Aadil Ashraf vs J and K Board of Professional Examination

Mansoor Ahmad Mir, J.—The short controversy involved in this writ petition is whether the petitioner could be admitted to PG Course even

after the cut of date i.e., 31.05.2007 in terms of Sub Rule 11 to Rule 13 under the heading counseling for allotment of disciplines/streams, as

provided by Information Brochure of Entrance Examination for PG Medical Degree and Diploma Courses.

In order to determined the controversy, it is necessary to notice the brief facts of the case as under:

It appears that the petitioner appeared in the entrance test held on 31.3.2007 under Roll No. 300593 in the open merit category. Petitioner was

figuring in the merit list at serial No. 222 having obtained 160 marks. Respondent No. 5 was also figuring at serial No. 226 having secured 160

marks. In terms of the selection (Annexure-B) Fayaz ahmad War was the last candidate, who had secured 160 marks. A Notification bearing No.

18-BPEDE of 2007 dated 29.5.2007 came to be issued indicating that the short fall report was received and accordingly in partial modification of

the earlier Notification, candidates were provisionally selected to the Courses and were directed to report to the Principals of the concerned

colleges by 30.5.2007 and last candidate provisionally selected was shown as Yaseer Yousuf in OMC, having obtained 162 marks. Again on the

basis of short fall report, the Notification No. 23-BPEE of 2007 dated 31.5.2007 came to be issued and respondent No. 5 was figuring in the

waiting open merit list (Annexure E), came to be provisionally admitted in the discipline to undergo post graduate diploma course in Anesthesia.

The case of the petitioner is that he was having the better merit as compared to respondent No. 5 but was ignored. He came to know on

11.6.2007 and, accordingly, made a representation on 11.6.2007 (Annexure G). The prayer of the petitioner is that the admission of respondent

No. 5 be quashed and he be admitted provisionally to the course.

Respondents 1 and 2 have appeared and filed their reply. It is profitable to reproduce para No. 1 of the reply as under:

That no mid session admission is permissible in view of the law laid down by the Hon'ble Supreme Court in the case titled MCI v. Madhu Singh

and in view of the guide lines issues by the medical Council of India in pursuant to the directions passed by Hon'ble Supreme Court in the above

referred case. It is essential to state here that it was reiterated by the Hon'ble Supreme Court in the case titled ""Mirdul Dhar v. Union of India"" that

all the concerned are required to strictly adhere to the time schedule provided by the MCI and there should be no mid session admissions. In view

of the directions passed by the Hon'ble Supreme Court no admission could be made after 31st of May 2007 as far as the controversy in the

present writ petition is concerned. As the petitioner is seeking a direction to select and admit the petitioner to undergo post graduate diploma

course in anesthesia after the cut of date as prescribed, the relief prayed for is legally impermissible in view of the law laid down by the Apex court,

as such, the writ petition merits dismissal.

Respondents 1 and 2 have also stated in the reply that a notice was issued on 31.5.2007 whereby, where under it was impressed that all the

candidates who had applied for admission to MD/MS/PG diploma courses against short fall vacancies to remain in constant touch with the Board

and could be called to join that day itself if short fall vacancies are reported. The notice was affixed on the Notice Board and the Government

Medical College authorities conveyed short fall at 3.00 P.M. Candidates so present were called and vacancies were filled up in order to save the

seats from getting wasted in view of the guidelines laid down by the MCI. The vacancies came to be filled up amongst the candidates who had

applied and were present on 31.5.2007 and consequently respondent No. 5 came to be provisionally selected. Petitioner has neither applied nor

attended before the board till 11.6.2007, so petitioner could not claim quashment of the admission of respondent No. 5 and his selection/admission

to PG Course.

In terms of Rule 13(11) contained in brochure, the admission was to be finally closed on 31.5.2007. The petitioner was supposed to remain

vigilant and cautious and should have remained present before the Board on 31.5.2007 because the admission had to be closed on the very date.

But on his own showing he came to know on 11.6.2007, meaning thereby that he remained in deep slumber till 11.6.2007.

The Apex Court has laid down guidelines in Medical Council of India Vs. Madhu Singh and Others, that admission should not be granted after

cut of date. It is profitable to reproduce para No. 23 hereunder:

There is, however, a necessity for specifically providing the time schedule for the course and fixing the period during which admission can taken

place, making it clear that no admission can be granted alter the scheduled date, which essentially should be the date for commencement of the

course.

