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2003 DIGILAW 25 (JK)

Harbakash Singh (Dr. ) v. State Of J. &K.

2003-02-27

V.K.JHANJI

body2003
V.K. Jhanji, J. Vide Notification No. 14-CAEE of 2001 dated 11.1.2001, the Competent Authority Entrance Examinations, Jammu allotted a seat in MD Anaesthesia to the petitioner Dr. Harbaksh Singh in Government Medical College, Jammu. However, vide Notification No. 13-CAEF of 2002 dated 12.2.2002, the Competent Authority Entrance Examination rescinded order dated 11.1.2001 and reverted back the petitioner to Diploma Anaesthesia. 2. In the present writ petition Order No. 13-CAEE of 2002 dated 12.2.2002 is being challenged. 3. It is not in dispute that the last Post Graduate Entrance Examination for admission to various medical courses in the State of Jammu and Kashmir was held on 31st Dec. 1995 and Ist January 1996. After that examination no other entrance examination took place till it was directed by the Honble Supreme Court by its order dated 6.9.2000 in Civil Appeal No. 4935 of 2000 Dr. Vikrant Parihar v. State of Jammu & Kashmir and others. It is also not in dispute that after the select list was issued of the examination held on Dec. 31, 1995 and Jan. 1, 1996, many of un-successful candidates, who had participated in 1995 Post Graduate Entance Examination continued to agitate for admission to various courses year after year, Petitioner was also one of the un-successful candidate and he also filed SWP No. 1742/99 in which he alleged that the Competent Authority Entrance Examination had not allotted any seat under Sports category. This Court disposed of the matter on 9.9.1999 with the direction to the Competent Authority to fill up the seats in Sports category after considering the interse merit. As the Competent Authority did not take any decision in the matter, a contempt petition was filed by the petitioner and the Chairman of the Competent Authority was asked to appear in person and explain the position. In view of the embrassing situation, the Competent Authority issued Order No. 53 of 2000 dated 8.2.2000 granting admission to Dr. Vipin Mangotra in MD Anaesthesia, because on merit in Sports category he was at number Ist, whereas petitioner, who was at number 2nd in the merit was given seat in Diploma Anaesthesia. Dr. Vipin Mangotra filed SLP in the Supreme Court with a grievance that he was entitled to admission in Radio Diganosis, but has been given admission in MD Anaesthesia. Pursuant to the direction given by the Supreme Court Dr. Dr. Vipin Mangotra filed SLP in the Supreme Court with a grievance that he was entitled to admission in Radio Diganosis, but has been given admission in MD Anaesthesia. Pursuant to the direction given by the Supreme Court Dr. Vipin Mangotra was given admission in Post Graduation in Radio Diagnosis. In the meantime in Civil Appeal No. 4935 of 2000 Dr. Vikrant Parihar v. State of J&K, the Supreme Court after taking notice of the fact that no Post Graduate Entrance Examination had taken place after 1995-96 and all such candidates who passed their MBBS Examination after 1996 have had no chance to compete and pursue post graduate courses in various disciplines of medicine, because candidates who had last participated in 1995 Post Graduate, examination continued to get selected for admission in various courses year after year, gave the following directions: (i) The Competent authority shall conduct an entrance examination for selection of Doctors for admission to Post Graduate Degree and Diploma Courses in different disciplines in the Medical Colleges in the State of Jammu and Kashmir on the basis of their merit. (ii) All eligible candidates whether in the earlier selection list or not shall be entitled to take part in the said entrance examination. (iii) Rules relating to reservation of seats to the extent permissible in law and applicable, shall be respected by the authorities at the time of making selections and admissions." 4. The Honble Supreme Court further clarified that the afore-mentioned directions shall not be construed as setting aside the admissions already granted to candidates who were pursuing various post graduate courses, pursuant to orders made by different Benches of the High Court or by the Supreme Court. The Honble Supreme Court further directed that entrance examination shall be held to fill the determined vacancies for 1999-2000 academic session for the Post Graduate Medical courses (Degree/Diploma). It was also observed that the afore-mentioned direction shall not distrub the order of admission of a candidate that has acquired judicial finality, provided such a candidate has been so admitted and is pursuing his course of post graduate study. It was also observed that the afore-mentioned direction shall not distrub the order of admission of a candidate that has acquired judicial finality, provided such a candidate has been so admitted and is pursuing his course of post graduate study. In regard to the first direction to the Competent Authority to conduct the next entrance examination it was observed that the said direction would be faithfully and punctually complied with notwithstanding any order or direction made to the contrary by any of the Benches of High Court either in any writ petition or appeal. The entrance examination was directed to be conducted within two months from the date of order. 