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2013 DIGILAW 35 (MEG)

Nazamuddin Tafadar v. State of Assam

2013-09-25

B.D.AGARWAL

body2013
Judgment B.D. Agarwal, J. 1. Since the aforesaid writ petitions are based on identical facts and since identical reliefs are being sought-for I propose to dispose of both the writ petitions by this common judgment. Heard Sri A.B. Choudhury, learned senior counsel in WP (C) No. 4736 of 2012 and Sri A.K. Hussain, learned counsel in W.P.(C) 4847 of 2012. I have also heard Mr. D. Saikia, learned Additional Advocate General, Assam, representing the State respondents and also heard the learned counsel for the private respondents. I have also gone through the pleadings of both the parties. 2. The learned counsel for the writ petitioners submitted that the petitioners had appeared in the Combined Entrance Examination for MBBS/BDS/BAMS Courses held on 19.5.2012 and 20.5.2012 and they were ranked at Sl. No. 374 and 358 respectively. It is the further case of the petitioners that they had applied for admission in the medical course, giving MBBS course as first preference, followed by BDS and BAMS. After the result of the entrance examination the selected candidates were called for counseling. The first counseling was held from 7.7.2012 to 13.7.2012. Both the writ petitioners were interviewed on 10.7.2012 and they were told that all the seats for MBBS Course against general category (unreserved category) were already filled-up on merit basis. On the date of the counseling the petitioners were told that the ranked holder No. 303 was the last candidate in the general category for MBBS course. Having no other alternative, the petitioners accepted the second option of BDS course. The petitioner Smti Shehnaz Haque took admission in the BDS course on the date of the counseling itself i.e. on 10.7.2012. However, the petitioner Sri Nazamuddin Tafadar could take admission in the Regional Dental College only on 19.9.2012, since his selection was withheld pending verification of certain documents. In other words, the result of the aforesaid petitioner was cleared vide office order dated 19.9.2012. 2.1 It is the further case of the petitioners that subsequent to their Admission Order on the basis of first counseling few more seats in MBBS courses were available. Accordingly, the Directorate of Medical Education, Assam held two more counseling; one on 27.8.2012 and the other one on 28.9.2012. According to the learned counsels, after the second counseling another Admission Order for 20 candidates was issued on 19.9.2012. Accordingly, the Directorate of Medical Education, Assam held two more counseling; one on 27.8.2012 and the other one on 28.9.2012. According to the learned counsels, after the second counseling another Admission Order for 20 candidates was issued on 19.9.2012. As per this admission order 13 candidates were selected for their admission in MBBS Course in different medical colleges against unreserved category and the remaining candidates were selected against the reserved categories. The petitioners are also challenging the Education Notice dated 25.9.2012, whereby some more seats in MBBS course were also filled-up from the waiting list. According to the learned counsels ranking of some of the candidates in the aforesaid Admission Orders were below than the writ petitioners. Having come to know about this fact both the writ petitioners submitted representation to the Director of Medical Education on 21.9.2012 and 24.9.2012 respectively requesting for change of course from BDS to MBBS course. However, the petitioners request were not accepted and verbally rejected. Hence, the petitioners are challenging the admission order dated 19.9.2012 issued by the respondent No. 3 selecting some of the candidates in MBBS Course though their merit position were below the writ petitioners. 3. The learned counsels for the writ petitioners cited the judgment of this Court rendered in the case of Benzir Rahman & Anr. vs. State of Assam & Ors. (WP No. 4624 of 2012) and submitted that the instant writ petitions are covered by the said judgment. Besides this judgment, the learned counsels also relied upon the judgment of the Hon'ble Supreme Court given in the case of ASHA vs. Pt. B.D. Sharma University of Health Sciences & Ors.; 2012 (7) SCC 389 . On the basis of these authorities the learned counsels submitted that the impugned admission order dated 19.9.2012 as well as the Educational Notice dated 25.9.2012 are discriminatory, arbitrary and in violation of the natural justice. 4. Per contra, Mr. Saikia, learned Addl. Advocate General submitted that change of 'course' and the 'college' is prohibited under Rule 4(b) of the Medical Colleges of Assam, Regional Dental College, Guwahati and Government Ayurvedic College, Guwahati (Regulation of Admission of Under-Graduate Students) Rules, 2007. 4. Per contra, Mr. Saikia, learned Addl. Advocate General submitted that change of 'course' and the 'college' is prohibited under Rule 4(b) of the Medical Colleges of Assam, Regional Dental College, Guwahati and Government Ayurvedic College, Guwahati (Regulation of Admission of Under-Graduate Students) Rules, 2007. The learned counsel also submitted that without challenging the aforesaid Rules no writ in the nature of certiorari and mandamus can be issued so as to direct the State authorities to admit the writ petitioners in MBBS course, setting aside the earlier admission orders. The learned Addl. Advocate General further submitted that both the writ petitioners had already taken admission in the BDS course on 10.7.2012 and 19.9.2012 and the entire admission process was over by 30.9.2012. However, the writ petitions, having been filed subsequent to the completion of the admission process, should not be entertained. 