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2004 DIGILAW 1575 (ALL)

Sonal Katiyar v. State of U. P.

2004-08-16

N.K.MEHROTRA

body2004
JUDGMENT : N.K. Mehrotra, J. This is a petition for issuing a writ in the nature of certiorari quashing the allotment of the seats on the basis of U.P. Post Graduate Medical Entrance Examination, 2002 (hereinafter referred to as 'UPPGMEE, 2002') for which third counselling took place on 7.5.2003 and for issuing a writ in the nature of mandamus commanding the opposite party Nos. 2 and 4 to grant the admission in the M.S. course in Obstetrics and Gynaecology to the Petitioner either at Kanpur or at Meerut. 2. The case of the Petitioner is that the Petitioner was pursuing her Postgraduate Diploma Course in Obstetrics and Gynaecology in King Georges' Medical College, Lucknow. She applied for M.S. course in Obstetrics and Gynaecology in UPPGMEE, 2002. She alongwith opposite party No. 5 Dr. Meenakshi Singh and opposite party No. 6 Dr. Vijay Laxmi was declared successful and the Petitioner obtained 86th rank in the merit list of O.B.C. category and Dr. Meenakshi Singh, the opposite party No. 5 was placed at serial No. 108 and opposite party No. 6 Dr. Vijay Laxmi was placed at serial No. 133 in the merit list of the O.B.C. category. 3. In the year 2002, there was no prohibition for holding second or third counselling for allotment of seats. Therefore, the third counselling was held on 7.5.2003 by the opposite party No. 2, the Director General, Medical Education and Training U.P., Swasthya Bhawan, Lucknow and Dr. M.C. Sharma was Chairman of the examination committee of UPPGMEE, 2002 for holding this counselling. It is alleged by the Petitioner that in the scheduled third counselling on 7.5.2003, the Petitioner was not allowed to appear and the opposite party Nos. 5 and 6 were allowed to appear in the counselling and two vacant seats of M.S., in Obstetrics and Gynaecology were offered to the opposite party Nos. 5 and 6 who were lower in merit than the Petitioner. It is alleged that this third counselling was initially fixed for 1.2.2003 by the opposite party No. 4 but it was cancelled for any reason whatsoever and it was again fixed for 7.5.2003. 5 and 6 who were lower in merit than the Petitioner. It is alleged that this third counselling was initially fixed for 1.2.2003 by the opposite party No. 4 but it was cancelled for any reason whatsoever and it was again fixed for 7.5.2003. The Petitioner also presented herself at the counselling centre at the scheduled time before the opposite party No. 4 on 7.5.2003 but it was told to her that the counselling would take place at 2.00 p.m. instead of 11.00 a.m. and two seats of the M. S. in Obstetrics and Gynaecology were displayed on the notice board as vacant, one seat each in the G.S.V.M., Medical College, Kanpur and another in the L.L.R.M., Medical College, Meerut. It is alleged that the opposite party No. 4 allotted these two seats to the opposite party Nos. 5 and 6 without permitting the Petitioner to appear in the third counselling which was to take place at 2.00 p.m. as announced on 7.5.2003 at the counselling centre. It is also alleged that when the Petitioner contacted the Chairman of the admission committee and requested for the allotment of the seat for the M. S. Course in Obstetrics and Gynaecology and made complaint that the officials available at the counter did not accept the requisite fee of Rs. 200 from the Petitioner, then the Chairman became angry and misbehaved with the Petitioner and used absurd words. It is alleged that these two seats were allotted to the opposite party Nos. 5 and 6 without any reason and in highly arbitrary manner. 4. It was provided in the Brochure that no personal intimation was to be given to any candidate for appearing in the counselling. The Petitioner claims one of the aforesaid two seats according to her first choice in comparison to the opposite party Nos. 5 and 6. Dr. Meenakshi Singh and Dr. Vijay Laxmi. Both have filed the counter-affidavits, while the authorities who have created this problem have not come forward to file the counter-affidavit in this petition. While an affidavit was filed by one Dr. K.C. Rastogi who was posted as O.S.D. in Medical Education and Training U.P., Lucknow in special appeal against an interim order of this Court. The case of the opposite party Nos. While an affidavit was filed by one Dr. K.C. Rastogi who was posted as O.S.D. in Medical