High Court
Case Details
WP(C) 4736/2012 BEFORE THE HON’BLE MR. JUSTICE B.D.AGARWAL
Decision
Since the aforesaid writ petitions are based on identical facts and since identi cal reliefs are being sought-for I propose to dispose of both the writ petitions by this common judgment. 2. Heard Sri AB Choudhury, learned senior counsel in WP' No. 4736 of 2012 a nd Sri AK Hussain, learned counsel in WP(C) 4847 of 2012. I have also heard Mr. D Saikia, learned Additional Advocate General, Assam, representing the State res pondents and also heard the learned counsel for the private respondents. I have also gone through the pleadings of both the parties. 3. The learned counsel for the writ petitioners submitted that the petition ers had appeared in the Combined Entrance Examination for MBBS/BDS/BAMS Courses held on 19.5.2012 and 20.5.2012 and they were ranked at Sl No. 374 and 358 respe ctively. It is the further case of the petitioners that they had applied for adm ission in the medical course, giving MBBS course as first preference, followed b y BDS and BAMS. After the result of the entrance examination the selected candid ates were called for counseling. The first counseling was held from 7.7.2012 to 13.7.2012. Both the writ petitioners were interviewed on 10.7.2012 and they were told that all the seats for MBBS Course against general category (unreserved ca tegory) were already filled-up on merit basis. On the date of the counseling the petitioners were told that the ranked holder No.303 was the last candidate in t he general category for MBBS course. Having no other alternative, the petitione rs accepted the second option of BDS course. The petitioner Smti Shehnaz Haque t ook admission in the BDS course on the date of the counseling itself i.e. on 10. 7.2012. However, the petitioner Sri Nazamuddin Tafadar could take admission in t he Regional Dental College only on 19.9.2012, since his selection was withheld p ending verification of certain documents. In other words, the result of the afor esaid petitioner was cleared vide office order dated 19.9.2012. 3.1 It is the further case of the petitioners that subsequent to their Admis sion Order on the basis of first counseling few more seats in MBBS courses were available. Accordingly, the Directorate of Medical Education, Assam held two mor e counseling; one on 27.8.2012 and the other one on 28.9.2012. According to the learned counsels, after the second counseling another Admission Order for 20 can didates was issued on 19.9.2012. As per this admission order 13 candidates were selected for their admission in MBBS Course in different medical colleges agains t unreserved category and the remaining candidates were selected against the res erved categories. The petitioners are also challenging the Education Notice date d 25.9.2012, whereby some more seats in MBBS course were also filled-up from the waiting list. According to the learned counsels ranking of some of the candidat es in the aforesaid Admission Orders were below than the writ petitioners. Havin g come to know about this fact both the writ petitioners submitted representatio n to the Director of Medical Education on 21.9.2012 and 24.9.2012 respectively r equesting for change of course from BDS to MBBS course. However, the petitioners request were not accepted and verbally rejected. Hence, the petitioners are cha llenging the admission order dated 19.9.2012 issued by the respondent No. 3 sele cting some of the candidates in MBBS Course though their merit position were bel ow the writ petitioners. 4. The learned counsels for the writ petitioners cited the judgment of this Court rendered in the case of Benzir Rahman & anr. -vs- State of Assam and Ors. (WP No.4624 of 2012) and submitted that the instant writ petitions are covered b y the said judgment. Besides this judgment, the learned counsels also relied upo n the judgment of the Hon’ble Supreme Court given in the case of ASHA -vs- Pt. B D Sharma University of Health Sciences & Ors;.2012 (7) SCC 389. On the basis of these authorities the learned counsels submitted that the impugned admission ord er dated 19.9.2012 as well as the Educational Notice dated 25.9.2012 are discrim inatory, arbitrary and in violation of the natural justice. Per contra, Mr. Saikia, learned Addl. Advocate General submitted that ch 5. ange of ’course’ and the ’college’ is prohibited under Rule 4(b) of the Medical Colleges of Assam, Regional Dental College, Guwahati and Government Ayurvedic Co llege, Guwahati (Regulation of Admission of Under-Graduate Students) Rules, 2007 . The learned counsel also submitted that without challenging the aforesaid Rule s no writ in the nature of certiorari and mandamus can be issued so as to direct the State authorities to admit the writ petitioners in MBBS course, setting asi de the earlier admission orders. The learned Addl. Advocate General further subm itted that both the writ petitioners had already taken admission in the BDS cour se on 10.7.2012 and 19.9.2012 and the entire admission process was over by 30.9. 