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2012 DIGILAW 446 (KAR)

Consortium Of Medical Engineering and Dental Colleges of Karnataka v. Shanklesha Rinku Ramesh

2012-05-31

B.V.NAGARATHNA, VIKRAMAJIT SEN

body2012
Judgment :- Vikramajit Sen, C.J. These Appeals assail the Order of the learned Single Judge passed on 25.05.2012 allowing twelve Writ Petitions filed by persons who were the applicants for admission to the Postgraduate Dental Courses. The grievance which is ventilated is that though the Petitioners, all of whom are the Respondents before us, had the intention of participating in the First Counselling that was fixed for 19.05.2012, they were not accorded admission by the Appellant for one of the following four reasons. Firstly, that they have not furnished Demand Draft from the Nationalized Bank as per the notified requirement; or secondly, they have not produced counterfoils; or thirdly, the produced counterfoils did not bear the Bank seal; or fourthly that the counterfoils did not bear the signature of the Bank Officials. It is not the case of the Petitioners/Respondents that the other candidates had not complied with all the stipulations but were yet allowed to participate in the Counselling. 2. The learned Single Judge was persuaded to allow the Writ Petitions on the ground that although the requirement for appending Demand Drafts drawn on Nationalized Banks was stipulated, an enumeration of these Banks was not published. The learned Single Judge was of the view that confusion could have been caused for this reason, and in any case this requirement was not prescribed for the previous year. It was also noted by the learned Single Judge that an unfair situation had developed so far as the Petitioners are concerned, inasmuch as the candidates who were to be counseled in the later sessions were able to make good the deficiency in their applications, unlike the Petitioners who were in the first two sessions i.e., from 8.00 am to 10.00 am. What transpired was that students with better standing in the Merit List were therefore relegated to a position of disadvantage. It was also observed by the Court that arranging Demand Drafts for Rs.2,57,000/-is a difficult task, and that so far as the counterfoils, and the Bank seal and Officer’s signature thereon are concerned, the candidate could not be blamed for any deficiency or discrepancy. It was in these premises that the following Order was passed: “In the result, these petitions are allowed with a direction to the respondent No.1 to redo the whole selection process for admission to PG Dental Courses afresh. It was in these premises that the following Order was passed: “In the result, these petitions are allowed with a direction to the respondent No.1 to redo the whole selection process for admission to PG Dental Courses afresh. All the candidates, who have obtained the qualifying marks in the entrance test are to be put on fresh notice. The respondent No.1 is directed to accept the petitioners’ D.D.s, if they are genuine. The Petitioners’ candidature shall not be rejected merely because they have not obtained the D.D.s from the nationalized banks and/or because they have not produced the counter-foils and/or the counterfoils do not bear the seal and signature. Needless to observe that it is open to the first respondent or the concerned College to examine the eligibility of the petitioners in all other respects.” 3. On the mentioning of the Appeal, the matter was taken up for consideration immediately on 28.05.2012. It had been explained to us by the Learned Senior Counsel for the Appellant that a total number of 18415 students had written the PG Dental Examination out of which 4702 students qualified to appear in the Counselling. The Petitioners failed to make compliance with the Notifications dated 05.03.2012 and 11.05.2012. 205 students appeared in the Second round of Counselling and seventeen seats remained for allotment. The learned counsel for the Respondents-Doctors contends that these included the minority quota. Be that as it may, it appears that out of 12 Petitioners/Respondents six of them namely Dr. T.J. Moolchand (WA.2589/2012), Dr. Sonal Chopra & Dr. S.R. Ramesh (WA.2579/2012), Dr. S.S. Suhas (WA.2587/2012), Dr. Vidya Tiwari (WA.2588/2012) and Dr. Divakaran. R. (WA.2583/2012) have attended the Counselling held on 29.05.2012. These Appellants have indicated their preferences, produced their originals and therefore have opted for admission during the pendency of these appeals. Their Appeals are therefore rendered infructuous. The remaining six namely, Dr. S. Shekhar, Dr. U.S. Shridhara and Dr. R.M. Raju did not even attend the Counselling that was held on 29.05.2012. Three petitioners namely, Dr. P.M. Jain, Dr. Amrita Chakraborty and Dr. B.P. Dadasaheb attended the counseling but did not opt for any of the remaining available seats. Accordingly, out of the 18415 candidates who had written the Comed-K PGET 2012 examination, approximately 200 candidates in the merit list attended the second round of Counselling, only the Petitions of these six remain to be considered. 4. Amrita Chakraborty and Dr. B.P. Dadasaheb attended the counseling but did not opt for any of the remaining available seats. Accordingly, out of the 18415 candidates who had written the Comed-K PGET 2012 examination, approximately 200 candidates in the merit list attended the second round of Counselling, only the Petitions of these six remain to be considered. 4. We have heard the learned counsel for the parties in detail. It is not disputed that there are time constraints in completing the selection process and admission of the candidates, and, as prescribed in Mridul Dhar vs. Union of India ( AIR 2005 SC 666 ), the last date is 31st May of each calendar year. It is also relevant to mention that all the successful candidates had not been impleaded by the Petitioners and there can be no cavil if the Petitioners succeed, the already selected candidates would lose. In Dr. Dinesh Kumar vs. Motilal Nehru Medical College, Allahabad ( AIR 1985 SC 1059 ), the Apex Court has opined that “we are not inclined to strike down the admissions which have already been made. There are two reasons why we do not wish to disturb these admissions. In the first place, the students who have already been admitted are not parties to the present Writ Petition and it would not be right to make any order striking down their admissions without giving them an opportunity of being heard”. The compulsion to implead every person who is likely to be affected by any legal proceeding is so well settled that further reference to precedents would make the present judgment prolix. 