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2006 DIGILAW 114 (GAU)

Pratap Kr. Deb v. Bikash Roy

2006-01-31

B.S.REDDY, BROJENDRA PRASAD KATAKEY

body2006
JUDGMENT B.P. Katakey, J. 1. This appeal by the Respondent No. 5 in the writ petition, whose admission in the First Year MBBS Course in Assam Medical College, Dibrugarh for the Session 2004 has been set aside, is directed against the judgment and order dated 9.12.04 passed by the learned Single Judge in Writ Petition (C) No. 5767/2004. 2. The Respondent No. 1 herein filed writ petition No. 5767/04 praying for directing the Respondents, namely, State of Assam, Director of Medical Education, Gauhati University and the Controller of Examination of Gauhati University to produce the records including Form' A', 'B' and Certificates of the candidates bearing Roll Nos. 01272, 07583 and 02430 of Common Entrance Examination (Admission Test) held in the month of June, 2004 for admission in MBBS/BDS/BAMS Courses in the Medical Colleges of the State for the Session 2004-2005 and to verify and/or scrutinize the same under the supervision of any Judicial Officer of the High Court, without there being any further prayer for setting aside the admission of any candidate into the said Courses pursuant to the said Common Entrance Examination. In the writ petition the candidates who have been allotted with the aforesaid Roll Numbers were initially not made parties but thereafter pursuant to the order dated 30.9.04 passed therein, the present Appellant as well as Smt. Swati Lekha Karmakar were impleaded as Respondent Nos. 5 and 6 respectively. The writ Petitioner even after the impleadment of the said Respondents in the writ petition, pursuant to the said order dated 30.9.04, did not amend the prayer in the writ petition for setting aside the admission of the private Respondents, namely, Respondent Nos. 5 and 6 therein and also to admit the writ Petitioner into the said course pursuant to such examination. 3. The Government of Assam, Health and Family Welfare Department issued an Information Brochure regarding admission into the First Year MBBS/BDS/BAMS Courses in the State of Assam for the year 2004, pursuant to which the Appellant, Respondent No. 1/writ Petitioner submitted their applications for appearing in the Common Entrance Examination for selection for admission. A provisional select list of candidates for admission into Under-graduate courses in Medical College in Assam for the Session 2004-2005 was published by the Gauhati University, who conducted the Common Entrance Test in the month of June 2004, wherein the name of the Respondent No. 1/writ Petitioner finds place at Sl. A provisional select list of candidates for admission into Under-graduate courses in Medical College in Assam for the Session 2004-2005 was published by the Gauhati University, who conducted the Common Entrance Test in the month of June 2004, wherein the name of the Respondent No. 1/writ Petitioner finds place at Sl. No. 1 in the waiting list of candidates belonging to OBC/MOBC reserved category, his Roll No being 03520. It is the case of the writ Petitioner that the Roll Numbers allotted to the Appellant as well as Smt. Swati Lekha Karmakar, who was Respondent No. 6 in the writ petition, did not find place in the said list of selected candidates in the category of OBC/MOBC. The Controller of Examination thereafter on 13.7.04 issued a notification re-scheduling the date of interview and also issuing a Corrigendum to the provisional selection list by adding the Roll Numbers of the candidates bearing Nos. 01272, 07583 and 02430 in OBC/MOBC Category. It will not be out of place to mention that in the merit list of OBC/MOBC candidates published by the Gauhati University, the last candidate got 160 marks out of total 300 marks. The candidates included in the merit list in OBC/MOBC category by the said Corrigendum received 165, 163 and 162 marks respectively. The Respondent No. 1/writ Petitioner in view of issuance of the said Corrigendum dated 13.7.04 has filed the writ petition, as according to him because of the said Corrigendum his chances of getting admission in the First Year MBBS Course in the Medical Colleges of Assam against OBC/MOBC Reserved Category was diminished. 4. The learned Single Judge after issuance of notice of motion vide order dated 28.9.04 directed the Director of Medical Education, Assam to produce Form 'A' in original in respect of the candidates bearing Roll Nos. 01272, 07583 and 02430, whose names were included in the list of selected candidates under OBC/MOBC Reserved Category by issuing Corrigendum dated 13.7.04. Upon perusal of the records produced by the Director of Medical Education, Assam, the learned Single Judge passed the order dated 30.9.04 directing the writ Petitioner to take steps for impleading the present Appellant and Smti. Swati Lekha Karmarkar as Respondents in the writ petition and accordingly they was impleaded as Respondents Nos. 5 and 6 respectively in the said writ proceeding. Swati Lekha Karmarkar as Respondents in the writ petition and accordingly they was impleaded as Respondents Nos. 5 and 6 respectively in the said writ proceeding. The learned Single Judge thereafter upon hearing the learned Counsel for the parties, passed the impugned judgment and order and hence the present appeal before this Court. 