Research › Search › Judgment

Gauhati High Court · body

2001 DIGILAW 90 (GAU)

Sanjib Das v. State of Assam and Ors.

2001-04-03

A.K.PATNAIK

body2001
The petitioner belongs to Koibarta Community which is a Scheduled Castes community in the State of Assam. He took the Common Entrance Examination for admission into the MBBS/BDS course for the session 1999-2000 and was selected for admission to the BDS course and thereafter admitted to BDS course in the Regional Dental College, Guwahati. While pursuing the said BDS course, he took the Common Entrance Examination for admission into the MBBS/BDS course for the session 2000-2001 and secured a total of 63 marks in Physics, Chemistry and Biology. He was called for an interview by the Selection Board by an Educational Notice published on 17.12.2000 in the newspapers. The petitioner appeared in the said interview, but was not granted admission in the seats reserved for Scheduled Caste in the MBBS course. Aggrieved, the petitioner has moved this Court for direction on the respondents to grant him admission into MBBS course. 2. Mr. KN Choudhury, learned counsel appearing for the petitioner, submitted that in the merit list of Scheduled Caste candidates published in the Educational Notice dated 17.12.2000, the petitioner has been shown in the 16th position with 63 marks whereas respondents 5,6 and 7 have been shown in the 17th, 18th and 19th position with 63, 62 and 62 marks respectively. He further submitted that whereas the petitioner has not been given admission, the said respondents 5, 6 and 7 have been given admission into the MBBS course. He referred to the affidavit-in-opposition filed by the respondent No. 4, Director of Medical Education, Assam, and the Member of the Selection Board to show that the only reason as to why the petitioner has not been granted admission into MBBS course was that he had signed a Bond prescribed in Schedule II of the Medical Colleges of Assam and Regional Dental College (Regulation of Admission of Under Graduate Students) Rules, 1996 (for short, the Rules, 1996) to the effect that he would diligently prosecute and complete the BDS course in the Regional Dental College, Guwahati. Mr. Choudhury argued that if the petitioner was entitled to admission into the MBBS course on the basis of his merit, denial of such admission on the ground that he has signed such Bond to prosecute and complete the BDS course will violate his right under Article 14 of the Constitution. Mr. Choudhury argued that if the petitioner was entitled to admission into the MBBS course on the basis of his merit, denial of such admission on the ground that he has signed such Bond to prosecute and complete the BDS course will violate his right under Article 14 of the Constitution. He further contended that a reading of Rule 10 of the Rules, 1996 would show that a candidate selected is only to bind himself to serve under the Govt of Assam for a period of five years and that he was not required to bind himself to pursue the BDS course. According to Mr. Choudhury, therefore, the contention of the respondent No. 4 in the affidavit-in-opposition that the petitioner has executed a bond that he would pursue the BDS course is not legally tenable. Mr. Choudhury also submitted that there are many cases in which students pursuing BDS course have been admitted to MBBS course on being selected for the MBBS course in the middle of the BDS course, and no action has been taken by the authorities against such students to enforce the Bond executed by them. He argued that the authorities cannot act differently in the case of the petitioner and enforce the Bond executed by him or deny admission to him into the MBBS course on the ground that in the Bond he has undertaken to pursue the BDS course. Mr. D. Goswami, learned Additional Senior Govt Advocate, Assam, on the other, relied on the affidavit-in-opposition filed on behalf of the Director of Medical Education and in particular paragraph 5 thereof, and submitted that the action of the Selection Board in not granting admission to the petitioner into the MBBS course was justified and was not arbitrary, and not hit by Article 14 of the Constitution. He farther argued that the petitioner should have disclosed in his application that he was pursuing the BDS course, but the appropriate column was left blank so as to give an impression that he was not pursuing such BDS course when he applied for the Common Entrance Examination. 3. He farther argued that the petitioner should have disclosed in his application that he was pursuing the BDS course, but the appropriate column was left blank so as to give an impression that he was not pursuing such BDS course when he applied for the Common Entrance Examination. 