Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1277 (GAU)

Darshan Chakma v. Union of India

2018-08-30

ACHINTYA MALLA BUJOR BARUA

body2018
JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. M.K. Choudhury, learned senior counsel for the petitioners assisted by Mr. SR Rabha, Mr. N. Dutta, learned senior counsel assisted by Mr. JC Lainunsanga, learned counsel for the authorities in the Government of Mizoram and Mr. SC Keyal, learned ASGI for the authorities in the Union of India. 2. The four petitioners herein belong to the Chakma community in the State of Mizoram and they are aggrieved to the extent that for the counselling held for admission to the medical seats available for the Government of Mizoram for the year, 2017, which was held on 25.08.2017, they were prevented by certain elements from proceeding and reaching the place, where the counselling was held. Accordingly, a direction is being sought for that either the respondents in the Government of Mizoram be directed to admit them to a MBBS seat for the year 2017 or that a direction be issued for holding a re-counselling in respect of the petitioners. 3. The petitioners appeared in the National Eligibility Entrance Test, 2017 (in short NEET, 2017) held on 07.05.2017 and as per the merit list applicable to the State of Mizoram, the petitioner No.1 is at Serial No.4, petitioner No.2 at Serial No.23, petitioner No.3 at Serial No.17 and petitioner No.4 at Serial No.9. The petitioners claim that for the year 2017, 25 seats were allotted to the Government of Mizoram for the MBBS course and therefore, all the four petitioners being within 25 in order of merit, are entitled to be allotted a seat. 4. Without going into the other aspects of the matter, a relevant fact for consideration would be that a counselling for the Medical seats available to the Government of Mizoram was held on 20.07.2017 and all the four petitioners had participated in the counselling. It is also the stand of the petitioners that a security deposit was accepted by the authorities pursuant to such counselling, which according to them, is itself an indication that they were allotted the seats. On 20.07.2017 itself, an order was passed by the Commissioner and Secretary in the Higher and Technical Education Department, Government of Mizoram that except for 11 seats comprising of 7 seats in the RIMS, 3 seats in the NEIGRIMS and 1 seat at Dibrugarh, fresh counselling would be done for the remaining seats. On 20.07.2017 itself, an order was passed by the Commissioner and Secretary in the Higher and Technical Education Department, Government of Mizoram that except for 11 seats comprising of 7 seats in the RIMS, 3 seats in the NEIGRIMS and 1 seat at Dibrugarh, fresh counselling would be done for the remaining seats. All the four petitioners herein although allotted seats in the counselling held on 20.07.2017, came within the purview of the remaining seats, where the authorities had decided to hold a fresh counselling. 5. Accordingly, the next date for counselling was notified as 25.08.2017. According to the petitioners, they were apprehending certain protest from some elements within the State of Mizoram and that they would be prevented from reaching the place of counselling. For the purpose, although the petitioners raise certain political issues, but this writ petition being primarily for raising the issue that the petitioners were deprived from being admitted to the medical seats, in the opinion of the Court will not be relevant for the purpose of adjudicating the issues raised in the present petition. Be that as it may, the petitioners also state that at about 8.30 a.m. on 25.08.2017, they had approached the Superintendent of Police for adequate protection, but when they tried to reach the venue where the counselling was held, they were in fact prevented by certain elements from reaching the counselling centre. 6. The writ petition does not indicate as to what further steps the petitioners have taken when according to them, they were prevented from reaching the venue of counselling by certain elements. There is no pleading to the effect that they had again approached the Superintendent of Police or that they had filed any FIR etc bringing it to the notice of the authorities in the Government of Mizoram that they were so prevented. 7. It is also taken note of that as per the law laid down by the Hon'ble Supreme Court as well as implemented by the Medical Council of India, all admissions to the medical seats are to be completed on or before the 31st day of August of the given year. Accordingly, for the year 2017, the last date for admission would have been 31.08.2017. Accordingly, for the year 2017, the last date for admission would have been 31.08.2017. It is also a procedure to be followed that after 31st day of August of the given year, no further admission and counselling in respect of medical admission should be undertaken although there may be a few judgments to the contrary, but all such judgments are of a period prior to the strict implementation of the deadline of 31st August of the given year. 8. Be that as it may, the petitioners for ventilating their grievance approached the Hon'ble Supreme Court under Article 32 of the Constitution of India by filing an application on 11.09.2017. In the said application, the Hon'ble Supreme Court had passed an order dated 11.09.2017, by which it was provided that that no reason was found for entertaining the petition under Article 32 of the Constitution of India and while dismissing the same, it was provided that the petitioners therein be given the liberty to approach this Court. 