5. Despite order dated 6.9.2000 of the Honble Supreme Court the petitioner filed writ petition (SWP No. 2219/2000) on 13.11.2000 i.e. after the decision of the Supreme Court in Dr. Vikrant Parihars case (Supra), in which he stated that Dr. Vipin Mangotra who had been allotted seat in MD Anaesthesia has been allotted seat in Post Graduation Radio Diagnosis, meaning thereby the seat under Sports category has fallen vacant and petitioner being next in the order of merit was entitled to get admission in MD Anaesthesia. Writ petition came up for hearing on 16.11.2000 and a learned Single Judge, after taking notice of the judgment of Supreme Court in Dr. Vikrant Parihars case (Supra) dismissed the writ petition. The view taken was that in the light of the direction of the Supreme Court in Dr. Vikrant Parihars case, only such candidates are saved who had already been granted admission and are pursuing various post-graduate courses pursuant to the orders made by different Benches of the High Court and the Supreme Court and the petitioner being not admitted or under-going post-graduate studies on the date of the decision of the Supreme Court, is not entitled to any relief in the writ simply because he was next in merit in Sports category. Judgment in SWP No. 2219/2000 was not appealed against and the same became final. 6. At this stage, it deserves to be noticed that Chairman and Registrar, Competent Authority Entrance Examination were respondents No. 2 & 3 respectively in the writ petition filed by the petitioner. Despite the dismissal of the writ petition and the clear direction of the Supreme Court in Dr. 6. At this stage, it deserves to be noticed that Chairman and Registrar, Competent Authority Entrance Examination were respondents No. 2 & 3 respectively in the writ petition filed by the petitioner. Despite the dismissal of the writ petition and the clear direction of the Supreme Court in Dr. Vikrant Parihars case that the admission to post-graduate courses i.e. Degree and Diploma would be made only after holding the entrance examination, which was to be held within two months of the judgment of Supreme Court, the Competent Authority vide Notification No. 14-CAEE of 2001 dated 11.1.2001 granted admission to the petitioner in MD Anaesthesia on the pretext that the petitioner had been staking claim to that seat since the year 1999 when it was vacated by Dr. Vipin Mangotra. The action of the Competent Authority in granting admission to the petitioner in MD Anaesthesia, led to the filing of Contempt Petition (Civil) No. 328 of 2001 Ashwan Dev Manhas v. M.Y. Qadiri & Ors., before the Honble Supreme Court, Upon notice of the Contempt Petition, the Competent Authority not only tendered un-conditional apology but also withdrew Notification No. 14-CAEE of 2001 dated 11.1.2001, vide Notification No. 13-CAEE of 2002 dated 12.2.2002. The Honble Supreme Court vide order dated 22.11.2002 accepted the un-conditional apology and dropped the contempt proceedings. Order dated 22.11.2002 reads as under:- Heard the learned counsel appearing on either side. In the light of Notification No. 13 of CAEE of 2002 dated 12th Feb 2002 rescinding the earlier Notification No. 14 CAEE of 2001dated 11th January, 2001 said to have been passed under a mistake, though in contravention of the order of this Court, As also the un-conditional apology tendered by the respondents and having regard to the facts and circumstances of the case, we are of the view that the unconditional apology may be accepted and proceedings for contempt need not be proceeded with further. Accordingly, the contempt petition stands disposed of finally�. 7. The present writ petition has been filed by the petitioner challenging Notification No. 13-CAEE of 2002 dt. 12.2.2002, mainly on two grounds, one, the petitioner has not been given any opportunity of being heard before passing the order and, 2ndly that once he got admission and started attending classes, his admission cannot be cancelled for the reason that he cannot be victimised by the Competent Authority by the mistake committed by it. 8. 12.2.2002, mainly on two grounds, one, the petitioner has not been given any opportunity of being heard before passing the order and, 2ndly that once he got admission and started attending classes, his admission cannot be cancelled for the reason that he cannot be victimised by the Competent Authority by the mistake committed by it. 8. Vide interim order dated 20.2.2002, learned Judge of this Court stayed Notification No. 13-CAEE of 2002 dated 12.2.2002 and directed that the petitioner be permitted to attend the discipline and course of studies. 9. The writ petition has come up before me for final disposal. 