3. The argument that the petitioner should have disclosed in his application for the Common Entrance Examination that he was pursuing BDS course would have been relevant if the petitioner had in fact been given admission into the MBBS course by the authorities on being misled by the appropriate column in the application form being left blank by the petitioner. In the present case, even though the petitioner does not seem to have filled up the appropriate column as to whether or not he was pursuing the BDS course by such omission of the petitioner, the authorities have not been misled to give admission to the petitioner into the MBBS course. At the time of interview, the authorities have come to learn that the petitioner was in fact pursuing the BDS course having been admitted to such BDS course in the Regional Dental College for the academic session 1999-2000. Thus before any final decision was taken by the authorities as to whether or not admission should be granted to the petitioner into the MBBS course, the authorities had come to learn from the petitioner or from the documents furnished by him at the interview that he was pursuing BDS course. In my considered opinion, therefore, the omission on the part of the petitioner to disclose in his application for the Common Entrance Examination that he was pursuing BDS course cannot be a ground to deny admission to him into the MDBS course if he was otherwise entitled to such admission on the basis of the Rules 1996. 4. Coming now to the Rules, 1996, Rule 10 of the said Rules which requires the candidates who are selected for admission to execute a Bond is to the following effect : "10. Bond: On selection, the candidates shall execute a duly registered bond on a non-judicial stamp paper of the value of Rs. 4. Coming now to the Rules, 1996, Rule 10 of the said Rules which requires the candidates who are selected for admission to execute a Bond is to the following effect : "10. Bond: On selection, the candidates shall execute a duly registered bond on a non-judicial stamp paper of the value of Rs. 10.00 (ten) only in the Form at Schedule II appended to these Rules as and when directed by the authority for binding to himself/herself to serve under the Govt of Assam for a period of five years and in breach thereof to pay a sum of Rs.5,3 5,000.00 (Rupees five lakhs thirty five thousand) only to the Govt as compensation." By the aforesaid Rule 10, selected candidates are required to execute a bond in form at Schedule II appended to the Rules for binding themselves to serve under the Govt of Assam for a period of five years and in breach thereof to pay a sum of Rs.5,35,000.00 only to the Govt as compensation. Since Rule 10 itself provides that a bond has to be executed in form at Schedule II, the Form of the Bond at Schedule II has to be read along with he said Rule 10. Clause I of the conditions in the said Bond at Schedule II provides that selected candidate will diligently prosecute and complete the course in which he/she has been admitted either in the Medical College or in the Regional Dental College and pass the prescribed University Examination for the said course. Thus the contention of Mr. Choudhury that Rule 10 does not provide for execution of a Bond by a selected candidate to diligently prosecute and complete the course to which he has been admitted is not correct. Rule 10 provides that on selection, the candidate has execute a Bond binding himself to serve under the Govt of Assam for a period of five years. But this is not the only condition to which a selected candidate is to bind himself under Rule 10. Since Schedule II has to be read along with Rule 10, all the conditions mentioned in the Bond prescribed in Schedule II are the conditions to which candidates selected are to bind themselves through the Bond contemplated under Rule 10 including the condition that they have to diligently prosecute and complete the course to which they have been admitted, either MBBS or BDS course. 5. But this is not to say that a candidate who has executed such a Bond in Schedule II as prescribed under Rule 10 of the Rules, 1996, binding himself to pursue diligently the BDS course will be denied admission to MBBS course if he is entitled to such admission under the Rules, 1996. In case a candidate has executed a Bond and has undertaken to pursue BDS course to which he has been admitted for an earlier academic session, as in the case of the petitioner, the consequence may be that he will be liable to compensate the Govt for such amount as may be reasonable in terms of Rule 10 of the Rules, 1996. In fact, it is stipulated in the Bond that in the event of student committing breach of any of the terms and conditions, he will be liable to pay a sum of Rs.5,35,000.00 only or such lesser sum as the Govt may in its absolute discretion decide. But denial of admission to the petitioner on the only ground that he has bound himself under condition No. 1 of the Bond that he would diligently prosecute and complete the BDS course in the Regional Dental College was not justified under Rule 10 of the Rules, 1996 6. The other ground indicated in the affidavit-in-opposition filed by the Director of Medical Education, Assam, and in particular paragraph 5 thereof is that there are also dearth of Dentists in the State of Assam for which valuable seats in BDS course cannot be lost by allowing migration from BDS course to MBBS course and that the Govt has to bear a lot of expenditure for each