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2020 DIGILAW 545 (JK)

Taseen Naiz Malik v. Union Territory of J&K

2020-10-19

RAJESH BINDAL

body2020
JUDGMENT : Rajesh Bindal, J. 1. The petitioner filed the present writ petition seeking a direction for his admission in MBBS course in Government Medical College, Chandigarh against Central Pool Quota seat allotted to the Union Territory of Jammu and Kashmir. 2. The learned counsel for the petitioner submitted that the petitioner appeared in NEET examination in the year 2019. He secured All India Rank of 121456. Vide communication dated 16.08.2019 issued by the Ministry of Health and Family Welfare, Government of India, four seats were allotted in MBBS Course from the Central Pool Quota to Jammu and Kashmir, for the academic session 2019-20. Out of that, one seat was in Government Medical College, Chandigarh, whereas three others were in different colleges located in Bihar, New Delhi and Rajasthan. In pursuance to the aforesaid communication, J&K Board of Professional Entrance Examination (for short 'BOPEE') issued notice on 29.08.2019 inviting applications from the eligible candidates to be nominated against the aforesaid four seats, wherein the criteria was also laid down. The last date fixed for submission of applications was September 05, 2019. The petitioner being eligible in the categories specified, applied for the same. Vide communication dated 27.09.2019, the petitioner was allotted the seat in Government Medical College, Chandigarh (for short 'the Medical College'). The aforesaid letter was sent to the college with copy to the petitioner. 3. After receipt of the aforesaid communication, the petitioner immediately approached the college. He was informed that there is no seat vacant, as one seat available with the college has already been filled up in view of the direction of Hon'ble the Supreme Court in SLP(C) No. 18535/2019 titled Aastha Raj v. Government Medical College and Hospital and another, decided on August 16, 2019. The petitioner was communicated the reason for his non-admission by the college vide communication dated 01.10.2019. This has reference to the aforesaid order passed by Hon'ble the Supreme Court. The petitioner claims that he received the aforesaid communication on 10.10.2019. 4. The petitioner, after receipt of the aforesaid communication, approached Hon'ble the Supreme Court by filing application for clarification in Aastha Raj's case (supra) in which direction had been issued for grant of admission to the candidate, who was the petitioner before the Supreme Court. On 24.01.2020, the petitioner was allowed to withdraw his application with liberty to avail his remedy before the appropriate forum. On 24.01.2020, the petitioner was allowed to withdraw his application with liberty to avail his remedy before the appropriate forum. Without waiting, the petitioner immediately filed the writ petition in this Court on February 07, 2020. 5. The argument raised by learned counsel for the petitioner is that he is not at fault as intimation about his nomination from the Jammu and Kashmir for Central Pool Quota seat was given to him vide communication dated 27.09.2019. He immediately approached the college. If he has been denied admission on account of the fault of the Medical College, whereby it admitted some other candidate taking shelter of the order passed by Hon'ble the Supreme Court, he cannot be made to suffer. It is the dream of the petitioner to study medicines and serve the humanity. 6. On the issue that the session for which the petitioner was seeking admission is already over, hence, what relief can be granted to him at this stage, the learned counsel for the petitioner referred to judgment of Hon'ble the Supreme Court in AIR 2020 SC 47 titled as S Krishna Sradha Vs The State of Andhra Pardesh and others. While referring to the aforesaid judgment it was argued that there being fault of the Medical College in the case in hand, in not granting admission to the petitioner, he should be granted admission in the current session i.e. 2020-21. The Supreme Court in the aforesaid judgment has observed that in such type of cases, there can be direction to increase seats also by the High Court, hence, he invokes this jurisdiction. He further submitted that in terms of the judgment of the Supreme Court, the petitioner is also entitled to compensation for wasting one prime year of his career. He further argued that along with objections filed by the then Medical Council of India, a communication dated 17.09.2019 from the College to the MCI, has been annexed whereby permission was sought for conversion of the Central Pool Quota seat for admission of the candidate in terms of the direction issued by the Supreme Court. There is nothing on record to suggest that the permission was ever granted. Action by the Medical College, in the absence of any permission, has resulted in diversion of Central Pool Quota seat to the General Category. The same is absolutely illegal. There is nothing on record to suggest that the permission was ever granted. Action by the Medical College, in the absence of any permission, has resulted in diversion of Central Pool Quota seat to the General Category. The same is absolutely illegal. If some candidate was to be granted admission in terms of the directions issued by Supreme Court, the last admitted candidate in that category had to give way and the petitioner could not be made to suffer on that account. 7. Ms. Seema Shekhar, learned Sr. AAG appearing for the BOPEE, endorsing the fact of allotment of four seats of Central Pool Quota to J&K and allocation of Government Medical College, Chandigarh to the petitioner, submitted that when the petitioner was denied admission by the Medical College, the matter was taken by the BOPEE even with the Ministry of Health and Family Welfare, Government of India, however, no response was received. The petitioner deserves to be granted admission as he is not at fault. Delay in nomination of the petitioner was due to reasons beyond the control of BOPEE. 