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2013 DIGILAW 316 (CAL)

Monalisa Das v. STATE OF WEST BENGAL

2013-06-04

PRASENJIT MANDAL

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Judgment :- Prasenjit Mandal, J. This application is at the instance of three students and is filed praying for a writ in the nature of mandamus commanding the respondents particularly the respondent no.3 to relax the time schedule in the instant case for holding the extended second counseling for the open category candidates and to allow the respondent no.2 to register any student admitted beyond the stipulated date after the extended second round of counselling regarding admission to the Post Graduate Degree and Diploma Courses in modern medicine for the session 2012-13 and other consequential reliefs. The petitioners have contended that they are the qualified M.B.B.S. doctors and they intended to be admitted to the Post Graduate Degree and Diploma Courses in modern medicine for the session 2012-13. They applied for the open category seats. The ranks of the three petitioners were 342, 479 & 167 respectively in the admission test. But, the six seats under the All India Quota were not filled up and as such, second round of counselling was held subsequently. The petitioners have contended that they should be allowed for counselling in the extended second round of counselling and the reliefs should be given. Now, the question is whether the reliefs as sought for by the three petitioners could be granted. Upon hearing the learned Counsel for the parties and on perusal of the materials on record, I find that it is not in dispute that six seats under the All India Quota remained unfulfilled in the first round of allotment. Thereafter, the respondent no.4 notified for the second round of counselling in respect of open category vacant seats reverted from All India Quota excluding six seats for Post Graduate Degree. It is also not in dispute that the three petitioners participated in the said process of second round of counselling, but, they did not get their desired subjects and institution. They came to know that six Post Graduate seats were excluded in the said counselling for the second round and as such, they made a representation dated March 12, 2013 for holding extended second round of counselling to fill up the vacant seats along with other candidates. They came to know that six Post Graduate seats were excluded in the said counselling for the second round and as such, they made a representation dated March 12, 2013 for holding extended second round of counselling to fill up the vacant seats along with other candidates. The respondent no.4 also indicated that the second round of counselling would be held on March 21 & 22, 2013 for ‘in service’ candidates while depriving the petitioners and others for the aforesaid seats and as such, they have prayed for holding extended second round of counselling. Mr. Sariful Islam, learned Advocate appearing for the petitioners, has contended that as per judgment dated March 7, 2013 in several writ petitions, such as, W.P. No.24431(W) of 2012 and other cases, the Hon’ble Justice Aniruddha Bose, one of the learned Judges of this Hon’ble Court has directed the University to create a special schedule for such students for fresh counselling and if necessary, the University shall create a special schedule for such students so that minimum attendance requirement and programme participation as laid down by the Medical Council of India Regulations are complied with. So, this decision should be followed in the respect of the petitioners particularly when the case of ‘in service’ candidates were being considered. Mr. Islam has also contended that in coming to a conclusion in taking the liberal views, Hon’ble Justice Aniruddha Bose has relied on several decisions, particularly the decisions of Asha v. Pt. B.D. Sharma University of Health Sciences reported in 2012 STPL(Web) 353 (S.C.): (2012) 7 SCC 389 and Permender Kumar & anr. v. State of Haryana reported in (2012) 1 SCC 177 . The deviation from the Medical Council of India schedule has been found to be permissible under extraordinary circumstances and so, the writ petitioners should be admitted to the said course after holding the extended second round of counselling. On the other hand, Mr. Saugata Bhattacharya, learned Advocate appearing for the Medical Council of India, has vehemently opposed the submission of Mr. On the other hand, Mr. Saugata Bhattacharya, learned Advocate appearing for the Medical Council of India, has vehemently opposed the submission of Mr. Sariful Islam contending, inter alia, that the Medical Council of India has set up cut-off dates and in the instant case, so far as open category is concerned, May 31, 2012 was the cutoff date for the session 2012-13 and the education in respect of those Post Graduate students who were admitted under the open category has proceeded for a considerable extent and Medical Council of India Rules must be followed. It is not possible for the petitioners to attend 80% classes if admitted. Mr. Bhattacharya has also contended that the decision of Asha (supra) and Permender Kumar (supra) were considered in special circumstances and as such, that is not the normal rule according to the Medical Council of India Act, 1956 and those cut-off dates are mandatory and in exceptional cases, those decisions were considered. But, in the