5. The learned Addl. A.G. also relied upon the judgment of the Hon'ble Supreme Court given in the case of Mabel vs. State of Haryana 2002 (6) SCC 318 to reinforce his argument that if there is any prohibition in the Rules regarding change of the course no writ or order can be issued in favor of the petitioners. 6. At this stage I would like to mention here that the writ petitions pertain to the academic session of 2012 and the writ petitioners have already completed one year study in the BDS course. Despite that the petitioners are still interested to change over their stream from BDS to MBBS and this is the reason that the cause of writ petitions is still alive. 7. In the case of Benzir Rahman also the same admission order dated 19.9.2012 was under challenge. The said writ petition was filed by two candidates alleging that the candidates securing lower marks and having stood lower in rank were admitted in the MBBS course ignoring the merit position of the writ petitioners. Relying upon the judgment of the Apex Court in the case of ASHA (supra) the writ petitions were allowed. The only difference in the earlier case and in the present set of writ petitions is that the earlier writ petitions were filed before 30.9.2012 and interim order was passed on 28.9.2012, allowing the writ petitioners to take provisional admission in the MBBS course. The only difference in the earlier case and in the present set of writ petitions is that the earlier writ petitions were filed before 30.9.2012 and interim order was passed on 28.9.2012, allowing the writ petitioners to take provisional admission in the MBBS course. However, the present sets of writ petitions were filed after 30.9.2012 and, as such; there was no interim order in favour of the petitioners. However, the rest of the facts and circumstances are identical. 8. In the case of Mabel (supra) the Hon'ble Supreme Court was confronted with identical Clause in the medical admission Rules of a college in the State of Haryana, more particularly, Clause-18, which is reproduced below: "The candidates already admitted in any medical/Dental colleges will not be considered eligible for admission to other courses". The Rule 4(b) of Assam Rules is also extracted below for ready reference: "A candidate of any category once admitted in a particular Medical College in Assam/Regional Dental College, Guwahati/Govt. Ayurvedic College, Guwahati shall not be allowed to change the College and Category". 9. In the aforesaid cited case of Haryana a candidate had taken admission in BDS course in a particular college but subsequently she withdrew from the course and appeared in the entrance examination for MBBS course in Haryana in the next academic session. In view of the prohibition contained in Clause-18 the said clause was challenged. In that context the Hon'ble Supreme Court had observed that a candidate who has already secured admission on his free will in any course (emphasis by me) is required to complete that course first and such candidate should not change his mind in the midstream. Their Lordships have further held that such a candidate would be eligible for a different course only after the normal period the previous course is over. In my considered opinion, the judgment of Mabel is distinguishable on facts inasmuch as the writ petitioners' first choice was that of MBBS course. In other words, writ petitioners had taken admission in the BDS course under compulsion, having been told that all the seats in MBBS course were already filled up by candidates who stood above the petitioners in rank. In this way the petitioners had taken admission in BDS course not on their own choice, as was in the case of Mabel. 10. As contended by the learned the learned Addl. In this way the petitioners had taken admission in BDS course not on their own choice, as was in the case of Mabel. 10. As contended by the learned the learned Addl. Advocate General it is true that the writ petitioners gave an undertaking before the Selection Board that they have accepted BDS seats in RDC, Guwahati offered by the selection Board according to the merit position and that they shall not claim MBBS seats for the Session 2012 even if any vacancy arises in future. However, even at the cost of repetition, I must mention here that BDS course was the second preference of the petitioners and they had accepted this course on being told that no seat in MBBS course was available. I am also of the view that obtaining such an undertaking by the selection board in the midst of the counseling cannot foreclose the future of a candidate if he or she is otherwise eligible to another course. The learned counsel for the writ petitioners have rightly contended that it is unfair on the part of the State respondents to obtain such an undertaking without there being any adverse undertaking and assurance form the authorities that if any seat in other streams would be available in future they would be given preference to switch over the course. 