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2004 DIGILAW 1520 (ALL)

Mohd. Arif Ansari v. State of U. P.

2004-08-10

N.K.MEHROTRA

body2004
JUDGMENT : N.K. Mehrotra, J. This is a petition for issuing a writ in the nature of mandamus commanding the opposite parties to fill up all the vacant Postgraduate seats of U.P. Postgraduate Medical Entrance Examination, 2004 (hereinafter referred to as "U.P.P.G.M.E.E. 2004') including the Postgraduate seat of M.D. (Paediatrics) lying vacant at B.R.D. Medical College, Gorakhpur from amongst the eligible candidates including the Petitioner by holding a fresh counselling within the period prescribed and for issuing a writ in the nature of mandamus commanding the opposite parties to consider the candidature of the Petitioner for giving him admission on the vacant Postgraduate seat of M.D. (Paediatrics) at B.R.D. Medical College, Gorakhpur which is lying vacant on account of its faulty allotment in the first counselling by the authorities and to which the Petitioner is eligible for admission as per the condition mentioned in Clause 3.5 (b) of the Information Brochure. 2. I have heard Shri Upendra Nath Mishra for the Petitioner and Shri M. B. Singh, the learned standing counsel for the opposite parties. 3. The case of the Petitioner is that as a result of selection in U. P. Postgraduate Medical Entrance Examination, 2003, he was given admission in the diploma course in Child Health, i.e., D.C.H. at B.R.D. Medical College, Gorakhpur and therefore, he became eligible for getting admission in the Postgraduate Degree Course only in the field of Paediatrics as per the provisions contained in provision 3.5 (b) of the Information Brochure of U.P.P.G.M.E.E. 2004. He appeared in U.P.P.G.M.E.E. 2004 and qualified to appear in the counselling. At the time of first counselling the seat in the field of Paediatrics was not available but subsequently the said seat of M.D. Paediatrics in B.R.D. Medical College, Gorakhpur was not filled up as the candidate who opted for the said seat did not join the same at all and that seat is lying vacant in B.R.D. Medical College, Gorakhpur. It is alleged that the counselling of U.P.P.G.M.E.E. 2004 took place on 20.6.2004. The Petitioner appeared in the counselling but could not exercise his option, as there was no seat in the degree course of Paediatrics, i.e., M.D. Paediatrics. It is alleged that the seat of M.D. Paediatrics at B.R.D. Medical College, Gorakpur was opted by one Dr. It is alleged that the counselling of U.P.P.G.M.E.E. 2004 took place on 20.6.2004. The Petitioner appeared in the counselling but could not exercise his option, as there was no seat in the degree course of Paediatrics, i.e., M.D. Paediatrics. It is alleged that the seat of M.D. Paediatrics at B.R.D. Medical College, Gorakpur was opted by one Dr. Basant Kumar who was already pursuing his course in M.D. (Psychiatry) at some other Medical College as a result of which he did not join the seat at Gorakhpur. He did not seek admission upto the last date till 25.6.2004 which is evident from the letter of the Principal of B.R.D. Medical College, Gorakhpur to the Chairman of the counselling. This letter is Annexure-5 to this writ petition. It is alleged that the opposite parties have committed manifest procedural irregularity while holding the counselling of U.P.P.G.M.E.E. 2004 inasmuch as the seat of M.D. Paediatrics at B.R.D. Medical College, Gorakhpur was allowed to be picked up by one Dr. Basant Kumar, who was already pursuing the course of M.D. (Psychiatrics) in another Medical College, though there was a specific bar in Clause 3.5 (b) of the Information Brochure that a candidate, who has already taken admission on the basis of U.P.P.G.M.E.E./A.I.P.G.M.E. in any degree or diploma course will not be eligible to appear in the examination until he/she completes the said course or he/she resigns from the said post. It is alleged that if, Dr. Basant Kumar would not have been allowed to pick up the said seat of M.D. Paediatrics at B.R.D. Medical College, Gorakhpur, the said seat would have been made available to the Petitioner in the first counselling of U.P.P.G.M.E.E., 2004 and would not have necessitated for filing of the instant writ petition and to that extent, the first counselling is vitiated on account of arbitrariness and unreasonableness. It is further alleged that if, the Petitioner is permitted for admission to the course of M.D. Paediatrics at B.R.D. Medical College, Gorakhpur by virtue of his selection in U.P.P.G.M.E.E., 2004, it will not create a situation of mid-term admission which has been deprecated by the Hon'ble Supreme Court because the Petitioner is already pursuing the course in Child Health in the Department of Paediatrics and in the same college, i.e., B.R.D. Medical College, Gorakhpur. With these averments the Petitioner seeks second counselling of U.P.P.G.M.E.E. 2004. 4. With these averments the Petitioner seeks second counselling of U.P.P.G.M.E.E. 2004. 