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2004 DIGILAW 233 (HP)

Manik Soni v. State Of Himachal Pradesh

2004-09-21

ARUN KUMAR GOEL

body2004
JUDGMENT : Arun Kumar Goel, J. Since in both these writ petitions identical questions of law and fact are involved, therefore, they have been taken up together for disposal. 2. Admitted facts giving rise to these writ petitions are, that respondent No.1 in its Rajiv Gandhi Government Post Graduate Ayurvedic College, Paporala, is running Post Graduate Degree in Ayurveda-Ayurveda Vachaspati-MD/MS courses. During the academic session 2003-2004, these courses were notified by the H.P. University for Government of H.P., in the department of Indian System of Medicines and Homeopathy (Ayurveda). Both the petitioners are concerned with their admission to Kaya Chikatsa (Medicine) in CWP No. 1031 of 2003 and to Shalya Tantra (Surgery) in CWP no. 1044 of 2003. Both the petitioners were selected in general category as per their learned counsel. 3. Record of the case further shows that in the Kaya Chitiksa out of total six seats, three were meant in group-l for the State of H.P. Remaining three meant for other States in Group-II. One seat was meant for the candidates belonging to OBC and two in general category in this speciality in Group-l. 4. Similarly, in Shalya Tantra again there were four seats. Out of these two were meant for the State of H.P., i.e. one for schedule caste and other for general category candidates. Remaining two were meant for other States. 5. Petitioners are concerned with the seals meant for the candidates belonging to the State of H.P. in group-l. 6. At the time of admission of both the petitions, writ petition (c) No. 64 of 2003, titled as Dr. Sanjeev Kumar v. Union of India and others was pending in the Supreme Court of India. This was finally disposed of on 5th September, 2003. For ready reference, decision of the Supreme Court, (Annexure P-4) is extracted hereinbelow:- "Heard learned counsel for the petitioner as well as respondent Nos. 1 to 3. We have also perused our earlier order dated August 14, 2003. The petition that culminated into filing of memos by the petitioner and the respondent Nos. 2 and 3 arose in the background that the petitioner had undisputedly stood second in order of merit and had opted for Kayachikitsa for postgraduation course for the academic year 2002-2003. There were two seats in that discipline, namely, Kayachikitsa. He was, however, allotted seat in the discipline of Shalaya. 2 and 3 arose in the background that the petitioner had undisputedly stood second in order of merit and had opted for Kayachikitsa for postgraduation course for the academic year 2002-2003. There were two seats in that discipline, namely, Kayachikitsa. He was, however, allotted seat in the discipline of Shalaya. This has been done in view of the fact that the petitioner had indicated that he belongs to the other Backward Class (OBC) category. The case of respondent (Jos. 2 and 3 is that since there was only one reserved seat OBC out of the two available seats for Kayachikitsa, the second seat could not be offered to the petitioner. Once the petitioner had obtained second position on merit in general, :here was no reason to deny him the second seat of his option, merely on the ground that he happened to be a candidate belonging to the other backward class and seat against that quota was not available for Kayachikitsa. He was entitled for :he second seat on his own merit. It was being considered as to how wrong done to the petitioner could be undone. In that connection, on the suggestion of respondent Nos. 2 and 3 that he could be accommodated in the ensuing session, for that purpose they were allowed lime to sort out the matter. In the memo submitted by respondent Nos. 2 and 3, it is indicated that the seat in Shalaya for the year 2002-2003 not availed of by the petitioner may be converted into Kayachikitsa for the session 2003-2004. In this manner, there would be no creation of any additional seat for the petitioner and adjustment could be made without disturbing any position whatsoever. The petitioner is also agreeable to the same. On behalf of respondent Nos. 2 and 3 it has been submitted that permission of some of the authorities have been obtained and or others it would be taken as indicated in para 5 of their memo. Let needful be done by all concerned in pursuance of para 5 of the memo ‘led by respondent Nos. 2 and 3 at the earliest since the course has started on September 3, 2003. This petition stands finally disposed of in the manner indicated above." 7. Because of the pendency of the aforesaid case before the Supreme Court, admittedly admissions of both the petitioners i.e. of Dr. 2 and 3 at the earliest since the course has started on September 3, 2003. This petition stands finally disposed of in the manner indicated above." 7. Because of the pendency of the aforesaid case before the Supreme Court, admittedly admissions of both the petitioners i.e. of Dr. Manik Soni in Kaya Chikitsa, and of Dr. Pooja Makhnotra in Shalya Tantra were provisional. This in my view was lightly done, because admittedly at that time the writ petition was pending before the Supreme Court." 8. Another fact that needs to be noted here is that so far petitioner before the Supreme Court, i.e. Dr. Sanjeev Kumar is concerned, he did not come for the to claim benefit of the decision of the said judgment. 9. In this background petitioner Dr. Manik Soni who had been provisionally admitted to Kaya Chikitsa was shifted to Shalya Tantra, whereas Dr. Pooja Makhnotra was shifted from Shalya Tantra to Shalakaya Tantra, i.e. ENT. Both of them have challenged their shifting from their specialities to which they were provisionally admitted in these writ petitions. 10. Respondents were put to notice and on 22.12.2003 identical directions in to the cases were issued not to disclocate them from their respective specialities 3 which they were admitted. Both these petitions were admitted in the month of March, 2004. 11. When put to notice, respondents No. 1, 2 and 4 have justified their action of shifting Dr. Manik Soni to Shalya Tantra and Dr. Pooja Makhnotra to Shalakaya Tantra. As according to them initial admissions of the petitioners were provisional in character, therefore, they were justified in having shifted both of them. Their further case is that it is not within their power to either increase or decrease the seats in any speciality. Further their stand is, that the candidates on the basis of their merit and eligibility have to be admitted on the basis of the counseling keeping in view the availability of seats in a particular speciality. 