In conclusion

(i) there is no scope for admitting students midstream as that would be against the very spirit of statutes governing medical education;

(ii) even if seats are unfilled that cannot be a ground for making mid session admission;

(iii) there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year;

(iv) MCI shall ensure that the examining bodies fix a time schedule specifying the duration of this course, the date of commencement of the course

and the last date for admission;

(v) Different modalities for admission can be worked out and necessary steps like holding of examination if prescribed, counseling and the like have

to be completed within the specified time;

(vi) No variation of the schedule so far as admissions are concerned shall be allowed;

(vii) In case of any deviation by the institution concerned, action as prescribed shall be taken by MCI.

Again the Apex Court while dealing on the same subject in, Mridul Dhar (Minor) and Another Vs. Union of India (UOI) and Others, held that

the authorities are commanded not to admit candidates in mid session and that too after cut of date. It is profitable to reproduce para 8 and 9 of

the judgment hereunader:

In Medical Council of India v. Madhu Singh while making it clear that no admissions can be granted after the scheduled date, which essentially

should be the date for commencement of the course, MCI was directed to ensure that the examining bodies fix a time schedule specifying the

duration of the course, the date of its commencement and the last date for admission. It was further directed that different modalities for admission

can be worked out and necessary steps like holding of examination if prescribed, counseling and the like have to be completed within the specified

time and no variation of the schedule so far as admission are concerned shall be allowed. In case of any deviation by the institution concerned,

action as prescribed shall be taken by MCI.

The Ministry of Heal and Family welfare, government of India convened a meeting of the State Health/medical Education Secretaries and the

Vice Chancellors of the universities of health sciences and as a result of the discussion issued a directive dated 14.5.2003 to the Secretaries of

Health and Medical Education in all the State and Union Territories and to all universities awarding medical/dental degrees laying down the policy

guidelines on admission of students and other allied matters, inter alia, having regard to the decision in Madhu singh case laying down the schedule

for completion of the various stages of admission process, commencing of academic session and closure of admissions in courses of medicine and

dentistry to be applicable to all medical and dental colleges in the country from the academic session 2003-04 onwards. All State Governments,

Universities, medical and dental institutions in the country and any other authorities concerned were directed to strictly abide by the time frame for

completion of each of the stages of admission process indicated in the time schedule. It also directed that neither shall any student be admitted in

any course of medicine or dentistry after expiry of the last date prescribed for closure of admissions in that course nor shall any university register

any such admission sought to be made. The State Governments were directed to take all necessary steps to prevent deviation from the prescribed

schedule.

This Court also in Prateek Goel v. BPEE and 2006(11) SLJ 463 held that admission should not be made after cut of date, if any made be

quashed. It is profitable to reproduce para 5 and 8 of the judgment hereunder:

The ratio of the judgment being unambiguous to the effect that 30th September is the last date upto which the candidates could be admitted

against the vacancies arising due to any reason, I am of the opinion that no admission could be made after the appointed date. It goes without

saying that in view of article 141 of the Constitution, this Court is bound by the decisions of the Supreme Court which have to be followed by all

the authorities faithfully, punctually and without fail. It is understandable that at times the schedule prescribed may work adversely but the number

of those whom it protects runs in thousands obviously, adherence to the schedule is in the interests of the student community as a whole and the

individual interest has to give way to the collective interest of the community. Examining the impugned order on the strength of the judgment supra,

the only permissible course of action available to this Court is to quash the same. I do so accordingly, fall out being status quo ante course-wise

meaning thereby that the petitioner and the respondent No. 4 shall have to be restored to the faculties of MBBS and BDS respectively, the

position they held prior to issuance of the impugned order dated 03.11.2005.

It is distressing to note that the respondent BPEE has admitted the respondent No. 4 to BDS course by its order dated 3.11.2005 not-

withstanding the specific restraint from the apex Court on that count, thus flagrant violation of the judgment giving cause for initiation of contempt

proceedings. Faced with the situation an abortive attempt was made by Mr. Natnoo to canvass that the admission was granted in compliance with

the judgment of the learned Single Judge. The contention being bereft of any logic cannot help out the respondents BPEE yet in view of the

contention of the respondents that the impugned order was passed under the pain of the contempt, I choose to take a lenient view.

Nevertheless, I cannot hesitate to reduce in writing my pleasure against the BPEE for having omitted to bring the judgment of the apex Court to

the notice of the learned Single Judge and I stop here.

Keeping in view the terms and conditions contained in the brochure and the judgments (supra), I am of the considered view that admission

cannot be granted to the petitioner after cut of date.

It is apt to mention here that respondents 1 and 2 have stated in their reply that respondent No. 5 was vigilant, present and available before the

Board at the relevant point of time and came to be admitted. Thus in the given circumstances his admission can be said to be fortuitous in nature.

Having glance of the above discussion, the writ petition is dismissed alongwith all connected CMP(s), Interim direction shall stand vacated.