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2003 DIGILAW 1199 (MAD)

Dr. S. G. Balamurugan v. The Secretary & Others

2003-08-01

A.KULASEKARAN

body2003
Judgment :- This Writ Petition has been filed for issuance of a writ of mandamus, to direct the first respondent to admit the petitioner for the M.Ch.Surgical Gastro Enterology for the academic year 2003-2004 under the service category in accordance with the merit list given to the petitioner for the said faculty. 2. The brief facts necessary for disposal of this Writ Petition are as follows : The petitioner is a service candidate, who has applied for higher speciality 3 year courses, commencing from the academic year 2003-2004 and written entrance examination. As per the prospectus, the candidate, applying for admission in higher speciality courses, are permitted to give their option in the order of preference for two speciality courses. Option once given by the candidate cannot be changed. The petitioner has written examination for two speciality courses, namely, M.Ch. Surgical Oncology and M.Ch. Surgical Gastro Enterology. He opted for M.Ch.Surgical Oncology as his first choice and M.Ch.Surgical Gastrology Enterology as his second choice. He secured 68.06 marks in M.Ch.Surgical Gastro Enterology and 66.38 marks in Surgical Oncology. The petitioner has secured 1st rank in Surgical Oncology among service and non-service candidates and secured second rank in Surgical Gastro Enterlogy, but he is first among service candidates. It is needless to mention that in both the disciplines, the petitioner has come into Zone consideration. The petitioner was selected only for Surgical Oncology, on the ground that it was his first choice, as per his option in order of preference. He made a representation to accommodate him in Surgical Gastro Enterology, as he has secured second rank, which is the first rank in Service Category. The first respondent has declined his request, hence the present writ petition. 3. Learned Senior Counsel Mr. He made a representation to accommodate him in Surgical Gastro Enterology, as he has secured second rank, which is the first rank in Service Category. The first respondent has declined his request, hence the present writ petition. 3. Learned Senior Counsel Mr. Vijayan, appearing for the petitioner, has submitted that, once option is available for two courses, then the admission right should be extended to both the courses under counselling; the respondent denied the petitioner's entitlement to another choice,namely, M.Ch.Surgical Gastro Enterology, on the ground that it was not his first choice; such process of selection is contrary to the enabling provision and the very purpose of option and selectivity on the basis of merit will be meaningless; even assuming if the petitioner has not secured adequate marks in the first choice, he will be automatically entitled to the second choice, but he has done well under both the choices; while so, the respondent ought not to have denied the petitioner's right; the very purpose of writing separate entrance examination for both the choices will be defeated, if the successful candidate is denied his right of choice and the respondent has committed an error apparent on the face of the record, by refusing to call for the counselling of both the options of super speciality courses, which the petitioner was entitled to. The learned Senior Counsel brought to the notice of this Court the provisions of Clauses 22,30 and 62 in support of his contention. 4. The learned Senior Counsel brought to the notice of this Court the provisions of Clauses 22,30 and 62 in support of his contention. 4. Conversely, the learned Special Government Pleader, Mr.V.R.Rajasekaran, appearing for the contesting first respondent, has submitted that, as per the prospectus, candidates, applying for admission for in higher speciality course, are permitted to give their option in order of preference for two speciality courses; option once given by the candidates cannot be changed; as per the prospectus, candidates have to write examination for two speciality courses, for which he/she exercised his/her option; the petitioner herein has chosen Surgical Oncology as his first choice and Surgical Gastro Enterology as his second choice; he was called for the counselling held on 16.06.2003 and joined in the course on 24.06.2003; the third respondent has chosen Surgical Gastro Enterology as his first choice, but not opted for second choice in his application; the third respondent has secured 65.50 marks in Surgical Gastro Enterology course and was placed at Rank No.4 in the counselling held on 16.06.2003; the third respondent was given admission in the said discipline as per his rank and option; the candidates, applying for admission in higher speciality courses, are entitled to seek admission in the order of preference expressed in the application form; the admission in the second choice would arise only when he is not within the zone of consideration for the first choice, but he is within the zone of consideration for the second choice; the petitioner has not challenged the validity of prospectus and that once he participated in the entrance examination in terms of the prospectus, it is not open for him to claim the relief contrary to it. 5. The relevant clauses in the prospectus are mentioned below : 22. Each candidate will be allowed to give option in order of preference for admission only for two Higher Speciality courses. 23. Options once given cannot be changed. 27. There shall be one paper of one and half hour duration for each discipline. 30. Candidates applying for admission to Two different courses will be permitted to appear for the FIRST CHOICE discipline paper FIRST: The answer sheet and question booklet of the first choice course should be handed over to the invigilator after one and half hours. 27. There shall be one paper of one and half hour duration for each discipline. 30. Candidates applying for admission to Two different courses will be permitted to appear for the FIRST CHOICE discipline paper FIRST: The answer sheet and question booklet of the first choice course should be handed over to the invigilator after one and half hours. Thereafter, the question paper of the SECOND CHOICE will be given to the candidate to be answered within the next one and half hours. 45. Candidates who do not appear for the first choice paper will not be permitted to write the second choice paper alone. 