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2015 DIGILAW 159 (ORI)

Kedarnath Nayak v. State of Odisha

2015-03-04

B.N.MAHAPATRA, I.MAHANTY

body2015
JUDGMENT : B. N. Mahapatra, J. Essentially in both the writ petitions, relief sought for by the petitioners is for a direction to opposite parties to allow the petitioners to take admission into MCH (Neurosurgery) Course for the academic year 2014-15. 2. The case of the petitioner in W.P. (C) No.21625 of 2014 is that the petitioner is prosecuting his studies as MCH student in the Department of Pediatric Surgery in S.C.B. Medical College and Hospital, Cuttack. On the date of counseling on 27.09.2014, though a seat in the subject of MCH Neurosurgery was allotted to the petitioner under the direct category considering his rank in the select list published by the Convenor, P.G. Medical Course, without assigning any reason, the counseling was cancelled and rescheduled to 29.09.2014. Further, even though the said seat in Neurosurgery was available to be filled up on 27.09.2014, but in the seat matrix published on 28.09.2014, it was not reflected as a result of which the petitioner was forced to take admission in Pediatric Surgery in the direct category under protest. 3. Petitioner’s case in W.P. (C) No.22069 of 2014 is that in the prospectus for admission to Super specialty (DM/MCH) course at S.C.B. Medical College, Cuttack 2014-15, it was clearly stated that the counseling shall also be done for the seats of DM and MCH courses which will be available subsequently upon receipt of letter of permission from Government of India or appropriate authority for the year 2014-15. In the prospectus, total two numbers of seats in MCH (Neurosurgery) are shown to be available out of which one is for direct candidate like the petitioner. The Prospectus also further spells out the contingency that the above seat matrix is provisional and subject to change. The petitioner appeared in the said entrance examination as a direct candidate and as per the provisional merit list result published by the Selection Committee on 21.06.2014 his ID was reflected against Sl. No.4. Though the petitioner was interested in Neurosurgery, but he could not get the same and alternatively took admission in Plastic and Reconstructive Surgery in S.C.B. Medical College and Hospital, Cuttack. 4. Mr. No.4. Though the petitioner was interested in Neurosurgery, but he could not get the same and alternatively took admission in Plastic and Reconstructive Surgery in S.C.B. Medical College and Hospital, Cuttack. 4. Mr. S.D. Routray, learned counsel for the petitioner in W.P.(C) No.21625 of 2014 submitted that for taking admission to Super specialty courses at S.C.B. Medical College, Cuttack for the year 2014-15 in different subjects including the Neurosurgery course both under direct and in-service category, a prospectus was published by the Government of Odisha vide G.O. No.9801 dated 10.04.2014. The said Prospectus reveals that in respect of the seats of Neurosurgery 2 seats are available to be filled up under direct and in-service category. The petitioner is a direct category candidate as defined under Clause-3 of the Prospectus. Since the petitioner fulfilled the eligibility criteria, he was allowed to make online registration from 02.05.2014 to 08.05.2014. The petitioner appeared in the entrance examination on 28.05.2014. On 21.06.2014, the result of such entrance examination held on 28.05.2014 in respect of Super specialty subjects was published by the opposite party No.3-Convenor. In the provisional merit list, the petitioner ranked 9 as against Sl. No.9. On 12.09.2014, another notice was floated by the Convenor for conducting spot round counseling on 27.09.2014 in the Department of Physiology, SCB Medical College, Cuttack; so far as availability of seats are concerned, it was reflected in the notice that one seat in Cardiology (in-service) and one set in Pediatric Surgery (direct) is available to be filled up in the final round of counseling. It was further submitted that since one seat of MCH Neurosurgery was available to be filled up on 27.09.2014, the petitioner was allotted with the said seat on the aforesaid date and accordingly an allotment letter was issued by the Convenor, DM/MCH Selection Committee, 2014 in respect of the petitioner. Thereafter, the notice was published in the website by the Convenor on 27.09.2014 rescheduling the date of spot counseling to 29.09.2014 pursuant to the decision of the Selection Committee that the Super specialty courses held on 27.09.2014 was cancelled. It was submitted that such cancellation was without assigning any reason of cancellation. Mr. Thereafter, the notice was published in the website by the Convenor on 27.09.2014 rescheduling the date of spot counseling to 29.09.2014 pursuant to the decision of the Selection Committee