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2019 DIGILAW 2812 (ALL)

Pankaj Kumar Yadav v. State of U. P.

2019-12-18

ABHINAVA UPADHYA, PANKAJ BHATIA

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JUDGMENT : Pankaj Bhatia, J. 1. Heard Sri Radha Kant Ojha, learned Senior Advocate assisted by Sri Shivendu Ojha, learned counsel for the petitioner, Sri Mahendra Pratap, learned counsel for the respondent no. 2 and learned Standing Counsel for the State-respondent. 2. In the present petition, it has been alleged that for conducting National Eligibility-cum-Entrance Test (NEET) UG-2018, a brochure was published by the Director General, Medical Health and Training. The petitioner applied and appeared in the NEET UG-2018 and the Roll Number 513812113 was allotted to the petitioner. It is said that in the said test conducted by CBSE, the petitioner’s all India ranking was 10092 and the State rank was 1195. It is stated that the petitioner appeared in the first counselling and an allotment letter was issued to the petitioner by the Chairman, counselling Board (Annexure-2 to the petition), whereby the petitioner was kept in the category BCOP and was allotted the Institute Government Medical College, Azamgarh for the course of MBBS. The petitioner in terms of the said letter appeared before the Principal, Government Medical College, Azamgarh on 10.7.2018 and submitted his papers as well as deposited an amount of Rs. 31,800/- by demand draft no. 409058, which was duly received by the Principal as is perused from the receipt dated 10.7.2018 (Annexure-3 to the petition). 3. The petitioner thereafter sought an NOC to appear in the second counselling only with a view to improve and get a better Institution. The said NOC was given to the petitioner on 10.7.2018. The petitioner appeared in the second round of counselling. In the said second round of counselling, the petitioner was allotted the same Medical College i.e. Government Medical College, Azamgarh. However, in the said second allotment letter his category was mentioned as GNOP, whereas in the first allotment letter the allotted category was mentioned as BCOP. The petitioner, believing that he was allotted the same college reported for admission, but no process was conducted by the College and the petitioner was throughout under the impression that his fees and papers had already been deposited in the College in question, as such no further steps were to be taken. The petitioner, believing that he was allotted the same college reported for admission, but no process was conducted by the College and the petitioner was throughout under the impression that his fees and papers had already been deposited in the College in question, as such no further steps were to be taken. The petitioner, when he approached the respondent no.3, the College in question, was informed that his admission had been cancelled because the petitioner had appeared in the second counselling and as in terms of the allotment letter issued after the second round of counselling, the petitioner did not report at the allotted College on or before 18.8.2018, as such his admission had been cancelled. 4. The petitioner thereafter moved an application dated 28.8.2018 before the Director General, Medical Education and Training highlighting his plight, however, no action was taken but the petitioner was not allowed to continue his study. As such, the petitioner approached this Court by filing present writ petition on 9th September, 2018. 5. This Court vide order dated 13.9.2018, allowed three days’ time to obtain instruction and the matter was directed to be listed on 18th September, 2018. On 18.9.2019, this Court granted time for filing of counter affidavits mainly as an statement was made before this Court that no seat is vacant, on which the petitioner can be accommodated. 6. The matter was heard on 9.12.2019. 