9. In the said application, the Hon'ble Supreme Court had passed an order dated 11.09.2017, by which it was provided that that no reason was found for entertaining the petition under Article 32 of the Constitution of India and while dismissing the same, it was provided that the petitioners therein be given the liberty to approach this Court. 9. Accordingly, this application has been filed on 20.09.2017 with the following prayer:- "It is therefore most respectfully prayed that this Hon'ble Court may be pleased to call for the records and issue Rule calling upon the respondents as to why an appropriate writ of Mandamus or any other writ, order in the nature thereof should not be issued directing the respondents to allow admission to the petitioners in MBBS course as per results of the NEET and / or pass an appropriate writ, order or direction in the nature of writ of Certiorari or any other appropriate writ, order or direction quashing or setting aside the allotment of MBS/BDS seats allocated by counselling dated 25.08.2017 and / or pass an appropriate writ, order or direction in the nature of the writ of Mandamus or any other appropriate writ, order of direction to the respondents to conduct re-counselling afresh and provide the medical seats as per the ranks and choices of the eligible candidates and / or pass an appropriate writ, order r direction in the nature of writ of mandamus or any other writ, order or direction to the respondents to ensure physical safety and security to the petitioners to appear for any re-counselling in Aizwal if necessary by providing central para-military forces and / or pass such other or further orders as this Hon'ble Court may deem fit in the facts of the case and in the interest of justice. AND In the interim be please to direct the respondent authorities to provisionally admit the petitioners in the MBBS course or direct for keeping 4(four) seats of MBBS vacant in the colleges in which the petitioners were allotted as per the Counselling dated 20.07.2017 in the interest of justice. 10. AND In the interim be please to direct the respondent authorities to provisionally admit the petitioners in the MBBS course or direct for keeping 4(four) seats of MBBS vacant in the colleges in which the petitioners were allotted as per the Counselling dated 20.07.2017 in the interest of justice. 10. A bare perusal of the prayer indicates that the petitioners seek for a direction that they be allowed to be admitted in the MBBS course for the year 2017 as per the results in the NEET-2017 or in the alternative to set aside the allotment of MBBS seat done as per the counselling held on 25.08.2017 or to conduct a re-counselling. When the said writ petition filed on 20.09.2017 is taken for its final consideration today, Mr. M.K. Choudhury, learned senior counsel for the petitioners urges upon that the petitioners were prevented by the authorities in the Government of Mizoram from proceeding and participating in the counselling held on 25.08.2017 because of which their legal rights had been violated and, therefore, they are entitled for a direction that they be admitted in one of the MBBS seat for the year 2018. To that extent, Mr. Choudhury, learned senior counsel relies upon the pronouncement of the Hon'ble Supreme Court in Dolly Chhanda vs- Chairman, JEE and others, (2005) 9 SCC 779 , wherein in paragraph-9 a conclusion was arrived that the appellant therein was denied an admission to a medical seat although she had produced a correct certificate at the stage of second counselling and people lower in order of merit, were already admitted and therefore, by taking into consideration that the authorities had denied her a seat in an unjust and illegal manner, she was provided a seat in the next year. In order to sustain his contention for enabling him to rely upon the pronouncement in Dolly Chhanda, Mr. Choudhury, learned senior counsel states that the authorities by preventing the petitioners from appearing in the counselling on 25.08.2017 had acted in an unjust and illegal manner and therefore, a similar direction given in Dolly Chhanda be also given to the petitioners in the instant case. 11. In order to substantiate his assertion, Mr. Choudhury, learned senior counsel states that the authorities by preventing the petitioners from appearing in the counselling on 25.08.2017 had acted in an unjust and illegal manner and therefore, a similar direction given in Dolly Chhanda be also given to the petitioners in the instant case. 11. In order to substantiate his assertion, Mr. MK Choudhury, learned senior counsel refers to the averments made by the writ petitioners in paragraph 10 (xxv), wherein the aforesaid fact that the petitioners had approached the Superintendent of Police at 8.30 a.m. on 25.08.2017, but in spite of the same, they were not allowed to enter the venue of the counselling as the police had failed to provide protection to them, had been pleaded. 