56. A candidate shall submit only ONE application form for admission to entrance examination irrespective of the fact whether he/she opts for one or two courses. The candidate should indicate in the appropriate column in the application form in the order of preference of his choice of the TWO courses for which he/she would like to seek admission. 62. The final preparation of selection list/waiting list for admission of candidates to the various discipline of the Higher Speciality course will be made on the basis of the merit list. 63. The Selection will be made by Counselling based only on Merit and no communal reservation will be followed. 50% of the seats will be made available as Open Competition for selection among both Service/Non-Service Candidates. 50% of the seats will be made available only for Service Candidates. In case of odd number seat remaining vacant, that seat shall be selected as per merit among both Service and Non-Service candidates put together. 50% of seats in each college are reserved for service candidates whether they are selected under open or service quota. 6. As per the said clauses, each candidate will be allowed to give option in order of preference for admission only for two Higher Speciality courses. Options once given cannot be changed. There shall be one paper of one and half hours duration for each discipline. Candidates opting for admission to two different courses will be permitted to appear for the FIRST CHOICE discipline paper FIRST. The answer sheet and question booklet of the first choice course should be handed over to the invigilator after one and half hours. Thereafter, the question paper of the SECOND CHOICE will be given to the candidate to be answered within the next one and half hours. The answer sheet and question booklet of the first choice course should be handed over to the invigilator after one and half hours. Thereafter, the question paper of the SECOND CHOICE will be given to the candidate to be answered within the next one and half hours. Candidates, who do not appear for the first choice paper, will not be permitted to write the second choice paper. Candidates shall submit only one application form for admission to entrance examination irrespective of the fact whether he/she opts for one or two courses. Candidate should indicate in the appropriate column in the application form in the order of preference of his/her choice of the two courses, for which he/she would like to seek admission. The final preparation of selection list/waiting list for admission of candidates to the various disciplines of the Higher Speciality courses will be made on the basis of the merit list. 50% of the seats will be made available as Open Competition for both Service and Non-Service candidates and 50% of the seats will be made available only for Service candidates. In case of odd number of seats remaining vacant, that seat shall be selected as per merit among both Service and Non-Service candidates put together. 7. In this case, the petitioner appeared for the entrance examination without any protest. He filed the Writ Petition only after selection in Surgical Oncology. He has joined the said course also on 24-06-2003. By order dated 20-06-2003 in WPMP No.20871 of 2003, this Court directed the respondents 1 and 2 to reserve one seat for the petitioner in Surgical Gastro Enterology for the academic year 2003-2004. 8. The argument of Mr. Vijayan, learned senior counsel appearing for the petitioner that even if the petitioner has not secured adequate marks in the first choice, he is automatically entitled to the second choice is untenable since such candidates are not automatically eligible for second choice in the absence of merit. 9. The seats in higher speciality courses are very few in number, whereas, the candidates are large in number. The entrance examination is being conducted to select meritorious candidates as per his/her order of preference for admission. The rationale behind is the first option of the meritorious candidates shall only be fulfilled and not to frustrate. 9. The seats in higher speciality courses are very few in number, whereas, the candidates are large in number. The entrance examination is being conducted to select meritorious candidates as per his/her order of preference for admission. The rationale behind is the first option of the meritorious candidates shall only be fulfilled and not to frustrate. When the candidates are not within the zone of consideration for first choice but within the zone of consideration for the second choice, selection will be made as per merit so that the choice of the meritorious candidate be entertained. It could be the reason fixing the choice of the meritorious candidates as per their choice in order of preference be judged in entrance examination and his/her interest in a particular subject be identified and encouraged. 10. The above mentioned conditions are mentioned in express terms in the prospectus. In the application for entrance examination, necessary columns are provided directing the candidates to indicate his/her option in order of preference. Thus, the said conditions are incorporated both in the prospectus and the application form as well. Once a person appeared for the examination in terms of the prospectus without protest, it is not open to question the method of selection and admission thereafter. 11. It may be more appropriate in this context to refer the decision of the Hon'ble Supreme Court reported in (Om Prakash v. Akhilesh Kumar), AIR 1986 SUPREME COURT 1043 wherein the Hon'ble Apex Court has held in para 21 as under: 21. Moreover, this is a case where the petitioner in the Writ Petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates, who had appeared there. The same yardstick should have been applied to the candidates in the District of Kanpur also. They were not responsible for the conduct of the examination. 12. Nobody has forced the petitioner herein to exercise his option in order of preference, but he has done so with his full knowledge. A person, who has acquiesced in a particular transaction, will be estopped from complaining about it. They were not responsible for the conduct of the examination. 12. Nobody has forced the petitioner herein to exercise his option in order of preference, but he has done so with his full knowledge. A person, who has acquiesced in a particular transaction, will be estopped from complaining about it. Article 226 of the Constitution of India is an equitable and discretionary relief which cannot be exercised in the case on hand. 10. Hence, the Writ Petition fails, liable to be dismissed and accordingly it is dismissed. No costs. Consequently, the connected W.P.M.P.is closed.