S.Abeeb Raja v. Shastri Bhavan, Haddows Road, Chennai.3.Madras Medical College

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20-01-2007CORAMTHE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIANWRIT PETITION No.17265 of 2006AndM.P.Nos.2 and 3 of 2006S.Abeeb Raja .. Petitioner Vs.1.Directorate General of Health Services, through its Assistant Director General Medical Examination Cell, Nirmal Bhavan, New Delhi.2.The Central Bureau of Investigation, through its Superintendent of Police, Anti Corruption Wing, Shastri Bhavan, Haddows Road, Chennai.3.Madras Medical College, through its Dean, Poonamallee High Road, Chennai.4.The Director of Medical Education, Poonamallee High Road, Kilpauk, Chennai... Respondents Writ petition filed under Article 226 of Constitution ofIndia praying for issue of a Writ of Certiorari, calling for therecords relating to the impugned order of the first respondent inMemorandum No.U.12021/7/2005 – MEC dated 2.6.2006 and quash thesame. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.Vijay Narayan, Senior Counsel for Ms.P.Suganthi. For Respondent-1: Mr.V.T.Gopalan, Addl. Solicitor General for Mr.S.Udayakumar, Senior Central Govt. Standing Counsel. For Respondent-2 : Mr.N.Chandrasekaran For Respondents-3&4 : Mr.Pa.Kadhirvel, Govt. Advocate (Education) ORDERThe petitioner appeared in the All India Post GraduateMedical Entrance Examination for admission to MD/MS Courses for theyear 2006 on 8.1.2006 and was declared to have secured 117th rank inthe said examination, when the results were declared on 14.2.2006.By a memorandum dated 21.4.2006, issued by the first respondent, thepetitioner was informed of his selection for admission to MS(GeneralSurgery) Course under the All India Quota to the Madras MedicalCollege. The petitioner joined the course in the third respondent-College on 27.4.2006.2. However, in pursuance of the petitioner beingimplicated as one of the accused in a criminal case registered bythe Central Bureau of Investigation (CBI) relating to the allegedmalpractices in the All India Post Graduate Medical EntranceExamination, the first respondent cancelled the selection of thepetitioner, for admission to the Post Graduate Medical Course, by amemorandum dated 2.6.2006. Challenging the said order cancelling hisadmission to the Post Graduate Course, the petitioner has filed thepresent writ petition.3. I have heard Mr.Vijay Narayan, learned senior counselappearing for the petitioner and Mr.V.T.Gopalan, learned AdditionalSolicitor General appearing for the first respondent,Mr.N.Chandrasekaran, learned counsel appearing for the secondrespondent and Mr.Pa.Kadhirvel, learned Government Advocateappearing for the third and fourth respondents.4. Before getting into the factual dispute involved in thecase, it is necessary to set out a prelude, for a betterappreciation of the issues raised in the case. https://hcservices.ecourts.gov.in/hcservices/

5. A complaint dated 1.3.2006 was lodged by the Secretaryto the Government of India, Ministry of Health and Family Welfare,New Delhi, with the Director of the Central Bureau of Investigation,alleging large scale malpractices in the All India Post GraduateMedical Entrance Examination 2006, held on 8.1.2006. The basis ofthe complaint was that out of the first hundred qualifiedcandidates, 37 were selected from the Chennai Centre, which wasconsidered to be abnormal. Therefore, a preliminary enquiry wasconducted by the CBI, on the basis of the findings of which, aregular case RC No.16(A)/06 was registered in the Anti CorruptionBranch, CBI, Chennai against 22 doctors. The FIR was registered on27.3.2006 by Anti Corruption Branch, CBI Chennai for allegedoffences under Section 120-B r/w Section 420 IPC and Section 13(2)r/w Section 13(1)(d) of the Prevention of Corruption Act.6. In the course of the investigation, nine more personswere roped in by the CBI as being instrumental in organising thecrime and fourteen more persons were identified as beneficiaries.The petitioner was roped in as Accused No.41, as one of thebeneficiaries, in the course of the investigation, though his namedid not find a place in the FIR.7. In the meantime, on the basis of the allegations ofmalpractices and the complaint lodged with the CBI, the entireentrance examination was sought to be cancelled. Therefore, a fewselected candidates moved the Supreme Court under Article 32 of theConstitution in W.P.(Civil) No.157 of 2006. On 3.4.2006, the SupremeCourt appears to have directed the Government to file a statusreport. Accordingly, a status report was filed on 13.4.2006. Takingnote of the contents of the status report, the Supreme Court passedthe following order on 13.4.2006:-"Pursuant to our order passed on 3rd April2006, learned Additional Solicitor General hasfiled a status report regarding the conduct ofAll India Entrance Examination of MDS and MD/MS.In this report it is submitted that as regardsMDS Entrance Examination, no mal-practice hasbeen detected or has been committed by any ofthe candidates. In the MD/MS examination in theCentre at Chennai, out of 421 candidates whohave passed the Entrance Examination, 20candidates have been disqualified in theexamination on the basis of the re-evaluation ofthe answer