Research › Search › Judgment

Madhya Pradesh High Court · body

2003 DIGILAW 1021 (MP)

STATE OF MADHYA PRADESH v. ROHIT SHIVHARE

2003-08-27

DIPAK MISRA, SHANTANU KEMKAR

body2003
Judgment ( 1. ) IN this batch of appeals preferred under Clause 10 of the Letters Patent, pregnability of the composite order dated 14-4-2003 passed in four writ petitions by the learned Single Judge is called in question by the State of madhya Pradesh and its functionaries. ( 2. ) FACTS which are discernible from the order of the learned Single judge are that the batch of writ petitions was filed with a prayer for issue of a writ of mandamus commanding the respondents to grant admission in respect of vacant seats of All India Quota as the said seats are likely to waste. It is relevant to state here that the learned Single Judge has observed that he was apprised that 65 seats are likely to remain vacant in respect of MBBS courses and 160 seats in respect of BDS course. A plea was putforth that the State government was not to remain in a state of hibernation when there is mandate of the Apex Court to the effect that the seats in medical colleges should not be allowed to be wasted. Various other averments were made in the writ petition which are not requisite to be stated for the disposal of the present appeals. ( 3. ) A return was filed in Writ Petition No. 5145/2002 and the same was adopted in other writ petitions. A stand was taken by the State Government that their hands were tied by virtue of the conclusion recorded by the apex Court in the decision rendered in the case of Medical Council of India vs. Madhu Singh and others, (2002) 7 SCC 258 , and as mid session admissions have been prohibited and hence, despite reversion of the seats the same could not be filled up. ( 4. ) A rejoinder affidavit was filed in W. P. No. 6077/02, wherein it was asseverated that the Apex Court in the case of Supreet Batra and others vs. Union of India, decided on 27-1-2002 [since reported (2003) 3 SCC 370 ] had issued directions to fill up the vacant seats of All India Quota but despite such directions the State Government has failed in its obligation to take appropriate steps. ( 5. ) THE learned Single Judge took note of the fact that in the case at Supreet Batra (supra) the State of Madhya Pradesh was a party. ( 5. ) THE learned Single Judge took note of the fact that in the case at Supreet Batra (supra) the State of Madhya Pradesh was a party. Before the learned Single Judge a contention was advanced that the decision rendered by the Apex Court in the case of Supreet Batra (supra) was absolutely binding on the State Government and it can not pave the path of deviation. On behalf of the State it was argued before the learned Single Judge that the decision in the aforesaid case has to be understood in proper perspective to appreciate the context in which it was rendered and a line from hither and thither can not be read bereft of context as that would tantamount to understanding a context sans context. The learned Single Judge referred to the case of Supreet Batra (supra) and also referred to the cases mentioned therein and quoted Paragraphs 7 and 8 of the said judgment and eventually came to hold in Paragraph 11 as under:- "11. Thus, it is clear that the seats on which the interim order was granted by the Apex Court have been reverted as per the order of the Supreme Court and it was incumbent upon the State government of Madhya Pradesh to have filled the reverted seats and the plea taken that last date is over and waiting list extinguished is not available in view of the directions made by the supreme Court on similar situation in the matter of State of kerala. Thus intention of the Apex Court is clear that these seats have to be filled and the decision of Madhu Singh and Nilu Arora does not come in the way as contended by Shri Jha, learned additional A. G. , they have been considered in Supreet Batra and thereafter Supreme Court has issued the above directions in para 8. In view of the Apex Court directions the State government is directed to fill the reverted seats of All India Quota within four weeks from today. " ( 6. ) ASSAILING the aforesaid order it is submitted by Mr. In view of the Apex Court directions the State government is directed to fill the reverted seats of All India Quota within four weeks from today. " ( 6. ) ASSAILING the aforesaid order it is submitted by Mr. R. S. Jha, learned Deputy Advocate General for the State that the learned Single Judge has erred in law by appreciating the ratio of Supreet Batra (supra) inasmuch as there was no direction to fill up the seats that had been reverted to the State either earlier or later on and if that is not the ratio of the judgment, the order of the learned Single Judge has to be treated as sensitively vulnerable. ( 7. ) MR. Ashok Lalwani and Mr. Deepak Awasthy, learned Counsel appearing for the respondents