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2018 DIGILAW 355 (UTT)

Naman Kuriyal v. State of Uttarakhand

2018-07-04

LOK PAL SINGH, RAJIV SHARMA

body2018
JUDGMENT : Lok Pal Singh, J. Present Special Appeal is directed against the judgment and order dated 11.06.2018, passed by the learned Single Judge, in Writ Petition No. 1640 (M/S) of 2018, Naman Kuriyal vs. State of Uttarakhand and others, whereby the writ petition filed by the petitioner/appellant has been dismissed. 2. The petitioner has sought following reliefs in the writ petition: a. Issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 30.05.2018 passed by the respondent no. 4, whereby the respondent no. 6 was informed that the admission granted to the petitioner has been cancelled. b. Issue a writ, order or direction in the nature of certiorari to quash the order dated 31.05.2018, whereby the admission was granted to the private respondent no. 7. c. Issue a writ, order or direction in the nature of mandamus directing the respondents to permit the petitioner to join the class of M.S. General Surgery in the respondent no. 5, Swami Ram Himalayan University. d. Issue any other writ, order or direction, which this Hon’ble Court may deem fit and proper in the circumstances of this case. e. Award the cost of writ petition to the petitioner.” 3. We have heard learned counsel for the parties and perused the impugned judgment & order, as also the entire material brought on record. 4. Brief facts, as narrated in the writ petition, are that the petitioner/appellant appeared in the NEET P.G. Examination -2018 and secured 399 marks and got All India Ranking of 4337. He passed the M.B.B.S. examination from Maulana Azad Medical College, New Delhi in the year 2014 and got himself enrolled with the Delhi Medical Council. After the first and second round of counselling of NEET P.G. Examination 2018, the petitioner/appellant got himself enrolled in the mop up round. The first mop up round was held on 14.05.2018 and thereafter, as per the Schedule, the colleges notified the vacancies for further round and the last date of admission to the P.G. Courses was 18.05.2018. Petitioner/appellant was offered the post of M.S. General Surgery on 18.05.2018 itself and, accordingly, the admission order was issued. He deposited the requisite fees amount of rupees sixteen lacs and started attending the college from 21.05.2018 at the Himalayan Institute of Medical Sciences, Jolly Grant, Dehradun. 5. Petitioner/appellant was offered the post of M.S. General Surgery on 18.05.2018 itself and, accordingly, the admission order was issued. He deposited the requisite fees amount of rupees sixteen lacs and started attending the college from 21.05.2018 at the Himalayan Institute of Medical Sciences, Jolly Grant, Dehradun. 5. All of a sudden the respondent Counselling Board issued an order on 30.05.2018, whereby the college was informed that the admission granted to the petitioner/appellant has been cancelled and this particular vacancy will be taken up on the next round of mop up counselling scheduled to be held on 31.05.2018. Thereafter further mop up round was done by the Universities subsequent to the directions issued by the Hon’ble Apex Court in the case of U.P. Unaided Medical Colleges Welfare Association (Regd.) vs. Union of India and others, Writ Petition (Civil) no. 556/2018, decided on 25.05.2018, whereby the Hon’ble Apex Court extended the last date of counselling till 31.05.2018 for all medical colleges in the country. Feeling aggrieved against the order dated 30.05.2018, passed by respondent no. 4, whereby the respondent no. 6 was informed that the admission granted to the petitioner/appellant has been cancelled, writ petition was filed by the petitioner/appellant. A further prayer has also been made to quash the order dated 31.05.2018, whereby admission has been granted to private respondent no. 7. 6. Earlier two writ petitions were filed before this Court, being Writ Petition no. 1495 (M/S) of 2018, Jitesh Talwar vs. State of Uttarakhand & others and Writ Petition no. 1471 (M/s) of 2018, Yasmoon Akhtar Siddiqui vs. State of Uttarakhand & others, for a direction to the respondents to quash the admission of respondent no. 7 and 8 given by the respondent no. 6 under NEET-PG-2018 by superseding the petitioner and give admission to the petitioners according to merit list. 7. Learned Single Judge of this Court vide order dated 29.05.2018, passed following interim order while granting relief to the petitioners in aforesaid writ petitions. Relevant paragraphs of said order are extracted here-in-below: “17. In view thereof, learned counsel suggests that they propose to give the advertisement today itself and they shall be doing the counselling tomorrow and day after tomorrow i.e. on 30.05.2018 and 31.05.2018 and all the anomalies pointed out will be rectified, and admission be made as per merit and law. 18. Put up on 01.06.2018 in the daily cause list. 19. 18. Put up on 01.06.2018 in the daily cause list. 19. Meanwhile, the seats on which the admission has been given to the private respondents in these two writ petitions shall be held to be vacant and shall be given in the fresh counselling by the State Counselling Board on 30.05.2018 and 31.05.2018. Admission shall be given by the college strictly in accordance with law. 20. It is made clear that if such anomaly is committed by the other medical colleges as well, the State Counselling Board shall be at liberty to take appropriate action, in accordance with law so that right candidates are given admission.” 