5. The case of the writ Petitioner-Respondent No. 1 in the writ petition is that the Appellant-Respondent No. 5 in the writ petition as well as Smti Swati. Lekha Karmakar could not have been selected for admission into the First Year MBBS Course under OBC/MOBC Reserved Category as they have not indicated in Form 'A' that they were seeking admission under the said Reserved Category and therefore, according to the writ Petitioner, the Corrigendum issued by the University authority on 13.7.04 adding their names in the selection list under the said category is not legal and valid. The further case of the writ Petitioner is that because of said inclusion of the name of the Appellant and Smti. Swati Lekha Karmakar in the select list he has been deprived from getting a seat in the MBBS Course in the Medical Colleges in Assam, though his name was placed at Sl. No. 1 in the waiting list under the said reserved category. 6. The case of the Appellant-Respondent No. 5 before the learned Single Judge was that as by mistake he did not indicate in Form 'A' that he claimed admission under OBC/MOBC quota, he filed representation before the Commissioner and Secretary, Health and Family Welfare Department for rectification of such mistake and accordingly, as he got 165 marks in the Common Entrance Examination, his name was included in the select list of candidates against OBC/MOBC category by issuing the Corrigendum dated 13.7.04 and therefore no illegality has been committed by the University authority as admittedly the Respondent No. 1/writ Petitioner got only 160 marks, which is less than 5 marks received by the Appellant. The further case of the Appellant in the said writ proceeding is that the Certificate in proof of his caste which is required to be submitted only at the time of counselling, held after declaration of result, was submitted by him. The further case of the Appellant in the said writ proceeding is that the Certificate in proof of his caste which is required to be submitted only at the time of counselling, held after declaration of result, was submitted by him. The authority on the basis of the marks obtained by him and the interview conducted for that purpose selected him and admitted into the First Year MBBS Courses in Assam Medical College, Dibrugarh against OBC/MOBC category. It is the case of the Appellant that Respondent No. 1/writ Petitioner never challenged the Caste Certificate issued to the Appellant and the said position has never been disputed by any one. 7. The learned Single Judge upon hearing the parties as well as on perusal of the records, while recording the finding that the Appellant's Caste Certificate has not been challenged by any body, set aside the admission of the Appellant on the ground that in Form 'A' he did not indicate that he belongs to OBC/MOBC category and claims admission under the said category by putting the tick mark in the Column for that purpose and therefore he cannot be selected and admitted into the First Year MBBS Course under the said category. The learned Single Judge, however, did not take into consideration whether in case of setting aside the admission of the Appellant, the Respondent No. 1/writ Petitioner would be entitled to get admission in his place, on the basis of the marks obtained by him in the Common Entrance Examination. The learned Single Judge by setting aside the admission of the Appellant directed the authority to fill up the said vacancy by giving admission to the next eligible candidate. 8. We have heard Mr. R. De, learned Counsel for the Appellant, Mr. B.J. Talukdar, learned Additional Govt. Advocate, Assam appearing on behalf of the Respondent Nos. 2 and 3 and Dr. A.K.G. Thakuria the learned Counsel for the Respondent No. 6 in the writ appeal, namely, Sri. Siddhartha Sankar Saikia, who was impleaded vide order dated 18.2.05 passed in Misc Case No. 468/05 in the present appeal. None appears for the Respondent No. 1/writ Petitioner as well as for the Respondent No. 4 and 5 i.e. Guwahati University authorities. 9. Mr. A.K.G. Thakuria the learned Counsel for the Respondent No. 6 in the writ appeal, namely, Sri. Siddhartha Sankar Saikia, who was impleaded vide order dated 18.2.05 passed in Misc Case No. 468/05 in the present appeal. None appears for the Respondent No. 1/writ Petitioner as well as for the Respondent No. 4 and 5 i.e. Guwahati University authorities. 