Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.16086 of 2013 ====================================================== 1. Amit Saraf S/O Sri Rajesh Saraf R/O-30-A/162 Bangur Park, Rishra District- Hoogly, West Bengal 2. Dr. Neha Kumari D/O Dr. Raj Kumar Tulsyan R/O- SDO Road, Khagaria P.S.- Khagaria, District- Khagaria 3. Dr. Nigar Parveen D/O Minhajuddin R/O Mohalla- Maulaganj, P.S.- Laheriasarai District- Darbhanga Versus .... .... Petitioners 1. The State Of Bihar Through The Principal Secretary, Health And Family Welfare, Govt. Of Bihar, Patna 2. The Bihar Combined Entrance Competitive Examination Board Through Its Controller Of Examination, I.A.S. Association Building, Near- Patna Airport, Patna- 14 3. The Controller Of Examination, Bihar Combined Entrance Competitive Examination Board, I.A.S. Association Building, Near- Patna Airport, Patna- 14 4. The Katihar Medical College, Through Its Principal, Karim Bagh, P.S.- Mufassil, District- Katihar 5. The Principal, Katihar Medical College, Karim Bagh, P.S.- Mufassil, District- Katihar 6. The Bhupendra Narayan Mandal University Through Its Registrar, Laloo Nagar, Madhepura 7. The Medical Council Of India Through Its Secretary, New Delhi .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.16937 of 2013 ====================================================== 1. Dr. Devwrat Kumar S/O Sri Braj Nandan Sinha R/O- Village- Kutlupur, P.S.- Ben, District- Nalanda 2. Dr. Shoaib Alam S/O Sri Abdus Sattar R/O- Mohalla- Madhopara, P.S.- K. Haat, District- Purnea 3. Dr. Shashi Bhushan Sharma S/O Sri Bhola Sharma R/O Mohalla- Tatwa Toli, P.S.- K. Haat, District- Purnea .... .... Petitioners Versus 1. The State Of Bihar Through The Principal Secretary, Health And Family Welfare, Govt. Of Bihar, Patna 2. The Bihar Combined Entrance Competitive Examination Board Through 2 Patna High Court CWJC No.16086 of 2013 (8) dt.30-09-2013 2 / 9 Its Controller Of Examination, I.A.S. Association Building, Near Patna Airport, Patna-14 3. The Controller Of Examination, Bihar Combined Entrance Competitive Examination Board I.A.S. Association Building, Near Patna Airport, Patna 4. The Katihar Medical College, Through Its Principal, Karim Bagh, P.S.- Mufassil, District- Katihar 5. The Principal, Katihar Medical College, Karim Bagh, P.S.- Mufassil, District- Katihar 6. The Medical Council Of India Through Its Secretary, New Delhi .... .... Respondents ====================================================== Appearance : For the Petitioners : Mr. Md. Nadim Seraj, Mr. Shailesh Kumar, Advocates For the BCECE Board : Mr. Vikas Kumar, Advocate For the M.C.I. : Mr. Kumar Brij Nandan, Advocate For the Katihar Medical College : Mr. Dhermeshwar Mishra, Advocate For the State : Mr. Rakesh Kr. Samerendra, S.C. 21 ====================================================== CORAM: HONOURABLE DR. JUSTICE RAVI RANJAN ORAL ORDER 8 30-09-2013 Learned counsel for the respondent nos.4 and 5 is permitted to make necessary correction in the third supplementary counter affidavit. I have heard learned counsel for the petitioners, the State of Bihar, the Medical Council of India and respondent nos.2, 3,4, and 5. Petitioners seek direction to the respondent nos.4 and 5 to admit them in the Post Graduate Course of Medical Science for the Sessions 2013-2016 as per the recommendation made by respondent no.2 under the State quota in view of the Regulation 9 of the Medical Council of India. 3
Legal Reasoning
Patna High Court CWJC No.16086 of 2013 (8) dt.30-09-2013 3 / 9 The petitioners claimed to have qualified NEET (National Eligibility Entrance Test) PG-2013 test and after counseling by the Bihar Combined Entrance Competitive Examination Board and they have been allowed Katihar Medical College in the Bihar State quota but the concerned college has refused to admit the petitioners. Learned counsel for the respondent nos.4 and 5 submitted earlier that in view of the failure on part of the State Government to make allotment of the candidates for admission till the cut off fixed date by the Supreme Court there would be legitimate assumption that the seats lying vacant in the State quota have become available for filling up by the candidates selected by the Association concerned. It was initially submitted that the respondent-Katihar Medical College has filled up all the approved seats in the college in P.G. Medical Course adhering to the schedule timing