12. Mr. M.K. Choudhury, learned senior counsel also relies upon the pronouncement of the Hon'ble Supreme Court rendered in Pralay Kumar Podder vs- State of Tripura & Ors. in Civil Appeal No.4394 of 2017 wherein, in the order dated 12.09.2017 it was provided as under:- "Mr. K.V. Vishwanathan, learned senior counsel assisting the Court as Amicus Curiae would fervently urge that the appellants who are two in number, should be allowed to take admission in respect of vacant seats of this year. There is serious objection to the same by Mr. Vikas Singh, learned senior counsel for the Medical Council of India and Mr. Rituraj Biswas, learned counsel appearing for the respondent Nos. 2 and 3. Appreciating the objections of the Medical Council of India and the college in proper perspective and keeping in view the transcendental importance of justice which is writ large in this case, we direct that the appellants shall be admitted in the M.B.B.S. course in the respondent No.2 College for the academic year 2018-2019 and the quota from the said year shall be reduced by two seats. We may hasten to add that we have used the words transcendental importance of justice as it conveys that we are invoking our jurisdiction under Article 142 of the Constitution of India in the peculiar facts and circumstance of the case." 13. Mr. N. Dutta, learned senior counsel appearing for the authorities in the Govt. We may hasten to add that we have used the words transcendental importance of justice as it conveys that we are invoking our jurisdiction under Article 142 of the Constitution of India in the peculiar facts and circumstance of the case." 13. Mr. N. Dutta, learned senior counsel appearing for the authorities in the Govt. of Mizoram contends that the admission to the medical seats for the year 2018 would be guided strictly by the Information Bulletin issued by the Central Board of Secondary Education, National Eligibility Cum Entrance Test Unit, which according to the learned senior counsel had been approved by the Hon'ble Supreme Court in its order dated 25.01.2018 in WP(C) No. 395/2017 and other writ petitions, while deciding certain matters as regards the procedure to be adopted for implementing the NEET, 2018. 14. According to the learned senior counsel, Claue-1(b) of Chapter-1 of the Information Bulletin provides that in order to be eligible for admission to the MBBS/BDS courses for a particular academic year, it shall be necessary for the candidate to obtain the minimum marks in the NEET test held for the said academic year. According to Mr. N. Dutta, learned senior counsel, the expression 'the said academic year' appearing in Clause- 1(b) of Chapter-1 for the purpose of the present writ petition indicates that the marks obtained by the candidate in the NEET, 2018. Further reliance has also been made to Clause 1(c) of Chapter-1 of the Information Bulletin which states that the reservation of seats in Medical/Dental Colleges shall be prepared on the basis of marks obtained in the NEET examination in All India Merit List for the given year. 15. Accordingly, it is the contention of the learned senior counsel that admission to the MBBS seats for the year 2018 can only be based upon the merit list of candidates, which had been prepared in the NEET-2018. 16. In the circumstance, the issue raised by the petitioners that they be admitted in a medical seat for the year 2018 as because they were illegally deprived in the year 2017 cannot be entertained as the petitioner Nos. 1 and 2 who are presently pursuing with this writ petition, have not appeared in the NEET-2018 and therefore, there cannot be any question of they being included in the merit list of 2018. In order to further substantiate the said contention, Mr. 1 and 2 who are presently pursuing with this writ petition, have not appeared in the NEET-2018 and therefore, there cannot be any question of they being included in the merit list of 2018. In order to further substantiate the said contention, Mr. N. Dutta, learned senior counsel relies upon the order of the Hon'ble Supreme Court dated 25.01.2018 in WP(C) No.395/2017 and other similar writ petitions, wherein, the stand taken by the CBSE in their affidavit was quoted as follows:- "11. I further say all the relevant information regarding National eligibility cum Entrance Test-UG, 2018 (Sessions 2018-2019) for admission to MBBS/BDS courses shall be made available to the candidates through Information Bulletin, which would be made available to the candidates on its website. A copy of the Draft Information Bulletin of National Eligibility cum Entrance Test-UG, 2018 in which the scheme of NEET-UG is given is annexed as Annexure R-2/8." 17. It is contended that in the said affidavit the CBSE had taken a stand that for the admission to MBBS/BDS for the session, 2018-19, the relevant information shall be made available to the candidates through the Information Bulletin, a draft copy whereof was annexed thereto. The said statement of the CBSE in their affidavit was accepted by the Hon'ble Supreme Court by providing that the stand taken therein be complied with and the examination be held in the manner as assured by the CBSE, where amongst others as mentioned in paragraph-11 of the affidavit, also contains the draft Information Bulletin. 18. In view of the above, it is the submission of Mr. N. Dutta, learned senior counsel that the provision made in the Information Bulletin are therefore binding on all and the same alone shall be the guiding factor for making the admission for the year 2018. As the Information Bulletin provides that the admission can be made only from the merit list of NEET-2018 and the petitioner Nos. 1 and 2 having not appeared in the NEET-2018, therefore, no admission can be offered to them against any medical seat for the year 2018. 