8. Feeling aggrieved by the judgment and order dated 29.05.2018, passed by learned Single Judge in WPMS no. 1471 of 2018 along with WPMS no. 1495 of 2018, respondent nos. 7 to 9 filed Special Appeal no. 403 of 2018, Malvika & others vs. Yasmoon Akhtar Siddiqui & others and Special Appeal no. 404 of 2018, Kanika Kapoor & another vs. Jitesh Talwar & others. The aforesaid Special Appeals filed by them were dismissed by the Division Bench of this Court vide judgment and order dated 30.05.2018 with the following observations: “It is, no doubt, true that the appellants have taken a contention that the writ petitions are not maintainable. We notice that the said contention is not seen taken in the counter affidavit. It is not seen considered also in the impugned order. There is also a case of the appellants that all the appellants are not ranked below the writ petitioners but many of them are below. The private Medical Colleges are expected to act in terms of the directions issued by the Hon’ble Apex Court and also that of the Medical Council of India. The attempt of the private Medical College appears to have deliberately defeated the due process and directives of the Hon’ble Apex Court in the matter that has been evolved, as we have noticed. In such circumstances, we see no ground for interference. The appeals fail and are dismissed. There will be no order as to cost. Let certified copy of this judgment be issued today itself. After conclusion of the judgment, Mr. D.S. Patni, learned counsel for the appellants has prayed that the appellants may be granted an opportunity to participate in the counselling, which is scheduled to held tomorrow i.e. on 31.05.2018. There will be no order as to cost. Let certified copy of this judgment be issued today itself. After conclusion of the judgment, Mr. D.S. Patni, learned counsel for the appellants has prayed that the appellants may be granted an opportunity to participate in the counselling, which is scheduled to held tomorrow i.e. on 31.05.2018. The permission as prayed for is granted.” 9. Feeling further aggrieved by order dated 29.05.2018, passed by learned Single Judge in WPMS no. 1471 of 2018 and judgment and order dated 30.05.2018, passed in Special Appeal nos. 403 of 2018, appellants Malvika and others preferred petition(s) for Special Leave to Appeal (C) nos. 15100-15101/2018 before the Hon’ble Apex Court. The Hon’ble Apex Court vide judgment and order dated 07.06.2018, passed the following order: “SLP(C) No. 15100-15101/2018 : We do not find any ground to interfere with the impugned order(s). The special leave petitions are accordingly dismissed. Pending applications, if any, shall also stand disposed of. SLP (C) Diary No. 21514 of 2018 : The special leave petition is dismissed as withdrawn. Since it is sated at Bar that the petitioner was not a party before the High Court, if it is so, the petitioner is at liberty to move the High Court in accordance with law. It is made clear that we have not examined the merits of the case.” 10. It is apt to note here that the Hon’ble Apex Court was pleased to observe in its judgment and order dated 07.06.2018 that the petitioners (Malvika and others) would be at liberty to approach the High Court in accordance with law. 11. The Vice Chancellor/Member Counselling Board wrote a letter dated 30.05.2018 to the Principal, Himalayan Institute of Medical Science, Swami Ram Nagar, Jolly Grant, Dehradun mentioning therein that in compliance of the order dated 29.05.2018, passed by Hon’ble High Court, in WPMS no. 1471 of 2018 and WPMS no. 1495 of 2018, a special meeting of the State Counselling Board of State of Uttarakhand was held on 30.05.2018, at 12:00 noon and the Board unanimously took a decision that the allotment of General Surgery seat by the Admission Committee constituted by the College to Naman Kuriyal (appellant herein), which was surrendered by the student namely Ms. 1495 of 2018, a special meeting of the State Counselling Board of State of Uttarakhand was held on 30.05.2018, at 12:00 noon and the Board unanimously took a decision that the allotment of General Surgery seat by the Admission Committee constituted by the College to Naman Kuriyal (appellant herein), which was surrendered by the student namely Ms. Pragya Kargeti on 18.05.2018 at late evening, is cancelled and the said vacant seat shall be allotted in already scheduled Mop UP round counselling on 31.05.2018 as per the instructions of the Counselling Board. 12. Since the petitioner got admission in M.S. (General Surgery) on 18.05.2018 without their being any counselling, therefore, in pursuance of letter dated 30.05.2018 as well as the directions issued by the Hon’ble Apex Court, the Counselling Board has cancelled the admission of the petitioner and direction was issued to give admission to the suitable candidate after conducting counselling. 13. Learned Single Judge, after giving full opportunity of hearing to the parties and after perusal of the material brought on record, pleased to dismiss the writ petition filed by the petitioner. 14. Feeling aggrieved by the judgment and order dated 11.06.2018, passed by learned Single Judge of this Court, this Special Appeal is preferred by the petitioner/appellant. 15. Hon’ble Apex Court in the case of Dar-Us-Slam Educational Trust and others v. Medical Council of India and others (Writ Petition (C) No. 267 of 2017), decided on 09.05.2017, in order to curb the malpractices of filling up of quota seats, as held as under: “After the second round of counselling for All India Quota seats, the students who take admission in All India Quota seats should not be allowed/permitted to vacate the seats. This would ensue that very few seats are reverted to the State Quota and also All India Quota seats are filled by students from the all India merit list only. The students who take admission and secure admission in Deemed Universities pursuant to the second round of counselling conducted by the DGHS shall not be eligible to participate in any other counselling.” 