4. The opposite parties have filed the counter-affidavit. The case of the opposite parties is that there were total 501 seats which were to be filled up on the basis of the result of U.P.P.G.M.E.E. 2004 by counselling and during the course of counselling all the seats were allotted to the candidates, who were eligible according to merit-cum-option. It is further alleged that after complying the directions in the judgment of the Supreme Court in Medical Council of India Vs. Madhu Singh and Others, (2002) 7 SCC 258 , the Medical Council of India has issued guidelines for admission to P.G. course on 1.11.2003 and on the basis of those guidelines, the counselling has taken place and all the seats were allotted and on 21.6.2004 no seat was lying vacant. It is contended that the Petitioner seeks second counselling, which has been prohibited in the guidelines of the Medical Council of India. It is further contended by the opposite parties that the claim of the Petitioner for the seat of M.D. Paediatrics can be considered during the counselling and the Petitioner has no fundamental right or legal right to admit himself in the seat for M.D. Paediatrics only on the ground that he is pursuing his diploma course in child health. It is alleged that Dr. Basant Kumar was having 67th rank and the Petitioner was having 76th rank. It is averred in the counter-affidavit that there is nothing on record to establish the averments of the Petitioner that Dr. Basant Kumar was pursuing his course in some other medical college in M.D. (Psychiatry). It is also alleged by the opposite parties that the letter of the Principal of B.R.D. Medical College, Gorakhpur about the vacancies being fallen vacant, has no value because the second counselling is not permissible by the Medical Council of India. 5. After hearing the learned Counsel for the parties and on perusal of the counter-affidavit and rejoinder-affidavit, it appears to be a fact that all the seats were included in the counselling for admission to U.P.P.G.M.E.E. 2004 held on 21.6.2004. It is also not disputed that Dr. Basant Kumar was at serial No. 67 in the merit rank and the Petitioner was at 76th rank in the merit list. It is also not disputed that Dr. Basant Kumar was at serial No. 67 in the merit rank and the Petitioner was at 76th rank in the merit list. It is also a fact that from rank 67th to 76th all the candidates were eligible to be allotted the seat for M.D. Paediatrics. So the Petitioner cannot claim any preferential right in comparison to the rights of other candidates who were holding the rank in the merit list between 67th to 76th. It is also a fact which is evident from the letter of the Principal of B.R.D. Medical College, Gorakhpur, that Dr. Basant Kumar who had opted the seat of M.D. Paediatrics in B.R.D. Medical College, Gorakhpur had not deposited the fee of admission upto the last date 25.6.2004. 6. Now the question is as to whether the seat fallen vacant subsequent to the counselling can be filled up by issuing a direction for second counselling and as to whether seat of M.D. Paediatrics in B.R.D. Medical College, Gorakhpur was offered to ineligible candidate. The learned Counsel for the Petitioner had referred Clause 3.5 (b) of the Information Brochure, which is as follows: 3.5. A candidate who has already taken admission on the basis of earlier P.G.M.E.E./All India Entrance Examinations is not eligible to appear in this examination until he/she completes and passes the course where he is presently admitted. However, such persons become eligible if ; (a) He/she has resigned from the said course and his/her resignation has been accepted by the Principal of the Medical/Dental College and he/she has refunded the full amount of salary/stipend received by him/her during the said course, before the notification for the subsequent examination is issued. (b) He/she is presently pursuing P.G. Diploma course in any subject with the condition that he/she will be considered for the Post Graduate Degree course in that subject only. 7. From the perusal of the aforesaid provisions, it is clear that a candidate, who has applied for degree course M.D./M.S., can appear in the second M.D./M.S. degree course after completion of the first course. A candidate who is already pursuing a P.G. course in the medical college can also appear in the subsequent examination if, he/she fulfils the conditions given in Clause 3.5 of the Information Brochure cited above. The relevant fact, which was to be proved by the Petitioner, is as to whether Dr. A candidate who is already pursuing a P.G. course in the medical college can also appear in the subsequent examination if, he/she fulfils the conditions given in Clause 3.5 of the Information Brochure cited above. The relevant fact, which was to be proved by the Petitioner, is as to whether Dr. Basant Kumar was pursuing his course in M.D. (Psychiatry) at the time he appeared in the counselling for admission in M.D. Paediatrics course and he had not complied with the conditions given in Clause 3.5 (d) of the Information Brochure. I find that there is no documentary evidence to show that on the date of counselling Dr. Basant Kumar was pursuing his course in M.D. (Psychiatry) at some other Medical College. Vague allegations without any documentary proof cannot be accepted. 