Jasima Shahabudeen v. The Government of Pondicherry & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 19-09-2005CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAWRIT PETITION NO.32430 OF 2003Jasima ShahabudeenD/o. ShahabudeenNo.6, Vazhai Kollai Street,Neravy Post, Karaikal,Pondicherry State 609 604... PetitionerVs.1. The Government of Pondicherry, Rep. by its Secretary, Health Department, Chief Secretariat, Pondicherry.2. Centralised Admission Committee (CENTAC), rep. by its Convenor, Pondicherry Engineering College, Pondicherry 605 014.3. Pondicherry University, Rep. by its Registrar, Kalapet, Pondicherry 605 014.4. Vinayaka Missions’ Medical College, Rep. by its Dean, Keezhakasakudimedu, Kottucherry Post, Karaikal 609 609.5. Arupadai Veedu Medical College & Hospital, Rep. by its Dean, Cuddalore Road, Kirumapakkam, Pondicherry.6. Medical Council of India, rep. by its Chairman, Opposite to Mata Sundari College for Women, New Delhi 110 002. (Impleaded as per order dated 2.12.03 in WPMP.41238/03).. Respondents https://hcservices.ecourts.gov.in/hcservices/ Petition filed under Article 226 of the Constitution of Indiafor the issuance of Writ of Mandamus directing the 1st respondent toimplement the judgment of the Honourable Apex Court in MRIDUL DHAR(minor) & Another v. UNION OF INDIA & others case, reported in 2005(1) Scale page 250 in Direction No.11 contained in paragraph 35, withreference to the excess admission in MBBS Course made by the 4th and5th respondents colleges for the academic year 2003-2004 over andabove the prescribed quota to enable the petitioner to join 1st yearMBBS Course.For Petitioner: Mr. Kandavadivel DoraisamiFor Respondents 1to3: Mr.T. Murugesan, Government Pleader for PondicherryFor Respondents 4-5: Mr. Satish ParasaranFor Respondent-6: Mr.R. Singaravelan - - -J U D G M E N T The petitioner was a candidate for admission to MBBS courseduring the academic year 2003-04. Originally when the writ petitionwas filed on 10.11.2003, the prayer was for issuing writ of Mandamusdirecting the Centralised Admission Commission (CENTAC), the secondrespondent in the writ petition, to conduct supplementary counsellingfor the vacant seats as against Government quota in respect ofVinayaka Missions’ Medical College, the fourth respondent, andArupadai Veedu Medical College, the fifth respondent, to enable thepetitioner to join the 1st year MBBS Course during the academic year2003-2004. By order dated 8.4.2005, the petitioner was permitted toamend the prayer seeking for a direction to the Government ofPondicherry, the first respondent, to implement the judgment of theSupreme Court in Mridul Dhar (Minor) & Another v. Union of India &others (2005 (1) Scale 250) in paragraph 35, with reference to excessadmission in MBBS Course made by the 4th and 5th respondent collegesto enable the petitioner to join in the first year MBBS Course.2. Petitioner is a candidate coming within OBC category inPondicherry. She had appeared for the entrance examination conductedby the second respondent during the year 2003-04. Her score for thesaid year was 135.042. She had received Counselling Call Letterdated 20.9.2003 to attend the Counselling on 25.9.2003 forprovisional admission to 1st year MBBS Course in the 4th and 5threspondent Medical Colleges. During the relevant time, by virtue ofinterim order passed in the other connected matters, the Government https://hcservices.ecourts.gov.in/hcservices/ quota was 40% of seats in four colleges. Even though full quota ofseats have been allotted to other colleges, regarding 4th and 5threspondent colleges, the 2nd respondent did not allot the entireGovernment quota but only allotted 36 candidates out of 40 seats inrespect of 4th respondent college and 35 candidates out of 40 seatsin respect of 5th respondent college. The petitioner had approachedthe second respondent authority to conduct supplementary counselling,but the second respondent did not heed to such request. In theamendment petitions numbered as WPMP.NOs.9350 & 9351 of 2005, it wasstated that the Supreme Court in the decision reported in 2005(1)Scale 250 has indicated :“35. ... 