sheets. The authorities intend todisqualify them and to pass orders regardingappropriate punitive action. These twentycandidates shall not be allowed to participatein the ensuing counselling. As the twentycandidates are to be excluded from the meritlist, the candidates who are next below in theorder of merit shall occupy the place which hasfallen vacant and the list shall accordingly bere-arranged. https://hcservices.ecourts.gov.in/hcservices/ As regards the counselling of MDS isconcerned, the same shall start on 21st April2006 and rest of the schedule shall bedetermined by the Medical Council of India inconsultation with the other Authorities. LearnedAdditional Solicitor General also mentioned thatin case any material is found against any othercandidates, then further steps would be takenagainst them, including disqualification. Thiswould apply to all candidates who have passedthe Entrance Examination.We have also perused the report submittedby the Central Bureau of Investigation."8. Therefore, after the petitioner was roped in as AccusedNo.41 by the CBI, the first respondent cancelled the selection andadmission of the petitioner by the impugned order dated 2.6.2006.Challenging the said order, the petitioner has filed the presentwrit petition and the writ petition was admitted on 13.6.2006 and aninterim order was also granted, enabling the petitioner to continueto attend the classes.9. However, the said interim order was vacated by an orderdated 30.6.2006. Aggrieved by the vacation of the stay order, thepetitioner filed a special Leave Petition before the Supreme Courtin SLP (c) No.11075 of 2006. On 11.7.2006, the Supreme Courtdirected the SLP to be listed on 24.7.2006 and also granted aninterim stay as regards filling up of the vacant seats till then.But by then, the first respondent filled up the vacancy createdconsequent upon the cancelation of the admission of the petitioner.It is relevant to point out here that the interim order granted inthe present writ petition was vacated on 30.6.2006 by this Court andafter hectic parleys between the first respondent (at Delhi) and therespondents 3 and 4 (at Chennai), the seat was allotted to anothercandidate and that candidate also joined the course on the same day,within a matter of few minutes. I am unable to categorise the speedwith which the respondents 1,3 and 4 acted in filling up the seat,within a few minutes of the stay order getting vacated either asadministrative efficiency at its best or as hastiness at its worst.10. Be that as it may, the Special Leave Petition SLP (c)No.11075 of 2006 filed by the petitioner against the vacation of theinterim order in the present writ petition, came up for hearingbefore the Supreme Court on 29.9.2006. By a short order, which readsas follows, the Supreme Court disposed of the Special LeavePetition:-"We are not inclined to interfere with theimpugned interim order. The writ petition ispending before the High Court. The petitioner isseeking admission to the Post Graduate MedicalCourse. In view of the urgency of the matter, werequest the High Court to dispose of the matter https://hcservices.ecourts.gov.in/hcservices/ within a period of one month.The Special Leave Petition is disposed ofaccordingly."11. It is in pursuance of the aforesaid direction issuedby the Honourable Supreme Court that the writ petition was postedfor final hearing. The writ petition was heard for a few days andorders were reserved on 5.12.2006. Subsequently, it was brought tomy notice that the CBI had filed a charge sheet before the SpecialCourt and the petitioner herein is cited as Accused-37. It is inthis background of facts that the writ petition is to be decided.12. The only ground on which the impugned order ofcancellation of admission of the petitioner to the Post GraduateMedical Course is assailed is that, it has been passed in violationof the principles of natural justice, without issuing any notice andwithout affording any opportunity of hearing to the petitioner. Inother words, the contention of the petitioner is that the mereinclusion of his name in the FIR cannot automatically result in thecancellation of his admission to a Post Graduate Medical Course,even without any notice or enquiry by the first respondent. Afterhaving secured admission to the Post Graduate Medical Course andjoined the course on 27.4.2006, the petitioner had acquired avaluable right and the same cannot be snatched away withoutfollowing the principles of natural justice, after more than amonth.13. In support of the aforesaid contention that theimpugned order is vitiated by failure to follow the principles ofnatural justice, Mr.Vijay Narayan, learned senior counsel appearingfor the petitioner relied upon the following judgments of the Apexcourt and this Court:-1. Hira Nath Mishra vs. Rajendra MedicalCollege, Ranchi (AIR 1973 SC 1260).2. T.C.Peter vs. The Union Public ServiceCommission by its Secretary, New Delhi (AIR 1978MADRAS 87).3. Board of Technical Education, U.P. vs.Dhanwantri Kumar (AIR 1991 SC 271).4. Maharashtra State Board of Secondary andHigher Secondary Education vs. K.S.Gandhi (JT 1991(2)SC 296).5. Biswa Ranjan Sahoo vs. Sushanta KumarDinda ((1996) 5 SCC 365)).14. In defence, Mr.V.T.Gopalan, learned AdditionalSolicitor General contended -(a) that no relief can be granted to thepetitioner at this stage since the cut off datefor admission of candidates as strictlystipulated by the Supreme Court had alreadyexpired and that no admission to any medicalcourse can be made after the cut off date by anyorder of any Court in the country; https://hcservices.ecourts.gov.in/hcservices/ (b) that after the interim order was vacatedin the present writ petition on 30.6.2006, theseat allotted to the petitioner was filled up byanother candidate, making the writ petitioninfructuous;(c) that the action taken against the petitionerwas in pursuance of the order of the SupremeCourt in W.P.