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2021 DIGILAW 9 (MP)

Aakash Mehra v. State of M. P.

2021-01-06

SHEEL NAGU, VISHAL MISHRA

body2021
ORDER : Vishal Mishra, J. 1. The present petition is being filed seeking admission in M.D. (Microbiology) Course in G.R. Medical College, Gwalior on the seats which were left vacant after the Mop Up round and the vacant seats were not included in the extended College Level counselling held on 26.8.2020 to 31.8.2020, despite of the specific direction given by this Court, Bench at Indore passed in W.P. No. 11840/2020. It is argued that the total remaining vacant seats were directed to be included in the extended College Level Counselling which was held between 26.8.2020 to 31.8.2020, but the respondents have not included the aforesaid seats, therefore, the petitioner could not be selected, therefore, the present petition is being filed seeking the following reliefs: "(i) This Hon'ble Court may kindly be pleased to allow this writ petition. (ii) This Hon'ble Court may kindly be pleased to command to respondents no. 1 and 2 to admit petitioner in M.D. (Microbiology) course in G.R. Medical College, Gwalior on the vacant seat in the academic session 2020-21. (iii) Any other writ order or direction, which is found just, suitable and proper in favour of the petitioners, may kindly be issued; and; (iv) Costs be awarded." 2. The brief facts necessary for the disposal of the petition are that the petitioner has passed his M.B.B.S. Examination in the year 1999 and completed his compulsory rotatory internship for 12 months on 15.11.2000. The petitioner is registered with State Medical Council and his registration number is MP3809. The petitioner appeared for Pre P.G. NEET 2020 for selection and admission in the Post Graduate Courses bearing Roll No. 2066065362 and was declared qualified in the examination scoring 279 marks out of 1200. As per the cut off scores for the NEET PG 2020 the petitioner was not eligible for the first and the second round of the counselling. The aforesaid fact is not disputed. On 14.7.2020 the Government of India, Ministry of Health and Family Welfare issued a notice regarding lowering of cut off marks in General Category and the scores were revised for the eligibility upto 275 marks. The notice dated 14.7.2020 is Annexure P/3. On 18.7.2020 the respondent no. 2 issued a list of eligible candidates for the Mop Up Round of State NEET PG (M.D./M.S./Diploma) 2020 counselling. The petitioner's name appeared at S. No. 2237. M.P. State Rank 2380. The notice dated 14.7.2020 is Annexure P/3. On 18.7.2020 the respondent no. 2 issued a list of eligible candidates for the Mop Up Round of State NEET PG (M.D./M.S./Diploma) 2020 counselling. The petitioner's name appeared at S. No. 2237. M.P. State Rank 2380. The petitioner has filled up the choices as reflected in Annexure P/6 on 21.7.2020 and opted for MD (Microbiology) and M.D. (Pharmacology) both in G.R. Medical College, Gwalior. On 4.7.2020 the respondent no. 2 issued a notice for college level counselling against the stray vacancies and on 29.7.2020 the list for eligible candidates for CLC round was issued, wherein only 1590 candidates were shown eligible upto cut off marks 294 and the petitioner was excluded in this list to take part in the College level counselling, despite of the fact that he was eligible in Mop Up round counselling and was also eligible as per the lowering of the score by the Government of India. Admittedly the number of seats including one seat of M.D. (Physiology) in G.R. Medical College, Gwalior remained vacant after college level counselling, but the petitioner was not allowed arbitrarily and illegally. Before the last date of counselling on 30.7.2020, the petitioner made a representation to the respondent no. 2, who is competent authority under Rule 18 of the Admission Rules, 2018 and requested to permit him to take part in College level counselling, but of no consequence. The petitioner was not allowed to take part in the counselling. The Hon'ble Supreme Court in the case of had issued directions extending the date of counselling from 31.7.2020 to 31.8.2020 and in compliance of the order passed by the Hon'ble Supreme Court, the Medical Council of India also issued the public notice 30.7.2020 and 31.7.2020 notifying the pre PG NEET 2020 counselling date extended up to 31.8.2020. Copies of the order of the Hon'ble Supreme Court and MCI letters are Annexure P/13 and P/14. A writ petition was preferred before this Court, Bench at Indore bearing W.P. No. 11840/2020 by one Dr. (Smt.) Jaya Patel, which was finally heard and decided by this Court on 25.8.2020 and in terms of the undertaking given by the State Authorities before the Court, one last round of counselling should include for all the remaining vacancies and the entire process