8. Mrs. Deepika Mahajan, learned counsel for Medical Council of India submitted that the role of Council is very limited. All admissions are made in terms of the provisions of the Medical Council of India Act, and the Rules and Regulations framed thereunder. The Central Pool Quota seats are administered by the Government of India. The Council has no rule to play in the same. 9. Contesting the relief claimed by the petitioner in the present petition, Mr. Pranav Kohli the learned counsel appearing for the Government Medical College, Chandigarh submitted that the prayer made in the present petition is for grant of admission for the session 2019-20, the process of which is already over long back. Though the present petition is pending in this court since long, however the prayer has not been amended for grant of admission in the current session. He further submitted that this Court will not have jurisdiction to entertain the present petition as the Medical College is located at Chandigarh and all admission processes were taken there. Even in Aastha Raj's case (supra), in which Hon'ble the Supreme Court directed for admission, had earlier approached the High Court of Punjab and Haryana and thereafter the matter was taken to the Supreme Court. 10. Even in Aastha Raj's case (supra), in which Hon'ble the Supreme Court directed for admission, had earlier approached the High Court of Punjab and Haryana and thereafter the matter was taken to the Supreme Court. 10. Coming to the merits of the controversy, he submitted that the petitioner never approached the Medical College in time in terms of the schedule of admission. The prospectus was uploaded on the website of the Medical College on 10.06.2019 and the last date for admissions was 31.08.2019. The petitioner approached the Medical College on 27.09.2019. By that time, in terms of the direction issued by the Supreme Court, the vacant seat had already been filled up. The Medical College is not at fault. It was bound to comply with the order passed by the Supreme Court. 11. In response, Mr. Navyug Sethi, learned counsel for the petitioner submitted that in the entire process, no fault can be attributed to the petitioner. Because of prevailing circumstances in Jammu and Kashmir at that time, the BOPEE had moved application before Hon'ble the Supreme Court for granting extension of time for carrying out admissions to the professional courses. Vide order dated 16.09.2019 passed in M.A. No. 1034 of 2019 in Writ Petition (C) No. 76 of 2015 titled as Ashish Ranjan & Ors. V. Union of India & Ors., the Supreme Court had granted two weeks' extension for carrying out admissions, hence, the cut of date was September 30, 2019. The name of the petitioner was nominated for Central Pool Quota seat to Medical College, Chandigarh vide communication dated 27.09.2019 and immediately thereafter, he approached the college. Hence by no stretch of imagination, he can be said to be at fault for denying him admission specially when three other candidates who were also nominated to colleges in different States, were admitted and are pursuing their studies, whereas the petitioner has been made to suffer and loose one year of his career. 12. He further submitted that this Court has the jurisdiction to entertain the lis for the reason that the petitioner was not to participate in any counseling process. He was nominated for admission against Central Pool Quota seat. The process of nomination was to be carried on by BOPEE in Jammu and Kashmir. The petitioner had a grievance against BOPEE as well considering the fact that despite its communication, the petitioner was denied admission. He was nominated for admission against Central Pool Quota seat. The process of nomination was to be carried on by BOPEE in Jammu and Kashmir. The petitioner had a grievance against BOPEE as well considering the fact that despite its communication, the petitioner was denied admission. Part of cause of action has arisen within the jurisdiction of this court. 13. As far as the Aastha Raj's case is concerned, it was submitted that she was seeking admission against general quota seats for which applications were to be filed at Chandigarh and she had to participate in the counseling as well. Hence, she approached the High Court of Punjab and Chandigarh. The argument is that the High Court of J&K has the jurisdiction to entertain the present petition. 14. Heard learned counsel for the parties and perused the paper book. 15. It would be appropriate to notice certain dates, which are not disputed by either of the parties. The same are given below: Date Order 05.08.2019 On August 05,2019, the Parliament revoked the special status granted to Jammu & Kashmir under Article 370 of the constitution of India 16.08.2019 04 seats in MBBS Course were allotted under Central Pool Quota to the Jammu and Kashmir. 29.08.2019 Notice issued by BOPEF, inviting application for consideration of candidates for nomination against four Central Pool Quota Seats for admission to MBBS Course. The receipt of application was 05.09.2019 16.09.2009 Keeping in view of the prevailing circumstances In the then State of J and K. application was filed by BOPEE before Hon’ble the Supreme Court for extension of time for completing the process of admission in MBBS course. The period was extend by two week i.e., update September 30, 2019. 