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2014 DIGILAW 393 (JK)

Azhan Aziz v. State Of J&K

2014-09-30

Hasnain Massodi

body2014
1. Facts are not in dispute. Petitioner responded to Advertisement Notice dated 15/04/2014 issued by Board of Professional Entrance Examination (hereinafter the "Board") under Scheduled Tribe Gujjar Bakerwal Category (STGB). He appeared in Common Entrance Test (CET) 2014 conducted by the Board and ranked at Serial No. 1104. He having regard to the comparative merit of all the candidates, who participated under the aforementioned Category, was due to get selected for MBBS Course in Government Medical College, Srinagar. 2. Shri Arshed Ali - respondent No. 4 herein, also, participated in selection process under STGB Category. He ranked at Serial No. 1824. He, because of lesser merit was not got selected for MBBS Course in Government Medical College, Srinagar. 3. Soon after result was declared, counseling schedule was published by the Board. Petitioner and respondent No. 4, in terms of Notification dated 30.06.2014, were to appear in counseling on 5th July 2014. Petitioner failed to appear for counseling on the specified date. Respondent No. 4, however, appeared for counseling on the date fixed and got selected for MBBS Course in Government Medical College, Srinagar as the petitioner did not attend counseling on the specified date, and MBBS Seat that would have gone to him, remained unfilled and was allotted to respondent No. 4. 4. Petitioner attended the Board Office on 7th July 2014, with a written application for permission to attend counseling. He was allowed to participate in counseling. However, he was allotted BDS Seat in Government Dental College, Srinagar. Had petitioner appeared in counseling on 5th July 2014, he would have been selected for MBBS Course in Government Medical College, Srinagar. As the MBBS Course for STGB Category was not available on 7th July 2014, and the seat had already been allotted to respondent No. 4, Petitioner was selected for BDS course in Government Dental College, Srinagar. 5. Petitioner aggrieved that he was arbitrarily deprived of his right to get selected for MBBS Course in Government Medical College, Srinagar, has come up with writ petition on hand. He on the strength of averments made in the writ petition, seeks a direction to respondent Board to grant him admission to MBBS Course in Government Medical College, Srinagar. 6. 5. Petitioner aggrieved that he was arbitrarily deprived of his right to get selected for MBBS Course in Government Medical College, Srinagar, has come up with writ petition on hand. He on the strength of averments made in the writ petition, seeks a direction to respondent Board to grant him admission to MBBS Course in Government Medical College, Srinagar. 6. Writ petition is opposed on the ground that the petitioner cannot lay claim to MBBS course in Government Medical College, Srinagar, as on the date he appeared for counseling, the slot was not available and could not have been allotted to the petitioner. It is pleaded that the ground urged by the petitioner to justify his failure to attend counseling on specified date is false, frivolous and devoid of any substance and an afterthought inasmuch as such ground does not find expression in application dated 7th July 2014, submitted by petitioner to the Board and the medical record in support of the ground does not inspire confidence. Respondents rely on the Information Brochure issued by the respondent Board for Common Entrance Test 2014, while pleading that petitioner's failure to attend counseling, deprived him of his right to get stream/ institution that would have come to him, but was filled up on the specified date. 7. Heard and considered. 8. Controversy involved warrants a closer look at relevant paras of Information Brochure. Attention in particular is to go to Para 13 (VI) of the Information Brochure. It reads: Where a candidate or his/her representative fails to appear for counseling on the specified date but intends to appear on next date of any date during subsequent notified counseling schedule, he/she will be allowed for such counseling after he/she furnishes satisfactory justification in writing for such a failure along with a Bank Draft of Rs. 1750/-(non-refundable) (Rs 1000/-for counseling and for 750 for failure to attend earlier counseling) drawn in favour of FA/CAO, BOPEE Srinagar/Jammu and he/she will be considered for the allotment of course/stream/institution available at that point of time on merit. Such candidate shall be required to furnish an undertaking to the effect that he/she voluntarily accepts the available stream/institution at the time of his/her turn of counseling. 9. Such candidate shall be required to furnish an undertaking to the effect that he/she voluntarily accepts the available stream/institution at the time of his/her turn of counseling. 9. A bare look at the above quoted para would reveal that once a candidate fails to appear for counseling on the specified date, he loses his right to get the stream/institution of his choice, that is available on the specified date, and would come to him, having regard to his merit position. However, he retains the right to participate in the counseling provided he satisfies the condition laid down in the above quoted para i.e. i) there was satisfactory justification for his failure to attend counseling on the specified date ii) he deposited fee of Rs 1750/- (non-refundable) with the Board. iii) he furnished an undertaking that he voluntarily accepts the available stream/ institution at the time he appears for counseling, but stream/institution given to him would be one available on the date he appears for counseling. 