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2013 DIGILAW 770 (JK)

Sunandani Sharma v. State

2013-12-30

DHIRAJ SINGH THAKUR

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1. Since common questions of law and facts are involved in all the three petitions, they shall be dealt with and disposed of by virtue of a common judgment. 2. The Board of Professional Entrance Examination conducted a common entrance test in the year 2012 for different professional courses. In this regard notification dated 26-4-2012 was issued. 3. Sunandani Sharma, petitioner in OWP No. 1454/2012, secured 155 marks and was ranked at Sr. No. 361 in the over-all merit list. She submitted the following preferences for admission to various courses: 1st preference: MBBS (free seat) in Govt. Medical College, Jammu. 2nd preference: BDS (free seat) in Govt. Dental College, Jammu. 3rd preference: BV.Sc (free seat) and 4th preference: BAMS (payment seat). 4. Eshmeet Sudan, petition in OWP No. 1436/2012, secured 154 marks and was ranked at Sr. No. 389 of the over-all merit list while, Tanzeela Aijaz, petitioner in OWP No. 1475/2012, secured 135 points and was ranked at Sr. No. 1198 of the merit list. 5. During the first round of counseling, which was held from 19th of July, 2012 to 25th of July, 2012, result whereof was notified by notification No. 40-BOPEE of 2012 dated 26-7-2012, the petitioner, Sunandani Sharma, was allotted Bachelor of Ayurveda Medicines and Surgery (BAMS) discipline in the payment category in the Jammu Institute of Ayurveda and Research, Nardani Raipur, Jammu. Eshmeet Sudan, petitioner in OWP No. 1436/2012. figured at Sr. No. 6 in the discipline of BDS payment category and was allotted institute of Dental Sciences Charitable Trust Sehora, Jammu. Tanzeela Aijaz, petitioner in OWP No. 1475/2012, was however, granted admission under the management quota seat in BDS course in the Institute of Dental Sciences Charitable Trust, Sehora, Jammu. 6.The genesis of the problem in these writ petitions was the fact that the Board of Professional Entrance Examination (BOPEE), ignoring the merit-cum-choice of the petitioner, Sunandani Sharma, issued a notification dated 29th of September, 2012 after the third round of counseling upgrading Eshmeet Sudan from the BDS payment category to BDS free seat in Govt. Dental College, Jammu. Consequently, Tanzeela Aijaz, who had taken admission in the BDS management quota seat, was upgraded to BDS (payment seat), which attracted lesser fee than the management quota seat. 7. Dental College, Jammu. Consequently, Tanzeela Aijaz, who had taken admission in the BDS management quota seat, was upgraded to BDS (payment seat), which attracted lesser fee than the management quota seat. 7. Having been ignored, the petitioner, Sunandani Sharma, appears to have made representations before the BOPEE, who upon realizing their mistake in ignoring the petitioner for allotment against the BDS (free seat), subsequently, issued a corrigendum dated 5-10-2012 whereby the admission granted to Eshmeet Sudan by order dated 29th of September, 2012 and Tanzeela Aijaz by virtue of the same order was cancelled. 8. All the three candidates have filed the petitions, challenging the corrigendum dated 5th of October, 2012. This court by virtue of order dated 9th of October, 2012 passed in OWP No. 1436/2012 in Eshmeet Sudan's case, stayed the impugned corrigendum till the next date before the bench. 9. The aforesaid corrigendum was also stayed in the case of Tanzeela Aijaz in OWP No. 1475/2012 by virtue of order dated 19th of October, 2012. The stay was to operate till the next date. 10. The petitioner, Sunandani Sharma in her petition claims to be the rightful claimant for the free seat in the BDS course in Govt. Dental College, Jammu on account of the higher merit than the other candidate Eshmeet Sudan, it is alleged that the said seat was never offered to the petitioner despite the fact that she had opted for the same. 11. Objections have been filed on behalf of the BOPEE, denying the allegations of arbitrariness and malafides. It is stated that on 28th of September, 2012, the BOPEE received a fax from Principal Govt. Medical College, Jammu, stating therein that one female MBBS student belonging to the open category had withdrawn her admission. It is asserted that keeping in view the short period of time from 28th till 30th of September, 2012, which was the cut-off date, various eligible candidates with higher merit were contacted on their cell phone addresses available in their counseling choice forms and on account of the short period available, a mistake occurred inadvertently by upgrading a candidate i.e., Eshmeet Sudan with lower merit. 12. The BOPEE while realizing their mistake, consequently, rectified the same by issuance of the corrigendum dated 5th of October, 2012. 