Alka Narang vs Punjab University and Others

Ranjit Singh, J.—Punjab University conducted combined entrance test for admission to BAMS/MBBS/BHMS courses in the year 2002. The petitioner appeared in the entrance test for admission to BAMS/BHMS courses on 22.05.2002. Her merit number was 663. The first counselling for admission was held on 26.06.2002. The petitioner was admitted against the payment seat at Dhanwantry Ayurvedic College, Chandigarh. As per her merit, the petitioner could only be admitted against the payment seat and not against free seat. Later, as per the orders passed by this Court, 10 seats more became available for being filled in BAMS course. Centralized Admission Committee constituted for conducting admission to BAMS/BHMS courses issued a notice for second counselling, which was earlier postponed for all the eligible candidates for filling up these 10 seats, which were sanctioned provisionally by an interim order passed by this Court. In the notice, it was mentioned that admission against these seats would be subject to the decision of CWP No. 16889 of 2001. The counselling was to take place at the Government Medical College and Hospital, Sector 32, Chandigarh for which the schedule was also given in the notice.

All eligible reserved category candidates for free and paid seats were required to appear at 9.30 a.m. All eligible General candidates (free seats) were to appear at 10 a.m. and all eligible candidates (Paid seats) were to appear at 12.00 noon. Significantly, this notice makes a clear mention that the candidates already admitted to BAMS/BHMS course-2002 in first counselling are also eligible to appear for change of their category on the basis of their respective merit position. Concededly, the petitioner despite being aware of this notice did not participate in the second counselling. To explain this, the petitioner has mentioned that on 29.08.2002, four free seats were to be filled for which this notice was issued. The petitioner herself has mentioned that the candidates, who have already admitted against paid seats and were higher in rank to the petitioner, were to appear in the counselling for conversion from paid seat category to free seat. When the petitioner noticed that one of the candidates admitted was lower in merit at serial No. 695, the petitioner filed a representation on 05.10.2002 and on 14.11.2002. When nothing was heard, the petitioner served legal notice on 30.12.2002 and thereafter filed Civil Writ Petition No. 4144 of 2003, which was, however, disposed of with liberty to the petitioner to file representation. The petitioner, accordingly filed a representation, which, however, was rejected on 17.04.2004. As per the petitioner, this was without affording any opportunity of hearing to her. When the petitioner pointed out that order was passed without hearing her, she was called for hearing on 21.04.2004. The petitioner had specifically demanded a copy of rules/instructions on the basis of which, this waiting list was prepared but her representation was rejected on 31.05.2004. Thereafter, the petitioner has filed the present writ petition.

The grievance of the petitioner is that even if she had not participated in the second counselling, she could not be debarred from appearing and for consideration for admission as per her merit. The petitioner would challenge the action of the respondent in granting admission to four students during the said courses and for preparing the waiting list for three students. Counsel for the petitioner would urge that these three students became available subsequently and the manner in which the Admission Committee has prepared the waiting list would mean that the seats were filled during 3rd counselling.

The petitioner has otherwise qualified in the course and is now full-fledged doctor. Her only prayer is for converting her seat from payment seat to free seat as per her merit and, thereafter, refund the fee, which the petitioner was made to pay for her admission against paid seat.

Separate replies on behalf of the Admission Committee as well as the College are filled. Counsel appearing for the College has first invited my attention to the interim order passed by this Court, vide which the Centralised Medical Admission was directed to select 10 additional students for the institution Dhanwantry Ayurvedic College and Hospital, which had filed the said petition in terms of the permission granted by the Central Council for Indian Medicine. This admission was, however, to be made provisionally and subject to the final orders passed by the Court in the said writ petition. It was also mentioned that ten additional students, who were to be selected will be informed in writing that their admission will be subject to the decision of Civil Writ Petition, where this interim order was passed.

