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2016 DIGILAW 704 (ORI)

Satish Mohan Padhy v. NISER

2016-08-30

B.R.SARANGI, VINEET SARAN

body2016
JUDGMENT : Dr. B.R. SARANGI, J. Opposite Party No.1, the National Institute of Science Education & Research, Bhubaneswar (in short ‘NISER’) has been imparting Five Years M.Sc. Programme offering learning in the core and immerging branches of basic science to students after their 10+2 Higher Secondary Schooling. This is an autonomous institute under the department of Atomic Energy, Government of India, which invited applications for selection of candidates for prosecuting their studies for the academic session 2016-17 by conducting National Entrance Screening Test, 2016(NEST, 2016). The petitioner having requisite qualification applied for the said test. He was assigned with NEST Application no. 16139854. In the said entrance test, the petitioner’s All India Rank was 950. Though his name was not figured in the 1st select list, subsequently, his name was indicated in the extended waiting list. Accordingly, he was called upon on 31.07.2016 to appear on 2nd August, 2016 for spot admission. Pursuant to intimation issued on 31.07.2016, due to his illness, he was not able to appear on the date fixed i.e. on 2nd August, 2016. Consequently, persons securing less mark got admitted on spot selection on 2nd August, 2016. When the petitioner approached the authority after 2nd August, 2016, he was denied admission on the ground that the last date of admission, i.e., on 2nd August, 2016 has already been closed. Hence, he has approached this Court by filing the present writ application on 12.06.2016 seeking for direction to the opposite parties to admit him into integrated five years M.Sc. programme in the opposite party no.1 institution during the current academic session 2016-17, as seats belonging to unreserved (UR) category are still lying vacant. 2. Mr. V. Narasingh, learned counsel for the petitioner states that the petitioner having been selected and called upon to appear for spot admission on 2nd August, 2016, since he could not appear due to the reasons beyond his control, he should not have been denied the admission to the course for 5 years integrated M.Sc. in the opposite party no.1 institution on the plea that the last date of admission was already over w.e.f. 2nd August, 2016. It is further urged that the persons securing less percentage of marks have been given admission in the spot selection on the date fixed. in the opposite party no.1 institution on the plea that the last date of admission was already over w.e.f. 2nd August, 2016. It is further urged that the persons securing less percentage of marks have been given admission in the spot selection on the date fixed. If the seats are lying vacant, the petitioner, having secured higher percentage of marks, should have been given equal opportunity and, as such, should not have been denied to prosecute his higher studies. It is further urged that even if there may be similarly situated persons available for admission, since because they have not approached this Court ventilating their grievance and slept over the matter, their cases need not be taken into consideration. To substantiate his contention, he has relied upon the judgments in Asha v. PT. B.D. Sharma University Of Health Sciences And Others, (2012) 7 SCC 389 , Prasanna Kumar Nayak and others v. National Insurance Company and others, 73 (1992) C.L.T. 791, Chandigarh Administration and another v. Jasmine Kaur and others, (2014) 10 SCC 521 , Miss Neelima Shangla, Ph.D Candidate v. State of Haryana and others, (1986) 4 SCC 268 , Ritesh Tewari and another v. State of Uttar Pradesh and others, (2010) 10 SCC 677 . 3. Considering the facts that the petitioner has a prima facie case, this Court issued notice both in the main case as well as in misc. case on 16.08.2016 fixing 23.08.2016 as date of appearance. In response to the same, Sri Sarbeswar Barik, learned counsel has entered appearance and filed counter affidavit on behalf of opposite party no.3, Registrar of the Institute, NISER. 4. Mr. S. Barik, learned counsel appearing for opposite party no.3 has specifically stated that since the petitioner could not appear in the counseling at 10.30 a.m. on 2nd August, 2016, the date fixed, he cannot be granted benefit of admission into the course, and more particularly, the request for admission of the petitioner after 7th August, 2016 ought not to have been entertained as per the notification. Since the cut off date had already been declared in the website as 2nd August, 2016, the NISER authority did not interfere with the same and, as such, no further admission was taken place after 2nd August, 2016. Since the cut off date had already been declared in the website as 2nd August, 2016, the NISER authority did not interfere with the same and, as such, no further admission was taken place after 2nd August, 2016. The petitioner having failed to appear at the spot interview on 2nd August, 2016, the date fixed, he cannot be given the benefit of admission into the course. 5. In course of hearing, it has been brought to notice of the Court that at present four seats are lying vacant. 6. We have heard learned counsel for the parties and perused the records. The facts of the case are not disputed to the extent that the petitioner had offered his candidature to participate in the selection for Five Years Integrated M.Sc. Course under the NISER and his rank being 950 and that he had been called upon to appear at the spot interview to be conducted on 02.08.2016. But, unfortunately, on the date fixed, as he was ill, he could not appear before the authority concerned, nor any communication could be sent by him requesting for extension of time. However, the candidates securing less percentage of marks than the petitioner having been given admission, it is stated by learned counsel for the petitioner that the petitioner should be given admission, since the seats are still lying vacant, as admitted by learned counsel appearing for the opposite party no.3. 