19. Mr. As the Information Bulletin provides that the admission can be made only from the merit list of NEET-2018 and the petitioner Nos. 1 and 2 having not appeared in the NEET-2018, therefore, no admission can be offered to them against any medical seat for the year 2018. 19. Mr. M. K. Choudhury, learned senior counsel in reply thereof mainly urges upon that the authorities while cancelling the counselling held on 20.07.2017 ought to have cancelled the whole of the counselling made on the said date instead of keeping the cancellation confined to six of the seats while not affecting the cancellation in respect of 11 of the other seat. 20. To a pointed query as to how the violation of legal right of the petitioners due to the cancellation effected by the Govt. of Mizoram as on 20.07.2017 can now be determined in this writ petition, no satisfactory answer is available. Also no explanation is forthcoming as to how the petitioners are prejudicially affected by such conduct of the respondent authorities, inasmuch as, a rescheduled counselling had taken place on 25.08.2017 in respect of all similarly situated person. 21. In this respect, it is taken note of that it is the stand of the Govt. of Mizoram that after the counselling was made on 20.07.2017, certain information were made available regarding alteration of seat allocation to the Govt. of Mizoram, which resulted in a situation that the seats allotted in the specific Medical Colleges earlier stood altered and some other seats were in fact made available. As the earlier allotment of seats were made as per the seat allocation which was prevailing prior to the alteration, therefore, it was necessary on the part of the Govt. of Mizoram to effect a cancellation of the admissions made on 20.07.2017 and conduct a re-counselling. 22. Neither the said stand had been controverted nor it prima facie appears to be wholly unacceptable. The explanation given by the Govt. of Mizoram for effecting the cancellation of some of the allotment of seats made at the counselling on 20.07.2017, in the absence of any other material to the contrary, cannot be faulted with nor it can be said that it was done in an arbitrary and unjust manner and on the other hand, the same appears to have been done as a necessity under the circumstance. 23. 23. Regarding the other query put to the petitioners that if they were prevented from appearing in the counselling on 25.08.2017, as to why they had either not informed the authorities in the Govt. of Mizoram for giving appropriate remedial measure in their favour or as to why no approach was made to a Court of Law prior to 31.08.2017 where some effective orders could have been passed, there is no such acceptable explanation. 24. As already alluded hereinabove, the cut of date of 31st August of the given year had been provided by the Hon'ble Supreme Court as well as by the Medical Council of India for completing the admission to the medical seats for the given year. If that is so, the petitioners having not approached either the authorities or the Court of Law prior to 31.08.2017 when some effective measures could have been taken in their favour, this Court finds it difficult to accept the contention of the petitioners that their legal rights were violated by the Govt. of Mizoram by preventing them from availing the medical seats for the year 2017. Further it is also taken note of that it is the stand of the petitioners that on 25.08.2017 they had approached the Superintendent of Police at 8.30 am with the grievance that they may be prevented by certain elements from reaching the venue of the counselling and in fact later on, on the same day when they had proceeded to the venue they were so prevented. To that extent, the stand of the Govt. of Mizoram would also be relevant which says that on the given day of 25.08.2017, adequate police and magisterial protection was provided at the venue, meaning thereby that the Superintendent of Police had acted on the request of the petitioners that was made at 8.30 am on the same day. 25. The said stand of the Govt. of Mizoram had also not been controverted by the petitioners by any further pleadings. In the given circumstance, it is difficult for this Court to accept the contention of the petitioners that they were prevented from appearing in the counselling held on 25.08.2017 due to any omission or commission on the part of any authorities under the Govt. of Mizoram. In fact, the only allegation is that they were prevented by certain unidentified elements from proceeding to the venue of counselling. 26. of Mizoram. In fact, the only allegation is that they were prevented by certain unidentified elements from proceeding to the venue of counselling. 26. In the aforesaid circumstance when the provision of the Hon'ble Supreme Court made in Dolly Chhanda is looked into, it is taken note of that the said direction to give admission to the student in the subsequent year was made on a categorical satisfaction of an existence of a circumstance that in the previous year the authorities in the concerned Govt. through their unjust and illegal acts had prevented the candidate therein from getting the admission. 27. In the instant case, as indicated above, this Court does not find any such circumstance where any of the authorities of the Govt. of Mizormam had acted in an unjust and illegal manner to deprive the petitioners from appearing in the counselling. 