8. Now I come to the question that even assuming that Dr. Basant Kumar was given the seat wrongly, whether the second counselling can be permitted by this Court for this purpose, I refer the judgment of the Supreme Court in Medical Council of India v. Madhu Singh and Ors. (2002) 7 SCC 258 . It has been argued by the learned Counsel for the Petitioner that this judgment is not relevant for the purpose of P.G. course in Medical College. I do not agree with this contention. I refer the following relevant portion of the judgment: This appeal filed by the Medical Council of India (in short "M.C.I.") raises important questions regarding desirability of belated admissions to medical colleges in different courses, both pregraduate and post graduate. 9. Further I find that the Supreme Court has pointed out the Medical Council of India Establishment of Medical College Regulations, 1999 (in short "the Establishment Regulations") in which certain qualifying criteria have been prescribed. It has been pointed out by the Apex Court that Part II of Regulation 3 deals with educational programme and sub-parts (4) and (5) read as follows: (4) Educational Programme.-(a) proposed annual intake of students, (b) admission criteria, (c) method of admission, (d) reservation/preferential allocation of seats, and (e) department wise and year wise curriculum of studies. (5) Education programme.- (a) department wise and service wise functional requirements, and (b) area distribution and room wise seating capability. 10. No doubt, the Apex Court deprecated the orders for admitting students midstream in medical education courses. In this respect para 23 of the judgment is as follows: 23. (5) Education programme.- (a) department wise and service wise functional requirements, and (b) area distribution and room wise seating capability. 10. No doubt, the Apex Court deprecated the orders for admitting students midstream in medical education courses. In this respect para 23 of the judgment is as follows: 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 cannot be a ground for making mid-session admissions ; (iii) there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year ; (iv) M.C.I. 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 M.C.I. 11. Amongst the aforesaid directions, the direction No. (vi) is relevant in which it has been directed that no variation of the schedule so far as admissions are concerned, shall be allowed. The Medical Council of India was directed to fix a time schedule. The Medical Council of India has issued the guidelines on 31.10.2003/1.11.2003, vide circular letter No. 23 (1)/2003-MED/2L582. In this circular Medical Council of India has prepared a schedule for completion of admission process for Medical and Dental courses in M.B.B.S./B.D.S./Postgraduate courses. In this schedule, it is provided that first round of counselling for P.G. Courses shall be over by 25th of April and the last date for joining the allotted college and course is 1st of May and there will be no second counselling for admission to P.G. course. 12. In this schedule, it is provided that first round of counselling for P.G. Courses shall be over by 25th of April and the last date for joining the allotted college and course is 1st of May and there will be no second counselling for admission to P.G. course. 12. In view of this schedule prescribed by the Medical Council of India, the argument that the judgment in Medical Council of India v. Madhu Singh and Ors. (supra) prohibits the midstream admission only, is of no relevance simply because the Medical Council of India is a statutory body and is competent to issue such directions under the statute. The Medical Council of India has power to pass regulations, which has the statutory force. Moreover, this circular as contained in Annexure-1 to the counter-affidavit has been issued after complying the directions given by the Apex Court of the country which is to be adhered to by every concerned person, authority or Court. This Court cannot issue directions in contravention of the statutory circular issued by the Medical Council of India even assuming that the arguments of the Petitioner are found correct. 13. I am not inclined to accept all other arguments of the learned Counsel for the Petitioner that the Medical Council of India has no control over the admission against the seats of State quota or directions issued by the Medical Council of India are contradictory or second counselling is not barred by the Apex Court in its judgment in Medical Council of India v. Madhu Singh and Ors., (supra) or this Court has passed some interim orders permitting second counselling in the year 2003. 14. In view of the above, the writ petition is dismissed.