approved by the Apex Court till 31.07.2013 as the recommendation for allotment of the writ petitioners was made vide letter no.1669/2013 dated 06.08.2013 i.e., after 31st of July, 2013. It has been stated in the counter affidavit filed on behalf of the respondent nos.4 and 5 that this fact was already communicated to the respondent no.3, the Controller of Examination, Bihar Combined Entrance Competitive Examination 4 Patna High Court CWJC No.16086 of 2013 (8) dt.30-09-2013 4 / 9 Board vide its letter dated 03.08.2013 as contained in Annexure A/8 to the counter affidavit. However, from the list appended with the letter, it appears that all the admissions were taken on 31.05.2013 itself i.e., admittedly much before the cut off date as has been stated in the counter affidavit itself. In the aforesaid background, the College concerned was directed vide order dated 19.09.2013 to bring on record the entire merit list along with the cut off marks upon which such admissions were taken. On 26.09.2013, learned counsel appearing for the Katihar Medical College orally informed this Court that the College is willing to take admission of the petitioners, however, he was asked to file affidavit stating whatever stand college wants to take. Thereafter, third supplementary counter affidavit has been filed. In paragraph no.5 thereof, an undertaking has been recorded that the respondent Medical College is willing to take admission of the petitioners in PG Medical Courses, Session 2013 subject to the outcome of L.P.A. No.1032/2012 and other analogous matters in which judgment has been reserved by a Division Bench of this Court. It has also been stated that the affidavit has been filed without prejudice to the stand of the answering respondents in WP [C] No.584 of 2009, Katihar Medical College Vs. Union of India and 5 Patna High Court CWJC No.16086 of 2013 (8) dt.30-09-2013 5 / 9 others pending before the Apex Court and the aforesaid L.P.A. No.1032/2012. It has been stated in paragraph no.6 that the students who have already been admitted by the Management on the State quota would be removed from the courses in the light of the undertaking given by them at the time of their admission subject to the outcome of L.P.A. No.1032 of 2012 pending before a Division Bench of this Court. In view of the aforesaid undertaking given by respondent nos.3 and 4, in my considered opinion, this writ application has lost its efficacy as the Medical College is ready to admit the petitioners in P.G. Courses. Though Medical Council of India has not filed any counter affidavit in this regard despite grant of several indulgence, however, learned counsel appearing for the Medical Council of India has submitted that the Supreme Court has fixed August 31, 2013 for filling up all the vacant seats in MD/MS and MDS through the State quota, therefore, now seats of the State quota cannot be filled up. However, in view of the fact that he along with respondent nos.2 and 3 admits that the Apex Court had already extended the date by making recommendation to respondent no.2 under the State quota till 31st of August, 2013 and the writ petition was filed on 19.08.2013 i.e., before the expiry 6 Patna High Court CWJC No.16086 of 2013 (8) dt.30-09-2013 6 / 9 of the cut off date fixed by the Apex Court as stated above by
Legal Reasoning
learned counsel for the Medical Council of India coupled with the fact that the same has remained pending before this Court and in between such cut off date has lapsed it would not be proper to deny admission to the petitioners as they are not at fault at all and
Decision
for the pendency of the writ petition they should not be allowed to suffer. That apart, the Apex Court in ASHA Versus PT. B.D. SHARMA UNIVERSITY OF HEALTH SCIENCES AND OTHERS [(2012) 7 SCC 389] has held that when there is no fault attributable to a candidate who has been denied admission for arbitrary reasons, the cut off date cannot be permitted to operate as a bar to admission to such students particularly when it would result in complete ruining of the professional career of a meritorious candidate. For better appreciation, relevant passages from the aforesaid decision are reproduced as under : the cut-off date which “30.There is no doubt that 30th September is the cut-off date. The authorities cannot grant admission beyond is specifically postulated. But where no fault is attributable to a candidate and she is denied admission for arbitrary reasons, should the cut-off date be permitted to operate as a bar to admission to such students particularly when it would result in complete ruining of the professional career of a meritorious candidate, is the question we have to answer. 