11. If any private medical college in agiven academic year for any reason grants admission in itsmanagement quota in excess of its prescribed quota, themanagement quota for the next academic year shall standreduced so as to set off the effect of excess admission inthe management quota in the previous academic year.”Relying upon the aforesaid observation, in the petition foramendment, it has been prayed that necessary direction should begiven to the respondents to give effect to such observation of theSupreme Court.3. The main grievance of the petitioner is that though theseats were lying vacant, the Government did not sponsor the entirequota because of callousness or culpable indifference, as a result ofwhich the respondents 4 and 5 admitted students beyond their quota of60% to fill up the vacant seats.4. A counter affidavit has been filed on behalf of therespondents 1 and 2. It has been indicated that 4th respondentcollege had got the renewal on 23.9.2003 and 5th respondent collegegot the renewal on 5.9.2003. Counselling for admission to thesecolleges was held on 25th and 26th September, 2003. In respect of 5threspondent college, number of students sponsored at the end of thecounselling on 27.9.2003 was 38, whereas in respect of 4th respondentcollege it was 36, and the other seats were not sponsored for want ofstudents in a particular category for whom reservation had been made.As per the Pondicherry University norms as well as the communicationreceived from the Medical College of India, the last date ofadmission for the academic year 2003-04 was 30.9.2003 and, therefore,there was no time left for the CENTAC to conduct further counsellingand sponsor other candidates. On 1.10.2003, the colleges furnishedthe enrolment status. It was indicated that there was vacancy of 4seats in 5th respondent college and vacancy of 7 seats in 4threspondent college. It was also indicated that since details werefurnished on 1.10.2003 and the last date was over, the sponsoredseats could not be filled up.5. A counter affidavit has also been filed on behalf of https://hcservices.ecourts.gov.in/hcservices/ Medical Council of India, which has been subsequently impleaded asRespondent No.6. In such counter affidavit, emphasis has been laidon the time schedule to be followed and it has been indicated that nomid-session admission is permissible as held by the Supreme Court inseveral decisions.6. It is no doubt true that since the seats within theGovernment quota are not filled up, the two colleges in questionadmitted other candidates by treating such surplus seats asmanagement quota. In course of hearing, it has been submitted thatthose two colleges have become deemed University, and, therefore,they are no longer governed by the G.O. relating to Government quotaand their admission test and procedure being different, no directioncan be issued regarding admission of the petitioner during thepresent session by adjusting such admission against the managementquota.In view of the subsequent development, as indicated,resorting to such a method is out of bounds.7. The next question is as to whether a direction should beissued for admission of the petitioner against Government quota onthe basis of the marks obtained during 2003-04 common entrance test.8. For the current academic session, as per the judicialorder passed by the High Court, the Government quota is fixed at 50%.One seat is directed to be kept vacant by the interim order passed bythis Court so far as the present writ petition is concerned.9. Learned counsel for the petitioner has submitted thatsince the petitioner was not at fault and the petitioner could notget admission during 2003-04 on account of the mistake committed bythe CENTAC, in the interest of justice, the petitioner should bedirected to be admitted during the present session on the basis ofthe marks which she had obtained in the common entrance test held forthe year 2003-04. In support of such submission, the learned counselfor the petitioner has placed reliance upon several decisions of theSupreme Court.10. In Civil Appeal No.4051 of 2004 disposed of on12.7.2004, the question raised was almost similar. In the said case,the Madras High Court while upholding the contention of the candidatethat he was more meritorious than the other candidate selected,directed admission of the candidate during the same academic sessionand further directed the State Government to seek for permission tocreate additional seat. Such direction was challenged by the MedicalCouncil of India in the Supreme Court. The Supreme Court whileupholding the contention of the Medical Council of India that no suchdirection for creation of additional seat should be issued,observed :“However, the Respondent No.1 writ petitioner has beenpursuing his studies pursuant to the impugned order atleast https://hcservices.ecourts.gov.in/hcservices/ from the beginning of this year. In that view of thematter, we are of the view that the respondent writpetitioner should be granted admission for the academicyear 2004-05 without any further counselling within thepermissible intake limit.”In other words, the petitioner in the said case was allowed to getadmission during the next year.11. Learned counsel for the petitioner further relied uponthe decision of the Supreme Court in Civil Appeal Nos.2423 to 2425 of2005 disposed of on 4.4.2005. The appeal was filed by the DentalCouncil of India against the direction of the High Court In the saidcase, one candidate Dr. Deepa was ranked higher than that Dr.Pravina, but Dr. Pravina had been admitted. The High Court foundthat neither Dr. Pravina nor Dr. Deepa were at fault and directedcreation of supernumerary seat for accommodating Dr. Deepa in thecourse for the Academic Year 2004-2005. The Supreme Court whileallowing the Civil Appeals filed by the Dental Council of India andthe Selection Committee and observing that direction for creation ofadditional seat should not have been issued, held as follows :-“The question still remains about accommodatingDr.Deepa in the course, above-referred. Having regard tothe peculiar facts of the case, we direct that in theAcademic Year 2005-2006, Dr. Deepa shall be accommodated inM.D.S. (Orthodontics) in Ragas Dental College. We may notethat by order dated 14th March, 2005, it was directed thatone seat in M.D.S. (Orthodontics) shall not be filled forthe Academic Year 2005-2006. The admission granted toDr.Deepa in the aforesaid college would be out of theGovernment quota. The learned counsel appearing for theCollege has no objection in this regard. We are also ofthe view that,having regard to the peculiar facts of thecase, it is the only proper course in order to dosubstantial justice between the parties without it beingtreated as a precedent.”12. It is of course true as pointed out by the learnedcounsel for the respondents that the aforesaid order was passed onits own peculiar facts and the Supreme Court itself observed thatsuch order should not be treated as a precedent. However, the factswere almost similar.13. In 2004(4) CTC 796 (DOLLY CHHANDA v. CHAIRMAN, JEE &OTHERS), a Bench consisting of three Honourable Judges wasconsidering the question of admission to MBBS Course almost undersimilar circumstances. In the said case, in respect of specialcategory reserved for children or widow of personnel of armed orparamilitary forces killed or disabled in action, the petitioner was https://hcservices.ecourts.gov.in/hcservices/ not selected as the certificate produced by the petitioner was foundto be not in order by the Committee. The Orissa High Court hadupheld the action of the Selection Committee by judgment dated31.10.2003. The Supreme Court found that non-selection of thepetitioner was on a highly technical view, even though the petitionerwas actually eligible. The Supreme Court thereafter observed :-“9. The appellant undoubtedly belonged to reserved MIcategory. She comes from a very humble background, herfather was only a Naik in the armed forces. She may nothave noticed the mistake which had been committed by theZilla Sainik Board while issuing the first certificatedated 29.6.2003. But it does not mean that the appellantshould be denied her due when she produced a correctcertificate at the stage of second counselling. Those whosecured rank lower than the appellant have already beenadmitted. The view taken by the authorities in denyingadmission to the appellant is wholly unjust and illegal.10. The appellant had qualified in the JEE-2003 butthe said academic year is already over. But for thissituation the fault lies with the respondents, who adopteda highly technical and rigid attitude and not with theappellant. We are, therefore, of the opinion that theappellant should be given admission in MBBS course in anyof the State medical colleges in the current academic year.11. The appeal is accordingly allowed with costs. thejudgment and order dated 31.10.2003 of the High Court isset aside. The respondents are directed to give admissionto the appellant in any one of the State medical collegesforthwith. In case the State seats have already been filedup, one extra seat shall be created for her.”