12. So far plea of the petitioners that shifting, if any, was permissible within sixty days of their initial admission is concerned, for the reasons to be recorded hereinafter it is not sustainable. Reason being that they were well aware when they had been admitted provisionally, and what falls from this is that they can be shifted to some other speciality. So far plea of the petitioners that shifting, if any, was permissible within sixty days of their initial admission is concerned, for the reasons to be recorded hereinafter it is not sustainable. Reason being that they were well aware when they had been admitted provisionally, and what falls from this is that they can be shifted to some other speciality. If the argument urged on behalf of the petitioners is taken to its logical end, then character of their admission being provisional becomes meaningless. They cannot be permitted now at this belated stage after having availed the benefit of provisional admission to plead and urge that they cannot be shifted to other specialities from the one to which they were initially admitted. Because of their admitted provisional admission, it was known to both the petitioners that it is not final yet. 13. Other submissions urged on behalf of both the petitioners is that Dr. Sanjeev Kumar who was petitioner before the Supreme Court did not come forward to claim benefit of the judgment, supra. Therefore, the admission of respondent No.5 Sanjeev Kumar needs to be quashed and set aside. Because he was not entitled to be admitted to the speciality thus disturbing the petitioners. In this behalf it is not disputed that Dr. Sanjeev Kumar has been admitted against the seat meant for OBC candidate. Whereas Dr. Manik Soni-petitioner is admittedly at Sr. No.3 on the basis of the merit in general category. Both the candidates in general category to Kaya Chikitsa speciality have been admitted strictly on the basis of their merit against the two seats meant for this category in Group-l as noted above Therefore, this plea urged on behalf of the petitioner has no merit. 14. Another plea urged by Mr. Rajeev Jiwan, Advocate, was that there was a seat of Shalya Tantra of the session 2002-2003 that was ordered to be converted to Kaya Chikitsa during the academic session 2003-2004, therefore, his client is entitled to the benefit of the judgment of the Supreme Court. As such there is no need to shift him from the speciality of Kaya Chikitsa to Shaya Tantra. This plea is totally fallacious and untenable. Reason being that with a view to mitigate the hardship to the petitioner in the Supreme Court case, there was a package arrived at without creating any new seat in the next session i.e. 2003-2004. As such there is no need to shift him from the speciality of Kaya Chikitsa to Shaya Tantra. This plea is totally fallacious and untenable. Reason being that with a view to mitigate the hardship to the petitioner in the Supreme Court case, there was a package arrived at without creating any new seat in the next session i.e. 2003-2004. How and on what basis, converting of seat of Shalya Tantra to Kaya Chikitsa in the academic session 2003-2004 is being claimed by the petitioner, I am not satisfied nor any legitimate ground could be pointed out for such a claim. In this view of the matter, this plea has no merit. 15. Again on the basis of the Supreme Court judgment (supra), Mr. Jiwan pointed out that in the academic session 2003-2004 to which both the petitioners belong, no disturbance was envisaged. What was not before the Supreme Court there was no question of disturbance being either envisaged or not. In the peculiar facts of the case that was before the Supreme Court relating to academic session 2002-2.003 judgment was passed, that too as a package to avoid hardship to anyone including the petitioner in that case . therefore, the argument that it is a judgment in personal and as such these writ petitions deserve to be allowed has again no merit. 16. Faced with the aforesaid situation, learned counsel for the petitioners submitted that his clients have almost completed one year of academic session. In case the writ petitions are dismissed, they will be put to great hardship academically. Learned Advocate General on instructions received from Dr. Chanchal Kumar Sharma, Principal of the college i.e. respondent No.4, who is present in court with record, stated that for all specialities in MS/MD, out of five papers four are common. So far one paper is concerned, learned Advocate General further on instructions stated that extra classes will be arranged for the benefit of both the petitioners to make up the deficiency so that their academic year is not wasted ; And alternatively he further submitted that both the petitioners can appear in the supplementary examination in the fifth paper. That being the position, in my view, no prejudice is going to be caused to the petitioners in both the cases on their being shifted from the specialties to which they were provisionally admitted, to other specialities as noted hereinabove. That being the position, in my view, no prejudice is going to be caused to the petitioners in both the cases on their being shifted from the specialties to which they were provisionally admitted, to other specialities as noted hereinabove. So far holding of additional classes to make up the deficiency in t fifth paper during the academic session as well as lectures is concerned, learned Advocate General assured the court, that none of his clients will be found remiss in this case. Teaching/particals/instructions will be imparted to both the petitioners as noted hereinabove. 17. Reliance was placed by Mr. Jiwan on the decision of Supreme Court in Medical Council of India v. Madhi Singh and others (2002) 7 SCC 258 . This is (again wholly misconceived. By no stretch of imagination it can be said to be a case (of mid-session admission, so far the petitioners are concerned. At the risk of repetition it may be observed that the petitioners when joined the courses in the academic session 2003-2004 were well aware about the nature of their admission being provisional. What falls from this is that they could be shifted from one speciality to other. Thus to say, that in their cases shifting is mid-session admission, would be totally fallacious. Therefore, the ratio laid down in this case is wholly inapplicable to the facts of this case. 18. No other point is urged. 19. In view of the aforesaid discussion there is no merit in these writ petitions which are dismissed leaving the parties to bear their own costs. All interim orders passed from time to time shall stand vacated. Similarly pending applications, if any, are also disposed of.