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Madhya Pradesh High Court · body

2007 DIGILAW 225 (MP)

Anshu Dubey v. State of M. R

2007-02-23

A.K.GOHIL, P.K.JAISWAL

body2007
JUDGMENT Jaiswal, J. -- 1. This writ appeal has been preferred by the appellant under section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 against the order dated 11.7.2006 passed by the learned Single Judge in Writ Petition No.3242/05, whereby the claim of the appellant for grant of admission in DGG Course on a vacant seat of 2005. Batch in G.R. Medical College, Gwalior has been rejected holding that no candidate less meritorious than the appellant in the unreserved category (general category) has been granted admission. It has been further held that once the session has commenced after admission in the academic session 2005-06 in the light of law laid down by the apex Court it is not proper to issue any direction for granting admission to the appellant. 2. Brief facts of the case are that the appellant had passed MBBS examination in the year March, 2004, thereafter she completed 12 months compulsory rotatory internship from G.R. Medical College, Gwalior in the month of May, 2005 and is a registered practitioner. She had appeared in the Pre-PG Examination 2005 conducted by the M.P. Professional Examination Board. She was a candidate belonging to unreserved category (general category) and her result was declared and she had received 101.51 marks out of total 200 in unreserved category and she was kept in serial No.928 in the waiting list of unreserved category candidates. In the first' counseling which was held in May, 2005 candidates in the unreserved category upto waiting list 269 had participated. Since the appellant name appeared at S.No.928 and therefore, she was not permitted to participate in the first counseling. Thereafter, vide notification dated 22.5.2005 respondent No.2 again took steps for filling up the seats in the unreserved category vacant and available after surrender from all other category candidates. This counseling was notified and was to be held as per the provisions of clause 10 and 11 of the Madhya Pradesh Medical and Dental Post Graduation Entrance Examination Rules, 2005. The candidates of general category in merit waiting list from 270 to 500 were called for counselling on 28.2.2005. But, the State Government cancelled the counselling on 28.5.2005 and it was decided to hold the same on 30.5.2005, and 31.5.2005 permitting each and every candidate even those who had appeared in the earlier counselling and had been allotted their respective seats. But, the State Government cancelled the counselling on 28.5.2005 and it was decided to hold the same on 30.5.2005, and 31.5.2005 permitting each and every candidate even those who had appeared in the earlier counselling and had been allotted their respective seats. The appellant challenged the said notification. Annexure P-3 and filed a writ petition on 16.8.2005 and prayed for the following relief: (i) To issue a writ in the nature of certiorari quashing the order dated 29.5.2005 (Annexure P-3) issued by the respondent No.2 for reconciling for Pre-PG Admission for filling up surrendered vacant seats became available after first counselling. (ii) To issue a writ in the nature of mandamus directing the respondents to adhere the admission rules and to hold the subsequent counselling as per Annexure P-2 (notification dated 22.5.2005) exclusively for waiting merit list candidates of unreserved category starting from S.No.270 onwards. (iii) The result/provisional admissions of recounselling dated 30/31.5.2005 may kindly be quashed. (iv) To issue a command for production of entire record for kind perusal of the Hon'ble High Court. (v) The admission granted to Scheduled Tribes candidates in Degree/Diploma Courses in MS (Obest. & Gyanae) in second counselling dated 30/31.5.2005 may kindly be quashed and appellant may kindly be directed to be admitted in Degree/Diploma Courses on these vacant seats. (vi) To grant any other relief deemed fit in the facts and circumstances of the case. 3. Some of the seats which were reserved for general category were converted to the reserved category and they were allotted to the candidates of reserve category. Therefore, on 24.8.2005 when the writ petition was listed for admission, the learned Single Judge directed the respondent No.2 to indicate the name of the candidates who have been allotted the seats after conversion from general category to reserved category and appellant was also directed to imp-lead the said candidate as party after the names and particulars are disclosed by the respondents. It is also made clear that the petition shall be heard only after such of the candidates are impleaded in the writ petition. On 27.9.2005 an application for impleading the respondents No.4 to 7 was filed on which notices were issued by this Court. Thereafter case was listed number of times for filing return on behalf of the State Government. But return was filed only on 10th April, 2006. 4. On 27.9.2005 an application for impleading the respondents No.4 to 7 was filed on which notices were issued by this Court. Thereafter case was listed number of times for filing return on behalf of the State Government. But return was filed only on 10th April, 2006. 