7. Sri R.K. Ojha, Senior Advocate assisted by Sri Shivendu Ojha, counsel for the petitioner argued that in terms of the brochure, there is no provision or stipulation that in the event of petitioner appearing in the second round of counselling, his admission granted after the first counselling was to automatically come to an end. 7. Sri R.K. Ojha, Senior Advocate assisted by Sri Shivendu Ojha, counsel for the petitioner argued that in terms of the brochure, there is no provision or stipulation that in the event of petitioner appearing in the second round of counselling, his admission granted after the first counselling was to automatically come to an end. He has drawn our attention to the provisions of the brochure specifying for the counselling procedure, which is as under:- **dkamflfyax izfdz;k%& dkmaflfyax izfdz;k izFke o f}rh; pØ eas lEiUu dh tk;sxhA vH;FkhZ dks izFke pØ ls vkoafVr lhV ij izos’k izkIr djuk gksxk] vkoaVu ds i’pkr izos’k u ysus vFkok izos’k ds i’pkr R;kxi= nsus dh n’kk eas vH;FkhZ }kjk tek dh x;h /kjksgj /kujkf’k (Security Money) tCr dj yh tk;sxhA ,sls vH;FkhZ iqu% /kjksgj /kujkf’k (Security Money) tek djus ds i’pkr gh f}rh; pØ dh dkamflfyax ds fy, vgZ gksxsA izFke pØ dh dkamflfyax ls vukoafVr@izosf’kr vH;FkhZ f}rh; pØ dh dkamflfyax esa izfrHkkx dj ldsaxs rFkk bUgsa iqu% /kjksgj /kujkf’k (Security Money) tek djus dh vko’;drk ugha gksxhA vH;FkhZ izFke pØ dh dkmaflfyax ls vkoafVr lhV dks f}rh; pØ dh dkmaflfyax esa Reshuffle dj ldrk gSA f}rh; pØ dh dkmaflfyax ls Reshuffle gksus ds mijkUr iwoZ eas vkoafVr lhV fjDr gksdj fdlh vU; vgZ vH;FkhZ dks vkoafVr gks tk;sxh] Reshuffle u gksus dh n’kk esa vH;FkhZ }kjk izFke dkamflfyax ls izos’k yh x;h lhV ;Fkkor cuh jgsxhA** 8. On the basis of said provision, he submits that only if there was a reshuffle in the second round of counselling, the seat vacated would be allotted to someone else, whereas in the present case the seat was not reshuffled as the petitioner was allotted the same College. He further submits that even otherwise all the documents of the petitioner were submitted before the College concerned, which is clear from the perusal of the receipt dated 10.7.2018 and thus no further steps had to be taken by the petitioner even in terms of the allotment of the same College in the second round of counselling. 9. Sri Mahendra Pratap, learned counsel appearing on behalf of respondent no. 9. Sri Mahendra Pratap, learned counsel appearing on behalf of respondent no. 2 on the other hand admits that in the first round of counselling, the petitioner was allotted the State Medical College, Azamgarh under the category BCOP, however in the second round of counselling, the petitioner was allotted the category GNOP, although the Medical College remained the same and thus in terms of the Government Order dated 12.6.2018, the seat allotted to the petitioner stood automatically cancelled. He further submits that in terms of the second allotment, the petitioner was advised to report on or before 18.8.2018 and as the petitioner did not report on or before the said date, as such he has no claim to the seat in question. He further argues that the submission of the counsel for the petitioner that all the documents which are required to be submitted were already deposited on 10.7.2018, is not acceptable, as the same exercise had to be completed once again. 10. Sri Mahendra Pratap has relied upon a System Requirement Specifications (Second Counselling) issued by Director General, Medical Education and Training to stress that in terms of the said guidelines if a candidate has been allotted a new seat on the basis of his choice in the second counselling, the seat allotted in the first counselling will automatically be cancelled, however in case he could not be allotted any seat on the basis of his/her choice in the second counselling, the seat allotted in the first counselling will be retained. Relevant paragraph 3 of the said circular is quoted hereinbelow:- “Candidates who have joined in the institutes on the basis of first allotment and want to reshuffle his/her seat will take part in choice submission process. If he/she has been allotted a new seat on the basis of his/her choices in second counselling, the seat allotted in first counselling will automatically be cancelled. In case, he/ she could not be allotted any seat on the basis of his/her choices in second counselling, the seat allotted in first counselling will be retained.” 11. If he/she has been allotted a new seat on the basis of his/her choices in second counselling, the seat allotted in first counselling will automatically be cancelled. In case, he/ she could not be allotted any seat on the basis of his/her choices in second counselling, the seat allotted in first counselling will be retained.” 