(Civil) No.157 of 2006 dated13.4.2006 and that therefore no opportunity needto precede the impugned order;(d) that already 20 candidates had beendisqualified even as per the status reportsubmitted to the Supreme Court on 13.4.2006, andthat those 20 candidates did not challenge thedisqualification and that consequently thepetitioner cannot be treated differently byretaining his admission to the Post GraduateCourse.15. At the outset, I am unable to accept the first twosubmissions of the learned Additional Solicitor General, viz., thatno relief can be granted to the petitioner after the cut off datefor admission and that the writ petition has become infructuousconsequent upon the seat being allotted to another candidate. It istrue that the Supreme Court deprecated the practice of grantingmidstream admissions, in Medical Council of India vs. Madhu Singhand Others ((2002) 7 SCC 258)) and various other cases. But theproposition of law that there shall be no midstream admissions, isnot applicable to the case on hand. The petitioner herein wasselected for admission and was allotted to the third respondent-College by a communication of the first respondent dated 21.4.2006and he paid the necessary fees and joined the course on 27.4.2006.From 27.4.2006, the petitioner attended the classes in MS (GeneralSurgery) till 30.6.2006, the date on which the interim orderoriginally granted in his favour was vacated, by this Court.Therefore, this is not the case of a person seeking admission afreshto any Medical Course. This is the case of a person, who was alreadyadmitted to the Course in April 2006 and whose admission was soughtto be cancelled by the order impugned in the writ petition. Hence,the first submission of the learned Additional Solicitor General isrejected.16. Similarly, the second contention that the writpetition has become infructuous in view of the vacancy being filledup by another candidate, is to be stated only to be rejected. Theinterim order granted by this Court while admitting the writpetition on 13.6.2006 got vacated on 30.6.2006. It is stated byMr.Vijay Narayan, learned senior counsel for the petitioner that theorder vacating the interim stay was passed by the end of the day on30.6.2006 and the respondents 1,3 and 4 filled up the vacancy inundue haste within a few minutes disguising the same as a legalnecessity to fill up the seat before the cut off date. The Special https://hcservices.ecourts.gov.in/hcservices/ Leave Petition arising out of the said order vacating the interimstay, was disposed of by the Supreme Court only with a direction tothis Court to dispose of the writ petition within a month. If thewrit petition had actually become infructuous, as contended by thelearned Additional Solicitor General, the Apex Court would not havedirected this Court to dispose of the writ petition within a month.The respondents did not point out to the Supreme Court that the writpetition had already become infructuous and that there was no pointin directing the High Court to dispose of the writ petition. TheApex Court was conscious of the vacation of the interim order andthe filling up of the seat by the respondents 1,3 and 4. Yet, theHon'ble Supreme Court remitted the matter back, in view of thefundamental principle of law that any interim order would be subjectto the result of the final order. Therefore, the contention that thewrit petition had become infructuous, goes against the fundamentalprinciple of law relating to the grant or refusal to grant interimorders. Hence, the second submission of the learned AdditionalSolicitor General is also rejected.17. The third submission of the learned AdditionalSolicitor General that the cancellation of the admission of thepetitioner to the Post Graduate Medical Course was in pursuance ofthe order of the Supreme Court in W.P.(Civil) No.157 of 2006 andthat therefore no opportunity of hearing need be given to thepetitioner, is also fallacious. As seen from the order of theSupreme Court dated 13.4.2006, in W.P.