4. It is averred in the return that as per the decision of the apex Court in the case of Mridul Dhar and another v. Union of India and others [ (2005)2 SCC 65 ], the Medical Council of India framed a time schedule for grant of admission circulated vide letter dated 8.4.2005 and according to them no admission after 30th September 2005 was given. It is further averred that last candidate in general category having merit waiting list No.763 and obtained 111.66 marks was admitted and appellant who was in waiting list at S.No.928 and obtained 101.51 marks could not get admission. She was not entitled for admission as claimed. 5. The respondent No.3 Medical Council of India also filed its detailed return and averred that as per the decision of the apex Court in the case of Mridul Dhar (supra), the Medical Council of India framed time schedule for granting admission in the medical college and as per the schedule the last date is 30th September, 2005 upto which students can be admitted against the vacancies arising out of any reason and thereafter no admission can be granted. 6. Number of persons challenged the notification dated 29.5.2005 by filing writ petition at Principal Seat Jabalpur. The said matter was finally decided by the learned Single Judge vide order dated 6th July, 2005 in Writ Petition No.3940/05. Dr. Sandeep Singh v. State of M.P. and others and all identical petitions were disposed of by the said order. Vide order dated 6.7.2005 in para 24 the following directions were issued: "24. In view of the aforesaid 1 proceed to enumerate my conclusion in seriatim as under : (a) The candidates who were earlier selected and also the candidates who had sought to exercise opt for waiting have been called and given the seats would be allowed to continue in the said seats as the whole thing cannot be made topsy-turvy at this stage, more so, when hardly few persons are affected. (b) The candidates who are before this Court would be considered for the available seats in present, both in diploma and degree courses, on the basis of their merit. To elaborate, their obtaining of marks would be the sole criterion. The counselling shall be held in that regard with seven days from today. (c) The candidates who had been selected due to the fault of the respondents because of attending counselling on 30.5.2005 shall be admitted in their respective courses as they cannot be treated than others who had availed the benefit because of the fault of the State Government in not calling the waiting list candidates from S.No.1 to 269. This direction is issued as parity on the score has to be maintained. (d) The candidates who are before this Court in Writ Petitions No.4040/2005, 4313/2005 and 3981/2005 and not going to get any seat either degree or diploma which are presently available after consideration as directed in clause 'b' would be entitled to Rs.25,000/ - (Rupees twenty five thousand only) as compensation which shall be paid by the State within two weeks from today." 7. During pendency of the writ petitions number of writ petitions were filed and disposed of. The details are as under: (i) WP No.3830 of 2005 (Dr. Ritu Mahana and Dr. Harsh Sukhwani v. The State of M.P. and others) filed on 5.9.2005 and decided on 30th September, 2005. (ii) WP No.3570 of 2005 (Dr. Prabhat Upadhyay v. The State of M.P and others) filed on 30.8.2005 and decided on 30th September, 2005. (iii) WP No.1411 of 2005 (Dr. Nidhi Chaturvedi v. The State of M.P. and others) filed on 24.5.2005 and decided on 4th April, 2006. (iv) WP No.7245 of 2006 (Dr. Aditi Dwivedi v. State of M.P. and others) filed on 16.5.2006 and decided on 20.5.2006. 8. (iii) WP No.1411 of 2005 (Dr. Nidhi Chaturvedi v. The State of M.P. and others) filed on 24.5.2005 and decided on 4th April, 2006. (iv) WP No.7245 of 2006 (Dr. Aditi Dwivedi v. State of M.P. and others) filed on 16.5.2006 and decided on 20.5.2006. 8. The learned Single Judge in all those cases, considering the case of Sandeep Singh (supra), directed that the respondents No.1 and 2 to consider the case of the petitioners for grant of vacant seat in accordance with the directions issued in para 24 of the order dated 6.7.2005 by the Principal Seat at Jabalpur and also made it clear that the aforesaid direction shall be subject to the condition that if the seats are not vacant and in case no vacant seat is available it would be for the respondents to communicate the same to each petitioner and take a decision in accordance with the same. With the above direction the writ petitions were disposed of. In the case of Dr. Ritu Mahana, Dr. Harsh Sukhwani, Dr. Prabhat Upadhyay and Dr. Aditi Dwivedi no return was filed by the State Government. 