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2020 DIGILAW 462 (JK)

Mohammad Iqbal Lone v. Union Territory of J&K

2020-09-03

SINDHU SHARMA

body2020
Judgment Petitioner after completion of his MBBS course was appointed as Medical Officer in Health & Medical Education Department of the State and remained posted in Primary Health Centre, Dhara Doda. He appeared for National Entrance Eligibility Test (NEET-PG) Session 2020. On the basis of merit secured by him vide Notification No. 009-BOPEE of 2020 dated 03.05.2020, was granted seat in MS Orthopedics in Government Medical College, Srinagar. This offer was accepted by the petitioner through online mode by sending confirmatory e-mail and the same was accepted. After his selection and acceptance of the seat in MS Orthopedics, petitioner resigned from the post of Medical Officer in the Health & Medical Education Department as he was not entitled to any study leave in terms of order No. 18-RA(SS) of 2020 dated 13.05.2020 issued by the Government Medical College, Srinagar. 2. The petitioner, thus, joined on 01.06.2020 at Bone & Joint Hospital, Barzulla. According to the petitioner, he tested positive for Covid-19 so he was kept in Covid-19 Wellness Center, Kulgam on 08.06.2020 from where, he was discharged on 15.06.2020. However, as per the discharge slip, the petitioner was required to maintain Home quarantine for two weeks but vide letter dated 12.06.2020, he submitted his resignation from Covid Center thereby vacating the seat of MS Orthopedics allotted to him. However, after recovering, he approached the Principal, Government Medical College, Srinagar and vide his application dated 30.06.2020 sought withdrawal of his letter of resignation. The said application was forwarded by the Principal, Government Medical College, Srinagar to the Chairman, BOPEE on 03.07.2020. BOPEE, however, rejected the said application seeking withdrawal of resignation vide communication dated 07.07.2020, which is enclosed with the petition as Annexure-I. 3. Petitioner has called in question the legality of the aforesaid communication on the ground that the respondent-Board having extended the date for surrendering the seat vide notice No. 038-BOPEE of 2020 dated 02.07.2020, the seat could not be held to have been surrendered by the petitioner by submitting resignation on 12.06.2020 because the petitioner had submitted his application for withdrawal of resignation well before the extended time. The impugned order, thus, suffers from total non-application of mind as there is no reference to order dated 02.07.2020 extending the date from 18.06.2020 to 07.07.2020. 4. The impugned order, thus, suffers from total non-application of mind as there is no reference to order dated 02.07.2020 extending the date from 18.06.2020 to 07.07.2020. 4. It is submitted that the petitioner tendered his resignation in extreme state of depression and it cannot be considered of conscious decision, therefore, his application for withdrawal of resignation had to be considered in the background of Covid-19 pandemic. The question involved for consideration is when the resignation of candidate who has joined the Post Graduate Department becomes effective and who has to notify the vacancy. 5. The stand of the respondent-BOPEE as disclosed in Para-VI of the Counter affidavit is empathetic and clear. It is reproduced as under :- “It is respectfully submitted that with respect to resignation of a candidate from a seat, JK BOPEE has no concern with regard to its acceptance and rejection as it is the sole prerogative of the Principal of the Medical College concerned where the admission has been granted to a candidate. Respondent JK BOPEE being a counseling authority and a facilitator has to fix a particular date as per the schedule so that the process culminates within the limited time framed as fixed in this case, as upto 31st July, 2020, which has now been extended upto 31st August, 2020 by order of the Hon’ble Supreme Court of India. The date of resignation to leave the seat for filling it through a consequent phase of counseling well before the last date was fixed on 18.06.2020 and further extended till 07.07.2020, vide notice No. 038-BOPEE of 2020 dated 02.07.2020 to facilitate the candidates who had requested so in view of the prevailing circumstances.” 