that the Super specialty courses held on 27.09.2014 was cancelled. It was submitted that such cancellation was without assigning any reason of cancellation. Mr. Routray submitted that though under Clause-9.1 of the Prospectus, it has been categorically provided that admission will be made by showing the allotment letter in the College and in respect of the petitioner an allotment letter was issued on 27.09.2014 enabling him to take admission in the discipline of MCH, Neurosurgery, but he was not allowed to take admission on 27.09.2014 for the reasons best known to the authorities. On 29.09.2014, when the petitioner appeared in spot counseling, except the MCH seats in respect of Pediatric Surgery under direct category no other seat was offered to him in which the petitioner could take admission. The P.G. Committee of MCI in its meeting held on 26.08.2014 has already granted recognition in respect of the increased intake capacity of the SCB Medical College in respect of the seats of MCH Neurosurgery from 2 to 3. Seat of MCH Neurosurgery under the direct category was very much available to be filled up on 27.09.2014, but for some extraneous consideration, the petitioner was not given admission on the said date. It is further submitted that to accommodate some other candidate against the said MCH Neurosurgery seat spot counseling scheduled to be held on 27.09.2014 was cancelled. Mr. Routray further submitted that in the guidelines reflected in the notice dated 28.09.2014, it was categorically mentioned that if any more seats become available by the time of counseling, it would be included in the counseling process and as per the recognition granted by the P.G Committee of MCI, one extra seat of MCH (Neurosurgery) was very much available to be filled up on 29.09.2014. The MCI being the apex body regulating the admission to various disciplines of super specialized subjects all over India granted recognition through its PG Committee for increase in one number of set in the discipline of MCH Neurosurgery considering the infrastructure made available at SCB Medical College. The MCI being the apex body regulating the admission to various disciplines of super specialized subjects all over India granted recognition through its PG Committee for increase in one number of set in the discipline of MCH Neurosurgery considering the infrastructure made available at SCB Medical College. But in clear disregard to such decision of the PG Committee of MCI, the opposite parties, more particularly opposite party No.3 did not take any steps to fill up such seats of MCH Neurosurgery as a result of which the institution is going to lose such a valuable super specialty seat. Since the academic session in respect of the MCH course has just begun and the petitioner has taken admission into the super specialty course there will be no difficulty on the part of the opposite parties, if the petitioner is allowed to change his subject from Pediatric surgery to MCH Neurosurgery which was allotted to him on 27.09.2014. The opposite parties will not be prejudiced as there are number of candidates who are interested to take admission in the discipline of MCH Pediatric Surgery, if such a seat falls vacant. The change of subject from the discipline of MCH Pediatric to MCH Neurosurgery does not violate MCI Rules and Regulations. In support of his contention, Mr. Routray placed reliance on the judgment of the Delhi High Court in LPA No.763 of 2012 (Manoj Kumar Dhaka Vs. Union of India and others) decided on 26th November, 2012. 5. In W.P.(C) No.22069 of 2014, Mr. U.C. Pattnaik, learned counsel for the petitioner submitted that so far MCH Neurosurgery seat is concerned, initially there were 3 approved seats. However, in the year 2013, the MCI did not extend seat approval for the third one, as a result of which at the time of initiation of the process of admission, the available seats as reflected in the prospectus was 2. Subsequently, the MCI after deliberation increased the intake capacity from 2 to 3 in respect of MCH Neurosurgery. Although by the time MCI approved the increase intake capacity in respect of MCH Neurosurgery, the process of admission was still on, yet opposite party No.1 failed to add the increased intake in respect of MCH Neurosurgery in the seat matrix as a result of which the petitioner though eligible could not filled up his choice during choice locking stage. Although by the time MCI approved the increase intake capacity in respect of MCH Neurosurgery, the process of admission was still on, yet opposite party No.1 failed to add the increased intake in respect of MCH Neurosurgery in the seat matrix as a result of which the petitioner though eligible could not filled up his choice during choice locking stage. As per Section-10 of the Indian Medical Council Act, 1956, the MCI is the competent authority to pass