2012. However, the writ petitions, having been filed subsequent to the completio n of the admission process, should not be entertained. The learned Addl.A.G. also relied upon the judgment of the Hon’ble Supre 6. me Court given in the case of Mabel -vs- State of Haryana: 2002 (6) SCC 318 to r einforce his argument that if there is any prohibition in the Rules regarding ch ange of the course no writ or order can be issued in favor of the petitioners. At this stage I would like to mention here that the writ petitions perta 7. in to the academic session of 2012 and the writ petitioners have already complet ed one year study in the BDS course. Despite that the petitioners are still inte rested to change over their stream from BDS to MBBS and this is the reason that the cause of writ petitions is still alive. 8. In the case of Benzir Rahman also the same admission order dated 19.9.2 012 was under challenge. The said writ petition was filed by two candidates alle ging that the candidates securing lower marks and having stood lower in rank wer e admitted in the MBBS course ignoring the merit position of the writ petitioner s. Relying upon the judgment of the Apex Court in the case of ASHA (supra) the w rit petitions were allowed. The only difference in the earlier case and in the p resent set of writ petitions is that the earlier writ petitions were filed befor e 30.9.2012 and interim order was passed on 28.9.2012, allowing the writ petitio ners to take provisional admission in the MBBS course. However, the present sets of writ petitions were filed after 30.9.2012 and, as such; there was no interim order in favour of the petitioners. However, the rest of the facts and circumst ances are identical. In the case of Mabel (supra) the Hon’ble Supreme Court was confronted wi 9. th identical Clause in the medical admission Rules of a college in the State of Haryana, more particularly, Clause -18, which is reproduced below: (cid:28)The candidates already admitted in any medical /Dental colleges will not be considered eligible for admission to other courses (cid:29). The Rule 4(b) of Assam Rules is also extracted below for ready reference: (cid:28)A candidate of any category once admitted in a particular Medical College in As sam/Regional Dental College, Guwahati/Govt. Ayurvedic College, Guwahati shall no t be allowed to change the College and Category (cid:29). 10. In the aforesaid cited case of Haryana a candidate had taken admission i n BDS course in a particular college but subsequently she withdrew from the cour se and appeared in the entrance examination for MBBS course in Haryana in the ne xt academic session. In view of the prohibition contained in Clause -18 the said clause was challenged. In that context the Hon’ble Supreme Court had observed t hat a candidate who has already secured admission on his free will in any course (emphasis by me) is required to complete that course first and such candidate s hould not change his mind in the midstream. Their Lordships have further held th at such a candidate would be eligible for a different course only after the norm al period the previous course is over. In my considered opinion, the judgment of Mabel is distinguishable on facts inasmuch as the writ petitioners’ first choic e was that of MBBS course. In other words, writ petitioners had taken admission in the BDS course under compulsion, having been told that all the seats in MBBS course were already filled up by candidates who stood above the petitioners in r ank. In this way the petitioners had taken admission in BDS course not on their own choice, as was in the case of Mabel. As contended by the learned the learned Addl. Advocate General it is tru 11. e that the writ petitioners gave an undertaking before the Selection Board that they have accepted BDS seats in RDC , Guwahati offered by the selection Board a ccording to the merit position and that they shall not claim MBBS seats for the Session 2012 even if any vacancy arises in future. However, even at the cost of repetition, I must mention here that BDS course was the second preference of the petitioners and they had accepted this course on being told that no seat in MBB S course was available. I am also of the view that obtaining such an undertaking by the selection board in the midst of the counseling cannot foreclose the futu re of a candidate if he or she is otherwise eligible to another course. The lear ned counsel for the writ petitioners have rightly contended that it is unfair on the part of the State respondents to obtain such an undertaking without there b eing any adverse undertaking and assurance form the authorities that if any seat in other streams would be available in future they would be given preference to switch over the course. 