was required to be completed prior to 31.8.2020. (Smt.) Jaya Patel, which was finally heard and decided by this Court on 25.8.2020 and in terms of the undertaking given by the State Authorities before the Court, one last round of counselling should include for all the remaining vacancies and the entire process was required to be completed prior to 31.8.2020. It is argued that in pursuance to the orders passed by this Court in the aforesaid writ petition, the respondent no. 2 did not include the total number of vacant seats even in the extended college level counselling and the vacancies of Mop Up round i.e. M.D. (Pathology), M.D. (Microbiology) and M.D. (Pharmacology) were not included in the last counselling, which was held in terms of the directions issued by this Court. The petitioner has participated in the extended round of college level counselling and the name of the petitioner was shown at S. No. 1629 of the list, but the fact remains that the petitioner took part in the counselling on 30.8.2020 and opted for M.D. (Physiology) as the seat of choice M.D. (Microbiology) was not shown in the vacant seat of extended CLC round. The petitioner has submitted a detailed representation to the respondent no. 1 and 2 on 2.9.2020 by E-mail, but despite of the same no benefit was extended to the petitioner. 3. It is submitted that the State Government has framed the Rules for admission in Post-Graduate Medical Colleges known as M.P. Medical Education (Admission) Rules, 2018 and the amended Rules as notified by M.P. Gazette Notification on 19.6.2019 and in terms of the amended provisions Rule 12 (8) (ka) the seat opted by candidate in Mop Up round is not availed or resigned after joining shall not be included in college level counselling. It is argued that the aforesaid rule is confined only to College level counselling and the same will not be applicable for the further extended College Level Counselling as the extended College Level Counselling was held in terms of the directions given by this Court, wherein it was directed to include all the remaining vacant seats. It is argued that non-inclusion of the seats of Mop Up round in the extended College Level Counselling, the petitioner could not get M.D. seat in Microbiology subject of his choice and the seat is still lying vacant and the funds of the State Government are going wasted. It is argued that non-inclusion of the seats of Mop Up round in the extended College Level Counselling, the petitioner could not get M.D. seat in Microbiology subject of his choice and the seat is still lying vacant and the funds of the State Government are going wasted. It is argued that the directions issued by this Court Bench at Indore in the aforesaid writ petition in terms of the amended Rules 17 of the Admission Rules of 2019, but the respondents have not bothered to comply with the directions issued by this Court in letter and spirit and has not included all the vacant seats, therefore, the petitioner has suffered the loss. It is argued that on 8.3.2017 the State Government framed Madhya Pradesh Autonomous Medical and Dental Medical Post-Graduate Course (Degree/Diploma) Admission Rules, 2017 and in terms of the aforesaid Rules the upper age limit of male in service candidate for admission in Medical Colleges shall be 45 years on 1st January of admission year. The petitioner is having a last chance to get his admission in post graduate course and as he has completed 45 years of age on March, 2020. The petitioner will be debarred from getting the admission in Post Graduate Courses subsequently. It is argued that the seats are still lying vacant and the funds of the State Government will be wasted if the seat lies vacant, therefore, he has prayed for the relief that the respondent no. 2 be directed to grant admission to the petitioner on vacant post of Microbiology. He has relied upon the judgment passed by the Hon'ble Supreme Court in the case of Ambesh Kumar Vs. Principal, L.L.R.M. Medical College Meerut, AIR 1987 SC 400 and has argued that in the above case the Hon'ble Supreme Court has directed the State to consider and to see that all the seats are filled up in all discipline and they are not left vacant inspite of large number of applications applying for admission in various disciplines. The State Government has to evolve such criteria of eligibility that all seats in the different M.D. M.S. Degree and Diploma courses are filled up. He has further relied upon the judgment passed by the Division Bench of this Court in the case of Anshu Dubey (Dr.) Vs. The State Government has to evolve such criteria of eligibility that all seats in the different M.D. M.S. Degree and Diploma courses are filled up. He has further relied upon the judgment passed by the Division Bench of this Court in the case of Anshu Dubey (Dr.) Vs. State of M.P. and others, 2007 (2) JLJ 78 , wherein following the law laid down by the Hon'ble Supreme Court in the case of Mridul Dhar, the Division Bench has held that in view of the wrong committed by the State Government the candidate who was less meritorious candidate than the appellant were granted admission, therefore, has directed for consideration of the case of the petitioner in that case. It is argued that the petitioner is although entitled for the similar treatment. 