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2016 DIGILAW 730 (UTT)

Manisha Yadav v. State of Uttarakhand

2016-10-18

SUDHANSHU DHULIA

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JUDGMENT : Sudhanshu Dhulia, J. 1. The petitioner before this Court had done her BAMS from Rishikul Ayurved University Campus, Haridwar. After completing her BAMS, she applied for Post-Graduation Medical Course in Uttarakhand Ayurved University, Dehradun and appeared in the competition examination in which she secured Internal Rank 9. In the First Counseling held on 06.10.2015, the petitioner was allotted M.D. (Dravyagun) stream. The Second Counseling was held on 28.10.2015 for filling up of two vacant seats of M.D./M.S. (Drvyagun) stream of Uttarakhand Ayurved University, Rishikul, Haridwar. Since there was no seat of M.D./M.S. (Shalya Tantra) stream available, therefore, the petitioner did not participate in the second counseling. 2. According to the respondents, however, on the same date i.e. 28.10.2015, one of the candidates, namely, Dr. Solani Bisht, who was allotted M.S. (Shalya Tantra), left her course and since one seat became vacant, it was allotted to private respondent No. 4 – Dr. Shafina Khatoon. The case of the petitioner before this Court is that this vacancy of M.S. (Shalya Tantra) was never advertised by the authority concerned. Had it been advertised, the petitioner would have opted for it and being higher in merit than the private respondent No. 4 – Dr. Shafina Khatoon, she was liable to be allotted M.S. (Shalya Tantra), instead of respondent No. 4, who is admittedly lower in merit. 3. On the other hand, the case of respondent No. 2 - Uttarakhand Ayurved University as well as respondent No. 3 – Director/Principal, Uttarakhand Ayurved University is that since the seat itself fell vacant on 28.10.2015 i.e. at the time when the second counseling was on way, it was not possible to advertise the vacancy, as per the instructions of Central Council of Indian Medicine (in short ‘CCIM’) the last date on which all admissions be completed was 30.10.2015. Therefore, they had a deadline to consider. 4. According to the petitioner, the respondents would have easily postponed the date to 30.10.2015 for third counseling since the law itself permits to have filled the vacancy till 30.10.2015. Moreover, in exceptional circumstances, CCIM itself extends the last date of admission and in the present case this date was actually extended by CCIM. Therefore, the excuse taken by respondent Nos. 2 and 3 that they could not have much time to extend the date does not seems proper, according to the petitioner. 5. Moreover, in exceptional circumstances, CCIM itself extends the last date of admission and in the present case this date was actually extended by CCIM. Therefore, the excuse taken by respondent Nos. 2 and 3 that they could not have much time to extend the date does not seems proper, according to the petitioner. 5. Learned counsel for the petitioner would also argue that the allotment of the seat of M.S. (Shalya Tantra) in favour of respondent No. 4 is totally illegal and arbitrary and the whole process lacked a transparency. The petitioner hence moved a representation to the concerned authorities and subsequently an order was passed by the respondent No. 3 – Director on 21.11.2015 by which inter alia the discipline of petitioner was changed from Dravyagun to M.S. (Shalya Tantra) and that of respondent No. 4 from Shalya Tantra to M.D. (Dravyagun). It is again an admitted case of the petitioner that since 21.11.2015, the petitioner has continued to undertake her studies in M.S. (Shalya Tantra) and private respondent No. 4 has not attended her classes of Dravyagun, although it was allotted to her, till 27.06.2016. Meanwhile, on 30.05.2016, another order was passed by which the discipline of the petitioner was again changed to M.D. (Dravyagun) stream and that of respondent No. 4 to M.S. (Shalya Tantra) and thereafter, she was not allowed to attend her classes of M.S. (Salya Tantra). The order dated 30.05.2016 is presently under challenged before this Court. 6. During the course of arguments, this Court also directed the Director/Principal of Uttarakhand Ayurved University to be present in person before this Court, who admitted that the order dated 21.11.2015 as well as the subsequent order he has no jurisdiction to pass such an order. This was done purely for the reason that petitioner had got better marks than private respondent No. 4. The later order dated 30.05.2016 was passed by him, under directions of University Counseling Board. 7. The net result, however, has been that the students, who are before this Court, have suffered. This could have been avoided had Dr. A.N. Pandey the Director/Principal of Uttarakhand Ayurved University been more vigilant and had he taken care to follow the due process of law. The entire confusion in the matter has been created by none other than Dr. The net result, however, has been that the students, who are before this Court, have suffered. This could have been avoided had Dr. A.N. Pandey the Director/Principal of Uttarakhand Ayurved University been more vigilant and had he taken care to follow the due process of law. The entire confusion in the matter has been created by none other than Dr. A.N. Pandey, who should have in the first place given an opportunity to more meritorious candidates such as the present petitioner and others, at least apprising them that a seat of M.S. (Shalya Tantra) has fallen vacant and in case they want to apply for that seat they can apply for it. For this reason, it was possible for him to postpone the second counseling for 29.10.2015 or 30.10.2016, which he could have done at the relevant time. In exceptional circumstances this Court has also been informed that on a request to CCIM last date can also be extended, which in the present was not done. In any case, the University Counseling Board, by not advertising the vacancy of M.S. (Shalya Tantra), committed an error, which has given rise to this litigation. 8. Therefore, the very allotment of seat to respondent No. 4 is not correct. This mistake was rectified subsequently vide order dated 21.11.2015. Under these circumstances, the order dated 30.05.2016 cannot be sustained, which is nothing but a reiteration of the earlier illegality. 9. Without going into the technicality of the matter, another aspect which has to be considered is that the petitioner continued her study as M.S. (Shalya Tantra). Admittedly respondent No. 4, who has allotted Dravyagun has not attending her classes, therefore, in any case the petitioner is allowed to continue her studies in M.S. (Shalya Tantra). There would be another difficulty that there are short of attendance of the students. However, learned counsel for respondent Nos. 2 and 3 submits that in order to complete the attendance, the University will take extra classes of those candidates whose attendance are short. 10. In view thereof, the writ petition succeeds. The impugned order dated 30.05.2016 passed by respondent No. 3 is set aside. In this matter, where the career of a student is involved and the entire confusion has been created by none other but the Director of the University. 10. In view thereof, the writ petition succeeds. The impugned order dated 30.05.2016 passed by respondent No. 3 is set aside. In this matter, where the career of a student is involved and the entire confusion has been created by none other but the Director of the University. Since there is an extreme carelessness and non application of mind on the part of respondent No. 3, who is being represented by Mr. Shailendra Nauriyal, Advocate for the University, this Court further directs the University authority to seek explanation from respondent No. 3 and initiate enquiry in the matter under due procedure as per law. 11. Meanwhile, respondent authority is hereby directed to take necessary precaution in such matters in future admissions. They must advertise the existing vacancy/seats well in time so that proper opportunity be given to all such candidates who are eligible for the seat. Moreover, students, who have already got admission in Post Graduation courses, should be forewarned that in case they are desirous to leave the seat they must do that well in time, so that the seat which falls vacant can be properly notified and fairly allotted. In case a student leaves his seat without proper notice, he/she should be penalized. 12. Registrar General of this Court is hereby directed to send a copy of this order to the Principal Secretary, Health, Medical Education & Ayush, Dehradun for onward compliance.