27.09.2019 The petition was allotted seat in Government Medical college, Chandigarh against the Central Pool Quota for admission to MBBS course. The petitioner approached the college, however, was dented admission as the seat already been filled up in view of the order passed by the Supreme Court in Aastha Raj’s case (supra) 01.10.2019 Letter was sent by the Medical College, Chandigarh to the petitioner denying admission, giving reason that no seat was vacant as the one available was filled up in view of the order passed by the Supreme Court. The petitioner received the letter on 10.10.2019. The petitioner received the letter on 10.10.2019. Immediately after coming to know about the aforesaid communication of Medical College, Chandigarh, denying admission to the petition, the BOPEE had taken up the matter with Ministry of Health and family Welfere, Government of India. There is nothing on record to suggest as to whether any response was received. 22.10.2019 The petitioner filed application in the case of Aastha Raj’s (supra) before Hon’ble the Supreme Court seeking clarification. 24.10.020 The application filed by the petitioner was permitted to be withdrawn with liberty to avail of remedy before the appropriate forum. 07.02.2020 Writ Petition was filed in this Court seeking a direction for admission to the petitioner. 16. In the aforesaid factual matrix the issue, which is required to be considered by this Court, is as to whether the petitioner deserves to be granted admission in the current session i.e. 2020-21, for which the process of admission is yet to commence, as only the result of NEET-2020 has been declared and/or has to be compensated on account of act of omission and commission by the Medical College, Chandigarh or any other authority. Another allied issue raised by learned counsel for the Medical College, Chandigarh regarding jurisdiction of this court, is also required to be dealt with. 17. Before the arguments of learned counsel for the parties are considered, it would be appropriate to refer to the judgment of Hon'ble the Supreme Court in S Krishna Sradha's case (supra). It was a case in which the issue was referred to be considered by a Larger Bench. Issue was to whether a candidate having been denied admission in a particular session could only be compensated in monetary terms or can be granted admission in the next session. The relevant para 9 thereof is extracted below: "9. It was a case in which the issue was referred to be considered by a Larger Bench. Issue was to whether a candidate having been denied admission in a particular session could only be compensated in monetary terms or can be granted admission in the next session. The relevant para 9 thereof is extracted below: "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." (emphasis supplied) 18. (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." (emphasis supplied) 18. Now coming to the facts of the present case, as far as the stand of the petitioner is concerned, it was for the first time that on 27.09.2019, he was informed about his admission in Medical College, Chandigarh against the Central Pool Quota. He immediately approached the college and was denied admission. The stand taken by the college is that in the case of Aastha Raj (supra), the Supreme Court vide order dated 16.08.2019 directed for consideration of her case for admission. Subsequent thereto vide order dated 27.09.2019 in the contempt petition filed by Aastha Raj, the Medical College was directed to admit her in MBBS course. Hence, in compliance to the Supreme Court order, admission was granted to her. 19. Another reason assigned for denying admission to the petitioner was that in terms of the cut-off date fixed by the College for admission in the prospectus issued, the petitioner had not approached the college in time and participated in the counseling, hence, could not be admitted thereafter. The cut-off date so fixed was 31.08.2019. As thereafter one seat coming out of Central Pool Quota was lying vacant, the college had admitted Aastha Raj against that seat. As against that, the fact remains that the petitioner is a candidate belonging to J&K. The then State of J&K at that time was going through a lot of changes, ever since Article 370 was abrogated and the Jammu and Kashmir Reorganization Act, 2019 was enacted on August 05, 2019. The result of which was that two Union Territories were created, namely, Jammu and Kashmir, and Ladakh as against the earlier State of J&K. The authorities were busy on other important work. The Government of India allocated four seats to J&K vide communication dated 16.08.2019. In pursuance thereto, BOPEE issued public notice on 29.08.2019 inviting applications for nomination of the students for admission against the Central Pool Quota seats for the session 2019-20. The last date was fixed as 05.09.2019. After the process was finalized, vide communication dated 27.09.2019, the petitioner was allocated seat in Government Medical College, Chandigarh. The communication was sent by the BOPEE to the Medical College, with copy to the petitioner. The last date was fixed as 05.09.2019. After the process was finalized, vide communication dated 27.09.2019, the petitioner was allocated seat in Government Medical College, Chandigarh. The communication was sent by the BOPEE to the Medical College, with copy to the petitioner. Besides this, another relevant fact to be noticed is that because of the circumstances prevailing in J&K, the process of admission to various Medical Colleges during the year 2019-20 could not be completed within time. Hence, BOPEE filed application bearing MA No. 1933/2019 in Writ Petition (SC) No. 76/2015 before Hon'ble the Supreme Court, which was allowed vide order dated 16.09.2019. The last date for admissions was extended for a period of two weeks from the date of passing of the order i.e. upto September 30, 2019. 