4. By way of rejoinder, counsel for the petitioner has brought on record the letter/circular issued by the Director of Medical Education dated 28.7.2020 clarifying that ten times of the vacancies of CLC round as provided in Rule 10 (3) of the P.G. Admission Rules, 2018. In column no. 5 of the circular it was specifically mentioned that the M.P. State Domicile Candidate will be given first preference and if the State Domicile candidates are not available then the candidates of outside State (Non-domicile) candidates shall be called for admission according to the merits. It is argued that the 10 times of seats candidate should be from M.P. Domicile candidate list and if the seats are remaining vacant then the candidates of non-domicile may be included. In the CLC list earlier issued by the respondents there were 858 domicile candidates of Madhya Pradesh and 732 non-domicile candidates, while according to the circular dated 28.7.2020 the first phase there should be M.P. Domicile candidates only and thereafter the non-domicile candidates should have been considered. It is submitted that the aforesaid documents were not in the knowledge of the petitioner, therefore, the same could not be brought on record at the time of filing of the petition. The same is being filed by way of rejoinder. It is submitted that even after the cut off dates in terms of the direction given by this Court the admissions have been granted through certain persons namely Dr. Nidhi Chaturvedi, who filed a writ petition before this Court being W.P. No. 1411/2005 in the name of Dr. Nidhi Chaturvedi Vs. The same is being filed by way of rejoinder. It is submitted that even after the cut off dates in terms of the direction given by this Court the admissions have been granted through certain persons namely Dr. Nidhi Chaturvedi, who filed a writ petition before this Court being W.P. No. 1411/2005 in the name of Dr. Nidhi Chaturvedi Vs. State of M.P., and she was granted admission in M.S. Course after passing of the order by this Court. Similarly in the case of Dr. Sandeep Singh Vs. State of M.P. In W.P. No. 3940/2005 the admission was granted after the cut off date distinguishing the case of M.C.I. Vs. Madhu Singh, (2002) 7 SCC 58 and Mridul Dhar and another Vs. Union of India and others, (2005) 2 SCC 65 . It is argued that the similar is the case of the petitioner and as the illegality is being committed by the respondents no. 1 and 2, therefore, the case of the petitioner should be considered for grant of admission on the vacant seat of M.D. (Microbiology) as the choice is being filled by the petitioner. 5. The respondents no. 1 and 2-State by filing the return has denied all the contentions raised by the counsel for the petitioner and has contended that the petition is merit-less and without any substance. No such relief can be granted to the petitioner as claimed by him. It is argued that the petitioner has not impleaded the Medical Council of India as a party respondents under whose directions and the authorities the admissions are made. In absence of Medical Council of India being party to the litigation, the petition suffers from mis-joinder of parties and no relief can be granted to the petitioner. It is contended that the whole case of the petitioner is that the seat of M.D. (Microbiology) course in G.R. Medical College, Gwalior remained vacant and the same was not included in the last round of college level counselling held under the extended cut off date by the Hon'ble Supreme Court and also in terms of the directions given by this Court, Bench at Indore and the aforesaid seat was not being included by the respondents despite there being specific directions for including all the vacant seats. It is contended that the admission to the Post-Graduate Medical Courses are governed by statutory rules. It is contended that the admission to the Post-Graduate Medical Courses are governed by statutory rules. Rule 12 (8) of the Rules is relevant which says that if during the Mop Up round seat is allotted and subsequently if the candidate did not take admission or resign then the said seat will not be included in the last level counselling. The seat of M.D. (Microbiology) for the course in G.R. Medical College was allotted to one Dr. Sushant Shrivastava. He did not take admission and the seat remained vacant. Therefore, according to the Rule 12 (8) (Ka) the aforesaid seat of M.D. (Microbiology) could not be included in the last college level counselling round. The aforesaid fact is not disputed by the petitioner even in the rejoinder. 