9. Mr. R. De, learned Counsel for the Appellant has submitted that there being no dispute to the fact that the Appellant belongs to other backward community (OBC) and he received 165 marks in the Common Entrance Examination, as against 160 marks obtained by the Respondent No. 1 writ Petitioner, he was rightly included in the list of selected candidates for admission into the First Year MBBS Course against OBC/MOBC category by issuing Corrigendum as his name was not included in the provisional select list published by the Gauhati University earlier though he got 165 marks. Mr. De has further submitted that in any case the Respondent No. 1/writ Petitioner cannot get admission into the MBBS Course as he got only 160 marks and was placed at Sl. No. 1 of the waiting list, even if the Appellant was not included in the list, as the seats available for admission were given to the candidates whose names appeared in the main select list. Therefore, according to the learned Counsel, the Writ Court ought not to have interfered with the selection and admission of the Appellant into the First Year MBBS Course. The further submission of the learned Counsel is that the Appellant has already been admitted into the First Year MBBS Course and has in fact in the meantime passed the First Year MBBS Examination and there cannot be any admission into the MBBS Course in mid session. According to the learned Counsel, the learned Single Judge, therefore ought not to have interfered with the admission of the Appellant. 10. Mr. Talukdar learned State Counsel appearing on behalf of the Respondent Nos. According to the learned Counsel, the learned Single Judge, therefore ought not to have interfered with the admission of the Appellant. 10. Mr. Talukdar learned State Counsel appearing on behalf of the Respondent Nos. 2 and 3 supporting the submission of the learned Counsel for the Appellant has submitted that as the Appellant's name was not included in the provisional list published by the Gauhati University initially against OBC/MOBC category, in spite of getting higher marks than the selected candidates under the said category and as the Appellant belongs to OBC, the Gauhati University has rightly issued the Corrigendum adding the name of the Appellant in the main select list on the basis of his caste and the marks obtained in the examination. The Appellant's Caste Certificate having not been doubted or challenged by the writ Petitioner-Respondent No. 1, the Appellant was rightly admitted in to the First Year MBBS Course in Assam Medical College, Dibrugarh for the session 2004-2005. The learned State Counsel has also submitted that it is a fact the Appellant has in the meantime completed the First Year of study in MBBS Course and more than one year has elapsed from the date of admission into the said Course. The learned Counsel has further submitted that even if, the admission of the Appellant is set aside the Respondent No. 1/writ Petitioner will not get the seat as his position is much below other candidates who secured higher marks, apart from the Appellant, who was admitted into the First Year MBBS Course in the Medical Colleges of Assam under OBC/MOBC category. The learned Counsel therefore submits that without going into the aspect as to whether for not putting the tick mark against the column meant for OBC/MOBC candidate in Form 'A', any such candidates belong to that category can be deprived from admission even though such candidates obtained higher marks than the candidates whose names appeared in the provisional selection list, the writ appeal may be disposed of by allowing the Appellant to continue with the study as he has already passed the First Year MBBS Examination and as there cannot be any mid session admission into the said Course in view of the decision of the Apex Court in Medical Council of India v. Madhu Singh and Ors. reported in (2002) 7 SCC 258 . 11. Mr. reported in (2002) 7 SCC 258 . 11. Mr. Thakuria learned Counsel appearing on behalf of the newly added Respondent No. 6 in the appeal has, on the other hand, submitted that the learned Single Judge has rightly passed the judgment quashing the admission of the Appellant into the First Year MBBS Course and as he is the next person below the Appellant, he is entitled to get admission into the said course in the vacancy caused due to quashing of the admission of the Appellant and in fact the Respondent No. 6 herein was allotted with a seat but could not pursue his study because of the interim order dated 12.1.05 passed in Misc. Case No. 107/05 in the present appeal. 12. We have considered the submissions of the learned Counsel for the parties and also perused the pleadings including the judgment passed by the learned Single Judge. 13. There is no dispute that the Appellant did not put the tick mark against the column meant for OBC/MOBC candidates in Form 'A' for which he filed a representation dated 2.7.04 before the Commissioner and Secretary, Health and Family Welfare Department indicating that due to inadvertence he did not put the tick mark though he being a member of other backward community, is entitled to selection under the said category, as the persons getting lesser marks than him were included in the provisional selection list published in a local daily dated 1.7.04. There is also no dispute that the University authority thereafter vide Corrigendum dated 13.7.04 added the name of the Appellant and two others in the main selection list of candidates under OBC/MOBC category. The writ Petitioner has got 160 marks as against the 165 marks obtained by the Appellant and 163 and 162 marks obtained by the other two candidates whose names were added by issuing the said Corrigendum. It is evident from the provisional list dated 1.7.04 that is between the candidates receiving 165 marks and the Respondent No. 1/writ Petitioner, who got 160 marks and placed at Sl. No. 1 in the waiting list, there were 23 candidates. The