10. Petitioner, as already stated did not appear on the scheduled date and approached the respondent Board on 7th July 2014, with an application in writing for permission to appear for counseling. Petitioner recorded "unavoidable circumstance" as the reason for his failure to appear for counseling on the specified date. Be that as it may, he was allowed to appear in counseling and was recommended for BDS Course in Government Dental College, Srinagar. 11. Petitioner well aware of the contents of Information Brochure appeared in the Common Entrance Test 2014. He was aware that in the event, he failed to adhere to the guidelines, he would be visited with the consequences detailed therein. One of such guidelines required participation in counseling as per the notified schedule. Petitioner was also aware that in the event, he failed to appear on the specified date, though he may be allowed to appear in counseling on any other date, he may not get the stream/institution that would otherwise come his way. Petitioner, therefore cannot turn round and complain that the guidelines have operated harshly against him. 12. Petitioner cannot be heard saying that the guidelines are arbitrary, harsh and unreasonable and therefore in conflict with the mandate of Article 14 Constitution of India. In the first place, petitioner does not throw challenge to the guidelines and in particular Para 13 (VI) thereof. 12. Petitioner cannot be heard saying that the guidelines are arbitrary, harsh and unreasonable and therefore in conflict with the mandate of Article 14 Constitution of India. In the first place, petitioner does not throw challenge to the guidelines and in particular Para 13 (VI) thereof. He rather relies on the guidelines and does not seek quashment of the relevant guidelines on the ground of arbitrariness, unreasonableness or any other ground. Petitioner could have set up a case that the guideline embodied in Para 13(VI) of the Information Brochure was unreasonable, harsh and unfair and therefore violative of spirit and mandate of Article 14, Constitution of India and sought its quashment. It could be pleaded that the guideline in question was arbitrary inasmuch as even where a candidate had a valid justification for his absence on the date fixed, and having regard to such justification was permitted to appear in counseling, such candidate would be still deprived of the stream/institution to which he would be entitled on the strength of his merit. In absence of specific pleadings in this behalf, petitioner cannot be heard saying that guidelines are arbitrary, harsh and unreasonable, such plea is not available to petitioner. Petitioner instead of throwing challenge to the guidelines on the grounds available to him, relies on the guidelines and pays for relief on the strength of guidelines. 13. The above discussion apart the guidelines cannot be labeled as unfair, unreasonable and harsh and therefore in conflict with rule of law- a facet of equality clause enshrined in Article 14, Constitution of India. The guideline in question leaves scope for appearance of a representative on behalf of a candidate on the date fixed for counseling. In case a candidate because of indisposition or any other reason is not in a position to appear for counseling, he in terms of the guidelines would be well within his rights to appoint a representative and convey his preference as regards stream/institution through such representative. Had no such option been made available to a candidate asked to appear for counseling, it could be possibly pleaded that the guidelines was unfair and unreasonable 14. Reasonableness and fairness of rules, regulations, norms or guidelines is not to be considered in vacuum or in isolation. To determine whether rule, regulation, norm or guideline is fair and reasonable, we are to have due regard to context and surrounding/attending circumstances. 15. Reasonableness and fairness of rules, regulations, norms or guidelines is not to be considered in vacuum or in isolation. To determine whether rule, regulation, norm or guideline is fair and reasonable, we are to have due regard to context and surrounding/attending circumstances. 15. It needs no emphasis that discipline is of prime importance, in particular in admission to professional colleges. To prevent commercialization of education and to avoid mal-practices and indiscipline in admission to professional colleges, Hon'ble Supreme Court in Mridul Dhar v. Union of India [ 2005 (2) SCC 65 ] has laid down time schedule for completion of admission to MBBS first year and other such courses. The importance of time schedule has been emphasized in a number of reported cases thereafter. The requirement to follow such schedule is reiterated in Lipika Gupta & anr. v. U.O.I & Others. The court laid down schedule for completion of admission process in professional colleges by 30th September of the calendar year. The professional colleges in terms of the judgment are not only to adhere to the date of completion of admission process, but also follow the calendar laid down in Mridul Dhar case and cases following the aforesaid case. It has been emphasized more than once that disregard of the calendar laid down, would warrant contempt proceedings against the erring officers. In 19th May 2014, order in Lipika Gupta & anr. v. U.O.I & Ors. Hon'ble Supreme Court while making it clear that the time schedule was to be followed in letter and spirit, observed: "We approve the said schedule and direct that all the authorities shall follow the said schedule for the academic year 2014-2015 without any deviation, and we make it clear that any deviation by any agency will tantamount to contempt of this court." 