appropriate steps within time which cannot prejudice the petitioners. The action of the University in ignoring the valid claims of the petitioners and giving admission to other candidates was arbitrary, unreasonable and violative of fundamental rights. The counsel contended that in the prospectus, certain conditions and norms were laid down and there was a time gap within which it was open to students whose names appeared in the merit list to get themselves admitted. The counsel contended that in the prospectus, certain conditions and norms were laid down and there was a time gap within which it was open to students whose names appeared in the merit list to get themselves admitted. In the instant case, those guidelines have not been followed which has adversely affected them and the said action deserves to be interfered with. It was also stated that when the order was passed by the Supreme Court on April 10, 2001, it was incumbent on the State Government as well as the respondent-University to take immediate steps so as to enable the students who were otherwise eligible and qualified to get admission. In the instant case, however, no immediate steps were taken and for the first time, Press Note was issued by the respondents on April 17,2001. The petitioners were not made aware of a decision of the Supreme Court by informing them. The grievance of the petitioner of CWP No. 289 of 2001 is that when he read Indian Express, dated April 18, 2001, he did not find his Roll Number as one of the candidate who had been selected and who was entitled to get admission to First MBBS course. In the Indian Express of the next day, his Roll Number was not there. He, therefore, approached the respondent-University, but obviously, it took some time and when he went io the University, University authorities ignored his claim on spacious ground of being late as the last date was April, 20, 2001. Such action was illegal and contrary to law. On all these grounds, it was submitted that the petition deserves to be allowed. 7. Further contention of the petitioner in CWP No. 404 of 2001 is that the notice issued by the respondent-University was illusory and the students who sought admission to First MBBS Course could not be expected to know that they would get admission in the light of the directions issued by the Supreme Court. The University neither published the names of students who were eligible to get admission in pursuance of the orders passed by the Supreme Court, nor the lowest mark was specified in the Press Note or in the newspaper. In these circumstances, there was nothing to show that the petitioner was eligible and she should approach the University authorities. The University neither published the names of students who were eligible to get admission in pursuance of the orders passed by the Supreme Court, nor the lowest mark was specified in the Press Note or in the newspaper. In these circumstances, there was nothing to show that the petitioner was eligible and she should approach the University authorities. It was also not specified by the respondent-University that if they would not remain present before the University for counselling, what would be consequences. The learned Counsel, therefore, submitted that the impugned action deserves to be quashed and set-aside. 8. In the reply-affidavits of respondents No. 1 and 2 (in CWP No. 289 of 2001), it was stated that the Honble Supreme. Court decided the matter on April 10,2001, wherein it was directed that admission of 50 MBBS students be made in order of merit of qualified candidates of 1999-2000 Academic Session and if any seat will remain vacant, the same shall be filled in from amongst candidates of 2000-2001 Session on merits. It was also the direction of the Supreme Court that such process should be undertaken and completed on or before April 20, 2001. It was then stated that April 13th, 14th and 15th, 2001 were holidays in the Government offices. Realising the shortage of time, according to the deponent, wide publicity was given through radio and newspapers advising the candidates to contact and report to the Principal, Dr. R.P. Government Medical College, Kangra at Tanda on or before April 20, 2001. In paragraph-2, it was stated that following steps were taken by the respondents: (i) Press Note issued by the DME on 17.4.2001 Annexure R-l-A. (ii) News item appeared in the Tribune, dated 17.4.2001 Annexure R-1-B. (iii) News item appeared in the Indian Express dated 18.4.2001, Annexure R-l-C. (iv) News item appeared in Amar Ujala dated 17.4.2001, Annexure R-1-D. (v) Press Note of DME and University were broadcasted through AIR Shimla on 17, 18 and 19th April, 2001. It was also stated that merit list of 42 candidates was prepared and the name of Petitioner of CWP No. 289 of 2001 was there at Serial No.12. 9. It was also stated that merit list of 42 candidates was prepared and the name of Petitioner of CWP No. 289 of 2001 was there at Serial No.12. 