Education and Training U.P., Lucknow in special appeal against an interim order of this Court. The case of the opposite party Nos. 5 and 6 is that the Petitioner was not eligible to appear in the counselling because she was pursuing Postgraduate Diploma Course in Obstetrics and Gynaecology in K.G.M.C., Lucknow. They have also alleged that the Petitioner did not appear at the time of counselling. They have filed the copy of the affidavit of Dr. K.C. Rastogi, Professor on O.S.D. in Medical Education and Training U.P., Lucknow to say that the Petitioner did not appear at the time of counselling. The opposite party No. 5 Dr. Meenakshi Singh was allotted M.S. in Obstetrics and Gynaecology in Medical College, Kanpur and opposite party No. 6 Dr. Vijay Laxmi was allotted M.S. in Obstetrics and Gynaecology in Medical College, Meerut. On the basis of this disputed counselling since December, 2003 they are pursuing their course. 5. The Petitioner has filed the rejoinder affidavit and alongwith the rejoinder-affidavit she has filed a list of candidate prepared by the counselling board who were to appear in this third counselling. A Photostat copy of the said list is Annexure-RA 2. Initially the name of the Petitioner was not shown in the list of the candidates who were to appear in the third counselling but at some later stage her name was entered at Serial No. 4A according to her merit rank. 6. During hearing of this writ petition, this Court passed an interim order of status quo on 9.5.2003. This Court again passed an interim order on 13.5.2003. The relevant portion of that order as contained in Annexure-4 is as follows: There is no dispute that the Petitioner was placed at serial No. 86 of the merit list against O.B.C. category and the opposite parties whom the seats have been allotted in the counselling were at serial Nos. 108 and 133 of the merit list. The document, which the Petitioner has filed, reveals that she was interested to appear in the counselling. The opposite parties are hereby directed to hold fresh counselling for the unfilled M.S, course of Obstetrics and Gynaecology and they shall not allot any seat on the basis of the earlier counselling, which was held on 7.5.2003. 7. The document, which the Petitioner has filed, reveals that she was interested to appear in the counselling. The opposite parties are hereby directed to hold fresh counselling for the unfilled M.S, course of Obstetrics and Gynaecology and they shall not allot any seat on the basis of the earlier counselling, which was held on 7.5.2003. 7. The Principal, Medical College, Kanpur cancelled the admission of Dr. Meenakshi Singh on 30.5.2003. A Photostat copy of the order dated 30.5.2003 is Annexure-RA 5. Dr. Meenakshi Singh filed Special Appeal against this order. The Division Bench dismissed the Special Appeal No. 250 of 2003 filed by Dr. Meenakshi Singh on 10.6.2003. Dr. Vijay Laxmi filed Special Appeal No. 249 of 2003 in which an interim order was given in her favour that she may continue her studies and the opposite party No. 2 was restrained from cancelling admission. Dr. Meenakshi Singh, the opposite party No. 5 approached the Apex Court by filing SLP (c) No. 14043 of 2003. The Apex Court disposed of the said SLP on 9th October, 2003 and allowed the SLP by setting aside the High Court's order by observing that the High Court disposed of the matter finally, passing an order which adversely affects the private Respondent including the one who is present before us. The matter was remanded for re-hearing by the High Court. After disposal of the SLP by the Supreme Court, the Special Appeal No. 249 of 2003 filed by Dr. Vijay Laxmi was disposed of by the Division Bench of this Court on 16.12.2003 by holding that the appeal has become in fructuous in the light of the Supreme Court's order in the SLP of Dr. Meenakshi Singh and the matter was referred to the single Judge to decide the pending writ petition within three months. 