(Civil) No.157 of 2006,extracted in para-7 above, the Supreme Court did not decide thequestion as to whether a person should be given an opportunitybefore his admission to the Medical Course was cancelled or not. TheApex Court merely recorded the submission of the learned AdditionalSolicitor General to the effect that "if in case any material isfound against any other candidates, then further steps would betaken against them including disqualification". Thus what iscontained in the order of the Supreme Court dated 13.4.2006 is onlya submission of the learned Additional Solicitor General and not thedicta of the Supreme Court. Even if the same is taken to be an"obiter", all that the Supreme Court said in the order is that"further steps would be taken against them includingdisqualification". The words "further steps", would certainlyinclude all steps which are required by law to be taken fordisqualification. Therefore, there is no room for interpreting theorder of the Supreme Court to be a fiat for the cancellation ofadmission of a candidate by the stroke of a pen. Hence, the thirdsubmission of the learned Additional Solicitor General is alsorejected.18. The fourth submission of the learned AdditionalSolicitor General that other 20 candidates disqualified foradmission did not choose to challenge the action of the firstrespondent and that therefore, the petitioner cannot seek adifferent treatment, is also not correct. As seen from the order ofthe Supreme Court dated 13.4.2006, those 20 candidates weredisqualified even at the beginning and they were not even allowed totake part in the counselling. They were merely candidates who wereselected for admission and hence they had not acquired a vestedright. As a person who was permitted to attend counselling, who was https://hcservices.ecourts.gov.in/hcservices/ given admission and permitted to join the course on 27.4.2006, thepetitioner had acquired a vested right, in contra distinction tothose 20 candidates who did not acquire any vested right since theycould not even take part in the counselling. Therefore, the case ofthe petitioner is not comparable with the case of those 20candidates, who were disqualified even before counselling andallotment to any particular college. The petitioner stands on adifferent footing than those 20 candidates and hence his right tochallenge the cancellation of his admission, ordered after more thana month of the admission to the college, cannot be belittled. In anyevent, if a group of persons got affected by an administrativeaction, a person who is brave enough to challenge the action, cannotbe non-suited merely on the ground that the others have accepted tosuffer the injury inflicted upon them. Therefore, even the fourthsubmission of the learned Additional Solicitor General, is to berejected.19. Now coming to the only contention of the learnedsenior counsel appearing for the petitioner for assailing theimpugned order, it is an admitted fact that the petitioner was notissued with any notice or opportunity of hearing before theadmission granted to him was cancelled. The said contention of thelearned senior counsel for the petitioner is based upon therequirement to follow the principles of natural justice when avested right is sought to be taken away. But while advancing thesaid contention, the learned senior counsel for the petitionerfairly conceded that the extent to which the principles of naturaljustice would apply in matters relating to enforcement of disciplinein Educational Institutions, would not be of a high degree as itwould in matters relating to enforcement of discipline inemployment. Even in the first decision of the Supreme Court reliedupon by the learned senior counsel for the petitioner in Hira NathMisra vs. Rajendra Medical College, Ranji (AIR 1973 SC 1260), theSupreme Court merely held that "the principles of natural justiceare not inflexible and may differ in different circumstances".20. In all the decisions cited by the learned seniorcounsel for the petitioner, the Courts were concerned with theextent to which the principles of natural justice would go in suchmatters. In Board of Technical Examination, U.P. vs. ThanashiriKumar (AIR 1991 SC 271), the order of the High Court quashing anotice on the ground of vagueness was upheld by the Supreme Court.In Maharashtra State Board of Secondary and Higher SecondaryEducation vs. Gandhi (JT 1991 (2) SC 296), the Supreme Court upheldthe enquiry report though it did not contain reasons, since thestudents had admitted to the charges. While dealing with such a non-speaking enquiry report, the Supreme Court held as follows:-"The omnipresence and omniscience of theprinciple of natural justice acts as deterrence toarrive at arbitrary decision in flagrant infractionof fair play. But the applicability of theprinciples of natural justice is not a rule ofthumb or a straight jacket formula as an abstractproposition of law. It depends on the facts of thecase nature of the inquiry and the effect of the https://hcservices.ecourts.gov.in/hcservices/ order/decision on the rights of the person andattendant circumstances."21. In a case arising out of the disqualification of aperson who was alleged to have committed a mal practice in anexamination, the Division Bench of this Court in T.C.Peter vs. UnionPublic Service Commission (AIR 1978 Madras 87) held that theprinciples of natural justice had to be followed. Therefore, it isto be seen as to whether the failure of the first respondent toissue a notice and follow the principles of natural justice vitiatedthe order of cancellation of admission of the petitioner to the PostGraduate Medical Course.22. As seen from a catena of decisions of the supremeCourt over the last five decades, the observance of the principlesof natural