necessary directive in the matter of increasing admission capacity in any course and in exercise of such power, the MCI has increased the intake capacity in respect of MCH Neurosurgery course for the year 2014-15 from 2 to 3 seats. The responsibility of opposite party No.1 is simply to give effect to such increase intake capacity in the admission portal facilitating admission in the said course. Opposite party No.1 considering the fact that there may be a revision in the intake capacity has clearly mentioned in the prospectus that the seat matrix shown are provisional in nature and may vary upon receipt of the letter of permission from Government of India or appropriate authority and in fact the opposite party No.3 being the appropriate authority has enhanced the intake capacity in respect of MCH Neurosurgery from 2 to 3 seats. The provisional intake capacity mentioned in the prospectus stands automatically enhanced and only admission for the enhanced seat is to be carried out, but unfortunately, opposite party No.1 has not included the enhanced seat in the seat matrix as a result of which the petitioner is deprived of being admitted in the subject of his choice. Placing reliance on the judgment of the Hon’ble Supreme Court in Asha Vs. Pt. B.D. Sharma University of Health Sciences and others, AIR 2012 SC 3396 , it is submitted that since no fault lies on the part of the candidate, the petitioner is entitled to relief of admission to the course of MCH Neurosurgery even after the cut off date fixed for admission. 6. Mr. Pt. B.D. Sharma University of Health Sciences and others, AIR 2012 SC 3396 , it is submitted that since no fault lies on the part of the candidate, the petitioner is entitled to relief of admission to the course of MCH Neurosurgery even after the cut off date fixed for admission. 6. Mr. R.C. Mohanty, learned counsel appearing for opposite parties 2 and 3 submitted that the Medical Council of India had permitted to increase the seats in respect of MCH Neurosurgery from 2 to 3 seats for the academic year 2010-11 for which the final recognition inspection was conducted on 17.06.2014, i.e., after publication of the prospectus, but no communication to the effect of LOR was received till the notification for third round spot counseling, i.e., 12.09.2014 and third seat in respect of MCH Neurosurgery was not notified. After first and second round of online counseling, two seats one each in DM Cardiology and MCH Pediatric Surgery remained vacant for which it was decided by the Committee to hold the third round of spot counseling on 27.09.2014 for the above two vacant seats. Before counseling, on discussion with the Dean and Principal, SCB Medical College, Cuttack, it was ascertained that the MCI during final compliance inspection on 17.06.2014, could not find any deficiency and the website of MCI is still showing the seat to be permitted and hence it was decided that the seat may be included during spot counseling to avoid lapse of the seat. According to notice, the spot counseling was started at 11.00 AM. After taking the attendance, it was announced that the seat in respect of MCH Neurosurgery will be included for counseling. During counseling, the candidate at rank 9 in respect of DM in-service category, Dr. Umesh Chandra Jena was allotted and Dr. Kedarnath Nayak at rank 9 of direct category was allotted MCH Neurosurgery seat and allotment letters were issued. One seat in Pediatric Surgery remained vacant as no candidates were available. At 12.05 Pm, the candidate at rank 4, Dr. Rajes Gantayat of MCH in-service candidate, who was absent in the counseling at 11.00 AM, complained that he could not know about the MCH Neurosurgery seat, and hence did not report for counseling at 11.00 AM and made an agitation with friends. He also questioned regarding the status of the seat. At 12.05 Pm, the candidate at rank 4, Dr. Rajes Gantayat of MCH in-service candidate, who was absent in the counseling at 11.00 AM, complained that he could not know about the MCH Neurosurgery seat, and hence did not report for counseling at 11.00 AM and made an agitation with friends. He also questioned regarding the status of the seat. After such disturbances, the matter was placed before the Selection Committee for a decision. The status report of the third enhanced MCH Neurosurgery seat, was sought for from the Dean and Principal, SCB Medical College, Cuttack. As per the letter of the Dean and Principal vide No.7262 dated 27.09.2014, no such letter of recognition has yet been received either from the Government of India or MCI, till date. Looking at the gravity of the situation, the Committee opined to cancel the spot counseling and its consequential allotments and rescheduled the spot counseling to 29.09.2014. On 29.09.2014, seven numbers of candidates were present and the two seats were filled up. Dr. Umesh