Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 207 (GAU)

Sabbir Alam v. State of Assam

2014-02-18

TINLIANTHANG VAIPHEI

body2014
JUDGMENT Tinlianthang Vaiphei, J. 1. In this writ petition, the petitioner is seeking the intervention of this Court for directing the respondent authorities to admit him against one of the vacant seats of the first year course of BAMS for the session 2013-14 in the Government Ayurvedic College, Guwahati. The facts, which are material for disposal of this writ petition are not in dispute. The petitioner belongs to an unreserved (general) category and, having obtained more than 82% marks in Physics, Chemistry and Biology (PCB) in the All India' Senior School Certificate Examination, 2012, applied for admission to BAMS course for the session 2013-14 at the Government Ayurvedic College, Guwahati. He was invited for counseling for the course and did appear in the counseling. However, contrary to his expectation, he was not offered the seat which he claims to be entitled to considering his performance and the marks obtained by him in the examination. He sought for and obtained the requisite information through the letter dated 7.1.14 from the State Public information Officer of the College (Annexure-8 to the writ petition). This letter reveals that the name of the petitioner found a place in the 4th position of the candidates in that waiting list, that the candidates in Serial No. 1 and 2 in the waiting list, who were shown to have scored 85% and 84.66% respectively, were subsequently admitted to the course and that the candidate in Serial 3 and the petitioner, who are shown to have scored 84.66 and 84.66 respectively in Physics, Chemistry and Biology were remarked as not admitted. The information further reveals that there are 2 more vacant seats available for the course. It is contended by the petitioner that he, whose name finds a place at Serial No. 2 (after the candidates in the first and second position were admitted to the course) in the waiting has the legitimate right to be admitted to the course against one of the vacant seats. The petitioner, therefore, submits that the respondent authorities in not admitting him to the course have acted illegally and arbitrarily. This is how he filed this writ petition. 2. Though no affidavit-in-opposition is filed by the respondents, they argued their case through Mr. D. Saikia, the learned Additional Advocate General, whose submission is simple. The petitioner, therefore, submits that the respondent authorities in not admitting him to the course have acted illegally and arbitrarily. This is how he filed this writ petition. 2. Though no affidavit-in-opposition is filed by the respondents, they argued their case through Mr. D. Saikia, the learned Additional Advocate General, whose submission is simple. According to him, the academic session for the year 2013-14 has already started on 1.12.2013 and the petitioner has missed the bus and cannot be accommodated at this belated stage. Drawing my attention to the instructions contained in the letter dated 25.10.2013 issued by the Central Council of Indian Medicine under the Ministry of Health & Family Welfare addressed to all concerned colleges, universities and State Governments, the learned AAG submits that when the cutoff date for admission to this course for the academic session of 2013-14 was already extended to 30.11.2013 as a one time measure, the respondents cannot possibly allow mid-session admission to the petitioner: to do so would be tantamount to violation of the instructions of the competent authority and the decision of the Apex Court in Medical Council of India v. Madhu Singh, (2002) 7 SCC 258 . Contending that the writ petition is bereft of merit, the learned AAG submits that the writ petition is liable to be dismissed. 3. The submission of Mr. A.M. Buzabaruah, the learned counsel for the petitioner is simple. He contends that the respondent authorities do not dispute that there are two vacancies to accommodate the petitioner; that the petitioner is in the 4th position of waiting list; that no fault is attributable to the petitioner in respect of the admission and that the respondent authorities did not have any reason to deny admission to the petitioner. The learned counsel refutes the contention of the learned AAG that it is now too late in the day to allow mid-session admission inasmuch such mid-session would entail extra-classes/tutorial and would even be harmful to the physical and mental health of the petitioner for undertaking enormous extra labour to make up the loss of time and submits that admission to the academic session which only started in the month of December, 2013 cannot by any stretch of imagination be construed to be mid-session admission. On the contrary, he maintains, denying admission to the petitioner on such flimsy ground will rather have disastrous consequence for his future career, and the respondents are discouraging instead of encouraging meritorious students by taking such dubious stance. He relies on the decisions of the Apex Court in Asha v. PT. B.D. Sharma University of Health Sciences, (2012) 7 SCC 389 and Mridul Dhar & Anr. v. U.O.I. & Ors., (2005) 2 SCC 65 , to fortify his contentions. 