8. The first question to be decided in this petition is as to whether Petitioner Dr. Sonal Katiyar who was pursing her Diploma Course in Obstetrics and Gynaecology at the time of counselling, was eligible to appear in the counselling for the vacant seat of M.S. in Obstetrics and Gynaecology for which third counselling was going to take place on 7.5.2003. To decide this question, I may refer here the Residency Scheme (Annexure-RA-1). Clause 8 (e) of the Residency Scheme which was issued by the Government for conducting Postgraduate medical examinations is as follows: 8 (e). To decide this question, I may refer here the Residency Scheme (Annexure-RA-1). Clause 8 (e) of the Residency Scheme which was issued by the Government for conducting Postgraduate medical examinations is as follows: 8 (e). A candidate if, admitted to any speciality in post-graduate diploma or degree course, he shall not be eligible for admission to any other speciality in postgraduate diploma or degree course. For removal of doubts it is hereby clarified that if any candidate has been admitted to any speciality in post-graduate diploma course, he may be allowed to be admitted in the same speciality in the post-graduate degree course. 9. Opposite party No. 5 Meenakshi Singh has referred one of the condition of the Brochure issued to the candidate for admission to UPPGMEE, 2002. The relevant Clause A (IV) as referred to in the counter-affidavit of Dr. Meenakshi Singh is as follows: A (IV): A candidate who takes admission on the basis of PGMEE. All India Entrance Examination 2001 will be debarred from appearing in subsequent P.G. Entrance Examination of the State until he/she completes and pass the examination of the course to which he/she has been admitted but will be eligible to appear in the subsequent examination if, he/she resigns from the said course and if his/her resignation is accepted by the Principal of the Medical College before the notification for the subsequent examination is issued and refunds the full amount of salary/stipend received by him/her during the said course. 10. Brochure is nothing but is only information conveying the procedure for admission while the Residency Scheme RA-1 has been issued in exercise of the powers under Sub-section (5) of Section 28 of the U.P. State Universities Act, 1973. Therefore, the statutory notification shall prevail over the clause referred to by the opposite party Nos. 5 and 6. As noted above, Clause 8 (e) of the notification of the Residency Scheme makes it clear that if, any candidate has been admitted to any speciality in P.G. Diploma Course, he may be allowed to be admitted in the same speciality in P.G. Degree Course. Therefore, the contention of the opposite party No. 5 Dr. Meenakshi Singh that Dr. Sonal Katiyar, the Petitioner who was pursing Diploma Course in Obstetrics and Gynaecology at the time of counselling was not eligible to appear in the counselling, is rejected. 11. Therefore, the contention of the opposite party No. 5 Dr. Meenakshi Singh that Dr. Sonal Katiyar, the Petitioner who was pursing Diploma Course in Obstetrics and Gynaecology at the time of counselling was not eligible to appear in the counselling, is rejected. 11. The second issue to be decided in this petition is as to whether Dr. Sonal Katiyar was given opportunity to opt the seat of her choice in the alleged third counselling held on 7.5.2003. Dr. Sonal Katiyar, the Petitioner has filed the affidavits of two candidate-doctors namely ; Dr. Manisha Saxena and Dr. Amit Seth who had participated in the third counselling and both these doctors have stated that Dr. Sonal Katiyar was present at the time of counselling and she was making complaint for not receiving the registration fee at the counter. 12. The Petitioner has also filed the permission from the department of Obstetrics and Gynaecology by which she was permitted to appear in the counselling on 7.5.2003. The Petitioner has also stated that her name was not included in the list prepared by the counselling board and therefore, she was not permitted to deposit the requisite fee at the counter. In support of her averments, she has filed the list of the candidates whose names were included for third counselling prepared by the office of the Director General Medical Education. This document is Annexure-RA-2. In this list, the name of Dr. Sonal Katiyar was not included initially. Later on this list was amended and the name of Dr. Sonal Katiyar was included at serial No. 4A. Dr. Vijay Laxmi, the opposite party No. 6 has filed a photostat copy of the attendance register of the department of Obstetrics and Gynaecology of K.G.M.C. as Annexure-CA-1 to the counter-affidavit to show that in the column of date 7th May, 2003, it is blank and she was not on leave on 7.5.2003 when she was on leave on 8.5.2003 and 9.5.2003. This document is irrelevant because of the fact that the place where the counselling had taken place is at a short distance from