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2006 DIGILAW 1383 (MP)

NIKHIL v. STATE OF M. P.

2006-12-05

S.K.KULSHRESTHA, S.K.SETH

body2006
ORDER S.K. Kulshrestha, J. Heard on admission. These two appeals have been filed assailing the legality and propriety of the order dated 30th November, 2006 passed in W.P. No. 1060/2004 and W.P. No. 282/2005. For the purposes of the facts, reference hereafter would be made to the facts stated in W.P. No. 1060/2004 pertaining to Writ Appeal No. 685/2006. In W.P. No. 1060/2004, candidate Arpit Shrimal who was granted admission to Medical College, Rewa pursuant to the second counselling, has challenged the candidature of Appellant Nikhil Gupta in Medical College, Indore. The Petitioner asserted that although the Appellant No. 1 was at Serial No. 294 in the merit list while the Petitioner was at Serial No. 301, since in the first counselling the Appellant No. 1 had already accepted the offer to admission in the College at Rewa, he was not entitled to second counselling and, therefore, his admission in the second counselling to the Medical College, Indore was contrary to rules and hence a nullity. In W.P. No. 283/2005 the candidate Ms. Sarika Chauhan had assailed the order dated 10-2-2005 passed by the Director of Medical Education by which the transfer permitted to her by order dated 30-9-2004 mutually with the Appellant No. 1 Nikhil Gupta was cancelled. It was contended on behalf of the Appellant No. 1 that even though in the rules the provision is otherwise, it was under the order dated 24-8-2004 of this Court at Gwalior Bench that direction was issued and, therefore, the Respondents, in obedience to the direction, permitted him to participate in second counselling. In second counselling, since his merit was higher than that of the original Petitioner, he was granted admission in the M.G.M. Medical College, Indore while the Petitioner was granted admission in the Medical College, Rewa. This direction of the High Court was however, qualified by the subsequent orders on the basis of the intervention of the Petitioner and the High Court at Gwalior directed that if Respondent No. 4 (Appellant No. 1 herein) had appeared in the second counselling, the allotment of seats should not be made and even if seat has been allotted to him, it shall not operate to the prejudice of the rights of the Intervener/Petitioner herein and other candidates who claimed allotment of the seat. It is thus, clear that though in the second counselling under the orders of the Courts the Appellant No. 1 secured admission in M.G.M. Medical College, Indore it was precarious as it was subject to the conditions laid down by the Gwalior Bench itself. Under these circumstances, we do not perceive that the Appellant No. 1 is entitled to any advantage on account of his said admission. A brief reference to the rules governing and regulating admission to Medical Colleges in the State of Madhya Pradesh in the context of the facts would be advantageous. Rule 9.6 for admission to M.B.B.S/B.D.S. Course provides that the candidates will have to opt only for one seat and it is against this seat that his candidature would be considered. Rule 9.8 lays down that if a person or his representative does not opt for the Institution or the Court, his right to selection would come to an end though he would be entitled to make a request in writing for keeping his name in the waiting list. Rule 10.4 inter alia provides that the candidate once granted admission in any subject, course, or institution, shall not be entitled to seek change on any ground, whatsoever, except the mutual transfer in the same course in the Autonomous Medical College. The fact that the Appellant No. 1 was granted admission in the first counselling in Medical College, Rewa which he had accepted has not been denied. It is also indubitably true that insofar as the rules are concerned, persons who are entitled to the second counselling are those in the waiting list or who opt to be in waiting list by foregoing their claim for admission in the first counselling. In the case of the Appellant No. 1, he had already opted for admission in Medical College, Rewa and, therefore, in accordance with the embargo contained in the rules, his participation in second counselling was permissible and for this reason this Court, Gwalior Bench, modified the direction to the effect that if he has not been granted admission on the basis of the second counselling, he should not be granted admission and if admission has been granted, it shall not act to the prejudice of the candidates having better claim. The fact that the Respondent No. 4 (original Petitioner), had better claim in the second counselling notwithstanding that he was at Serial No. 301 as against the ranking of the Appellant at Serial No. 294, cannot be denied. In the light of the rules, therefore, we do not find