31. Having recorded that the appellant is not at fault and she pursued her rights and remedies as expeditiously as possible, we are of the considered view that the cut-off date cannot be used as a technical instrument or tool to deny admission to meritorious students. The rule of merit stands completely defeated in the facts of the present case. The appellant was a 7 Patna High Court CWJC No.16086 of 2013 (8) dt.30-09-2013 7 / 9 candidate placed higher in the merit list. It cannot be disputed that candidates having merit much lower to her have already been given admission in the MBBS course. The appellant had attained 832 marks while the students who had attained 821, 792, 752, 740 and 731 marks have already been given admission in the ESM category is not only the MBBS course. It unfortunate but apparently unfair that the appellant be denied admission.” in In the present case also, the petitioners are meritorious students as they have been recommended by the competent authority for admission under the Bihar State quota in Katihar Medical College but for the reasons as has been mentioned above, the College did not take admission initially and admitted some other candidates in their place but now the College having already filed an affidavit showing its willingness to take admission of the petitioners in place of the candidates who have been allowed admission by its Management, it would be very harsh upon the petitioners to refuse admission on the ground that such bar would operate. That apart, it would not be the case of filling up vacancies as recommendation by respondent nos.2 and 3 was within the revised cut off date fixed by the Hon’ble Supreme Court. However, much before that the Katihar Medical College admitted the students from their side filling up the seats reserved for State but now they are trying to rectifying their mistake. Thus, the seats were already filled up rightly or wrongly now the question would be as to whether the meritorious candidates 8 Patna High Court CWJC No.16086 of 2013 (8) dt.30-09-2013 8 / 9 should be given chance or the seats which have been filled up by the management of the Kathiar Medical College which was already to be filled up under the State quota should be allowed to continue. If answer is to be yes even though the college is now ready to admit the petitioners in the college then career of the meritorious candidates would be ruined because the petitioners are not at fault. They have pursued their rights and remedies immediately after the Medical College refused admission after the recommendation by respondent nos.2 and 3. The Apex Court has held in ASHA Versus PT. B.D. SHARMA UNIVERSITY OF HEALTH SCEINCES (supra) that cut off date cannot be used as a technical instrument or tool to deny admission to meritorious students. If that is denied then the rule of merit stands completely defeated in the facts of the present case. That apart, as stated above, this exercise would not be a case of fresh filling up of seats as the seats were already filled up by the management of the college much before the last date fixed by Hon’ble Supreme Court. In fact, the filling up of such seats by the management is under challenge in this writ petition. Now the petitioners would only replace or substitute such candidates who were admitted earlier. In above view of the matter, these writ applications 9 Patna High Court CWJC No.16086 of 2013 (8) dt.30-09-2013 9 / 9 stand disposed of with a direction to the concerned Medical College concerned to admit the petitioners expeditiously preferably within two weeks from today as per its undertaking so that no further delay is caused in pursuing their studies. However, it is noted that undertaking of the Katihar Medical College is subject to the result of the WP [C] No.584 of 2009 in which they have challenged the validity of second proviso of Regulation 9 of the P.G. Medical Education Regulation 2000 framed by M.C.I. and L.P.A. No. 1032/2012 and other analogous matters in which they claimed that similar issues are pending before a Division Bench of this Court. Sanjay-II/- (Dr. Ravi Ranjan, J)