K.G.M.C., Lucknow. Dr. Vijay Laxmi has also filed a photostat copy of the affidavit of Dr. K. C. Rastogi, O.S.D. in the Directorate of Medical Education filed in Special Appeal No. 249 of 2003 to show that Dr. K.C. Rastogi has stated on oath and Dr. Dr. Vijay Laxmi has also filed a photostat copy of the affidavit of Dr. K. C. Rastogi, O.S.D. in the Directorate of Medical Education filed in Special Appeal No. 249 of 2003 to show that Dr. K.C. Rastogi has stated on oath and Dr. Sonal Katiyar had not appeared in the counselling and therefore, the seats of M.S. in Obstetrics and Gynaecology were allotted to the opposite party Nos. 5 and 6 who were next in merit but no explanation has been given by Dr. K.C. Rastogi about the list of the candidates prepared at the time of counselling in which the name of Dr. Sonal Katiyar has been shown at serial No. 4A in the handwriting of somebody ; while the other names have been printed out on the computer. It shows that the name of Dr. Sonal Katiyar was added at serial No. 4A in the list of the candidates who appeared for counselling some time during litigation to show that the name of Dr. Sonal Katiyar was included in the list of the candidates appearing for counselling but she was absent. Dr. Sonal Katiyar has also averred that she made a complaint to Dr. M.C. Sharma, Chairman of the Counselling Board that her registration fee was not deposited in the counter and Dr. M.C. Sharma misbehaved and used absurd language. In spite of the opportunity, Dr. M.C. Sharma has not filed any counter-affidavit to rebut this averment. It is established from all this evidence that the Petitioner Dr. Sonal Katiyar was not permitted to appear in the third counselling and she was eligible for third counselling and initially her name was not included in the list of the candidates appearing for third counselling but any time subsequent to the counselling the name of Dr. Sonal Katiyar has been shown at serial No. 4A by including in the handwriting of some body. 13. It is not denied that the rank of Dr. Sonal Katiyar was 86th in merit while the rank of opposite party No. 5 Dr. Meenakshi Singh was 108th and the rank of opposite party No. 6 Dr. Vijay Laxmi was 133th. In view of this admitted position, Dr. Sonal Katiyar had the better right and first choice to take the seat of M.S. in Obstetrics and Gynaecology, which was offered, to the candidates in the third counselling of PGMEE, 2002. Meenakshi Singh was 108th and the rank of opposite party No. 6 Dr. Vijay Laxmi was 133th. In view of this admitted position, Dr. Sonal Katiyar had the better right and first choice to take the seat of M.S. in Obstetrics and Gynaecology, which was offered, to the candidates in the third counselling of PGMEE, 2002. The Petitioner has been deprived of her valuable right to pursue the degree course in Obstetrics and Gynaecology even after obtaining higher merit than the merit of the opposite party Nos. 5 and 6. It appears that it is because of mal-practice adopted at the time of third counselling in not permitting Dr. Sonal Katiyar in the third counselling. 14. Now the next question to be decided is as to whether now there can be any direction for holding the third counselling for filling up unfilled seats of M.S. in Obstetrics and Gynaecology. The competitive examination of PGMEE, 2002 was held in January, 2002. The session commenced in July, 2002. The other candidates who were selected in the P.G. course started studies in July, 2002 and now, out of three years duration of the course a period of two years has already elapsed. Dr. Meenakshi Singh and Dr. Vijay Laxmi who were given admission on the basis of this disputed third counselling were given admission in December, 2003. It was cancelled in August, 2003 because of the interim order of this Court and after the stay of that order in the special appeal ; they were again permitted to pursue their courses. After the order of the Supreme Court in October, 2003, the question is as to whether recounselling should be directed to be arranged in view of these facts. In Medical Council of India v. Madhu Singh and Ors. (2002) SCC 258, the Apex Court delivered the judgment on 11.9.2002 and certain directions were given. One of the directions is that there is no scope for admitting the students midstream, as that would be against the very spirit of statutes governing medical education. Even if, seats are unfilled that cannot be a ground for making mid-session admissions. The Medical Council of India was directed to fix a time schedule for admission purpose and it was directed that no variation of the schedule so far as admissions are concerned shall be allowed. 