have submitted that the decision rendered by the Apex Court in the case of Supreet Batra (supra) is clear as day and once their Lordships used the word that the interim order gets dissolved it applies to the all situations and the State is bound to carry out the filling up of the seats as if the counselling is taking place retrospectively. It is submitted by them that the State has remained in a state of misconception that if it would permit the counselling in respect of seats that have been reverted in pursuance of the judgment passed in the case of Supreet Batra (supra) a third counselling would be necessitous though as an actual fact it would be a continuation of the second counselling as the second counselling was stopped in the mid way by virtue of the said order passed by the Apex Court. Quite apart from the above it is canvassed by Mr. Lalwani that the State has not acted in bona fide manner and its malafide action is writ large and many seats in the medical colleges of the state have been filled up and if that is taken into consideration the Pandoras box would be exposed and the States action would be opined and to avoid the same a subter fuse has been used by taking recourse to the decision rendered in the case of Madhu Singh (supra ). It is putforth that the law laid down in the case of Madhu Singh (supra) is relevant for the year 2003 and has not to be made applicable to the 2004 academic session and hence, reliance placed on that by the learned Counsel for the State speaks in volumes about the intention of the State. ( 8. ) TO appreciate the submissions raised at the Bar we are really required to see what was done in the case of Supreet Batra (supra) and what the Apex Court meant to say. In the aforesaid case Their Lordships took note of the scheme framed by the Apex Court in the case of Sharwan Kumar Vs. Director General of Health Services, (1993) 3 SCC 332 . After referring to the same Their Lordships noted down the fact that when the selection or counselling had not been done for the some seats the full advantage of the second round of counselling can not be taken by the petitioner therein. The Apex court referred to Clause 14 of the Scheme and in Paragraph 6 held as under:- "6. As per Clause 14 of the Scheme, if the Dean or the Principal of the concerned college does not notify the vacancy position due to non-joining of candidate or candidates in the first round of counselling before the date indicated therein, the seats allotted to the college will be treated as vacant and allotment of candidates will be made against these deemed vacant seats and it shall be responsibility of the Dean of the Principal of the concerned college to give admission to those candidates. The iind round of allotment by personal appearance will be for candidates who were allotted a seat in the first round and who wish to change their allotted college/course and wish to join the same against vacancies arising due to non-joining of the candidates allotted in the first round of personal appearance and for candidates on the merit list who could not be considered for allotment in the first round. It is thus the IInd round of counselling by personal appearance was to be concluded by a particular date. " ( 9. ) AFTER so holding the three Judge Bench in Paragraph 7 expressed thus:- "7. It is thus the IInd round of counselling by personal appearance was to be concluded by a particular date. " ( 9. ) AFTER so holding the three Judge Bench in Paragraph 7 expressed thus:- "7. When detailed Scheme has been framed through orders of this Court and the manner in which it has to be worked out is also indicated therein, we do not think that if in a particular year there is any short fall or certain number of seats are not filled up, the same should be done by adopting one more round of counselling because there is no scope for the third round of counselling under the Scheme. It would not be advisable to go on altering the scheme broad equality will have to be achieved and not that it should result in any mathematical exactitude. Out of about 1600 seats, if 200 seats are not filled up for various reasons and such not filled up seats were much less in the earlier years. We do not think it should result in the third round of counselling. If that process is to be adopted then there will be again vacancies and further filling up of the seats falling vacant will have to be undertaken. In that process, it will become endless until all the seats under the All India Quota are filled up. That is not the object of the Scheme formulated by this court. The object was to achieve a broad based quality as indicated by us at the outset and we do not think that any steps have to be taken for altering the Scheme. We have taken identical view in the decision in Writ Petition (Civil) No. 407 of 2001 (Ms. Neelu arora and another Vs. Union of India and others) and concerned