6. It is further contended that the last round of college level counselling in terms of the directions given by the Hon'ble Supreme Court as well as the order given by this Court, Bench at Indore was being conducted in terms of the aforesaid directions only. It is pointed out that the directions issued by the High Court Bench at Indore was altogether clear and was not related to inclusion of seat left vacant after Mop Up round admission or resignation of the student from that seat or by not taking admission by concerning student. The said direction was only with relation to a person who could not be registered due to COVID-19 pandemic situation. Therefore, the last level of counselling held at college level the seat of M.D. (Microbiology) was rightly not included. He has read over the directions given by the High Court in the case of Dr. (Smt.) Jaya Patel and has vehemently argued that in terms of these directions only the last College Level Counselling was held. It is further contended that the Rule 12 (8) (ka) has been inserted in the Rules in view of the Division Bench Judgment passed by this Court dealing with a situation that in the State of Madhya Pradesh the students were taken admission and thereafter leaving the seats to be included in the College Level Counselling and thereby facilitating such disqualified person to occupy the said seat subsequently. The Division Bench has strictly made an observation with respect to the same in its order dated 24.4.2019 passed in W.P. No. 8079/2017 and W.P. No. 11902/2018. The Division Bench has strictly made an observation with respect to the same in its order dated 24.4.2019 passed in W.P. No. 8079/2017 and W.P. No. 11902/2018. Thus, the aforesaid seat was rightly not included in the last counselling conducted during the extended cut off date. It is argued that the petitioner cannot be granted admission in the Post-Graduate course of M.D. (Microbiology) violating the Rules and even otherwise the last cut off date as extended by the Hon'ble Supreme Court was 31.8.2020 and the same is over. The petitioner has slept over his right for a considerable period and has not approached this Court within the time frame. The present petition was filed after the cut off date on 11.9.2020 and in terms of the directions given by this Court in the case of Mridul Dhar (supra) no admission could be granted after the cut off date and the seats lying vacant cannot be filled up after the cut off date. He has further relied upon the judgment in the case Chandigarh Administration and another Vs. Jasmine Kaur and others, (2014) 10 SCC 521 and has argued that petitioner approaching the upper limit age of 45 years and will not be entitled to participate in the Post Graduate Counselling from next year, but the fact remains that no sympathy could be extended to the petitioner in view of the aforesaid judgment of the Hon'ble Supreme Court. He has further relied upon the judgment passed in the case of Medical Council of India Vs. Swati Sethi and others, (2004) 5 SCC 798 and has argued that Medical Council of India being a mandatory party in the petition and without impleading Medical Council of India as one of the party no directions can be issued. He has prayed for dismissal of the petition. 7. Counsel appearing for the respondent no. 3 has argued and adopted the return filed by the State Government. She has prayed for dismissal of the writ petition. 8. Heard the learned counsel for the parties and perused the record. 9. From perusal of the record, it is clear that the admitted facts in the petition are that in terms of the directions given by the Hon'ble Supreme Court in the case of Ashish Ranjan and others Vs. She has prayed for dismissal of the writ petition. 8. Heard the learned counsel for the parties and perused the record. 9. From perusal of the record, it is clear that the admitted facts in the petition are that in terms of the directions given by the Hon'ble Supreme Court in the case of Ashish Ranjan and others Vs. Union of India and others, M.A. No. 1282 of 2020 in Writ Petition (C) No. 76 of 2015 the last round of counselling was extended upto 31.8.2020. Admittedly the petitioner has participated in the aforesaid extended College Level Counselling and has remained unsuccessful. The writ petition filed before this Court Bench at Indore in the case of Dr (Smt.) Jaya Patel Vs. State of M.P. And another in W.P. No. 11840/2020 on 25.8.2020 this Court has issued directions as under: "i) The State Government keeping in view the categoric undertaking given before this Court shall hold one last round of counselling in respect of total remaining