justice has always been held to be the rule and itsviolation, approved in certain situations as an exception. Evenwhile dealing with situations in which the principles of naturaljustice were violated, the Courts have made a distinction between "atotal violation of natural justice" and "a mere violation of a facetof the rule". In simple terms, the Courts have divided the cases ofviolation of the principles of natural justice into two categoriesviz., (a) cases in which there was no opportunity/no notice/nohearing at all and (b) cases in which there was no adequateopportunity/no fair hearing. In cases where there was a totalviolation of natural justice and where there was no notice, noopportunity and no hearing, the Courts have held the end result tobe undoubtedly invalid. But even while doing so, the Supreme Courthas carved out an exception. The said exception is found in one caserelating to the cancellation of an examination for selection to theRailways in Biswa Ranjan Sahoo and Sushanta Kumar Dinda ((1996) 5SCC 365)). In the said case, the Central Administrative Tribunal,Cuttak Bench set aside the entire selection process, on the groundthat there was large scale mal practice. While doing so, theselected candidates were not impleaded as parties and they were notgiven any opportunity. Therefore when the said selected candidateschallenged the order of the Central Administrative Tribunal beforethe Supreme Court, on the ground of violation of the principles ofnatural justice, the Supreme Court held as follows:-"3. A perusal thereof would indicate theenormity of malpractices in the selection process.The question, therefore, is: whether the principleof natural justice is required to be followed byissuing notice to the selected persons and hearingthem? It is true, as contended by Mr.SantoshHegde, the learned senior counsel appearing forthe petitioners, that in the case of selection ofan individual if his selection is notfound correct in accordance with law, necessarily,a notice is required to be issued and opportunitybe given. In a case like mass malpractice as notedby the Tribunal, as extracted hereinbefore, thequestion emerges: whether the notice was requiredto be issued to the persons affected and whetherthey needed to be heard? Nothing would become https://hcservices.ecourts.gov.in/hcservices/ fruitful by issuance of notice. Fabrication wouldobviously either be not known or no one would comeforward to bear the burnt. Under thesecircumstances, the Tribunal was right in notissuing notice to the persons who are said to havebeen selected and given selection andappointment."23. In this case, though the name of the petitioner was not includedin the FIR, he was implicated as accused 41 in the course ofinvestigation. After the completion of investigation, the CentralBureau of Investigation has filed a final report before the SpecialCourt implicating the petitioner as accused 37. The allegationsrelate to large scale mal practices. The manner in which the malpractice is alleged to have taken place shows a high tech deploymentof skill. The offence is sought to be established only bycircumstantial evidence and not by direct evidence. Therefore, adomestic tribunal may not really be well equipped to hold an enquiryinto the commission of such an act of mal practice. Even if a noticehad been issued and the opportunity given to the petitioner beforeordering the cancellation of his admission to the Post GraduateMedical Course, it would have been difficult to conduct an enquirywithout the same overlapping with the prosecution launched by theCBI before the Criminal Court. Therefore, I am unable to hold thatthe failure to follow the principles of natural justice vitiated theimpugned order of cancellation of admission of the petitioner.24. The learned senior counsel for the petitionersubmitted that if the petitioner was ultimately acquitted by theCriminal Court, there is no method by which he could be compensatedfor loosing the admission to the Post Graduate Medical Course thathe had earned after shedding his sweat, blood and toil. Though Ireally have no answer to this question, it is well settled that hardcases cannot make bad law. Under normal circumstances, there wouldhave been no difficulty in accepting the proposition that theadmission to the Post Graduate Medical Course cannot be cancelledwithout following the principles of justice. But the situation onhand is an abnormal one. Principles of natural justice cannot cometo the rescue of a person placed in such abnormal situations.Therefore, I am unable to grant any relief to the petitioner and thewrit petition is dismissed. No costs. Consequently, connectedmiscellaneous petitions are also dismissed.Svn.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Assistant Director General Medical Examination Cell Directorate General of Health Services,, Nirmal Bhavan, New Delhi.2.The Superintendent of Police Central Bureau of Investigation, Anti Corruption Wing, Shastri Bhavan, Haddows Road, Chennai.3.The Dean Madras Medical College, Poonamallee High Road, Chennai.4.The Director of Medical Education, Poonamallee High Road, Kilpauk, Chennai.+2ccs to Ms. P. Suganthi, Advocate sr no. 3556SGL(CO)NM(20.01.07) WP No.17265 of 2006