16. Having regard to the time schedule laid down by the Hon'ble Supreme Court for admission to first MBBS Course in Mridul Dhar case and thereafter, the Board has no option but to lay down a calendar for completion of admission process from the date of initial notification to the commencement of the academic session and strictly act upon the calendar, lest it is visited with penal consequences. In view of the sanctity attached to the "time schedule", the guideline embodied in Para 13 (VI) of Information Brochure is fair and reasonable. 17. In view of the sanctity attached to the "time schedule", the guideline embodied in Para 13 (VI) of Information Brochure is fair and reasonable. 17. In Somashekhar Ashok Guravannavar (Dr.) v. Directorate General of Health Services and Ors. [2008 (5) MH LJ] in an almost identical circumstances, an aspirant for Post Graduate Course in Medicine in All India Institute of Medical Sciences was declined seat as per his merit because of his failure to appear for counseling on the specified date. Aggrieved with the decision taken by the authorities, he invoked jurisdiction of the court under Article 226 Constitution of India pleading that rule 11(i)(c) was unreasonable, irrational, unfair and ultra vires of Article 14, Constitution of India. It was pleaded that merely because a candidate is absent due to mishappening or some emergency or error in Judgment, he must not be disqualified and not allowed participation in second round of counseling. The court rejected the plea observing: "Aggrieved by this action of the respondents, the petitioner has filed the present writ petition. It is primarily pleaded and it is the case of the petitioner that his disqualification under Rule 11(i)(c) is ultra vires under Article 14 of the Constitution of India and is unscientific, irrational and unfair. Merely because the candidate is absent due to mishappening or some emergency or error in judgment, his disqualification and not being permitted for participation in second round counseling is a question of serious consequence. It is an accepted principle of law that merit is the prime criteria in admission to post graduate courses. The admission process to these courses are to be regulated strictly in accordance with the terms and conditions of the Brochure which has been declared by the Authorities concerned. A prospectus or Brochure which has been notified and published by the Authorities concerned i.e. the Government Authorities conducting counseling and examination is binding on both, i.e. the Authorities as well as the candidates. It has been repeatedly held by the courts that any variation of the terms and conditions of the Brochure is not permissible. It is solemn document which should be adhered to strictly without any variation. "6. It has been repeatedly held by the courts that any variation of the terms and conditions of the Brochure is not permissible. It is solemn document which should be adhered to strictly without any variation. "6. In the Rank letter issued to the petitioner his Category Rank Number as well as overall Rank Number had been clearly stated and that too in bold letters, it was printed on the card that the counseling would be held as per the Category Rank number. The revised schedule published by the Authorities concerned clearly stated category rank number and the date of petitioner's counseling. There is nothing unreasonable or irrational in the clause so as to render it ultra vires of the Constitutional mandate. These clauses have been in force and implemented by the Authorities for a number of years now. This practice itself has attained certainty, fairness and has been equally applied to the mentioned classes. Thus, the practice by itself gives genuineness to the clause and its implementation can hardly be faulted with. 18. Plea taken in opposition to the writ petition that petitioner's claim of indisposition on the date fixed for counseling was concocted and medical record created afterwards, loses its significance in the facts and the circumstances of the case. Once Board accepted petitioner's application and allowed him to participate in counseling on 7th July 2014, it has to be presumed that Board was satisfied with the explanation tendered by the petitioner. The Board and furthermore private respondent cannot therefore plead that petitioner's absence on the specified date was without any justification. However, no justification, in terms of guidelines in question, would entitle petitioner to the stream/ institution that was available to him on 5th July 2014. He is to feel contended with stream/institution available on 7th July 2014, i.e. the date he was allowed to participate in counseling and allotted to him. It is therefore not necessary to dilate on this aspect of case. 19. For the reasons discussed, I do not find any merit in the petition. Petition is accordingly dismissed.