vacancies and the entire process shall be concluded prior to 31/08/2020 keeping in view the deadline fixed by the Hon'ble Supreme Court. (ii) The State Government shall permit all the students, who were not able to get themselves registered on account of Covid-19 Pandemic, to get themselves registered and shall grant minimum 24 hours for the purposes of fresh registration. (iii) The earlier admissions done will not be disturbed on account of fresh counselling. (iv) Shri Bhargava, has stated before this Court that the Rules do not permit grant of admission to a candidate in a subsequent round of counselling, in case he has refused admission granted to him earlier and therefore, those candidates who have refused admission earlier will not be entitled to participate again in the counselling conducted now." 10. On perusal of the aforesaid directions given by this Court, Bench at Indore it was apparently clear that the direction was to permit all the students who were not able to get themselves registered on account of COVID-19 pandemic and to get themselves registered and shall grant minimum 24 hours for the purpose of fresh registrations. Direction no. On perusal of the aforesaid directions given by this Court, Bench at Indore it was apparently clear that the direction was to permit all the students who were not able to get themselves registered on account of COVID-19 pandemic and to get themselves registered and shall grant minimum 24 hours for the purpose of fresh registrations. Direction no. 4 is relevant which says that the Rules do not permit grant of admission to a candidate in a subsequent round of counselling, in case he has refused admission granted to him earlier and therefore, those candidates who have refused admission earlier will not be entitled to participate again in the counselling conducted now. 11. The amended Rules in terms of the notification dated 19th June, 2019 are also relevant Rule 12 (8) (ka) reads as under: ^^¼8½¼d½ ekWi vi pj.k dh dkvaflfyax ls vkoafVr vH;kfFkZ;ksa }kjk Áos'k u fy;s tkus dh fLFkfr esa vFkok vH;kFkhZ }kjk Áos'k ysus ds i'pkr~ lhV ls R;kxi= fn;s tkus ds QyLo#i fjDr lhVsa ekWi vi pj.k ds i'pkr~ laLFkk Lrj ij djk;s tkus okys pj.k dh dkmaflfyax ¼lh-,l-lh½ esa lfEefyr ugha dh tkosxhA** 12. Admittedly the seat of M.D. (Microbiology) course in G.R. Medical College, Gwalior on which the petitioner has raised his claim was allotted to one Dr. Sushant Shrivastava, who did not take admission and therefore, the seat was left vacant and according to the aforesaid Rules the same cannot be included in the subsequent round of counselling even at College Level Counselling. Therefore, the aforesaid seat was not included in the last College Level Counselling held in terms of the directions given by this Court, Bench at Indore. The extended College Level Counselling was done in terms of the prevailing Rules and Regulations governing the admission in Post-Graduate Courses in Medical Colleges. Therefore, the aforesaid seat was not included. The aforesaid aspect that the seat was allotted to Dr. Sushant Shrivastava is not being disputed by the petitioner at any point of time. 13. Admittedly it is further not disputed that the cut off date as extended by the Hon'ble Supreme Court in terms of the directions given in the case of Ashish Ranjan and others Vs. The aforesaid aspect that the seat was allotted to Dr. Sushant Shrivastava is not being disputed by the petitioner at any point of time. 13. Admittedly it is further not disputed that the cut off date as extended by the Hon'ble Supreme Court in terms of the directions given in the case of Ashish Ranjan and others Vs. Union of India and others, M.A. No. 1282 of 2020 in Writ Petition (C) No. 76 of 2015 on 30th August, 2020 and the present petition is admittedly filed after the cut off date i.e. on 11.9.2020. The law regarding the fact that after the cut off date no admission should be granted was considered by the Hon'ble Supreme Court in the case of Mridul Dhar (supra) in which the Hon'ble Supreme Court has held as under: "12. The time schedule for grant of admission to postgraduate courses shall also be adhered to. 15. Time Schedule provided in Regulations shall be strictly adhered to by all concerned failing which defaulting party would be liable to be personally proceed with." 14. In view of the aforesaid as the petitioner has approached this Court after the cut off date no relief can be extended to the petitioner despite of the fact that the seat of M.D. (Microbiology) has remained vacant. No sympathy could be extended to the petitioner in view of the law laid down by the Hon'ble Supreme Court in the case of Chandigarh Administration and another Vs. Jasmine Kaur and others, (2014) 10 SCC 521 as he has touched the upper limit of 45 years as per the Rules and will not be eligible to participate for admission in Post Graduate Courses in Medical Colleges from the next year. 15. In G. Kalayn Sundaram Vs. UCO Bank and another, CLT 1995 (2) HC 201 has observed that infact the fact of that case even sympathy has no role to play and in that contention noticed. 