10. Learned counsel appearing on behalf of the respondents submitted that interim order dated 20.2.2002 was obtained by the petitioner by concealing from this Court that on the same subject-matter he filed writ petition (SWP No. 2219/2000) and the same had been dismissed. Petitioner had also not disclosed that the Honble Supreme Court in Dr. Vikrant Parihars case had given certain directions and his admission to the course was contrary to the direction given by the Supreme Court. In answer to the submissions, learned counsel appearing on behalf of the petitioner contended that the petitioner was not a party before the Supreme Court in the Contempt Petition. He subsequently filed an application for being impleaded as a party respondent, but the Supreme Court vide order dated 25.2.2O02 dismissed IA No. 9 (application for impleadment as party respondent) on the ground he was not a necessary party as no allegation of dis-obedience of the order of Supreme Court had been made against him. Learned counsel has contended that reading of order dated 25.2.2002 shows that the petitioner was given liberty to seek appropriate remedy if his admission to MD course was cancelled. Learned counsel submitted that it is in pursuance thereof that the petitioner has filed the present writ petition. He further submitted that the petitioner has not concealed any fact or has mis-represented as the writ petition is entirely based on a different subject-matter, than what was subject-matter of SWP No. 2219/2000. 11. After hearing the learned counsel for the parties, I am of the view that the present writ petition is nothing but completely an abuse of the process of the Court. 11. After hearing the learned counsel for the parties, I am of the view that the present writ petition is nothing but completely an abuse of the process of the Court. The jurisdiction of the High Court under Article 226 of the Constitution of India read with Section 103 of Jammu and Kashmir Constitution is discretionary and the petitioner must come forward with clean hands. The material facts having bearing on the relief sought must be disclosed in the petition without any reservation. They may be against the petitioner, but that is no reason why they should be with-held from the Court. As noticed earlier, the directions of the Supreme Court in Contempt Petition No. 3428 of 2001 were clear and left no-one in doubt. All admissions to the Post Graduate Courses i.e. Degree and Diploma were to be made on the basis of the entrance examination which was to be held within two months from the date of decision of the Supreme Court. Admission of the petitioner to MD Anaesthesia was not in accordance with the directions of the Honble Supreme Court, rather in clear dis-obedience. So much so the petitioner had earlier come to this Court in SWP No. 2219/2000 seeking admission in MD Anaesthesia under Sports Category and this Court after taking notice of the judgment of the Supreme Court in Dr. Vikrant Parihars case did not find any merit in the writ petition and the same was dismissed. As a matter of fact the admission granted to the petitioner by the Competent Authority was contrary to the specific judicial findings recorded in SWP No. 2219/2000. The Competent Authority Entrance Examination was party to the matter before the Supreme Court and also in SWP No. 2219/2000 and having known about the direction of the Supreme Court and also the judicial findings recorded by this Court, granted admission to the petitioner. The admission granted was clearly illegal and bad. Learned counsel for the respondents is correct in contending that having failed to obtain relief from this Court in SWP No. 2219/2000, the petitioner appeared to have connived with the Competent Authority Entrance Examination and was able to get relief contrary to the directions of the Honble Supreme Court and also the judicial findings of this Court. Learned counsel for the respondents is correct in contending that having failed to obtain relief from this Court in SWP No. 2219/2000, the petitioner appeared to have connived with the Competent Authority Entrance Examination and was able to get relief contrary to the directions of the Honble Supreme Court and also the judicial findings of this Court. The action of the Competent Authority in granting admission to the petitioner in MD Anaesthesia was in defiance to the direction of the Supreme Court and also judicial findings recorded by Bench of this Court. It is only when the Supreme Court took cognizance of the matter in the contempt petition, the Competent Authority rescinded Notification No. 14-CAEE dated 11.1.2001 and also tendered un-conditional apology. In the present writ petition, the petitioner not only concealed the filing of the earlier writ petition (SWP No. 2219/2000), but also made false statement in para 7 of the writ petition by stating that he had not filed any writ petition on the same subject-matter in this Court or any other Court in the Country. The admission of the petitioner to the MD Anaesthesia was fraudulent and he being a party to the fraud cannot be permitted to say that he was entitled to hearing before his admission came to be cancelled. Simply because he continued to pursue studies in MD Anaesthesia on the basis of the interim order, which he obtained by concealing material facts is not entitled to any relief. 12. In view of the above, the writ petition is dismissed with costs. Costs are assessed at Rs. 5,000 to be deposited in the Advocates Welfare Fund, within a period of two months, failing which Registrar (Judicial) of this Court would be entitled to seek execution of the order for recovery of the costs.