6. So the Principal, Government Medical College, Srinagar is the authority to accept or reject the resignation because as per Order No. 18- RA(SS) of 2020 dated 13.05.2020, it is he, who has to convey the vacancy position in each discipline. The order dated 13.05.2020 is clear and unambiguous, which is reproduced below:- “Pursuant to the selection for MD/MS/PG Diploma Courses in various Departments/ Disciplines of Govt. Medical College, Srinagar through PG National Eligibility Entrance Test 2020 and subsequent counselling conducted by the I&K BOPEE as per the notification referred above, the students who have completed the admission process in this college and whose details are indicated in the Annexure “A" are hereby directed to report to their respective Departments/Disciplines w.e.f. 01/06/2020. Medical College, Srinagar through PG National Eligibility Entrance Test 2020 and subsequent counselling conducted by the I&K BOPEE as per the notification referred above, the students who have completed the admission process in this college and whose details are indicated in the Annexure “A" are hereby directed to report to their respective Departments/Disciplines w.e.f. 01/06/2020. Moreover, admission of all such candidates shall be covered by Medical Council of India Postgraduate Medical Educaton Regulations, 2000, the relevant statutes of Kashmir University and the guidelines formulated by the Govt. Medical College. Srinagar from time to time.” 7. Principal, Government Medical College, Srinagar/respondent No. 4 had not only forwarded the resignation of the PG Scholar vide his letter dated 12.06.2020 to respondent No. 2 but also requested for necessary action. Through this letter, he had clearly indicated the discipline in which the candidate was admitted. This letter was also followed vide letter dated 16.07.2020 indicating the vacancy position in different discipline. Item No. 5 of this letter, indicates two vacancies in the Department of Orthopedics. Vide Notification dated 23.07.2020 issued after completion of mopping up round of counseling from 21.07.2020 to 23.07.2020, two candidates namely Shubhranshu Choudhary & Yawar Naseer, figuring at Serial Nos. 1 & 5 under Roll Nos. 2066071124 & 2066070918 with NEET Rank 24515 & 41542 having BOPEE’s Score 601 & 564.3 respectively were admitted against these two seats. Further stand of the respondents is that the seat becomes available immediately after the candidate resigns. Since the petitioner resigned on 12.06.2020, therefore, the seat occupied by him became available for allotment to the next person and the vacancy position has also been indicated by the Principal in his letter dated 16.07.2020. The BOPEE has acted strictly in accordance with Para-2 of Notification No. 015- BOPEE of 2020 dated 04.06.2020 which is reproduced below:- “14…(2) The candidates, who have been granted admission (through allotment/upgradation during 1st or 2nd round of counselling) and intend to resign may do so upto 18-06-2020 (4.00 p.m.) after taking a conscious decision and also keeping the conditions contained in SRO 48 of 2018 dated 30-01-2018 in mind as already notified from time to time. This will enable the Board to reflect such seats, if any, in the Seat Matrix and subsequently be filled up at appropriate time through counselling to be notified separately……” 8. This will enable the Board to reflect such seats, if any, in the Seat Matrix and subsequently be filled up at appropriate time through counselling to be notified separately……” 8. The petitioner having been selected in the first round of counselling had to resign upto 18.06.2020 and he did so on 12.06.2020, thus, seat became available as intimated by respondent No. 4 in his letter dated 16.07.2020 for which the merit position was evaluated and the seat allotted to him. Time for submitting resignation was extended for those selected candidates, who had not resigned by 18.06.2020 and not for those, who had already resigned, as is the case of the petitioner. There is no provision of withdrawal of the resignation when the Board intimated about the vacancy position to the Principal and thereafter no withdrawal of the resignation is permitted, for which any provision was required to be made because once the candidate intimated that he was not in a position to continue the study in the discipline, the right accrues to the other candidates. For this reason, the mopping of counseling takes place after collecting the date. 9. After the Principal was intimated by the Board about the vacancy position following those who have not joined the discipline or those who have resigned, the entire argument of learned counsel for the petitioner is founded on the date of withdrawal of the resignation which is not relevant because what is relevant is the date of resignation. 10. In view of the fact that the Principal, Government Medical College, Srinagar-respondent No. 4 has intimated the vacancy position to the Board after accepting the resignation of the petitioner, this petition is not maintainable and more so, as those candidates, who have been selected in the discipline of Orthopedics have not been arrayed as party respondents and no adverse orders can be passed against them without hearing. Petitioner despite knowing the fact that Shubhranshu Choudhary & Yawar Naseer have already been admitted to the course, has failed to implead them as party respondent, in the present petition and this is the additional ground for dismissal of this petition. 11. In view of the aforesaid, there is not merit in this petition and the same is, accordingly, dismissed alongwith connected CM.