9. The appellant claimed parity with the case of Dr. Ritu Mahana, Dr. Nidhi Chaturvedi and Dr. Harsh Sukhwani and submitted before the learned Single Judge that similar relief be granted to the appellant also. The learned Single Judge after considering the order passed in the above cases has held that no material to show that the person who had received less than 101.51 marks in the unreserved category have been granted admission. The State Government also in its return made a statement on oath that no candidate beyond S.No.763 in the waiting list of general category has been granted admission and therefore, the learned Single Judge has held that there is no material available on record to show that the persons who have received less than 101.51 marks in the unreserved category have been granted admission, and therefore, held that no injustice or prejudice is caused to the appellant. Learned Single Judge relying on the decision of the apex Court in the case of Mridul Dhar (supra), held that it is not proper to issue any direction for granting admission to the appellant as there cannot be any telescoping of unfilled seats in a subsequent year. Learned Single Judge relying on the decision of the apex Court in the case of Mridul Dhar (supra), held that it is not proper to issue any direction for granting admission to the appellant as there cannot be any telescoping of unfilled seats in a subsequent year. It is also held that many candidates who are not before this Court and whose name appear between S.No.764 to 927 and who are more meritorious and whose names appear much above the appellant in the list would be denied admission and under such circumstances, relief as claimed for by the appellant cannot be granted. With the above observation the writ petition filed by the appellant was dismissed by the learned Single Judge. 10. Learned counsel for the appellant Shri Rajendra Shrivastava, Advocate submitted that the finding of the learned Single Judge that no admission have been granted to the persons who are less meritorious than the appellant is contrary to the record. It is also submitted that the respondents No.1 and 2 made a wrong statement in the return stating that the last candidate in the general category having merit waiting list No.763 and obtained 111.66 marks was admitted is incorrect and contrary to record. It is further submitted that Dr. Harsh Sukhwani who had filed Writ Petition No.3830/2005 on 5.9.2005 along with Dr. Ritu Mahana was at S.No.931 and was less meritorious than the appellant has been granted admission and therefore, she is also entitled for the similar treatment and same order as passed in the case of Dr. Harsh Sukhwani be passed in her case and submitted that direction be issued to the respondents No.1 and 2 for granting admission to the appellant. It is further submitted by the learned counsel for the appellant, that the admission granted in pursuance to the order passed in Dr. Sandeep Singh case (supra), the candidate who are more meritorious to the candidate, who were not before the learned Single Bench and whose names appeared much above them in the list would be denied admission. It is lastly submitted that the respondents No.1 and 2 did not challenge the order passed by the learned Single Judge in the case of Dr. Sandeep Singh (supra), and the orders passed by this Court in the case of Dr. Ritu Mahana, Dr. Harsh Sukhwani, Dr. Prabhat Upadhyay and Dr. It is lastly submitted that the respondents No.1 and 2 did not challenge the order passed by the learned Single Judge in the case of Dr. Sandeep Singh (supra), and the orders passed by this Court in the case of Dr. Ritu Mahana, Dr. Harsh Sukhwani, Dr. Prabhat Upadhyay and Dr. Aditi Dwivedi and in all these case also the principles lay down by the apex Court in the case of Mridul Dhar (supra), will be applicable, but the respondent No.2 granted admissions, contrary to the directions issued by the apex Court in the case of Mridul Dhar (supra). 11. On the other hand the learned Government Advocate supported the order passed by the learned Single Judge and submitted that the appellant is claiming admission in DGO Course on vacant seat of 2005 in GR Medical College, Gwalior whereas the academic session of 2005 is already started and nearly two years period is going to be over and last admission was granted to Dr. Aditi Dwivedi in the month of July, 2006, and therefore, now at this stage when only two to three months of the academic session of 2005 is left, no direction can be made granting admission on DGO Course to the appellant. It is also submitted that Article 14 of the Constitution of India does not envisage negative equality. If any mistake committed by the State Government in granting admission earlier then now, it cannot be forced to perpetuate the same mistake. In support of the said arguments he placed reliance on the decision of the apex Court in the case of Chandigarh Administration and another v. Jagjit Singh and another [ AIR 1995 SC 705 ], and State of U.P. and others v. Rajkumar Sharma and others [ (2006)3 SCC 330 ], and prays for dismissal of the writ appeal. 12. We have heard the arguments of the learned counsel for parties and perused the record of the case. 13. The respondents No.1 and 2 filed reply before this Court on 22.12.2006 and in para 3 of the reply very specifically admitted that one Dr. Harsh Sukhwani who secured less marks to the appellant and was at waiting list No.931 is granted admission on the vacant seat in DGO Course of 2005. On 30.1.2007 counter affidavit was filed by Dr. The respondents No.1 and 2 filed reply before this Court on 22.12.2006 and in para 3 of the reply very specifically admitted that one Dr. Harsh Sukhwani who secured less marks to the appellant and was at waiting list No.931 is granted admission on the vacant seat in DGO Course of 2005. On 30.1.2007 counter affidavit was filed by Dr. V.K. Saini, Director Medical Education of respondent No.1 and in para 5 of the affidavit he made a statement on oath that seven candidates have been allotted seats as per the directions of this Court and all allotment was done as per the merit list of the candidates and under the directions