16. The Government of India has also issued directions pursuant to directions laid down by Hon’ble Supreme Court in Dar-Is-Salam’s case (supra) for fixation of quota. The students who take admission and secure admission in Deemed Universities pursuant to the second round of counselling conducted by the DGHS shall not be eligible to participate in any other counselling.” 16. The Government of India has also issued directions pursuant to directions laid down by Hon’ble Supreme Court in Dar-Is-Salam’s case (supra) for fixation of quota. The same reads as under: “Please find herewith the attached list of the candidates holding the PG course (MD/MS and MDS) seat in round -1 and round -2 of All India Quota/Deemed University through online PG Counselling – 2018. As per the directions laid down by Hon’ble Supreme Court of India in W.P. (c) 267/2017 in the case of Dar-Us-Salam and Ors. Vs. Medical Council of India and Ors, such candidates further are not eligible to vacate the allotted seat after round -2 of the online PG counselling of All India Quota and Deemed Universities. Moreover, all these candidates are not been eligible for participation in any other counselling to be conducted by State govts./counselling authorities. In this regard, you are hereby requested to please comply with the directions of the Hon’ble Supreme Court of India to avoid any further legal complications/contempt of the Court.” 17. Learned Single Judge considering the pleadings of the parties and the ratio of the judgment rendered by Hon’ble Supreme Court in Dar-Us-Slam’s case (supra), as also considering the directions issued by the Government of India and placing reliance on the letter dated 30.05.2018, written by the Vice Chancellor/Member Counselling Board, State of Uttarakhand pleased to dismiss the writ petition of the petitioner. 18. The learned Single Judge has minutely observed in his judgment and order that the admission was given to the petitioner on the seat vacated by Ms. Pragya Kargeti, but the same seat was not advertised at all and the same was allotted to the petitioner without any Mop Up counselling. From a perusal of the pleadings of the writ petition and the material brought on record, we are of the considered opinion that the admission obtained by the petitioner/appellant on M.S. (General Surgery) seat in Himalayan Institute of Medical Sciences, Jolly Grant, Dehradun was in fact a back door/illegal admission, as after vacation of the seat by Ms. From a perusal of the pleadings of the writ petition and the material brought on record, we are of the considered opinion that the admission obtained by the petitioner/appellant on M.S. (General Surgery) seat in Himalayan Institute of Medical Sciences, Jolly Grant, Dehradun was in fact a back door/illegal admission, as after vacation of the seat by Ms. Pragya Kargeti, it was incumbent upon the concerned college to keep the vacant seat in II round of Mop Up counselling, but it was not done by the respondent no. 6 medical college. 19. The Hon’ble Apex Court in the judgment rendered in Dar-Us-Slam (supra) has extended the date of admission for 30.05.2018 and 31.05.2018, as a last date. Since the petitioner/appellant obtained an illegal admission in the respondent no. 6 medical college, the Counselling Board had rightly cancelled his admission considering the directions issued by Hon’ble Apex Court in the judgment (supra). Since the letter dated 30.05.2018 was written pursuant to the direction issued by the Hon’ble Apex Court in the case of Dar-Us-Slam’s case (supra) and there was no ground taken by the petitioner in his writ petition that the respondent no. 4 while issuing the letter dated 30.05.2018, cancelling the admission of the petitioner, was not competent to do so and there was any illegality or infirmity in said letter, cancelling the admission of the petitioner/appellant. 20. It is apt to reiterate the observations made by the Division Bench of this Court while dismissing the Special Appeal no. 403 of 2018, Malvika & others vs. Yasmoon Akhtar Siddiqui & others, vide judgment and order dated 30.05.2018 - “that the private medical college are expected to act in terms of the directions issued by the Hon’ble Apex Court and also that of the Medical Council of India. The attempt of the private Medical College appears to have deliberately defeated the due process and directives of the Hon’ble Apex Court in the mater that has been evolved”. 21. Since the directions were issued by the Hon’ble Apex Court in Dar-Us-Slam’s case (supra) as well as by the Division Bench of this Court in Special Appeal no. The attempt of the private Medical College appears to have deliberately defeated the due process and directives of the Hon’ble Apex Court in the mater that has been evolved”. 21. Since the directions were issued by the Hon’ble Apex Court in Dar-Us-Slam’s case (supra) as well as by the Division Bench of this Court in Special Appeal no. 403 of 2018 and the admission has been made pursuant to the directions issued by the Hon’ble Supreme Court as well as by the directions issue by the Division Bench of this Court in the aforesaid appeals, the learned Single Judge has rightly dismissed the writ petition. 22. We are unable to take a view contrary to what was taken by the learned Single Judge in the judgment under challenge. The special appeal fails and is dismissed. No order as to cost. 23. Since the appellant has secured the admission by illegal means, this Court is of the opinion that exemplary cost should be imposed upon him but with great difficulty we are restraining ourselves from doing so considering the fact that the appellant is a student.