12. Admittedly in the impugned admission orders some of the candidates stand lower in the rank than the merit position of the writ petitioners. During the c ourse of hearing the learned Addl. Advocate General submitted that students who have already taken admission in different courses after counseling cannot be inv ited in the second counseling for the purpose of filling-up stray vacancies. The submission of the learned Addl. Advocate General does not appear to have suffic ient force as such course of action amounts to discrimination and offends Articl e 14 of the Constitution of India. Even otherwise from the admission order dated 19.9.2012 it is abundantly clear that some students from lower rank were admitt ed in the MBBS course from the ’Waiting List’. Obviously the candidate in the wa iting list would be lower in the rank than the candidates who have already been admitted in different courses. Hence, the selection board could not have ignored the preference given by the candidates for different courses and ideally the se lection board was under an obligation to give option to the candidates who could not be accommodated earlier against the course of their own choice. If such a g eneral option was not possible at least the State authorities were aware of the fact that both the writ petitioners had submitted their representations for chan ge of their course even before the entire process of selection was over. However , the authorities overlooked, ignored and rejected the representations mechanica lly without taking a judicious decision. 13. During the course of hearing Mr. Choudhury, learned senior counsel in on e of the two writ petitions furnished two admission orders dated 30.7.2013 & 17. 9.2013 and contended that in the academic year, 2013 at least two candidates we re allowed to swap their course of study on the basis of the same set of Rules. As per admission order dated 30.7.2013 one Kaushik Dutta and Ms. Dolly Agarwal were initially admitted in the BDS course and subsequently they got admission in the MBBS course vide order dated 17.9.2013. In this way the embargo put under R ule 4 (b) of the 2007 Rules cannot be said to be rigid and inflexible and that i t cannot be deviated under any circumstances. I am also of the view that Rule 4( b) has not been encircled with a ’Laskhman Rekha’ or any sacred thread to constr ue that the said rule is untouchable under any circumstance. 14. In the case of ASHA (supra) the Hon’ble Supreme Court has emphasized tha t merit should prevail in every aspect, more so, in the age of competitiveness. It would be profitable to reproduce the relevant observations, which are as bel ow: (cid:28) The Court cannot ignore the fact that these admissions relate to professional courses and the entire life of a student depends upon his admission to a particu lar course. Every candidate of higher merit would always aspire admission to the course which is more promising. Undoubtedly, any candidate would prefer course of MBBS over BDS given the high competitiveness in the present times, where on a fraction of a mark, admission to the course could vary. Higher the competition, greater is the duty on the part of the authorities concerned to act with utmost caution to ensure transparency and fairness. It is one of their primary obligat ions to see that a candidate of higher merit is not denied seat to the appropria te course and college, as per his preference. We are not oblivious of the fact t hat the process of admission is a cumbersome task for the authorities but that p er se cannot be a ground for compromising merit. The authorities concerned are e xpected to perform certain functions, which must be performed in a fair and prop er manner i.e. strictly in consonance with the relevant rules and regulations (cid:29). In view of the aforesaid facts and circumstances, I hold that the writ p 15. etitioners were deprived from being selected in the MBBS course due to faulty ad mission process and not because of any negligence or laches on the part of the p etitioners. I am also of the view that the methodology adopted by State authorit ies in selecting and appointing candidates standing at lower rank and merit cann ot be approved by the Court. I further hold that the writ petitioners were denie d their legal and fundamental rights for getting admission in the MBBS course th ough fulfilling all the eligibility criteria. In the result, both the writ petitions stand allowed. In view of the gui 16. delines given in the case of ASHA the State authorities are directed to admit th e writ petitioners in MBBS in the current academic year (2013), subject to the c ondition that the writ petitioners shall pursue their MBBS course right from the beginning forfeiting their one year study in the BDS course. Since the academic Session of 2013 has commenced, the respondent Nos. 1 to 4 shall admit the writ petitioners in MBBS course as expeditiously as possible on or before 30.9.2013. 17. It is made clear that this judgment will not affect the admission of the private respondents in MBBS /BDS course being pursued by them. 18. With the aforesaid directions and observations, the writ petitions stand allowed.