11. Admittedly in the impugned admission orders some of the candidates stand lower in the rank than the merit position of the writ petitioners. During the course of hearing the learned Addl. Advocate General submitted that students who have already taken admission in different, courses after counseling cannot be invited in the second counseling for the purpose of filling-up stray vacancies. The submission of the learned Addl. Advocate General does not appear to have sufficient force as such course of action amounts to discrimination and offends Article 14 of the Constitution of India. Even otherwise from the admission order dated 19.9.2012 it is abundantly clear that some students from lower rank were admitted in the MBBS course from the 'Waiting List'. Obviously the candidate in the waiting list would be lower in the rank than the candidates who have already been admitted in different courses. Even otherwise from the admission order dated 19.9.2012 it is abundantly clear that some students from lower rank were admitted in the MBBS course from the 'Waiting List'. Obviously the candidate in the waiting list would be lower in the rank than the candidates who have already been admitted in different courses. Hence, the selection board could not have ignored the preference given by the candidates for different courses and ideally the selection board was under an obligation to give option to the candidates who could not be accommodated earlier against the course of their own choice. If such a general option was not possible at least the State authorities were aware of the fact that both the writ petitioners had submitted their representations for change of their course even before the entire process of selection was over. However, the authorities overlooked, ignored and rejected the representations mechanically without taking a judicious decision. 12. During the course of hearing Mr. Choudhury, learned senior counsel in one of the two writ petitions furnished two admission orders dated 30.7.2013 & 17.9.2013 and contended that in the academic year, 2013 at least two candidates were allowed to swap their course of study on the basis of the same set of Rules. As per admission order dated 30.7.2013 one Kaushik Dutta and Ms. Dolly Agarwal were initially admitted in the BDS course and subsequently they got admission in the MBBS course vide order dated 17.9.2013. In this way the embargo put under Rule 4(b) of the 2007 Rules cannot be said to be rigid and inflexible and that it cannot be deviated under any circumstances. I am also of the view that Rule 4(b) has not been encircled with a 'Laskhman Rekha' or any sacred thread to construe that the said rule is untouchable under any circumstance. 13. In the case of ASHA (supra) the Hon'ble Supreme Court has emphasized that merit should prevail in every aspect, more so, in the age of competitiveness. It would be profitable to reproduce the relevant observations, which are as below: "The Court cannot ignore the fact that these admissions relate to professional courses and the entire life of a student depends upon his admission to a particular course. Every candidate of higher merit would always aspire admission to the course which is more promising. It would be profitable to reproduce the relevant observations, which are as below: "The Court cannot ignore the fact that these admissions relate to professional courses and the entire life of a student depends upon his admission to a particular course. Every candidate of higher merit would always aspire admission to the course which is more promising. Undoubtedly, any candidate would prefer course of MBBS over BDS given the high competitiveness in the present times, where on a fraction of a mark, admission to the course could vary. Higher the competition, greater is the duty on the part of the authorities concerned to act with utmost caution to ensure transparency and fairness. It is one of their primary obligations to see that a candidate of higher merit is not denied seat to the appropriate course and college, as per his preference. We are not oblivious of the fact that the process of admission is a cumbersome task for the authorities but that per se cannot be a ground for compromising merit. The authorities concerned are expected to perform certain functions, which must be performed in a fair and proper manner i.e. strictly in consonance with the relevant rules and regulations". 14. In view of the aforesaid facts and circumstances, I hold that the writ petitioners were deprived from being selected in the MBBS course due to faulty admission process and not because of any negligence or laches on the part of the petitioners. I am also of the view that the methodology adopted by State authorities in selecting and appointing candidates standing at lower rank and merit cannot be approved by the Court. I further hold that the writ petitioners were denied their legal and fundamental rights for getting admission in the MBBS course though fulfilling all the eligibility criteria. 15. In the result, both the writ petitions stand allowed. In view of the guidelines given in the case of ASHA the State authorities are directed to admit the writ petitioners in MBBS in the current academic year (2013), subject to the condition that the writ petitioners shall pursue their MBBS course right from the beginning forfeiting their one year study in the BDS course. Since the academic Session of 2013 has commenced, the respondent Nos. 1 to 4 shall admit the writ petitioners in MBBS course as expeditiously as possible on or before 30.9.2013. 16. Since the academic Session of 2013 has commenced, the respondent Nos. 1 to 4 shall admit the writ petitioners in MBBS course as expeditiously as possible on or before 30.9.2013. 16. It is made clear that this judgment will not affect the admission of the private respondents in MBBS/BDS course being pursued by them. With the aforesaid directions and observations, the writ petitions stand allowed.