5. In our opinion, the learned Single Judge has rewritten the conditions that were required to be complied with and this is impermissible even in the writ jurisdiction especially where the overwhelming majority of candidates have already meticulously complied with all the stipulations. The Petitioners and other candidates who are highly educated and literate persons are seeking admission to scare and coveted Post graduate courses. We think that it is reasonable to expect them to ensure due compliance with all stipulations including that the Demand Drafts were to be drawn on Nationalized Banks. The payment of fees ensures that the candidates do not adopt a flippant or irresponsible approach which would inexorably lead to seats remaining vacant. We think that it is reasonable to expect them to ensure due compliance with all stipulations including that the Demand Drafts were to be drawn on Nationalized Banks. The payment of fees ensures that the candidates do not adopt a flippant or irresponsible approach which would inexorably lead to seats remaining vacant. Unless the payment of fees leaves the pocket of the candidate he may not utilize admission to the course leading to pecuniary loss to the Colleges and national loss of a medical seat remaining unutilized. Since it is considered essential that the entire course should be attended, the Apex Court has specified the last date for admission to these courses as 31st May of each calendar year. 6. It is also important to note that no malafide have been alleged against the Appellant, and at the highest it is stated that in one case, an official of the Appellant had committed a mistake. 7. It is debatable that the examination system ensures the determination of the merit of candidates. There is always an element of luck fraught in any set of questions. Furthermore, some candidates may be unwell and may therefore may not fare as well, as their knowledge and merit would expect. The Central Board of Secondary Education (CBSE) is presently considering the expediency of not placing total reliance on one examination and instead harking back to the student’s record in previous academic years. The Petitioners may understandably be disappointed with the possibility of availability of better choices, but to totally think that their rights have been infringed, is a misnomer. Courts cannot always ensure the redressal of every nuance of grievance. 8. While exercising the extraordinary power bestowed on the High Court under Articles 226 & 227 of the Constitution, interference is called for and warranted only where a decision is perverse or is an exemplification of Wednesbury unreasonableness i.e., that no reasonable person would be expected to arrive at or formulate the said decision. The Writ petitions do not disclose either perversity or unreasonableness. It has been argued that unless the prescribed payment are fully secured, the entire system of selection/admission would break down. The production of complete counterfoils is only a device towards ensuring the receipt of payment and thereby concretizing the intention of the candidate to pursue his studies against the seat allotted to him. It has been argued that unless the prescribed payment are fully secured, the entire system of selection/admission would break down. The production of complete counterfoils is only a device towards ensuring the receipt of payment and thereby concretizing the intention of the candidate to pursue his studies against the seat allotted to him. The Petitioners/Respondents do not contend that there was any arbitrariness in the adherence to the stipulations. As already mentioned the overwhelming majority of students have in fact made the complete compliance and have selected seats. If any hardship is caused to the Petitioners, it is of their own making. The entire counseling cannot be held captive, which would ultimately result in unsettling matters that stand settled. 9. Wherever injunctory relief is prayed for, it is for the Petitioners to make out a case that there exists prima facie case in their favour, and balance of convenience also lies in their favour and that irreparable loss will result to them. In our opinion, the Petitioners have failed to prove the existence of the above mandatory ingredients in their favour, since it is they who have failed to comply with the duly published and prescribed conditions. It seems to us that the learned Single Judge has placed too much emphasis on the fact that similar conditions had not been imposed in the previous year. Obviously, the Appellants had learnt a lesson from the past experience, and have therefore placed conditions which the Petitioners have not contended are unreasonable; nor do we find them to be so. 10. The ingredients and concomitants of ‘balance of convenience’ is wholly against the Petitioners, inasmuch as, in the first place they have not impleaded all the candidates, almost 200 in number, whose admission has already been confirmed, as against six candidates. The fate and future of these 200 candidates hangs in the balance if the entire Counselling is set at naught. Keeping the paucity of time in mind, we can foresee that it would be well nigh impossible to ensure knowledge of fresh Counselling and participation of all the 200 candidates who were part of the previous process. 11. It is for these several reasons that we are unable to agree with and sustain the Order of the learned Single Judge. Keeping the paucity of time in mind, we can foresee that it would be well nigh impossible to ensure knowledge of fresh Counselling and participation of all the 200 candidates who were part of the previous process. 11. It is for these several reasons that we are unable to agree with and sustain the Order of the learned Single Judge. On the previous date of hearing, we had stayed the operation of the impugned Order and therefore, the remaining six Petitioners were put to caution. They have however, decided not to avail of the opportunity to pursue the available Postgraduate Course in Dental Science even though the Appellants had indicated that all of them would succeed in securing a seat. The learned Single Judge has in actuality given a premium to the Petitioners for their own shortcomings in not complying with the stipulated/requisite terms, in a situation where they were fully aware that there were several and multiple aspirants for each of the available seats. As the admission has already been completed, the impugned Order is set aside. Equity does not lie in favour of the six candidates who were resolutely refused to accept the remaining available seats, as against almost 200 who have made all arrangements for pursuing further study. These candidates are however at liberty to seek damages from the Appellants if it is their case that the Appellants were at fault in not permitting them from appearing for Counselling in the first round. The Appeals are allowed. There shall be no order as to costs.