matters disposed of on 24-1-2003. Moreover, this Court in Medical Council of India Vs. Madhu Singh and others, (2002) 7 SCC 258 , has taken the view that there is no scope for admitting students midstream as that would be against the very spirit of statutes governing medical education. Even if seats are unfilled that can not be a ground for making mid-session admissions and there can not be telescoping of unfilled seats of one year with permitted seats of the subsequent year. Even if seats are unfilled that can not be a ground for making mid-session admissions and there can not be telescoping of unfilled seats of one year with permitted seats of the subsequent year. If these aspects are borne in mind we do not think any reliefs as sought for by the petitioners can be granted under these petitions. These writ petitions shall stand dismissed. " ( 10. ) THEREAFTER in Paragraph 8, which is the elan vital of the submissions of Mr. Lalwani and Mr. Awasthy, Their Lordships held as under:- "8. By an interim order this Court had directed that the seats in the All India Quota should not revert to the States. As a consequent these seats have not been filled up either in All India quota or State Quota and with the dismissal of these petitions, that interim order gets dissolved. In LA. No. 13 filed in W. P. (Civil) No. 393 of 2002, it is brought to our notice that the State of Kerala had extended period of Rank List up to December 31, 2002 only and thereafter applicants would lose their eligibility. It is made clear that period of validity shall stand extended until the appropriate steps are taken by the concerned authorities in that State. " ( 11. ) IT is urged by the learned Counsel for the respondents that the learned Single Judge has rightly understood the aforesaid paragraph and issued a direction. Per contra, Mr. Jha would like us to understand the decision in a different manner. It is proponed by him that the Supreme Court has not issued any direction in respect of All India seats but only taken note of the application filed by the State of Kerala and had extended the period for rank list and the period of validity regarding eligibility was extended until the appropriate steps taken by the authorities in that State. Emphasis has been given on the word that and the learned Counsel has contended that even if there is any direction which may be construed in reading it should be in respect of State of Kerala and the State of Madhya Pradesh does not feature anywhere in that regard. Pausing for a while we would like to refer to another decision rendered by Their Lordships in the case of Neelu Arora (Ms.) and another Vs. Pausing for a while we would like to refer to another decision rendered by Their Lordships in the case of Neelu Arora (Ms.) and another Vs. Union of India and others, (2003) 3 SCC 366 , wherein Their Lordships in paragraph 6 expressed the view as under:- "6. When a detailed scheme has been framed through orders of this Court and the manner in which it has to be worked out is also indicated therein, we do not think that if in a particular year there is any shortfall or a certain number of seats are not filled up, the same should be done by adopting one more round of counselling because there is no scope for the third round of counselling under the Scheme. It would not be advisable to go on altering the Scheme as and when seats are found vacant. What is to be borne in mind is that broad equality will have to be achieved and not that it should result in any mathematical exactitude. Out of about 1600 seats, if 250 seats are not filled up for various reasons, we do not think it should result in the third round of counselling. If that process is to be adopted then there will be again vacancies and further filling up of the seats falling vacant will have to be undertaken. In that process, it will become endless until all the seats under the All India Quota are filled up. That is not the object of the Scheme formulated by this Court. The object was to achieve a broad-based equality as indicated by us at the outset and we do not think that any steps have to be taken for altering the Scheme. Moreover, this Court in Medical council of India Vs. Madhu Singh has taken the view that there is no scope for admitting students midstream as that would be against the very spirit of statutes governing medical education. Even if seats are unfilled, that can not be a ground for making mid-session admissions and there can not be telescoping of unfilled seats of one year with permitted seats of the subsequent year. If these aspects are borne in mind, we do not think any reliefs as sought for by the petitioners can be granted under these petitions. " ( 12. If these aspects are borne in mind, we do not think any reliefs as sought for by the petitioners can be granted under these petitions. " ( 12. ) KEEPING the aforesaid two judgments in view we are