28. As already alluded hereinabove, even if the petitioners were prevented from appearing in the counselling for any reason, which was beyond their control either it be at the behest of the Govt. of Mizoram or due to any other element, the petitioners could have availed the remedy by either approaching the authorities or any Court of competent jurisdiction for redressal of their grievance, inasmuch as, six clear days were still available from 25.08.2017 up to 31.08.2017 for undertaking such exercise. But for the reason unknown, nothing was done by the petitioners for initiating a proceeding for redressal of their grievance. 29. A further relevant factor is that when the last date of admission in medical college was 31.08.2017, the present writ petition was filed on 20.09.2017. Even if certain concessions are given to the petitioners that they had approached the Hon'ble Supreme Court earlier but that also would not be of any help, inasmuch as, they approached the Hon'ble Supreme Court on 11.09.2017, i.e. after 31.08.2017. 30. Under both circumstance, the relief sought for in this petition could not have been granted and therefore, it can also be construed that the writ petition at the time of its inception itself was an infructuous petition. 31. 30. Under both circumstance, the relief sought for in this petition could not have been granted and therefore, it can also be construed that the writ petition at the time of its inception itself was an infructuous petition. 31. But in any view of the matter as it has been urged upon by the petitioners that although they may have lost an opportunity of being admitted in the year 2017, still a legal right to have them considered for the year 2018, still persists, the present writ petition has been entertained in the manner as indicated above. 32. Although the petitioner relies upon the decision of the Hon'ble Supreme Court rendered in Pranay Kumar, but upon perusal of the said judgment, this Court does not find that the same has any relevance for leading to a conclusion that the petitioners had certain legal persisting rights for being considered for admission in the year 2018. The said decision was made in the factual background as to whether candidates affected by colour vision deficiency can be debarred from being considered for medical admission which the Hon'ble Supreme Court has decided against. 33. Another factor which has also been taken note of is that in the NEET, 2017, the petitioner No.1 was in the 4th position in order of merit, whereas, the petitioner No.2 was in 23rd position. The State respondents through their affidavit and materials on record has indicated that for the year 2017, the total number of seats available for the State of Mizoram was 17 and therefore, from the said point of view, it cannot be said that even in the year 2017, the petitioner No.2 had any legal right to be admitted. 34. This Court also cannot be oblivious to the fact that the relief sought for by the petitioner Nos. 1 and 2 for a direction to admit them in the medical course for the year 2018 on the ground of their legal right to be so admitted in the year 2017 was violated, would be in the nature of an equitable relief and also in doing so, the last candidate in order of merit for the year 2018 would be deprived for no fault of his. Therefore, in order accede to such a prayer the equity between the petitioner and such of the last candidate in order of merit would also have to be balanced. Therefore, in order accede to such a prayer the equity between the petitioner and such of the last candidate in order of merit would also have to be balanced. In order to avail the benefit of equity by depriving the last of the legitimate candidate of the year 2018 in order of merit, the petitioners would also have to show that overwhelming arbitrariness or illegality was perpetrated upon them by the State authorities and further that the petitioners were alert enough and had taken recourse to all such available remedies against such overwhelming arbitrariness and illegality in the concerned year itself and in spite of the same, the appropriate remedial measures were not incorporated. 35. When this conduct of the petitioners from the said point of view is examined, the earlier conclusion of this Court that the petitioners had failed to take recourse to the available remedies between 25.08.2017 and 31.08.2017 would be of relevance. Accordingly, the balance of equity goes against the petitioners for a direction in their favour for being admitted to medical seat for the year 2018 by depriving the last of the candidates who have otherwise secured a seat on merit for the given year. 36. In terms of the above, this Court does not find any merit for issuing a direction in favour of the petitioner Nos. 1 and 2 for being admitted to a medical seat for the year 2018 as because of any legal right of their being violated in the year 2017 as claimed by them. 37. In respect of petitioner Nos. 3 and 4 separate order has already been passed and in respect of those two petitioners the said order shall hold and would not be covered by the present order. 38. In view of the order passed today, the interim order dated 22.06.2018 stands vacated. It would be open to the Govt. of Mizoram to fill up the four medical seats as per law. In terms of the above, writ petition is accordingly disposed of.