Respondent No. 1/writ Petitioner in the writ petition though has prayed for calling for the record relating to issuance of Corrigendum dated 13.7.04, no prayer has been made for setting aside the selection as well as the admission of the Appellant-Respondent No. 5. No. 1 in the waiting list, there were 23 candidates. The Respondent No. 1/writ Petitioner in the writ petition though has prayed for calling for the record relating to issuance of Corrigendum dated 13.7.04, no prayer has been made for setting aside the selection as well as the admission of the Appellant-Respondent No. 5. In any case, as the Respondent No. 1/writ Petitioner will not get admission into the First Year MBBS Course even if, the admission of the Appellant is set aside and quashed, there being 23 candidates between them, the learned Single Judge ought not to have set aside the admission of the Appellant as no relief could be granted to the Respondent/writ Petitioner and the question as to whether non-putting the tick mark in the column meant for OBC/MOBC candidates in Form 'A', can deprive a genuine OBC/MOBC candidates from being selected and admitted into the First Year MBBS Course in Medical Colleges of Assam, under the said category, became a mere academic issue. It is a settled position of law that the writ court in exercise of its jurisdiction under Article 226 of the Constitution of India will not decide a question which is of a mere academic interest. Moreover, the Apex Court in Madhu Singh's case has held that there cannot be any mid session admission, once the admission is closed and the courses has started in terms of the time fixed for that purpose. In the instant case, there is no dispute that the admission into the First Year MBBS Course for the year 2004 Session was over and the courses have commenced and the Appellant took admission prior to passing the impugned judgment and order dated 9.12.04. In fact the Appellant in view of the interim order passed by this Court in the appeal is pursuing his MBBS Course in Assam Medical College, Dibrugarh and in the meantime completed is the First Year MBBS Course. If at this stage his admission is set aside then it is not only the Appellant who will suffer but also it will have the effect of keeping one seat of MBBS Course vacant, as there cannot be any mid session admission, in view of the decision of the Apex Court in Madhu Singh's case. 14. If at this stage his admission is set aside then it is not only the Appellant who will suffer but also it will have the effect of keeping one seat of MBBS Course vacant, as there cannot be any mid session admission, in view of the decision of the Apex Court in Madhu Singh's case. 14. The claim of the Respondent No. 6 herein in the appeal is that he was allotted a seat in the First Year MBBS Course after the admission of the Appellant was set aside by the learned Single Judge vide the judgment and order dated 9.12.04, but because of the interim order passed by this Court dated 12.1.05 in Misc case No. 107/05, he has not been able to pursue his study and on the other hand, the Appellant is pursuing his studies in the said MBBS Course. The Respondent No. 6 herein was not a party in the writ proceeding before the learned Single Judge. He also did not challenge the admission of the Appellant into the First Year MBBS Course and therefore he cannot claim that the admission of the Appellant into the First Year MBBS Course was not legal and valid. The contention of the Respondent No. 6 herein that he should be allowed to pursue his studies in First Year MBBS Course also cannot be accepted in view of the judgment of the Apex Court in Madhu Singh case and as he had admittedly not attended the class. 15. The contention of the Respondent No. 6 herein that he should be allowed to pursue his studies in First Year MBBS Course also cannot be accepted in view of the judgment of the Apex Court in Madhu Singh case and as he had admittedly not attended the class. 15. In view of the aforesaid discussions, without deciding the question as to whether for non-putting the tick mark against the OBC/MOBC category in Form 'A', a genuine OBC/MOBC candidate can be deprived from being selected under the said category and admission, on the basis of the marks obtained by him, into the First year MBBS Course of Medical Colleges of Assam, we allow the present writ appeal by setting aside, the order of the learned Single Judge, whereby the admission of the Appellant into the First Year MBBS Course was quashed as well as the directions issued to the Respondent authorities to allot the said seat to the next eligible candidate and further allowing the Appellant to pursue his study in MBBS Course pursuant to his admission, as he has already completed more than one year of the course and as his status as OBC/MOBC candidate and obtaining higher marks than the Respondent No. 1/writ Petitioner in Entrance Examination, have not been challenged by anybody. The writ petition is also accordingly dismissed in view of the discussions and finding recorded as above. 16. The writ appeal as well as the writ petition are accordingly disposed of Keeping in view the facts and circumstances of the case, we do not make any order as to cost.