In this context, the counsel has referred to Annexure P-3 which is the notice, which was issued. This notice, as published, was for filling of all ten seats and it was not that four seats were to be filled initially and that some other seats were to be filled subsequently. Seen in the light of the order passed by this Court, the College was to fill all the ten seats and for which even the candidates, who were earlier admitted, were held entitled and called to appear in the second counseling to seek change of their category on the basis of their respective merit position. Counsel appearing for the respondent-college further points out that the admission was done by the Admission Committee, which was Incharge and responsible for making admissions to all the institutions and whosoever candidate was admitted during the second counselling, they were admitted by the Admission Committee. The counsel says that the College had no role to play.

In the reply filed by respondent No. 2, it is stated that no cause of action arises for consideration of the case of the petitioner as made in the present writ petition. Respondent No. 2 would also point out to the varying stand taken by the petitioner to justify her non-appearance during the second counselling. In the first representation, given on 04.10.2002 and 14.11.2002, the petitioner had stated that she could not attend the second counselling due to some domestic circumstances. When she issued legal notice on 31.12.2002 she had stated that she could not appear due to ''one reason for the other''. Yet another reason is disclosed when she filed CWP No. 4144 of 2003, where she had mentioned that she could not attend the second counselling due to unavoidable circumstances. Yet another reason is now introduced to explain her absence on the ground that the petitioner did not choose to appear in the second counselling thinking that only four seats were to be filled and the petitioner being at No. 7 in the waiting list was not likely to get turn or admission for change of the seat for paid seat to free seat.

The submissions on the above lines mainly are advanced because of stand reflected in the reply filed by respondent No. 2 in CWP No. 16889 of 2001, where this Court had directed to fill up 10 additional seats out of which 15% were reserved for SC and 5% for ST category. It is, thus, stated that it was decided to fill up 7 seats (free and paid) from General category candidates and two seats (free and paid) from SC category. The notice for second counselling for filling of the seats, was published in the newspaper. Accordingly, the plea of the petitioner that only four seats were to be filled, would not arise from any of the pleadings. As per the notice, all 10 seats were to be filled and schedule of counselling was also given. All eligible reserved candidates (free and paid seats) were to appear at time i.e. 9.30. All eligible General categories candidates (free seats) were to appear at 10 a.m. whereas the payment seats eligible candidates, which would include Scheduled Castes well as other reserved categories candidates were to appear at 12.00 noon. Accordingly, the plea that the petitioner had thought that her turn was not likely to come, apparently, is afterthought. The first plea was that she could not appear because of domestic reasons. This plea, as already noticed, has undergone change on more than one occasion. Obviously, the petitioner has decided to take stances to suit her convenience. Her prime aim appears to be to just get some pecuniary advantage. Once the petitioner had decided or had not appeared in the counselling for which she was put to notice, there was no need to wait for her before admitting any student, who may be lower to her in merit. The actual reason appears to be that the petitioner like all the students perhaps did not decide to take risk and seek admission against these 10 seats as these were being filled subject to the decision of the writ petition.

Otherwise also, except for one student admitted against the free seats, others were higher in merit to the petitioner. It is only 7th seat, which was given to the candidate lower in merit and was at No. 8. Could the Counselling Committee or the Admission Committee wait for the petitioner to reach and then consider the case of the candidate, who had decided to appear in the second counselling, thus, would be a question. If during the counselling only four seats were to be filled, as is being stated, though this fact is not indicated from the pleadings, yet the petitioner might loose her right to seek admission even if there is 3rd counseling. There is no plea available or apparent from record that remaining seats were to be filled from subsequent counselling. The waiting list might have been prepared but it was only prepared during the second counselling. The petitioner obviously had remained absent during the counselling and, thus, would forfeit her right for consideration for admission even for a change of her seat. During the course of arguments, it was impressed upon the counsel appearing for the petitioner about the futility of this petition at this stage. The petitioner had already qualified the course and now is working as Doctor. Now, it is only a question of refund of some fee which she has paid. For that, the rights of candidates, who were admitted against the free seat, for which the petitioner has made a claim, would also suffer. It would not be fair obviously to disturb the arrangement, which was done in a fair reasonable manner. I do not see any infirmity in the admission and the move adopted by the Counselling committee to make the admission. There is no merit in the writ petition and the same is, accordingly, dismissed.