15. After this judgment, the Central Government issued certain directions. Even if, seats are unfilled that cannot be a ground for making mid-session admissions. The Medical Council of India was directed to fix a time schedule for admission purpose and it was directed that no variation of the schedule so far as admissions are concerned shall be allowed. 15. After this judgment, the Central Government issued certain directions. The State Government issued order on 2.8.2003 and the second counselling was not permitted. After that on 31st October, 2003/1.11.2003, the Medical Council of India also circulated a schedule in compliance of the judgment of the Supreme Court and the second counselling has been prohibited by the Medical Council of India. It is a case of third counselling and the seat cannot be allotted unless the fresh counselling takes place and the Petitioner is permitted to opt one of the seats. 16. So far as the impugned counselling dated 7.5.2003 is concerned, it is not in accordance with the procedure by offering unfilled seats to the eligible candidate according to rank, so this counselling cannot be permitted to be maintained and the admission given on the basis of this counselling so far as two disputed seats of M.S. in Obstetrics and Gynaecology in Kanpur Medical College and Meerut Medical College is concerned, is liable to be quashed. So far as the holding of third counselling for filling up these seats is concerned, it can be held only by seeking permission of the Medical Council of India. It has been argued by the Petitioner that he schedule fixed by the Medical Council of India will not be given retrospective effect and the counselling dated 7.5.2003 can be directed to be re-arranged for the purpose of filling up unfilled seats of M.S. in Obstetrics and Gynaecology. I do not find any force in this contention because in view of the judgment in Medical Council of India v. Madhu Singh and Ors. (supra) the midstream admission in PGMEE, 2002 cannot be permitted. 17. At the same time I feel that Dr. Sonal Katiyar, the Petitioner has suffered irreparable loss, as she could not pursue her degree course of M.S. in Obstetrics and Gynaecology for which she was qualified. The seat was available but she was prevented by the action and malpractice adopted by the counselling board headed by Dr. M.C. Sharma. 17. At the same time I feel that Dr. Sonal Katiyar, the Petitioner has suffered irreparable loss, as she could not pursue her degree course of M.S. in Obstetrics and Gynaecology for which she was qualified. The seat was available but she was prevented by the action and malpractice adopted by the counselling board headed by Dr. M.C. Sharma. No doubt, the Petitioner cannot be compensated for this loss in terms of money but in order to stop all these malpractice, I am of the view that some damage should be imposed on the Chairman of the Counselling Board so that such lapses may not occur in future and no meritorious candidate may be prevented in opting the seat in PGMEE in future. In order to compensate Dr. Sonal Katiyar, it will be befitting in the circumstances of the case that the damage worth Rs. one lakh should be awarded to the Petitioner so that she may console herself for not getting the seat of M.S. in Obstertrics and Gynaecology and bear the pain in causing injustice to her by the Counselling Board. This amount of compensation shall be paid out of fund of the Counselling Board by Dr. M.C. Sharma, Chairman of the Counselling Board and it is for the State Government to realise this amount personally from Dr. M. C. Sharma. This amount of compensation shall be paid to Dr. Sonal Katiyar within a period of six weeks from this date and the copy of this order shall be sent to the Principal Secretary to the Chief Minister and the Principal Secretary, Medical Education for compliance of this direction within a period of seven days. 18. In view of the above, the allotment of seats of M.S. in Obstetrics and Gynaecology in favour of the opposite party Nos. 5 and 6 namely ; Dr. Meenakshi Singh and Dr. Vijay Laxmi respectively on the basis of the third counselling of the PGMEE, 2002 is cancelled and the Petitioner is awarded a compensation as directed above. 19. The writ petition stands disposed of accordingly.