9. In counter-affidavit filed by the respondent-University, it was stated that the University issued Press Note on April 19, 2001, a copy of such Press Note was annexed to the affidavit-in-reply It was further the case of the University that Press Notes were also broadcast on Shimla Station of All India Radio in its local bulletin at 7.50 p.m. and the list of 42 candidates had been issued vide Press Note dated April 18, 2001. A copy of the said Press Note was annexed to the affidavit-in-reply. It was also published in Hindi dailies Dainik Himachal and Dainik Bhaskar on April 19, 2001, which included the Roll Number of the petitioner also. One more fact was also highlighted in the affidavit of the respondent-University that an Express Telegram was sent to the petitioner. A copy of the said telegram is also annexed to the petition alongwith the affidavit. It is no doubt true that the petitioner in his rejoinder to the reply, has denied of having received the telegram. 10. In CWP No. 404 of 2001, the case of the respondent-University is similar to that of the case in CWP No. 289 of 2001. A candidate who has been selected is joined as party respondent No. 3. He has also filed his affidavit-in-reply In the said affidavit, it was stated that wide publicity was given in the Newspapers and all the candidates were asked to make themselves available for counselling on April 20, 2001. Respondent No. 3 has stated that he had obtained 228 marks and when no candidate having more marks than respondent No. 3 was present, he was granted admission. Accordingly, he paid admission fees as well as other charges on April 21, 2001. He had also stated that before that he had obtained admission in Dental College by paying an amount of Rs. 58,000. Since he was interested in getting admission in First MBBS Course and was admitted in Medical College, Tanda, he opted for the said admission. He was refunded from Dental College only a part of amount i.e. Rs. 18,000. He had also stated that before that he had obtained admission in Dental College by paying an amount of Rs. 58,000. Since he was interested in getting admission in First MBBS Course and was admitted in Medical College, Tanda, he opted for the said admission. He was refunded from Dental College only a part of amount i.e. Rs. 18,000. Thereafter, he prosecuted studies in First MBBS and if at this stage his admission is disturbed, serious prejudice will cause to him, besides monetary loss which he has already sustained by giving up course in Dental College. 11. In the facts and circumstances of the case, in our opinion, it cannot be said that the action taken by the respondent-authorities can be termed as illegal, arbitrary or otherwise unlawful. It is true, as submitted by the learned Counsel for the petitioners, that ordinarily the university was expected and bound to act in accordance with the terms and conditions laid down in the Prospectus and if a particular period was prescribed (20 days), it was obligatory on the University to adhere to the said time-table and no final action can be taken by the University before such period. But this court cannot be unmindful of the fact that in peculiar facts and circumstances, the University as well as the State Government were directed to take appropriate decision as per the order of the Apex Court which has been re-produced hereinabove. The order was passed on April 10, 2001 and the respondent-authorities were directed to expedite the process and complete admission work latest by April 20, 2001. The Apex Court observed that it would be necessary to expedite the process and complete the admission work on or before April 20, 2001, so that the classes can commence with effect from April 23, 2001. It was, therefore, obligatory on the respondents to complete the process latest by April 20, 2001. 12. Considering the mandate of the Supreme Court and directions issued in the order dated April 10, 2001, the respondent authorities took steps. It is true as submitted by the learned Counsel for the petitioner, that the respondents did not take any action for more than a week, but it is also true which has come on record that three days were holidays, i.e. April, 13, 14 and 15, 2001 and the offices of the State Government were closed. It is true as submitted by the learned Counsel for the petitioner, that the respondents did not take any action for more than a week, but it is also true which has come on record that three days were holidays, i.e. April, 13, 14 and 15, 2001 and the offices of the State Government were closed. It was submitted by the learned Counsel for the petitioners that in such matters, it was expected of the authorities even during the holidays to take some steps. It is not in dispute that after holidays, immediate steps were taken. Press Note was issued and due publicity was given by sending it to various newspapers as well as to All India Radio so as to broadcast it and to enable the students who were eligible to contact the Principal of the College. It is true, as contended by the learned Counsel for the petitioner in CWP No. 289/2001 that in the Indian Express (daily) dated April 18, 2001, Roll Number of the petitioner did not find place, 13. Relying on a decision of the High Court of Andhra Pradesh in M. Venkatesham v. C.O.E. Osmania University (AIR 1989 AP 198), it was contended that if there was default or negligence on the part of the University, students should not suffer. In our opinion, however, the ratio laid down in the said case would not apply to the case on hand. Here, it was not the default or carelessness of the University. Looking to the Press Note issued by the University which has been made part of the record alongwith the affidavit-in-reply filed by the University the Roll Number