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2022 DIGILAW 1358 (BOM)

Datta Uttam Pawar v. State

2022-05-09

AMIT B.BORKAR

body2022
JUDGMENT amit Borkar, J. - Learned advocate for the Petitioner mentioned the matter for urgent hearing today as at 3'O clock today, the allotment of seat in favour of the Respondent No. 3 is going to take place. Learned advocate for the Petitioner was directed to inform Shri N.R. Patil, learned aGP appearing for the Respondent/State and accordingly, the matter is placed on board at 11:00 am. at 11:00 am, when the matter was called, Shri Patil, learned aGP sought time to take oral instructions from the Respondent Nos. 1 and 2. Considering the urgency involved and the allotment of the seat in favour of the Respondent No. 3 is going to take place at 3:00 pm today, Shri Patil, learned aGP took the oral instructions from the Respondent Nos. 1 and 2 and sought further time to file detailed reply. 2] On the basis of the oral instructions taken from the Respondent Nos. 1 and 2, I have heard Shri ateeque, learned advocate for the Petitioner and Shri Patil, learned aGP for the Respondent/State. 3] at the outset, learned advocate for the Petitioner is granted leave to amend the Petition to incorporate the relevant pleadings in support of his claim that the first preference mentioned in his application is for DNB Surgery. The Petitioner is granted leave to annex the copy of the application Form and remaining part of the Information Brochure at annexure-2 of the present Petition. The Petitioner shall also add Mr. Santosh Mohan Kamble, who is at Serial No. 54 and who has secured 272.64 marks and is lower in the merit list than the Petitioner, as the Respondent No. 3 in the present Petition. 4] amendment to be carried out forthwith. 5] By the present Writ Petition, the Petitioner is challenging the rejection of his candidature to CHS DNB Degree for the academic Session 2021-22 as a candidate belonging to in-service Medical Officers. It is the case of the Petitioner that as per the Selection List for the post of MBBS DNB Courses, Round No. 2 dated 07/04/2022, the name of the Petitioner appears at Serial No. 34 wherein the candidature of the Petitioner for MBBS DNB Courses has not been accepted as the Petitioner has failed to submit 'willingness to proceed' on or before 11:59 pm or on 05/05/2022 and also on 26/04/2022, he has not exercised his willingness to proceed option. 6] Shri ateeque, learned advocate for the Petitioner submits that the requirement of submitting the willingness to proceed is necessary only for those candidates who were not allotted any seat based on their preferences. He submitted that undisputedly, the Petitioner secured 345.60 marks. The Respondent No. 3 in whose favour the said seat is sought to be allotted, has secured 272.64 marks and therefore he is at Serial No. 54. He submitted that the Petitioner being more meritorious than the Respondent No. 3, is entitled to have the subject and Institution of his choice which has been opted by him in his application Form. according to him, on the basis of the marks secured by him, the Petitioner is entitled to get admission for the subject of first preference and therefore Clause (3) of the Final MOP UP Round: Instructions for the Candidates at Page No. 75 of the Petition, will not be applicable to the Petitioner. 7] Shri Patil, learned aGP for the Respondent/State submitted that according to the Clause (3) at Page No. 75, the candidate was required to undergo his willingness to proceed and in absence of such willingness to proceed, the Respondent Nos. 1 and 2 were justified in rejecting the candidature of the Petitioner and allotted it in favour of the Respondent No. 3. 8] Prima facie, subject to filing of the replies by the Respondents, it appears that the Petitioner is more meritorious than the Respondent No. 3 or any other candidate in the subject chosen by the Petitioner. Prima facie, it also appears that on the basis of the marks secured by the Petitioner, he is entitled to have the subject and Institution of his first choice. Therefore, the rights of the Petitioner need to be protected till the Respondents file their detailed replies. 9] Prima facie, it appears that the Respondent No. 3, who has been granted admission, has secured 272.64 marks which is lesser than the marks secured by the Petitioner, which is 345.60. 10] I, therefore, pass the following order:- (a) Issue notice to the Respondents, returnable on 17/05/2022. (b) Learned aGP waives service of notice for the Respondent Nos. 1 and 2. (c) The Petitioner shall be at liberty to serve the Respondent No. 3 by all modes of service including RPaD and private service. (d) The Respondent Nos. 10] I, therefore, pass the following order:- (a) Issue notice to the Respondents, returnable on 17/05/2022. (b) Learned aGP waives service of notice for the Respondent Nos. 1 and 2. (c) The Petitioner shall be at liberty to serve the Respondent No. 3 by all modes of service including RPaD and private service. (d) The Respondent Nos. 1 and 2 are directed to grant provisional admission to the Petitioner in the Institution and subject of first preference mentioned in his application Form. (e) It is made clear that the order of provisional admission shall not create any equities in favour of the Petitioner, in case at the time of final hearing, it is found that the Petitioner is less meritorious than the other candidates who could have got admission in the subject and Institution of first preference of the Petitioner. (f) Hamdast granted. Copy of this order duly authenticated by Private Secretary be supplied to the parties to act upon.