of this Court. Thereafter on 27.1.2007 an application was filed by respondent No.1 for taking additional documents on record. The documents are the instructions issued by the State Government dated 15.12.2006, letter dated 19.1.2007 and order dated 28.2.2006, in which it is stated that one seat of DGO Course of 2005 is lying vacant in GR Medical College, Gwalior because Dr. Akansha Jain in whose favour seat was earlier allotted submitted her resignation and therefore, the said seat became available with effect from 28.2.2006. From the perusal of the order dated 6.7.2005 passed in the case of Dr. Sandeep Singh (supra), clearly indicates that the State Government has not conducted the process of counselling and admission properly therefore this Court has no option but to give direction for available seats in diploma and degree courses on the basis of merit. The only objection raised by the respondents No.1 and 2 State Government is that cut of date is over and no admission can now be granted. This arguments advanced on behalf of the State Government cannot be accepted in the backdrop of the orders passed by this Court in the case of Dr. Sandeep Singh and others. The writ petition was filed by the appellant on 16.8.2005 whereas the return has been filed by the respondents No.1 and 2 only in the month of April, 2006 on 10.4.2006. Thus, from the above facts it is clear that the appellant had filed a writ petition much before the cut of date i.e. 30.9.2005. Sandeep Singh and others. The writ petition was filed by the appellant on 16.8.2005 whereas the return has been filed by the respondents No.1 and 2 only in the month of April, 2006 on 10.4.2006. Thus, from the above facts it is clear that the appellant had filed a writ petition much before the cut of date i.e. 30.9.2005. From the above facts and circumstances of the case as narrated herein above we are of the considered view that the relief of the admission cannot denied to the appellant on such ground when the appellant had been perusing her case much before the cut off date and all the similar situated candidates and even person less meritorious than the appellant has been granted admission. 14. In the case of Medical Counsel of India v. Madhu Singh [ (2002)7 SCC 258 ], it has been held as under: "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 – (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) MCI 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 of 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 the MCL" 15. In the case of Mridul Dhar and another v. Union of India and others [ (2005)2 SCC 65 ], a three Judge Bench of the apex Court after referring to earlier decisions, expressed the view in paragraph 32 as under: "32. In the case of Mridul Dhar and another v. Union of India and others [ (2005)2 SCC 65 ], a three Judge Bench of the apex Court after referring to earlier decisions, expressed the view in paragraph 32 as under: "32. Having regard to the professional courses, it deserves to be emphasized that all concerned including Governments State and Central both, MCI/DCI Colleges, new or old students, Boards, Universities, examining authorities, etc. are required to strictly adhere to the time schedule wherever provided for, there should not be midstream admissions, admissions should not be in excess of sanctioned intake capacity or in excess of quota of anyone, whether State or management. The carrying forward of any unfilled seats of one academic year to next academic year is also not permissible." 16. The respondent No.3 relying the decision of the apex Court in the case of Mridul Dhar and Madhu Singh issued a circular on 8.4.2005 vide Annexure R-l fixing the time schedule for completion of the admission for Medical and Dental Courses and the last date is up to 30.9.2005, Annexure R-1. 17. The respondent No.2 vide Annexure A-12 dated 21.11.2005 granted admissions to all the candidates in whose cases directions were made by this Court for considering their cases in the light of the order passed in the case of Dr. Sandeep Singh (supra). The respondents No.1 and 2 without considering the cases on merits and without assigning any reason granted admissions to Dr. Harsh Sukhwani, Dr. Ritu Mahana, Dr. Prabhat Upadhyay and Dr. Nidhi Chaturvedi. The case of the appellant is better than the case of Dr. Harsh Sukhwani and the State Government did not bring this order which was passed on 21.12.2005 before the knowledge of the learned Single Bench nor in the return and therefore, the writ petition of the appellant was dismissed by the learned Single Judge, if the said order of the State Government brought to the knowledge of learned Single Judge the fate of the petition would have been different. 