(Emphasis added)14. As against the aforesaid decisions or orders of theSupreme Court, the learned counsel appearing for the respondents 1and 2 placed reliance upon the decisions of the Supreme Courtreported in (2000) 9 SCC 115 (RAJIV KAPOOR AND OTHERS v. STATE OFHARYANA AND OTHERS), (2002) 7 SCC 258 (MEDICAL COUNCIL OF INDIA v.MADHU SINGH AND OTHERS) and (2005) 2 SCC 65 (MRIDUL DHAR (Minor) ANDANOTHER v. UNION OF INDIA AND OTHERS). So far as the later twodecisions are concerned, it has been stated therein that no directionshould be issued for admission during mid-course and the timeschedule for admission should be strictly complied with and thereshould not be any increase of seats. The ratio in those decisions isnot applicable as in the present case the question is as to whetherthe petitioner can be accommodated on the basis of the result of theearlier year. 15. In (2000) 9 SCC 115 (cited supra), the dispute wasrelating to admission to Postgraduate degree and diploma courses inMedicine from amongst the Haryana Civil Medical Service candidates https://hcservices.ecourts.gov.in/hcservices/ for the academic session 1997. The petitioner before the High Courtclaimed that, as per the prospectus, selection for admission to bemade only on the basis of the marks obtained by a candidate in theentrance examination. But the contesting respondents as well as theState Government contended that the marks obtained in the entranceexamination only entitled them to be called for interview, being onlya qualifying test and the final selection against the reserved seatswas required to be made by the Selection Committee on the basis ofthe specified criteria stipulated by the Government from time totime, based on the academic career, experience, rural service, annualconfidential reports and marks obtained at the interview. The HighCourt, however, accepted such contention of the petitioners anddirected cancellation of the admission given to the contestingrespondents on the basis that selection is to be made only on thebasis of merit, as per the marks obtained in the written entranceexamination. The contesting private respondents before the HighCourt filed appeal. The State of Haryana intimated that the order ofthe High Court had been implemented and the State do not intend tounsettle the position insofar as the already selected candidates wereconcerned but the question of law should be decided. The SupremeCourt came to the conclusion that the High Court fell into error insustaining the claim of the writ petitioners and observed that meritsof such candidates were required to be adjudged in terms of thecriteria contained in the Government Orders. However, even thoughthe Supreme Court differed from the conclusion of the High Court, itrefused to pass any order regarding admission of the successfulappellants in any subsequent academic year and did not interfere withthe admission of the writ petitioners (Respondents before the SupremeCourt). It is profitable to quote the relevant observations made bythe Supreme Court :-“16. The dispute relates to the academic session ofthe year 1997 and we are in 2000. To utilise the seatsmeant for the next academic year by accommodating thosecandidates of 1997 vintage would amount to deprivation ofthe legitimate rights of those who would be in the fray ofcontest for selection, on the basis of their inter se meritfor the session of 2000, taking into account theperformance of the candidates of 1997 in that year. Thesuggestion to create additional seats, apart from theobjections from the State, cannot also be acceded to forthe purpose of admitting only the appellants inasmuch asany additional seats even if allowed to be created during aparticular year must be filled up only on the basis of thestandard and merit performance of the candidatesparticipating in the contest for the said year. Thatapart, some of the appellants appear to have got admittedinto diploma courses, having not been selected for degreecourses and there is no scope for adjusting the period ofstudy put in by them while pursuing diploma course, as onespent for PG degree course. There is also a positive https://hcservices.ecourts.gov.in/hcservices/ prohibition for a candidate pursuing PG diploma course in aparticular discipline to claim to do PG degree course in adifferent discipline.” (Emphasis added)16. The aforesaid decision of the Supreme Court wasfollowed by a Division Bench of this Court in W.A.No.1441 of 2005dated 6.9.2005. In the said case, the question related to admissionto Post Graduate course, namely, M.D.S. The last date for admissionto the course was 31.5.2004. On that date itself, a successfulcandidate, who had been selected against All India Quota