obligated to refer to the decision rendered in the case of Madhu Singh (supra ). In the aforesaid case Arijit Pasayat, J. , authoring the judgment referred to the earlier decisions of the Apex Court and specifically to the decision rendered in the case of Dr. Dinesh Kumar and others Vs. Motilal Nehru Medical College, allahabad and others, (1987) 4 SCC 122 and quoted Paragraph 15 of the aforesaid judgment. Thereafter in Paragraph 23 the Apex Court enumerated its conclusion as under:- "23. There is, however, a necessity for specifically providing the time schedule for the course and fixing the period during which admissions can take place, making it clear that no admission can be granted after the scheduled date, which essentially should be the date for commencement of the course. In conclusion (i) there is no scope for admitting students midstream as that would be against the very spirit of statutes governing medical education; (ii) even if seats are unfilled that can not be a ground for making mid-session admissions; (iii) there can not be telescoping of unfilled seats of one year with permitted seats of the subsequent year; (iv) MCI shall ensure that the examining bodies fix a time schedule specifying the duration of this course, the date of commencement of the course and the last date for admission; (v) different modalities for admission can be worked out and necessary steps like holding of examination if prescribed, counselling and the like have to be completed within the specified time; (vi) no variation of the schedule so far as admissions are concerned shall be allowed; (vii) in case of any deviation by the institution concerned, action as prescribed shall be taken by MCI. " ( 13. ) SUBMISSION of Mr. Lalwani is that the aforesaid enumeration and the conclusion are relevant for the Academic Session 2003 only. We are afraid this is neither the ratio and nor is manifest from the judgment. What is to be seen is the real effect of the judgment pronounced by Their Lordships. At this juncture we may refer in the passing to a decision rendered in the case of Dr. Paramjeet Gambhir and another Vs. We are afraid this is neither the ratio and nor is manifest from the judgment. What is to be seen is the real effect of the judgment pronounced by Their Lordships. At this juncture we may refer in the passing to a decision rendered in the case of Dr. Paramjeet Gambhir and another Vs. State of Madhya Pradesh and others, 2003 (5) M. P. H. T. 1 (SC) = (2003) 4 SCC 276 . In the said case Their Lordships in Paragraph 5 expressed the view as under:- "5. We have given our careful consideration to the submissions made by the learned Counsel for the parties. It is true that in a series of decisions of this Court starting from Dinesh Kumar (Dr.) Vs. Motilal Nehru Medical College, State of Bihar Vs. Dr. Sanjay Kumar Sinha, State of U. P. Vs. Dr. Anupam Gupta and finally Medical Council of India Vs. Madhu Singh, it has been held that the time table for the course should be strictly adhered to and there is no scope for admitting students midstream which would be against the very spirit of the statute governing medical education. However, in the present case what we find is that certain seats which had been surrendered from the All India quota even before the first counselling had been done were not included in the said counselling. The second feature is that the state Government made a provision in the 2002 Rules whereby the system of opt -for -waiting had been revived. In view of this stand of the State Government the appellants were entitled to participate in the second counselling wherein all the vacant seats/colleges should have been made available. The appellants filed the special leave petitions, prior to the holding of the second counselling. " And thereafter taking note of the peculiar facts and circumstances of the case disposed of the appeal with a direction to the respondents to consider the candidature to Post Graduate Courses. In Paragraph 7 Their Lordships clarified the position. We have referred to the aforesaid decisions to show how the apex Court has dealt with the issue pertaining to the non-admission in the mid-session. Mr. Jha has submitted that if mid-session admission is allowed to be carried on that would be an non-ending process and a Herculian task to be performed. We think that the learned Counsel for the State is right. Mr. Jha has submitted that if mid-session admission is allowed to be carried on that would be an non-ending process and a Herculian task to be performed. We think that the learned Counsel for the State is right. We are of the considered opinion that the learned Single Judge has not correctly appreciated the ratio laid down in the case of Supreet Batra (supra ). ( 14. ) RESULTANTLY, the order passed by the learned Single Judge is set aside and the L. P. As. are allowed without any order as to costs. L. PAs. allowed.