Chandra Jena was allotted DM Cardiology seat and Dr. Kedarnath Nayak at rank 9 of MCH direct category was allotted MCH Pediatric Surgery seat and allotment letters were issued. After thorough discussion, the Selection Committee concluded that proceedings of the PG Committee of MCI is not a Letter of Recognition. As per Clause 11(2) of Medical Council of India Act, 1956, Government of India is the appropriate authority to issue letter of recognition to the Dean and Principal and MCI is only the recommending body. Further, the Committee felt that the cut off date for admission to super specialty courses as prescribed by the Hon’ble Supreme Court is 30.09.2014 and there is no time for intimation to all merit listed candidates to hold the counseling on the said date. Hence, it was decided to exclude third permitted MCH Neurosurgery seat for admission and not to hold any more counseling. This was so done by placing reliance on the decision of the Hon’ble Supreme Court in the case of Jessica Rehsi Vs. Chandigarh Administration and others [Civil Appeal No.8376 of 2014 arising out of SLP(C) No.18099 of 2014] decided on 1st September, 2014. 7. On the rival contentions of the parties, following questions fall for consideration by this Court. This was so done by placing reliance on the decision of the Hon’ble Supreme Court in the case of Jessica Rehsi Vs. Chandigarh Administration and others [Civil Appeal No.8376 of 2014 arising out of SLP(C) No.18099 of 2014] decided on 1st September, 2014. 7. On the rival contentions of the parties, following questions fall for consideration by this Court. (i) Whether the opposite party-authorities are justified in not giving admission to the super specialty seat in respect of MCH Neurosurgery for the academic year 2014-15? (ii) Whether the petitioners are not at fault and are diligent to pursue their remedy so as to make one of them entitled to take admission in third seat in respect of MCH Neurosurgery according to their merit? (iii) Whether after the decision of the Hon’ble Supreme Court in the case of Jessica Rehsi (supra), this Court can direct the opposite party-authorities to give admission to any of the candidates according to their merit to the third seat in respect of MCH Neurosurgery beyond the cut off date if this Court finds that there is no fault on the part of the petitioners and they were denied admission to the discipline in question by the authorities for their fault. (iv) What order? 8. In the present context, it would be appropriate to deal with question No.(iii), first because if this Court comes to the conclusion that no admission can be directed after the cut off date, there would be no need to answer question Nos.(i) and (ii) as the same would be merely academic. 9. To deal with question No. (iii) it is necessary to extract paragraph 30 of the judgment of the Hon’ble Supreme Court rendered in Jessica Rehsi (supra). “Having noted the various decisions relied upon by the Appellant in SLP (C) No.18099 of 2014 and the contesting Respondent, we are able to discern the following principles: (1) The schedule relating to admissions to the professional colleges should be strictly and scrupulously adhered to and shall not be deviated under any circumstance either by the courts or the Board and midstream admission should not be permitted. (2) Under exceptional circumstances, if the court finds that there is no fault attributable to the candidate, i.e., the candidate has pursued his or her legal right expeditiously without any delay and that there is fault only on the part of the authorities or there is an apparent breach of rules and regulations as well as related principles in the process of grant of admission which would violate the right to equality and equal treatment to the competing candidates and the relief of admission can be directed within the time schedule prescribed, it would be completely just and fair to provide exceptional reliefs to the candidate under such circumstance alone. (3) If a candidate is not selected during a particular academic year due to the fault of the Institutions/Authorities and in this process if the seats are filled up and the scope for granting admission is lost due to eclipse of time schedule, then under such circumstances, the candidate should not be victimized for no fault of his/her and the Court may consider grant of appropriate compensation to offset the loss caused, if any. (4) When a candidate does not exe rise or pursue his/her rights or legal remedies against his/her non-selection expeditiously and promptly, then the Courts cannot grant any relief to the candidate in the form of securing an admission. (5) If the candidate takes a calculated risk/chance by subjecting himself/herself to the selection process and after knowing his/her non-selection, he/she cannot subsequently turn around and contend