discontinuedfor admission and as such one vacancy arose. The learned singleJudge in a writ petition filed in March, 2005, i.e., after about 10months, directed that another candidate should be admitted during theacademic session 2005 or academic session of 2006. The DivisionBench reversed such decision by observing :-“9. Assuming the said Archana, who was accommodatedunder All India quota discontinued her studies, the samecannot be allotted to the first respondent herein since anysuch vacancy if at all goes to the reserved category. Therecords placed before us disclose that the said Archanadiscontinued her studies by giving a letter on 31-05-2004afternoon, but the first respondent herein has chosen tofile the writ petition only on 22-03-2005 i.e., after lapseof one year. The decisions of the Honourable Apex Courtextracted above show that admitting students in midstream,even if seats are unfilled not permissible, the telescopingof unfilled seats of one year with permitted seat of thesubsequent year also prohibited and the utilisation ofseats meant for the next academic year by accommodatingcandidates of previous academic year would amount todeprivation of legitimate right of those who would be inthe fray of contest for selection, on the basis of theirinter se merits for the next academic year. Admittedly,the said vacancy also not filled up by the appellants after31-05-2004 in view of the decisions of the Honourable ApexCourt as well as the guidelines issued by the DirectorGeneral of Heath, New Delhi, hence the argument of thefirst respondent that she should have been accommodated inthe vacancy which resulted in discontinuation of the saidArchana is to be rejected.” (Emphasis added)17. The decision of the Supreme Court in Dolly Chhanda’scase was distinguished by observing that in the said case, the writpetition had been filed immediately and candidates who had securedlower marks or lower rank were admitted.18. The reluctance of the Courts to adjust a student in thesubsequent year's admission in respect of Post Graduate Courses,which have less intake capacity and are much more "merit oriented" https://hcservices.ecourts.gov.in/hcservices/ need not percolate down in the matters relating to admission to MBBSand the students who would be deprived this year as a consequence canhave their chance in the coming years. The two unreported decisionsof the Supreme Court and the decision in Dolly Chhanda's case reflecta less inflexible judicial policy at least in the matters relating toadmission to MBBS, where the illegality is that of the Government orthe Selection Committee.19. The course adopted by the Supreme Court in DollyChhanda’s case as well as two unreported orders appears to be veryapt and proper to be applied in the peculiar facts and circumstancesof the present case. In this connection, it is also necessary toemphasise that the decision in Rajiv Kapoor’s case is distinguishablein the sense that in the said case the fault was not of the State(Even though the fault was not of the candidate). Moreover, in thesaid case, the question related to admission in the Post Graduatecourse and some of the appellants had already taken admission toDiploma courses and there has been specific prohibition that thosewho have already admitted to Diploma courses could not take admissionto said Post Graduate course.20. In the present case, for the current year a seat hasalready been reserved as per the direction issued by this Court. Ifthe State Government would have discharged its duty during theacademic year 2003 promptly, the petitioner could have beenimmediately selected even before the time schedule. On the otherhand, the State Government did not take any steps for immediatesecond counselling and surrendered seats, which were gleefully filledup by the management in addition to the normal management quota. Ofcourse for the subsequent year, the management quota could have beenreduced on the footing that the management had the benefit ofadmission of students beyond its normal quota. However, such adirection cannot be given this year as in the meantime two collegesin question have become Deemed Universities and, therefore, they areno longer obliged to admit students on the selection made by theState Government and they are obviously following their own separateprocedure of selection.21. The petitioner was vigilant enough and has beenpursuing the writ petition from the very inception and it cannot besaid that the petitioner was guilty of any laches. The petitionercomes within the Other Backward Category. Since the petitioner wasnot at all at fault and the default was on the part of the StateGovernment in surrendering several seats, equity tilts in favour ofthe writ petitioner. It would be indeed a sad reflection on thejudicial system if the petitioner is told "even though you have cometo Court with all promptitude and had a right to be admitted during aparticular year, the Court cannot come to your rescue because theCourt could not decide the matter immediately and, therefore, yourwrit petition has become infructuous". https://hcservices.ecourts.gov.in/hcservices/