11. During the course of the proceedings, a supplementary counter affidavit was filed on behalf of Sri Mahendra Pratap indicating the seats vacant as on date, which is as under:- Ø0la0 laLFkk dk uke fjDr lhVks dh la[;k 1 esfMdy dkyst] vkxjk 1 2 esfMdy dkyst] dkuiqj 0 3 esfMdy dkyst] bykgkckn 0 4 esfMdy dkyst] esjB 0 5 esfMdy dkyst] >k¡lh 1 6 esfMdy dkyst] xksj[kiqj 0 7 esfMdy dkyst] dUukSt 0 8 esfMdy dkyst] tkykSu 0 9 esfMdy dkyst] vktex<+ 0 10 esfMdy dkyst] vEcsMdjuxj 0 11 esfMdy dkyst] lgkjkuiqj 2 12 esfMdy dkyst] ck¡nk 0 13 Mk0 jke euksgj yksfg;k vk;qfoZKku laLFkku] y[kuÅ 1 14 m0iz0 vk;qfoZKku fo’ofo|ky;] lSQbZ] bVkok 2 15 ds0th0,e0;w0] y[kuÅ 0 dqy ;ksx 7 12. The counsel for the petitioner Sri R.K. Ojha argues that he may be allotted any of the vacant seats in any of the Colleges as is evident from the chart given by Sri Mahendra Pratap at the discretion of the respondent no. 2, to which the petitioner would have no objection. 13. The sole question to be considered is whether in terms of the brochure any fault could be attributed to the petitioner and whether the petitioner would be entitled to a relief of admission keeping in view of his conduct and steps taken by the petitioner for correction of the injustice done to him. 14. A perusal of the brochure, which is the basis for any candidate to apply, clearly reveals that only on a reshuffle and the allotment of fresh seat in the second round of counselling, the admission to the seat in the first round of counselling can be held to be lapsed. In fact, the brochure clearly envisages that in the event of there being no reshuffle, the seat allotted in the first found of counselling shall remain as it is. 15. In fact, the brochure clearly envisages that in the event of there being no reshuffle, the seat allotted in the first found of counselling shall remain as it is. 15. We are not impressed with the submission of Sri Mahendra Pratap that merely because there was a change of category, it would amount to allotment of a new seat and would render the admission to the first seat as lapsed. In the present case, it is not disputed that the petitioner was allotted the same College in the second round of counselling also, he has deposited all his testimonials and the fees at the time of first round of counselling and thus we have no hesitation in holding that merely because a new category was allotted from BCOP to GNOP, the same would amount to a reshuffle and allotment of a new seat. Thus, we hold that the petitioner has been meted with manifest arbitrariness and despite the petitioner being meritorious has been denied admission. 16. Now, considering the question as to what relief can be granted in the facts of the present case, it is essential to note that the petitioner approached this Court with expedition by filing present writ petition on 9th September, 2018 and no order could be passed in favour of the petitioner only on account of a statement made that no seats are vacant as recorded by this Court in its order dated 18.9.2018. 17. A three Judge bench of the Hon’ble Apex Court very recently in Civil Appeal No. 1081 of 2017 in the case of S. Krishna Sradha v. The State of Andhra Pradesh & Others decided on 13.12.2019 answered on a reference the questions which arose on account of a conflict between the pronouncement of the judgments of the Apex Court in the case of Asha v. Pt. B.D. Sharma UHS; (2012) 7 SCC 389 and Chandigarh Administration v. Jasmine Kaur; (2014) 10 SCC 521 . The Apex Court after considering the submissions advanced before it, answered the reference as under:- “9. B.D. Sharma UHS; (2012) 7 SCC 389 and Chandigarh Administration v. Jasmine Kaur; (2014) 10 SCC 521 . The Apex Court after considering the submissions advanced before it, answered the reference as under:- “9. In light of the discussion/observations made hereinabove, a meritorious candidate/student who has been denied an admission in MBBS Course illegally or irrationally by the authorities for no fault of his/her and who has approached the Court in time and so as to see that such a meritorious candidate may not have to suffer for no fault of his/her, we answer the reference as under: (i) That in a case where candidate/student has approached the court at the earliest and without any delay and that the question is with respect to the admission in medical course all the efforts shall be made by the concerned court to dispose of the proceedings by giving priority and at the earliest. (ii) Under exceptional circumstances, if the court finds that