12. The BOPEE while realizing their mistake, consequently, rectified the same by issuance of the corrigendum dated 5th of October, 2012. This was done on account of the fact that Sunandani Sharma had higher merit than Eshmeet Sudan as also the fact that the choice given by her had been ignored, It is also admitted by the BOPEE that the petitioner had attended the second round of counseling but was not admitted due to non-availability of seats in BDS, Govt. Medical College, Jammu. It is further admitted that the petitioner Sunandani Sharma had preferred no change in her allotted streams/institutions at that point of time. 13. Petitioner, Eshmeet Sudan, challenges the corrigendum on the ground that the upgradation was possible only in the event when the candidate eligible to be upgraded/relocated in a discipline/institution fails to join the same upon which it automatically gets cancelled and the seat, in those circumstances, was rightly allotted to the petitioner, Eshmeet Sudan in accordance with the merit and choice given by her during the course of counseling. Another ground taken is that 30th of September, 2012 being the cut-off date, no new admissions could be made nor any upgradation effected, the issuance of corrigendum was an exercise in futility as the petitioner would not get any benefit of free seat in the discipline of BDS, depriving the petitioner, Eshmeet Sudan from the benefit of the order dated 29th of September, 2012. 14. The petitioner, Tanzeela Aijaz in OWP No. 1475/2012 highlighted issues similar to those raised by Eshmeet Sudan. 15. Heard learned counsel for the parties. 16. Admittedly, the petitioner, Sunandani Sharma, was more meritorious than Eshmeet Sudan. BOPEE has clearly admitted in its reply affidavit that the petitioner, Sunandani Sharma, could not be upgraded to a free seat in the Dental College, Jammu on account of the fact that there was very less time available with it and also admitted the mistake committed by it in ignoring the petitioner, Sunandani Sharma, leading to the issuance of a Corrigendum dated 5th of October, 2012. 17. 17. While it is true that the Corrigendum was issued on 5th of October, 2012 after the cut-off date beyond which no admissions could be made in the light of various judgments of the Apex Court starting from Mridul Dhar & Anr v. UOI & ors, (2005) 2 SCC 65 yet in AIR 2012 SC 3396 , the Apex Court clearly carved out an exception to 30th of September being the cut-off date if a candidate had been denied admission arbitrarily or in violation of rules. Relief in such cases could be moulded appropriately by making an exception to the cut-off date. The only requirement with the court while moulding such a relief is to record a finding that (i) the candidate was not at fault, (ii) that he was diligent in pursuing his legal remedies and (iii) that the fault was of the authorities resulting in breach of some rules, regulations and principles governing admissions. 18. The apex court in the judgment (supra) envisaged compensation to be paid to the student while directing that the erring officers should be proceeded against departmentally as also under contempt of courts act. 19. In the same judgment, the Apex Court clearly held that the students wrongly admitted could not be allowed to continue the course on the ground that they had put in a year or so in the said course. The conclusions drawn by the Apex Court in the judgment (supra) can beneficially be reproduced as under: a) The rule of merit for preference of courses and colleges admits no exception. It is an absolute rule and all stakeholders and concerned authorities are required to follow this rule strictly and without demur. b) 30th September is undoubtedly the last date by which the admitted students should report to their respective colleges without fail. In the normal course, the admissions must close by holding of second counseling by 15th September of the relevant academic year [in terms of the decision of this Court in Priya Gupta (supra)]. Thereafter, only in very rare and exceptional cases of unequivocal discrimination or arbitrariness or pressing emergency, admission may be permissible but such power may preferably be exercised by the courts. Thereafter, only in very rare and exceptional cases of unequivocal discrimination or arbitrariness or pressing emergency, admission may be permissible but such power may preferably be exercised by the courts. Further, it will be in the rarest of rare cases and where the ends of justice would be subverted or the process of law would stand frustrated that the courts would exercise their extraordinary jurisdiction of admitting candidates to the courses after the deadline of 30th September of the current academic year. This, however, can only be done if the conditions stated by this court in the case of Priya Gupta (supra) and this judgment are found to be unexceptionally satisfied and the reasons therefore are recorded by the court of competent jurisdiction. c) & d) Wherever the court finds that action of the authorities has been arbitrary, contrary to the judgments of this Court and violative of the Rules, regulations and conditions of the prospectus, causing prejudice to the rights of the students, the Court shall award compensation to such students as well as direct initiation or disciplinary action against the erring officers/officials. The Court also ensures that the proceedings under the Contempt of Courts Act, 1971 are initiated against the erring authorities irrespective of their stature and empowerment. Where the admissions given by the concerned authorities are found by the courts to be legally unsustainable and where there is no reason to permit the students to continue with the course, the mere fact that such students have put in a year or so into the academic course is not only by itself a ground to permit them to continue with the course." 