student t in completion of such course, and that there will be loss of public exchequer if the petitioner is allowed to leave the BDS course and join the MBBS course. Under Article 19 (1) (g) of the Constitution of India every citizen is entitled to carry on any profession of his own choice and a citizen pursues the BDS or MBBS course in order to equip himself for the profession of a dentist or doctor. Under Article 19 (1) (g) of the Constitution of India every citizen is entitled to carry on any profession of his own choice and a citizen pursues the BDS or MBBS course in order to equip himself for the profession of a dentist or doctor. The State can put restrictions in the interest of general public by law on such fundamental right of a citizen under clause (6) of Article 19 of the Constitution, but such restrictions have to be reasonable but no such restriction imposed by law has been brought to the notice of the Court, if a candidate who has been selected for BDS course and has been admitted therein get subsequently selected for MBBS course and decides to pursue such MBBS course interference with his choice to pursue the MBBS course would amount to interference with his fundamental right under Article 19 (1) (g) of the Constitution. In case a candidate leaves the BDS course in the middle of the course and causes loss to the Govt in any manner, it is always open for the Govt to recover such loss as is found to be reasonable by enforcing the Bond executed by such candidate under Rule 10 in Schedule II to the Rules, 1996. But the Govt cannot deny admission to such candidate into the MBBS course if he is entitled on the basis of his merit lo such admission under the Rules, 1996. 7. It is not disputed by the State-respondents that the petitioner was placed against 16th position in the merit list of Scheduled Caste candidates. It also not disputed that candidates placed in 17th, 18th and 19th positions have been given admission into MBBS course. It further appears that the petitioner had secured 63 marks in Physics, Chemistry and Biology while the respondents 6 and 7 had secured 62 marks in the said subjects. It is also not disputed that under the Rules, 1996, the petitioner was to preferred for admission on the basis of his merit to the said respondents 6 and 7. On these facts, denial of admission to the petitioner into the MBBS course for the session 2000-2001 is not only contrary to the provisions of the Rules, 1996, but also arbitrary and violative of the right of the petitioner under Article 14 of the Constitution. 8. On these facts, denial of admission to the petitioner into the MBBS course for the session 2000-2001 is not only contrary to the provisions of the Rules, 1996, but also arbitrary and violative of the right of the petitioner under Article 14 of the Constitution. 8. In the State of Assam vs. Rajeeb Dey, AIR 1996 Gauhati 440 (1996 (1) GLJ 404), a Division Bench of this Court relied on the decision of the Supreme Court in Engineering College, Chandigarh vs. Sanjay Gulati, AIR 1983 SC 580 , and held that where admissions had been denied to the candidates contrary to the rules for admission, directions can always be issued to admit not only candidates who have approached the Court but all such candidates who were higher up than them in the merit list and have also been illegally deprived of such admission into a course in any academic year into additional seats to be created for the purpose on the reasoning that those who infringe the rules must pay for their lapse and the wrong done to the deserving students who ought to have been admitted has to be rectified and the best solution under the circumstances is to ensure that the strength of seats is increased in proportion to the wrong admissions made. Thus, even if no seat is available in the quota reserved for Scheduled Caste candidates in which the petitioner can be accommodated, the wrong done to the petitioner in this case by illegally depriving him of admission into the MBBS course can be rectified by directing the respondents to create an additional seat in the MBBS course for the petitioner in consultation with the Medical Council of India and to admit the petitioner in such additional seat. 9. For the aforesaid reasons, the writ petition is allowed. Since the academic session 2000-2001 is said to have been started with effect from 27.2.2001, I direct the respondents to forthwith admit the petitioner in an additional seat, if no seat is available in the MBBS course, in any of the Medical Colleges of Assam in consultation with the Medical Council of India. Since consultation with the Medical Council of India will take some time, the petitioner be allowed to attend classes in the MBBS course in any of the Medical Colleges of Assam within 7 (seven) days from today. Since consultation with the Medical Council of India will take some time, the petitioner be allowed to attend classes in the MBBS course in any of the Medical Colleges of Assam within 7 (seven) days from today. Considering however the entire facts and circumstances of the case, there shall he no order as to costs.