there is no fault attributable to the candidate and the candidate has pursued his/her legal right expeditiously without any delay and there is fault only on the part of the authorities and/or there is apparent breach of rules and regulations as well as related principles in the process of grant of admission which would violate the right of equality and equal treatment to the competing candidates and if the time schedule prescribed – 30th September, is over, to do the complete justice, the Court under exceptional circumstances and in rarest of rare cases direct the admission in the same year by directing to increase the seats, however, it should not be more than one or two seats and such admissions can be ordered within reasonable time, i.e., within one month from 30th September, i.e., cut off date and under no circumstances, the Court shall order any Admission in the same year beyond 30th October. However, it is observed that such relief can be granted only in exceptional circumstances and in the rarest of rare cases. However, it is observed that such relief can be granted only in exceptional circumstances and in the rarest of rare cases. In case of such an eventuality, the Court may also pass an order cancelling the admission given to a candidate who is at the bottom of the merit list of the category who, if the admission would have been given to a more meritorious candidate who has been denied admission illegally, would not have got the admission, if the Court deems it fit and proper, however, after giving an opportunity of hearing to a student whose admission is sought to be cancelled. (iii) In case the Court is of the opinion that no relief of admission can be granted to such a candidate in the very academic year and wherever it finds that the action of the authorities has been arbitrary and in breach of the rules and regulations or the prospectus affecting the rights of the students and that a candidate is found to be meritorious and such candidate/student has approached the court at the earliest and without any delay, the court can mould the relief and direct the admission to be granted to such a candidate in the next academic year by issuing appropriate directions by directing to increase in the number of seats as may be considered appropriate in the case and in case of such an eventuality and if it is found that the management was at fault and wrongly denied the admission to the meritorious candidate, in that case, the Court may direct to reduce the number of seats in the management quota of that year, meaning thereby the student/students who was/were denied admission illegally to be accommodated in the next academic year out of the seats allotted in the management quota. (iv) Grant of the compensation could be an additional remedy but not a substitute for restitutional remedies. Therefore, in an appropriate case the Court may award the compensation to such a meritorious candidate who for no fault of his/her has to lose one full academic year and who could not be granted any relief of admission in the same academic year. (v) It is clarified that the aforesaid directions pertain for Admission in MBBS Course only and we have not dealt with Post Graduate Medical Course. 10. (v) It is clarified that the aforesaid directions pertain for Admission in MBBS Course only and we have not dealt with Post Graduate Medical Course. 10. In view of the above, the decision of this Court in the case of Jasmine Kaur (Supra) or any other decisions contrary to the above stand overruled. The decision of this Court in the case of Asha (Supra) is hereby affirmed to the aforesaid extent. The reference is answered accordingly.” 18. Considering the ratio of the judgments of the Apex Court and the fact that we have already held that the admission was denied to the petitioner on account of totally arbitrary consideration by the respondent authorities and coupled with the fact that the seats are vacant in the Medical Colleges as are indicated in the chart filed by Sri Mahendra Pratap Singh, we hold that the petitioner being a meritorious student is entitled to a restitutionary relief and entitled to be admitted in the College where the seats are vacant to be decided by the respondent no. 2 within a period of 15 days from today subject to the petitioner complying with the other formalities. 19. The writ petition is allowed in terms of the said direction.