that the process of selection was unfair. (6) If it is found that the candidate acquiesces or waives his/her right to claim relief before the Court promptly, then in such cases, the legal maxim vigilantibus non dormientibus aequitas subvenit, which means that equity aids only the vigilant and not the ones who sleep over their rights, will be highly appropriate. (7) No relief can be granted even though the prospectus is declared illegal or invalid if the same is not challenged promptly. Once the candidate is aware that he/she does not fulfill the criteria of the prospectus he/she cannot be heard to state that, he/she chose to challenge the same only after preferring the application and after the same is refused on the ground of eligibility. Once the candidate is aware that he/she does not fulfill the criteria of the prospectus he/she cannot be heard to state that, he/she chose to challenge the same only after preferring the application and after the same is refused on the ground of eligibility. (8) There cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year, i.e., carry forward of seats cannot be permitted how much ever meritorious a candidate is and deserved admission. In such circumstances, the Courts cannot grant any relief to the candidate but it is up to the candidate to re-apply next academic year. (9) There cannot be at any point of time a direction given either by the Court or the Board to increase the number of seats which is exclusively in the realm of the Medical Council of India. (10) Each of these above mentioned principles should be applied based on the unique and distinguishable facts and circumstances of each case and no two cases can be held to be identical.” (Underlined for emphasis) 10. Undisputedly, the cutoff date fixed by the Hon’ble Supreme Court for admission to super specialty courses in any Medical Colleges is 30th September during each academic Session. 11. In view of the decision of the Hon’ble Supreme Court in the case of Jessica Rehsi (supra), no direction can be given to the opposite party-authorities to give admission beyond the cutoff date. 12. For the reasons given in the preceding paragraphs, there is no need to deal with the question Nos. (i) and (ii) which will be mere academic in nature. 13. While parting with the case, we feel it appropriate to bring the following aspects to the notice of opposite parties-authorities to address themselves on those aspects. (a) In Jessica Rehsi (supra), the Hon’ble Supreme Court held that under exceptional circumstances, if the court finds that there is no fault attributable to the candidate, i.e., the candidate has pursued his or her legal right expeditiously without any delay and that there is fault only on the part of the authorities or there is an apparent breach of rules and regulations as well relief of admission can be granted within the time schedule prescribed. Invariably we see that the last date of counseling for admission to medical course is fixed just before expiry of the cutoff date. Invariably we see that the last date of counseling for admission to medical course is fixed just before expiry of the cutoff date. There may be a genuine case where a meritorious candidate is denied admission to medical course for the fault on the part of the authorities and no fault is attributable to the candidate and in that case, due to lack of adequate time a deserving candidate would be prevented from approaching any authority or Court for grant of appropriate relief. It is settled legal proposition that a party cannot be rendered remediless. (See Rameshwar Lal vs. Municipal Council, Tonk and others, (1996) 6 SCC 100 ). Therefore, direction/clarification should be given by the MCI or any competent authority to all medical colleges to complete the counseling for admission within a reasonable time, preferably one month before the cutoff date. (b) Necessary steps must be taken to include all the seats in the prospectus which are in principle approved by the MCI though final notification has not been notified by the Central Government. This is necessary in view of the declaration given by the opposite party No.5-MCI in paragraph 16 of its reply affidavit dated 12th January, 2015 that as a matter of practice Medical Colleges can make admission on the basis of positive recommendation for recognition by the Post Graduate Committee of the Council as recognition granted/issuance of notification by the Central Government is ordinarily with retrospective effect. (c) Further clarification/direction should be given by the competent authority that admission cannot be given to any subject which is not notified in the prospectus. At the time of counseling, no admission shall be given to any subject, if it is not advertised in the prospectus. 14. With the aforesaid observations and directions, the writ petitions are disposed of.