4. Having given my anxious consideration to the rival submissions advanced on behalf of the rival parties, I am of the firm view that this writ petition shall have to be allowed. This is not a case in which it can be argued that the petitioner is not a meritorious candidate, nor can it be said that his name finds a place in the 4th position of the waiting list, and two of the candidates in the first and second position of the waiting list have been admitted to the course. It is also not in dispute that that there are two more vacant seats for the BAMS course till now, nor is there any dispute that no fault can be attributed to the petitioner for denial of the admission to the course. It may be noted that the petitioner has approached this Court without any delay to redress his grievance. In so far as the argument of non-admission at the mid-session stage is concerned also, I have no hesitation to hold that mid-session period has not started today when the academic session got commenced in the month of December, 2013. The term "mid-session", in my opinion, can, in the context, only mean the middle of the session. In other words, when hardly two and half months have passed, the petitioner cannot be denied of the admission on the sole ground that it is now in mid-session. It will be somewhat arbitrary or irrational to deny admission to a meritorious candidate like the petitioner by insisting that the cut-off date has passed. In any case it will be a criminal wastage of time and public money to keep the vacant seat remain unfilled up when it is a notorious fact that there is scramble for professional course and there is enormous shortage of professionals in Health Sciences. In any case it will be a criminal wastage of time and public money to keep the vacant seat remain unfilled up when it is a notorious fact that there is scramble for professional course and there is enormous shortage of professionals in Health Sciences. As for the admissibility of mid-session admission to the course, the following observations of the Apex Court from paragraphs 29 to 32 of the judgment in Asha case (supra) will adequately answer the contentions of the learned AAG: 29. However, the question that immediately follows is whether any mid-term admission can be granted after 30th September of the academic year concerned, that being the last date for admission. The respondents before us have argued with some vehemence that it will amount to a mid-term admission which is impermissible, will result in indiscipline and wilt cause prejudice to other candidates. Reliance has been placed upon the judgments of this Court in Medical Council of India v. Madhu Singh reported in (2002) 7 SCC 258 , Neelu Arora v. Union of India reported in (2003) 3 SCC 366 , Aman Deep Jaiswal v. State of Punjab reported in (2006) 9 SCC 597 : 2006 SCC (L&S) 1893, Medical Council of India v. Naina Verma reported in (2005) 12 SCC 626 and Mridul Dhar v. Union of India reported in (2005) 2 SCC 65 . 30. There is no doubt that 30th September is the cut-off date. The authorities cannot grant admission beyond the cut-off date which is specifically postulated. But where no fault is attributable to a candidate and she is denied admission for arbitrary reasons, should the cutoff date be permitted to operate as a bar to admission to such students particularly when it would result in complete ruining of the professional career of a meritorious candidate, is the question we have to answer. 31. Having recorded that the appellant is not at fault and she pursued her rights and remedies as expeditiously as possible, we are of the considered view that the cut-off date cannot be used as an instrument or tool to deny admission to meritorious students. The rule of merit stands completely defeated in the facts of the present case. The appellant was placed higher in the merit list. It cannot be disputed that candidates having merit much lower to her have already been given admission in the MBBS course. The rule of merit stands completely defeated in the facts of the present case. The appellant was placed higher in the merit list. It cannot be disputed that candidates having merit much lower to her have already been given admission in the MBBS course. The appellant had attained 832 marks while the students who had attained 821, 792, 752, 740 and 731 marks have already been given admission in the ESM category in the MBBS course. It is not only unfortunate but apparently unfair that the appellant be denied admission. 32. Though there can be the rarest of rare cases or exceptional circumstances where the courts may have to mould the relief and make exception to the cut-off date of 30th September, but in those cases, the Court must first return a finding that no fault is attributable to the candidate, the candidate has pursued here rights and legal remedies expeditiously without any delay and that there is fault on the part of the authorities and apparent breach of some rules, regulations and principles in the process of selection and grant of admission. Where denial of admission violates the right to equity and equal treatment of the candidate, it would be completely unjust and unfair to deny such exceptional relief to the candidate. (Refer Arti Sapru v. State of J&K : (1981) 2 SCC 482 : 1981 SCC (L&S) 398, Chavi Mehrotra v. DG, Health Services : (1994) 2 SCC 370 and Arvind Kumar Kankane v. State of U.P.: (2001) 8 SCC 355 ) 33. We must hasten to add at this stage that even if these conditions are satisfied, still, the court would be called upon to decide whether the relief should or should not be granted and, if granted, should it be with or without compensation. For the aforesaid reasons, this writ petition succeeds. The respondent authorities are, therefore, directed to admit the petitioner to the first year course of BAMS for 2013-2014 session at the Government Ayurvedic College, Guwahati without further delay and positively within one week from the date of receipt of this order. His admission is, however, subject to the condition that he must pursue the BAMS course right from the beginning and to the other conditions prescribed by law. There shall, however, be no order as to costs.