22. The delay in deciding cases in courts has indeedassumed alarming proportions. Even though the courts themselves mayor may not be held responsible for the inordinate delay in decidingcases in view of the exploding dockets, the litigants are not to beblamed in any manner if their cases cannot be taken up within areasonable time and it would be indeed very ironical if the case of adeserving petitioner would be dismissed and no relief would begranted merely because it was impossible for the court to take up thecase within a reasonable time. In this context, I feel, it is myobligation to quote the observation made by the Supreme Court in(1980) 2 SCC 593 (GUJARAT STEEL TUBES LTD. AND OTHERS v. GUJARATSTEEL TUBES MAZDOOR SABHA AND OTHERS), of course in a differentcontext :-“164. This litigation, involving many workmen livingprecariously on poor wages amidst agonising inflation and aManagement whose young budget, what with steel scarcity,may well be shaken by the burden of arrears, points to thechronic pathology of our Justice System — the intractableand escalating backlog in the Forensic Assembly Line thatslowly spins Injustice out of Justice and effectually,wears down or keeps out the weaker sector of Indian life.This trauma is felt more poignantly in labour litigationand the legislature fails functionally if it dawdles toradicalise, streamline and simplify the conflict resolutionprocedures so as to be credibly available to the commonpeople who make up the lower bracket of the nation. Thestakes are large, the peril is grave, the evils areworse than the prognostics of Prof.Laurence Tribe (of theHarvard Law School);If court backlogs grow at their present rate,our children may not be able to bring alawsuit to a conclusion within their lifetime.Legal claims might then be willed on, generationto generation, like hillbilly feuds; and theburdens of pressing them would be contractedlike a hereditary disease.165. Law may be guilty of double injustice when it is toolate and too costly for it holds out remedial hopes whichpeter out into sour dupes and bleeds the anaemic litigantof his little cash only to tantalise him into a systemequal in form but unequal in fact."23. What was said in the context of disputes involvingLabour Law applies with equal, if not greater, vigour to legaldisputes relating to admission in Education Institutions. https://hcservices.ecourts.gov.in/hcservices/

24. Having regard to all these peculiar facts, in thepresent case, I deem it fit and proper to give a direction that thepresent petitioner should be admitted during the relevant academic session as per the schedule approved andemphasised in Mridul Dhar’s case. In normal course, the admissionagainst Government quota is to take place before 31.8.2005. However,for sufficient reasons, such admission can take place on or before30.9.2005. 25. Accordingly, the writ petition is allowed and the StateGovernment is directed to sponsor the candidature of the petitioneragainst the reserved seat kept vacant as per the order of this Court.This direction should be complied with within a period of one weekfrom the date of receipt of a copy of the order. There would be noorder as to costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.dpkTo1. The Government of Pondicherry, Rep. by its Secretary, Health Department, Chief Secretariat, Pondicherry.2. Centralised Admission Committee (CENTAC), rep. by its Convenor, Pondicherry Engineering College, Pondicherry 605 014.3. Pondicherry University, Rep. by its Registrar, Kalapet, Pondicherry 605 014.4. Medical Council of India, rep. by its Chairman, Opposite to Mata Sundari College for Women, New Delhi 118 002. one cc to Mr Kandavadivel Doraisami, Advocate Sr No. 39185one cc to the Govt Pleader (Pon.)High Court, Madras (SR39277)one cc to Mr R.Singaravelan, Advocate Sr No. 39415rrn(Co)kkJUDGMENT IN WP.32430/2003