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2012 DIGILAW 790 (UTT)

UPASANA v. STATE OF UTTARAKHAND

2012-12-21

SUDHANSHU DHULIA

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JUDGMENT Hon’ble Sudhanshu Dhulia, J. (Oral) 1. Heard Mr. R.K. Raizada with Mr. Parikshit Saini, Advocates for the petitioners, Ms. Menka Tripathi, Standing Counsel for the State of Uttarakhand, Mr. Ramji Srivastava, Advocate for the Central Council of Indian Medicine, Mr. S.K. Shandilaya and Mr. A.V. Pundir, Advocates for private respondents. 2. In the present writ petition, the petitioners were candidates for admission to Post Graduate Ayurvedic Medical Course in Government Rishikul, Ayurveda College, Haridwar, Uttarakhand. The first counselling for admission in the said Post Graduate Ayurvedic Medical Course was held on 19.10.2012 in which there were only three subjects for offer i.e. M.D. (Ayu.) Pharmaceuticals; M.S. (Ayu.) General Surgery and M.D. (Ayu.) Panch Karma. For the first counselling 17 candidates, including the present petitioners were invited. Although their first choice was the subjects which were not being offered in the first counselling such as M.S. (Gynecology & Obstetrics), M.S. (ENT & Head), etc. they were therefore constrained to give their choice for only such subjects in the first counselling as were offered. As such they opted either for M.D. (Ayu.) Pharmaceuticals, M.S. (Ayu.) General Surgery and M.D. (Ayu.) Panch Karma. The next batch of 16 students were invited for second counselling on 31.10.2012. By this time two more subjects had come up for counselling in the Post Graduate Medical Course i.e. M.S. (Gynecology & Obstetrics), M.S. (ENT & Head). The candidates who were invited for the second counselling were admittedly lower in merit than the present petitioners, who were called in the first counselling. However, the persons lower in merit, according to the petitioners (who were called in the second counselling), were granted admission in M.S. (Gynecology & Obstetrics) and M.S. (ENT & Head) as these subjects were not available in the first counselling, and were offered only to the students in the second counselling only. The petitioners have challenged this process of counselling and their main argument would be that if M.S. (Gynecology & Obstetrics) and M.S. (ENT & Head) were not in the first counselling, it was the bounden duty of the respondents to have offered such subjects to the petitioners as admittedly they were higher in merit, and only thereafter to the students who were lower in merit should have been offered these subjects. 3. 3. The present petitioners have impleaded all such private respondents who are lower in merit and have been allotted subjects such as M.S. (Gynecology & Obstetrics), M.S. (ENT & Head), etc. – the subjects on which they would have opted had it been their in the first counselling. 4. The main objection of the counsel who appears for the private respondents is that it is not their fault that they have been given admission in a particular subject. They have simply been invited in the second round of counselling and they opted for M.S. (Gynecology & Obstetrics), M.S. (ENT & Head), etc. Moreover, they are presently undergoing the studies in the said subjects and they are not liable to be disturbed midstream. It has also been stated by the private respondents that once the petitioners have exercised their option, shutters were down for them and it does not give them any right to opt for such subjects at such a belated stage. The State has simply defended its stance by pleading that subjects like M.S. (Gynecology & Obstetrics) and M.S. (ENT & Head) were not available in the first counselling and hence were not offered. 5. This argument, however, this Court feels is not available to the private respondents inasmuch as this Court is of a considered view that it was the bounden duty of the Director, Ayurvedic Evam Unani Medical Services, Uttarakhand/ respondent no. 2 and the Principal, Government Rishikul Ayurveda College, Haridwar i.e respondent no. 3 who are members of the said counselling board, to have invited the present petitioners while they were doing the second counselling and first offer the new subjects to them. That would have been a fair and reasonable process. By not doing so, not only a doubt has been raised on the entire counselling process but it is also patently unfair and arbitrary. A Division Bench of the Allahabad High Court in an exactly similar situation in the case of Banaras Hindu University, Varanasi and others v. Atiharsh Mohan and others [ (2008) 2 UPLBEC 1273 had this to say : “11. A Division Bench of the Allahabad High Court in an exactly similar situation in the case of Banaras Hindu University, Varanasi and others v. Atiharsh Mohan and others [ (2008) 2 UPLBEC 1273 had this to say : “11. It is no doubt true the Hon’ble Supreme Court in Arvind Kumar Kankane (supra) held that second invitation to the candidates, who had already participated in first round of counselling may result in a chain reaction and therefore, even if some injustice has been caused, it would not be proper to invite such candidates for participation in the second round of counselling. However, facts of this case are more akin to the facts in the case of Pramjeet Gambhir and another (supra) wherein it has been held that if certain new seats from All-India Quota become available after surrender, the candidates higher in merit should be given an option to opt for the seats which so became available as these seats were not included in the first round of counselling. Candidates of merit should be given an option to opt for the seats which so became available as these seats were not included in the first round of counselling.” 6. Admittedly petitioners have a higher merit than such respondents who have been offered M.S. (Gynecology & Obstetrics) and M.S. (ENT & Head) subjects which the petitioners had their first preference for. Denying them these subjects would amount to penalising these students for being meritorious. This simple irony is lost on the State authorities such as the Principal of Medical College and other authorities! 7. In view of the above, the writ petition succeeds. A mandamus is hereby issued to respondent nos. 1, 2 and 3 to conduct a counselling for the new subjects which were not included in the first round of counselling, immediately without any further delay and offer these courses to the present petitioners on the basis of the options they have already exercised. Necessary consequence of it would be that the petitioners should be transferred from the course which the present petitioners are undergoing and shall be awarded the course as per the options they would now exercise. Needful be done within two weeks from today. 8. No order as to costs.