20. The Government Medical College, Chandigarh may be right to plead that no one having approached the college for admission against the Central Pool Quota seat for J&K, the vacant seat was offered to Aastha Raj, in whose favour the Supreme Court had issued a direction. But the fact remains that the petitioner had approached before the last date fixed for admissions, i.e. September 30. May be in case all the seats had been filled up by that time, especially in the category to which Aastha Raj belonged, the last candidate admitted in her category may had to give way. However, as the seat was lying vacant, the college after seeking legal opinion admitted her, whereas denied admission to the petitioner. The case is required to be examined from another angle. Even the petitioner also cannot be said to be at fault. Because of the circumstances prevailing in J&K at that time, the process for admission to MBBS courses could not be completed within time schedule fixed by the Supreme Court. Hence, extension was sought. The petitioner was nominated for the Central Pool Quota vide order dated 27.09.2019 and the petitioner without wasting any time immediately approached the college for admission. Hence, he also cannot be set at fault. The circumstances were beyond his control. But in these circumstances, in my opinion, the petitioner should not be denied the benefit of admission to which he is entitled to against the Central Pool Quota seat as per the nomination made by BOPEE. 21. Hence, he also cannot be set at fault. The circumstances were beyond his control. But in these circumstances, in my opinion, the petitioner should not be denied the benefit of admission to which he is entitled to against the Central Pool Quota seat as per the nomination made by BOPEE. 21. Now the issue would raise as to whether the petitioner can be granted admission in the current session or he has to be denied the relief. Answer to the aforesaid question has been given by Hon'ble the Supreme Court in S Krishna Sradha's case (supra). It has been opined therein that in case the candidate is not at fault and had been following his case diligently, he should not be denied admission. The admission can be granted even in next session with a direction to create additional seat. At the time of hearing it transpired that the Government Medical College, Chandigarh has the sanctioned strength of 150 seats for MBBS. The petitioner is a sufferer of the circumstances, which were beyond his control. He had been nominated for admission for the session commencing in 2019-20, however, could not get admission. Hence, in my opinion, a direction is required to be issued to the Government Medical College, Chandigarh to grant admission to the petitioner in the session commencing in 2020-21. For the purpose, one additional seat shall be created as no other candidate in any of the category, who is to get admission in the college for the current session should suffer on this account. The college will complete the formalities required for the purpose. Ordered accordingly. 22. As far as the argument raised by learned counsel for the Medical College that this Court does not have the jurisdiction to entertain the lis, suffice to state that it is not a case related to admission in the Government Medical College, Chandigarh only, where the petitioner was to apply and participate in the counseling, which was to take place at Chandigarh. It is a case in which the petitioner was nominated by BOPEE in J&K for admission against Central Pool Quota seat to the Government Medical College, Chandigarh. The process of selection for nomination for Central Pool Quota seats was carried out in J&K. After his nomination, the petitioner was just to approach the college for deposit of fee and he was not to participate in counseling. The process of selection for nomination for Central Pool Quota seats was carried out in J&K. After his nomination, the petitioner was just to approach the college for deposit of fee and he was not to participate in counseling. The cause of action is a bundle of facts and if seen in totality, part of cause of action had arisen in J&K, hence this court has the jurisdiction to entertain the lis. 23. As far as award of compensation to the petitioner is concerned, in addition to the admission in the current session is concerned, the argument has to be noticed and rejected for the reason that it is not a case in which fault can solely be attributed to the Medical College for denying admission to the petitioner. It was on account of prevailing circumstances in the Union Territory of J&K (erstwhile State of J&K) that the process of nomination was delayed and thereafter the Medical College had been directed for admission of a student by Hon'ble the Supreme Court. The action was taken by it considering that one seat was lying vacant. In fact, for filling up that seat, the matter had earlier been taken up with Medical Council of India. However, as usual no response was given by the authority concerned. It's nothing else but shirking responsibility. Hence, in my opinion, the petitioner does not deserve to be granted any compensation. 24. The argument raised by learned counsel for the respondents that there is no prayer made in the petition for grant of admission for the current session, hence, the writ petition deserves to be dismissed. The argument does not carry any weight as prayer made in the writ petition is for grant of admission to the petitioner to the first year MBBS course in the 2019-20 session, in view of the selection and recommendations made by the respondent Nos. 2 and 3 under Central Pool Quota allotted to J&K, vide communication dated 27.09.2019. Omnibus prayer is also there in the writ petition. In any case, the courts can always mould the relief, which a litigant deserves to be granted instead of pushing him to protracted litigation and keeping the matter pending. 25. The writ petition is accordingly, allowed in terms of the directions issued in Para 21 of the judgment.