instant case, there is no arbitrariness or special circumstances and so far as ‘in service’ is concerned, that is on separate footing and no comparison could be done. Mr. Bhattacharya has also contended that the latest decision in this respect is of Faiza Choudhary v. State of Jammu and Kashmir & anr. reported in AIR 2013 SC 1115 wherein it has been categorically held that a medical seat has life only in the year it falls that too only till the cut-off date fixed in the matter in the respective year. Carry forward principle is unknown to the professional courses like medical, engineering, dental, etc. The case of Asha (supra) and Permender (supra) were also considered in the said decision and it has been clearly indicated that the cut-off date must be maintained and a seat which fell vacant in a particular year cannot be carried forward or created in a succeeding year, in the absence of any rule and regulation to that effect. In the instant case, that is for the Post Graduate Course, the cut-off date was May 31, 2012, there is no question of holding second round of extended counselling for the petitioners. Mr. Bhattacharya has also contended that the similar view was taken in the case of Medical Council of India v. Dr. Jenita Singh & ors. reported in AIR 2013 Orissa 17 particularly the paragraph nos. Mr. Bhattacharya has also contended that the similar view was taken in the case of Medical Council of India v. Dr. Jenita Singh & ors. reported in AIR 2013 Orissa 17 particularly the paragraph nos. 2, 5 & 7, the prayer of the petitioner for holding extended second round of counselling is not permissible at all. It was a decision of a Division Bench of the Orissa High Court. Mr. Bhattacharya has also contended that while disposing of the writ petition being W.P. No.795(W) of 2013, this Bench, by the judgment dated March 12, 2013, dealt with the similar matter and has concluded that the action of the respondents in the matter did not suffer from arbitrariness at all and that the Indian Medical Council Act, 1956 does not permit to entertain the prayer of the writ petitioner after the aforesaid cut-off date. Mr. Debangshu Basak, learned Advocate appearing for the State, has supported the contention of Mr. Saugata Bhattacharya and he has submitted that since the cut-off date had already been passed long time back and the time for consideration of the prayer had already lapsed, there is no scope of re-consideration of the same. Having due regard to the submissions of the learned Counsel of both the parties, I find that in dealing with that matter of W.P. No.795(W) of 2013, several decisions were considered by this Bench and it was held that midsession admissions were totally impermissible according to the decision of Medical Council of India v. Naina Verma & ors. reported in (2005) 12 SCC 626 which was also relied on Faiza Choudhary (supra) and Medical Council of India v. Dr. Jenita Singh & ors. (supra). So far as the decision of Hon’ble Justice Aniruddha Bose is concerned, after consideration of several decisions, the learned Judge has ultimately come to his conclusion on the basis of decisions of Asha (supra) and Permender Kumar & anr. (supra). On careful perusal of the same, I find that under extraordinary circumstances deviation had been made. The instant case does not fall under the extraordinary circumstances at all. The learned Judge directed to hold second round of counselling as 62 seats (i.e. considerable numbers of seats) remained vacant. Moreover, the three petitioners participated the second round of counselling and their ranks are not on the top of the waiting list and not in serial manner also as indicated earlier. The learned Judge directed to hold second round of counselling as 62 seats (i.e. considerable numbers of seats) remained vacant. Moreover, the three petitioners participated the second round of counselling and their ranks are not on the top of the waiting list and not in serial manner also as indicated earlier. So, the instant case is not identical with the matter of Asha (supra) and Permender Kumar & anr. (supra). So the decisions referred to by Mr. Saugata Bhattacharya as indicated earlier and the decision of this Bench in W.P. No.795(W) of 2013, in my view, would be applicable in the instant case. Since, the Apex Court has held a number of times that if the rules and regulations do not permit for holding such counselling as prayed for after the cut-off date in absence of any rule and since this Bench has dealt with similar question in W.P. No.795(W) of 2013, I am of the view that the prayer of the petitioner for directing the respondents particularly the respondent no.3 (MCI) to relax the time schedule in the instant case for holding the extended second counselling and to direct the respondent no.4 to conduct the extended second counselling as prayed for cannot be entertained at all. In the case of Central Board of Secondary Education v. Nikhil Gulati & anr. reported in (1998) 3 SCC 5 even, the Apex Court has held that no lenient decision contrary to law should be taken to give some benefits to the petitioner by observing that such order will not be taken as precedent in respect of subsequent matters. Accordingly, I am of the view that no reliefs as sought for in this writ petition can be granted. This application is totally devoid of merits and is, therefore, dismissed. However, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.