20. Learned counsel for the petitioner, Sunandani Sharma, urged that she had absolutely no aptitude for undertaking BAMS, which was her last preference. He urged that her life's ambition was to become a doctor and pursue the MBBS course while BDS was the second preference. He submitted that on account of the arbitrary action of the BOPEE, the petitioner was forced to undertake a course in which-she had no interest and was also forced to pay fee in the payment category which is approximately Rs. l,39,000/- per year for a course which is to run over four years. He submitted that on account of the arbitrary action of the BOPEE, the petitioner was forced to undertake a course in which-she had no interest and was also forced to pay fee in the payment category which is approximately Rs. l,39,000/- per year for a course which is to run over four years. He submitted that the petitioner is a daughter of the police constable with little means and the requirement of said payment was affecting the financial health of the family. On the other hand, learned counsel for the petitioner urged that Eshmeet Sudan had obtained admission in the payment category and by virtue of order dated 29th of September, 2012, she has been shifted from payment category seat to free Seat in Govt. Dental College, Jammu. In case, the petitioner Sunandani Sharma, were to be admitted in the BDS course, it would only have the effect of shifting Eshmeet Sudan from free seat in the Dental College, Jammu to the payment category seat in the institute of Dental Sciences Charitable Trust Sehora while as Tanzeela Aijaz would go from the payment category seat to the management quota seat to which she had earlier sought admission. 21. Keeping in view the ratio of the judgment (supra) and looking to the fact that Sunandani Sharma petitioner in OWP No. 1454/2012 was not at fault and the fault had been admitted by the selection authority, the BOPEE, leading to the issuance of the corrigendum dated 5th of October, 2012 and keeping in view the fact that immediately after noticing the fact that she had been ignored and Eshmeet Sudan has been granted the benefit of free seat, the petitioner made representations and subsequently and immediately thereafter filed the petition before this court on 15th of October, 2012 to seek her legal remedies, the case of the petitioner falls within the parameters set out by the Apex Court in moulding the relief in favour of the petitioner Sunandani Sharma notwithstanding the expiry of the cut-off date of 30th of September, 2012. The petition bearing OWP No. 1454/2012 stands allowed and the petitioner is, therefore, held entitled to admission in the free seat in the Govt. Dental College, Jammu in the BDS Course in place of Eshmeet Sudan in the current academic session. The petition bearing OWP No. 1454/2012 stands allowed and the petitioner is, therefore, held entitled to admission in the free seat in the Govt. Dental College, Jammu in the BDS Course in place of Eshmeet Sudan in the current academic session. The petitioner Sunandani Sharma is also held entitled to receive compensation from BOPEE under the three heads: A) To the extent of fee paid by her during the period she undertook the BAMS in the payment category, details whereof shall be submitted by the petitioner duly certified by the College concerned in which she was undergoing the course; B) She is held entitled to receive compensation for an amount of Rs. 2,00,000/- on account of the fact that she was denied an opportunity to undergo the BDS course and obtain a degree in time, which got delayed by at least a period of two years, depriving the petitioner to settle down and earn her livelihood earlier in point of time. C) The petitioner is also held entitled to Rs. 10,000/- on account of litigation expenses. 22. This compensation would also take care of her mental agony and harassment suffered at the hands of BOPEE because of whom the course of destiny of the petitioner was sought to be changed. 23. Insofar as the petitions filed by Eshmeet Sudan and Tanzeela Aijaz are concerned, challenging the corrigendum dated 5th of October, 2012, the same are found to be without merit in view of the discussion (supra). The fact that they have undergone the courses in the said categories is inconsequential as they took a chance in the litigation initiated at their behest. Consequently, the petitions filed by the petitioners Eshmeet Sudan and Tanzeela Aijaz are found to be without merit and are accordingly dismissed along with connected interim application (s). 24. The admission to the BDS course in place of Eshmeet Sudan shall be granted to the petitioner within one week from the date of this judgment.