16. In Latham v. Richard Johnson & Nephew, Ltd. reported in 1911-13 AER (reprint) Page 117, Farwell L.J. observed:- "We must be very careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous will of the wisp to take as a guide in the search for legal principles." 17. In the case of State of Tamil Nadu and others Vs. St. Sentiment is a dangerous will of the wisp to take as a guide in the search for legal principles." 17. In the case of State of Tamil Nadu and others Vs. St. Joseph Teachers' Training College, 1991 (3) SCC 87 , the Apex Court observed that "court cannot grant relief on humanitarian ground contrary to law." It is also now well settled that in absence of any legal right the Court should not issue a writ or in a nature of mandates on the basis of sympathy. 18. The Medical Council of India being the governing body and in terms of the directions issued by the Medical Council of India the admissions are being made in the Medical Colleges, the Medical Council of India is not being made a party to the proceedings, therefore, the petition suffers from mis-joinder of parties also in view of the law laid down by the Hon'ble Supreme Court in the case of Medical Council of India Vs. Swati Sethi and others, (2004) 5 SCC 798 in which the Hon'ble Supreme Court has held as under: " ...... The writ petitioners had asked for admission to the medical course and the High Court has passed the impugned order with regard to the MBBS/BDS course. The Medical Council of India is affected by the order. That some of the writ petitioners were ultimately admitted only to the BDS course would deprive the Medical Council of India of the locus standi to question the order. We do not intend to go into the merits of the matter at this stage as the Medical Council of India was in fact not heard by the High Court at the time the impugned order was passed. Besides, no reason has been given by the High Court for affirming what was clearly a provisional interim order. We are not expressing any view on the merits of the submissions at this stage. The Medical Council of India and the Dental Council of India are added as party respondents to the writ petitions. The matter is remitted back to the High Court for being heard and disposed of finally after providing an opportunity of hearing to the Medical Council of India and the Dental Council of India. They are entitled to file their counter affidavits before the High Court as they may be advised. The matter is remitted back to the High Court for being heard and disposed of finally after providing an opportunity of hearing to the Medical Council of India and the Dental Council of India. They are entitled to file their counter affidavits before the High Court as they may be advised. The High Court is requested to dispose of the matter as urgently as is possible. In the event the High Court comes to the conclusion that no exception can be carved out of Madhu Singh's case or that there was in fact no such exceptional circumstance as claimed by the writ petitioners then the writ petitioners will be deemed to have been admitted for admission for the academic session 2004-2005 within the admissible intake. The appeal stands disposed of accordingly." 19. The petitioner has heavily relied upon the circular issued dated 28.7.2020, wherein there is a specific direction for including the domicile candidates first and thereafter the non-domicile candidate should have been considered, but the fact remains that the aforesaid fact was very much in the knowledge of the petitioner from the very beginning itself and he has not chosen to assail the aforesaid by approaching this Court at the relevant time and the aforesaid ground was not even initially at the time of filing of the petition subsequently the same has been raised by way of rejoinder, but the fact remains that the extended cut off date in terms of the direction issued by the Hon'ble Supreme Court was 31.8.2020 and no further admissions can be granted after the cut off date extended by the Hon'ble Supreme Court. Thus, the aforesaid argument is of no help to the petitioner. Even otherwise the petitioner has participated in the extended round of counselling held on 30th August, 2020 and at that time also no such objection was raised by the petitioner before the authorities. Thus, the aforesaid arguments raised by the petitioner is of no help at this stage. 20. In view of the aforesaid analysis of the case, no relief can be extended to the petitioner. Petition sans merit and is accordingly dismissed. E-copy/Certified copy as per rules/directions.