any illegality in the order passed by the learned Single Judge in directing that the Appellant should be transferred to the Medical College, Rewa which he had opted in the first counselling and decision should be taken in respect of the original Petitioner (Respondent No. 4 in this appeal) with regard to his admission in the M.G.M. Medical College, Indore. Learned Counsel for the Appellant has referred to the decision of the Apex Court in Mridul Dhar (Minor) and Another Vs. Union of India (UOI) and Others, and strenuously contended that once the exercise is complete before the last date, whatever infirmity it may have, no change should be made. While it is true that for the purposes of admission a dead date has been fixed for various purposes including uniformity of the term for the purpose of higher Courses as in pursuance of the judgment of Dr. Pradeep Jain and Others Vs. Union of India (UOI) and Others, system of giving 25% seats at All India Level was introduced, insofar as illegality committed in grant of admission is concerned, we are of the considered view that no fetters have been attached to the power of the High Court in removing the glaring illegality and doing justice between the parties. Learned Senior Advocate also contends that although the petition was filed in the year 2004 itself, at this distance of time after two years the Court should not have directed change of Institution. While we are conscious that on account of delay the position should not be altered in normal circumstances, but in the extraordinary circumstances of this case where a person had been granted admission in patent violation of the rules and the fact that the Court which gave interim direction for his participation in second counselling itself modified the direction to the effect that it shall not act to the prejudice of any other candidate, we are of the view that time spent in the Court and the delay for which the original Petitioner was not responsible, should not come in the way of his seeking justice. Insofar as the case of Ms. Sarika Chauhan is concerned, we have already referred to the facts, although she was having lower ranking in the merit list prepared by the Respondents, she was granted admission to G.R. Medical College, Gwalior in the seats allocated for the reserved category candidates. She sought inter change of the seats with the Appellant No. 1 Nikhil Gupta which was though permitted initially, it was cancelled by the Director of Medical Education (Respondent No. 2), but subsequently by order dated 10-2-2005 this transfer was cancelled by the State Government. The matter was challenged before the Gwarlior Bench and the operation of order dated 10-2-2005 was stayed but thereafter the petition itself was dismissed by order dated 7-7-2005 on the request of the Counsel for the parties that the petition had been rendered infructuous. Learned Counsel submits that since the order was stayed with the result the petition was rendered infructuous, in her case the mutual transfer accorded by the Director of Medical Education ought not to have been set-aside. It is to be seen that although the transfer was stayed initially, unless the Court was of the opinion that interim order should be made the final order, the interim order came to an end with the dismissal of the petition although at the request of the parties. The dismissal of the petition on the representation that the same had been rendered infructuous does not perpetuate the interim orders and the interim orders unless, specific direction is given by the Court in that behalf and to that effect, do not normally survive after the decision dismissing the writ petition. In any case the mutual transfer was permissible only up to the last date prescribed in this behalf. Under these circumstances, we see no error in the order passed by the learned Single Judge. In view of the discussion above, both these writ appeals (W.A. No. 685/2006 Nikhil Gupta and Ors. v. State of M.P. and Ors. and W.A. No. 686/2006 Ku. Sarika Chauhan v. State of M.P. and Ors.) are dismissed. Under these circumstances, we see no error in the order passed by the learned Single Judge. In view of the discussion above, both these writ appeals (W.A. No. 685/2006 Nikhil Gupta and Ors. v. State of M.P. and Ors. and W.A. No. 686/2006 Ku. Sarika Chauhan v. State of M.P. and Ors.) are dismissed. However, the time of seven days granted by the learned Single Judge is modified and it is directed that the Respondents shall carry out the direction passed by the learned Single Judge within one month from today so that candidates have not to rush to different Colleges immediately and they get some respite to make preparation. With the above extension of time, for obeying the direction passed by the learned Single Judge, both the appeals are dismissed in limine. C.C. within three days. Final Result : Dismissed