of the petitioner was very much there. There was some mistake on the part of the Publishers of the Newspaper, i.e. (Indian Express) that the Roll Number of the petitioner was not found. The matter, however, did not rest there. According to the University, an Express Telegram was sent to the petitioner and the petitioner was asked to contact the Principal of Medical College on April 20, 2001. True it is that in the affidavit in rejoinder," the petitioner had controverted the assertion of the University, but the copy of the telegram is on record. According to the University, an Express Telegram was sent to the petitioner and the petitioner was asked to contact the Principal of Medical College on April 20, 2001. True it is that in the affidavit in rejoinder," the petitioner had controverted the assertion of the University, but the copy of the telegram is on record. Learned Counsel for the petitioner contended that no presumption would arise in favour of University in view of the fact that it was a simple copy of the telegram and there was nothing as to whether in fact such a telegram was or was not sent. 14. In our opinion, such a question would not ordinarily be investigated in exercise of powers under Article 226 of the Constitution. Moreover, it is also too much to expect that a responsible Officer of the University would file an affidavit stating falsely that an Express Telegram wa? sent. Moreover, in our opinion, it was expected of the petitioner also to approach the authorities. Our attention was also invited by Mr. Mittal to a statement made by the petitioner in paragraphs 5 as well as 9 of the petition. In paragraph 5, the petitioner has asserted that though on the basis of marks secured by him, he could not get admission in IGMC, Shimla but was sure to get the same in Dr. Rajinder Parshad Government Medical College, Tanda in District Kangra and in paragraph 9 that after reading the news item published in Indian Express dated April 18, 2001, he tried to contact his father who was in Mandi, but since he was on official visit to Mumbai, petitioner could not contact him. Mr. Mittal submitted that if the petitioner was sure to get admission in Dr. Rajinder Parshad Government Medical College, Tanda, he should have rushed to Tanda to know as to what happened to his case. He also submitted that in Hindi Newspaper, the Roll Number of the petitioner was included. But even if it is assumed that the petitioner did not read Hindi Newspaper and had read only Indian Express, when news appeared that in pursuance of order passed by the Honble Supreme Court, admissions were to be given and the candidates were asked to contact the Principal, Dr. Rajinder Parshad Government Medical College, Tanda, in our opinion, petitioner ought to have approached the Principal of the College immediately. Rajinder Parshad Government Medical College, Tanda, in our opinion, petitioner ought to have approached the Principal of the College immediately. Since it was not done, the action of the University in giving admission to the next candidate in the light of the directions issued by the Apex Court to finalise the process of admission on or before April 20, 2001, cannot be termed as arbitrary, unreasonable or otherwise irrational. Hence, the petition deserves to be dismissed. 15. So far as the petitioner of CWP No. 404 of 2001 is concerned, obviously, no steps were taken by her and the admission was given to respondent No. 3 on April 21, 2001. It is also pertinent to note that though the report appeared in the Newspaper on April 17, 2001, for sufficiently long time, no action, whatsoever, was taken by the petitioner of the said petition. It was stated by the petitioner herself in the petition that on May 10, 2001, the petitioner came to know that certain candidates who were lower in merits and who had secured lesser marks than the petitioner, had been recommended and admitted in the First MBBS course in violation of the merit list. Thus, when the petitioner came to know about the fact of giving admission to less meritorious candidates, order passed by the Apex Court had already operated as the final date had also gone. Hence, nothing could have been done further at that stage. But even if it is considered that on May 10, 2001, the petitioner came to know about the admissions being given to less meritorious candidates, she did not take immediate action and got the petition drafted on May 27, 2001 and on May 29, 2001 it was filed. It came for hearing as late on June 5, 2001 and notice was issued. This is also coupled with the fact that the respondent No. 3 who has been admitted to the said College has acted to his detriment, who had been admitted on June 21, 2001 and has left his BDS course and suffered a financial loss of Rs. 40,000. Hence, no relief can be granted to any of the petitioners. 16. For the foregoing reasons, we see no ground to interfere with the action taken by the respondent-authorities. The petitions deserve to be dismissed and are accordingly dismissed. 40,000. Hence, no relief can be granted to any of the petitioners. 16. For the foregoing reasons, we see no ground to interfere with the action taken by the respondent-authorities. The petitions deserve to be dismissed and are accordingly dismissed. In the facts and circumstances of the case, there will be no order as to costs. Petition dismissed.