7. The only question to be considered is as to whether the petitioner can be given admission after the cut off date fixed by the authority concerned, and in the event such admission is given whether any other similarly situated person will get any right for such admission or not. 8. So far as fixation of cut off date as 02.08.2016 is concerned, this Court observes that the authorities have got every right to fix such cut off date, but fact remains that the petitioner was called upon to appear in the interview on the date fixed i.e., 02.08.2016, but he could not appear due to his illness, which was beyond his control, and, as such, he could not be able to inform the authority due to such illness. In that view of the matter, immediately after recovery, when he approached the authority, it was informed that since the cut off date has already been over, even if seats are lying vacant, that cannot be filled up as the academic session has already started with effect from 08.08.2016. Therefore, the cut off date is operating as a bar to admission to the petitioner. 9. Similar question had come up for consideration before the apex Court in Asha v. PT. B.D. Sharma University Of Health Sciences And Others (supra) and in paragraph-31 thereof, the apex Court came to hold as follows:- “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 a technical 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 a candidate 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.” It is well recognized principle of law that strict adherence to the time schedule has to be followed, but the Court may have to mould relief and make an exception to the cut off date in exceptional circumstances in order to ensure that no fault can be attributed to the candidate that candidate persuade his rights and legal remedies expeditiously without any delay. 10. In the judgment rendered in Chandigarh Administration and another (supra), the apex Court in paragraphs-33.2 and 33.4 whereof held as follows: 33.2. 10. In the judgment rendered in Chandigarh Administration and another (supra), the apex Court in paragraphs-33.2 and 33.4 whereof held as follows: 33.2. 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 circumstances alone. xxx xxx xxx 33.4. When a candidate does not exercise 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. 11. Applying the aforesaid positions of law, as laid down by the apex Court, to the present context, it appears that the petitioner has approached the authority immediately after recovery from his illness, and, when his grievance was not taken into consideration, he approached this Court forthwith on 12.08.2016. As such, the petitioner has not caused any delay attributable to him. The academic session was started w.e.f. 08.08.2018 and, in the meantime, only twenty days have elapsed and, therefore, in the event the petitioner is given admission in a five years course at this point of time, it will not cause any prejudice to anybody, as the seats are still lying vacant, particularly when the candidates having secured less marks than that of the petitioner have already been admitted into the course by the authority on the date fixed, i.e., 02.08.2016. Therefore, considering the law of equity, which tilts in favour of the petitioner, this Court is of the considered view that the petitioner should be given admission as expeditiously as possible, as he has ventilated his grievance before this Court. Therefore, it would be completely just and proper and also fair to provide exceptional reliefs to the petitioner under such circumstances alone. 12. Therefore, it would be completely just and proper and also fair to provide exceptional reliefs to the petitioner under such circumstances alone. 12. Apart from the above, so far as the claim of similarly situated persons are concerned, this Court is of the considered opinion that since they have slept over the matter and have not approached this Court in time, their cases cannot be considered. Similar question had come up for consideration before this Court in Prasanna Kumar Nayak and others (supra) and in paragraph-7 thereof a Division Bench of this Court observed as follows:- “7. However, to take care of the submission of Shri Nanda that if the opposite parties would be directed to absorb the four petitioners in the posts of Assistant (Typist), it would be not permissible for them to deny appointment to other persons whose names found place in the aforesaid select list, because of which the opposite parties shall have to give appointment to all the persons who had been selected and whose names are in the list. In this connection, we would like to say that there would be no such compulsion on the part of the opposite parties and the present decision of our would not clothe other persons with any right whose names are in the select list but who had slept over the matter for long. Law permits Courts to grant and confine relief to those who come before them and to observe that the same would not be available proprio vigore to those similarly situated but who had chosen to sleep over their rights. Vigilance is said to be the price of liberty. We, therefore, make it clear that this decision of ours would not ipso facto clothe other persons whose names found place in the aforesaid list to claim appointment on the basis of this decision.” In view of such position, this Court is of the considered view that the decision of ours allowing the petitioner to get admitted into the course would not ipso facto clothe other persons whose names found place in the rank list in question to claim for admission at par with the petitioner. Apart from the same, if other candidates, who do not exercise or pursue their rights or legal remedies against their non-selection expeditiously and promptly, then no relief can be granted by this Court to such candidates in the form of securing an admission. 13. In the above view of the matter, this Court directs the opposite parties to admit the petitioner into the Five Years Integrated M.Sc. Course in NISER for the session 2016-17 within a period of seven days from the date of production/receipt of certified copy of the judgment, by following due procedure of law. 14. The writ petition is accordingly allowed. No order as to cost.