18. Learned counsel for the appellant drew our attention to the order passed by the apex Court in the case of Dolly Chanda v. Chairman, JEE and others [ 2004(7) Supreme 297 ], in which the apex Court has held that the Dolly Chanda has qualified in the JEE-2003 but the said academic year is already over. 18. Learned counsel for the appellant drew our attention to the order passed by the apex Court in the case of Dolly Chanda v. Chairman, JEE and others [ 2004(7) Supreme 297 ], in which the apex Court has held that the Dolly Chanda has qualified in the JEE-2003 but the said academic year is already over. But for this situation the fault lies with the respondents, who adopted a highly technical and rigid attitude and not with the appellant and directed that the appellant should be given admission in the MBBS Course in any of the State Medical College in the current academic year. Learned counsel for the appellant also drew our attention to the decision of the apex Court in the case of Aman Deep Jaswal v. State of Punjab and others [2006 SCC (L&S) 1893], in which the apex Court has directed that the appellant who was more meritorious than the respondent is entitled to be admitted in MD Anaesthesia in Government Medical College, Patiala in the next academic year 2006-07 within the sanctioned intake of the college. In the case of Sunil Harioudh v. State of Madhya Pradesh and others [ 2006(4) MPHT 426 ], the Division Bench of the Principal Seat at Jabalpur has directed that the appellant be given admission in the MGMMC College, Indore in the MBBS Course positively and directed for creating an additional seat. 19. Considering the totality of the facts and circumstances of the case and taking note of the fact that Dr. Harsh Sukhwani is less meritorious to the appellant was granted admission and since the appellant has approached this Court well in time and her petition was pending and delayed due to adjournments sought by the State Government from time to time, therefore, we are of the considered view that on the ground that the cut off date fixed for admission was over admission cannot be denied to the appellant. 20. On the question of principle of negative equality the apex Court in the case of Chandigarh Administration and another v. Jagjit Singh and another (supra), though has held that the respondent authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order it does not entitle the High Court to compel the authority to repeat that illegality over again and again The apex Court has further held that if in case the order in favour of other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that petitioner's case is similar to other person's case. In the case of State of U.P. and others v. Rajkumar Sharma and others (supra), the apex Court considering the question of parity has held that even if in some cases appointments have been made by mistake or wrongly that does not confer any right on another person. Article 14 of the Constitution does not envisage negative equality and if the State committed the mistake it cannot be forced to perpetuate the same mistake. 21. Here in the present case the admission was granted to Dr. Harsh Sukhwani and other persons without considering their cases on merit as well as the principle laid down by this Court in the case of Dr. Sandeep Singh case (supra). 21. Here in the present case the admission was granted to Dr. Harsh Sukhwani and other persons without considering their cases on merit as well as the principle laid down by this Court in the case of Dr. Sandeep Singh case (supra). It is not the stand of the respondents No.1 and 2 that admissions were illegally granted to the candidates nor it is the case of the State Government that order passed by this Court in number of petitions is contrary to the law laid down by the apex Court in the case of Mridul Dhar (supra), nor the said order was challenged by the respondents No.1 and 2 before the Division Bench of this Court on before the apex Court, and therefore, the arguments that the principle of negative equality will be applicable and on the basis of earlier order passed by this Court from time to time no benefit can be given to the appellant cannot be accepted at this stage. In view of the exceptional circumstances arrived in this case and the exceptional situation was that the respondents No.1 and 2 made a wrong statement that no admission was granted to the candidate who were less meritorious than the appellant and admissions were granted to the candidates up to 761 who were in the waiting list, and since the name of the appellant was at S.No.928 and therefore, no admission can be given. Considering the above statement made on oath by the respondents No.1 and 2 the petition filed by the appellant was dismissed by the learned Single Judge. From the record we found that the said statement is incorrect and in reply to the writ appeal the respondents No.1 and 2 admitted that the candidate who were less meritorious than the appellant were granted admission. Thus, the appellant is also entitled for the same treatment and this appeal cannot be dismissed on the ground that the time schedule is over fixed by the respondent No.3. In the circumstances we are not of the view that the objection raised by the State has any force. 22. In view of the above facts and circumstances of the case the impugned order dated 11.7.2006 is not sustainable and accordingly the same is set aside. In the circumstances we are not of the view that the objection raised by the State has any force. 22. In view of the above facts and circumstances of the case the impugned order dated 11.7.2006 is not sustainable and accordingly the same is set aside. The respondents No.1 and 2 are directed to consider the case of the appellant for grant of admission in DGD course on vacant seat in GR Medical College, Gwalior within a period of two weeks from the date of filing of certified copy of this order. 23. In the result, this writ appeal is allowed with cost of Rs.500/- (Rupees five hundred only). Counsel fee as per schedule.