Dinesh Kumar @APPELLANT@Hash Union Of India

Another petition relating to admission to MBBS 2018 and urgent for reason of the admission deadline being 31.08.2018, has come up for orders by this

court.

The petitioner wrote the National Eligibility Cum Entrance Test (NEET) 2018 examination and qualified therein securing All India Rank 12355, OBC

rank 4517, and State Rank of 2160. However as he had not passed the senior secondary examination with two years regular and continuous study in

the subject of

Biology/Biotechnology in terms of Regulation 4(2)(a) of the Graduate Medical Education Regulations, 1997 (hereinafter ‘the Regulation of

1997’), but as an additional subject in the subsequent year he was not despite having registered for counseling, allotted a college.

Regulation 4(2)(a) of the Regulations of 1997 was challenged before the Delhi High Court in the case of Tanishq Gangwar & Others Versus Union of

India & Others â€" WP (C) 6773/2018 wherein the Delhi High Court found it to be arbitrary and discriminatory entailing it being struck off. It is not in

dispute that the aforesaid judgment of the Delhi High Court has not been stayed or set aside by the Apex Court. The impact of the striking off

Regulation 4(2)(a) of the Regulations of 1997, would be well delineated with reference to the judgment of the Madras High Court in the case of D.T.

Rajkumari Versus The Government of Tamil Nadu, decided on 03.08.2016 wherein it was held as under:-

“It is trite to say that once a High Court has struck down the provisions of the Central Act, it cannot be said that it would be selectively applied in

other States. Thus, there is no question of applicability of provisions struck down by the High Court as of now until and unless the Hon’ble

Supreme Court upsets the judgment or stays the operation of the judgment.â€​

SBCWP No.18545/2015 was filed before this court by one Neha Choudhary against the National Eligibility Cum Entrance Test, UG Medical and

Dental Admission/Counseling Board-2018. On 20.08.2018 by an interim order, this court referred to the judgment of Tanishq Gangwar & Others

Versus Union of India & Others (supra) and took the inescapable view that Regulation 4(2) (a) of the Regulations of 1997 having been struck off as

discriminatory and arbitrary by the Delhi High Court, it could not be operative in respect of the other students as it was inconceivable the two separate

and distinct regimes could apply to students qualifying NEET and seeking admission to MBBS/BDS.

Despite the judgment of the Delhi High Court in the case of Tanishq Gangwar & Others Versus Union of India & Others (supra) striking off

Regulation 4(2)(a) of the Regulations of 1997 and despite the interim order dated 20.08.2018 passed in the case of Neha Choudhary Versus National

Eligibility Cum Entrance Test, UG Medical and Dental Admission/Counseling Board-2018 & Others, both with the consequence that not passing the

subject of Biology at the Senior Secondary Level in the first instance with two years of regular and continuous study was not an event of ineligibility

for admission to MBBS/BDS. The petitioner who appeared before the counseling/admission Board 2018 for being considered for admission into

MBBS 2018 in the mop up round was yet not considered and held to be ineligible as the respondents took a view that both the judgments of the Delhi

High Court and interim order dated 20.08.2018 were confined to students who had earlier been allotted a college and those who had not been so

allotted a college earlier were still to be considered ineligible. In so doing the admission/counseling board harked back to the then non-existing

Regulation 4 (2)(a) of the Regulations of 1997 on it being struck off. Hence this petition.

Mr.M.S. Saharan has submitted that the petitioner being held ineligible for consideration for MBBS 2018 admission in the mop up round of counseling

on 21st and 22nd August 2018 was an illegality on the wrong view of Regulation 4(2)(a) of the Regulations of 1997 being operative qua him despite it

being struck off on 17.08.2018 in the case of Tanishq Gangwar & Others Versus Union of India & Others (supra). He prayed for corrective

directions by this court.

Mr.S.K. Gupta, counsel for the respondents has vociferously submitted that both Tanishq Gangwar & Others Versus Union of India & Others (supra)

and Neha Choudhary Versus National Eligibility Cum Entrance Test, UG Medical and Dental Admission/Counseling Board-2018 & Others (supra)

related to candidates who had been allotted medical colleges by the counseling/admission Board 2018 but were yet not admitted by the colleges for

reasons of their ineligibility in terms of the then extant Regulation 4(2)(a) of the Regulations of 1997. He submitted that a reading of the Delhi High

Court judgment and interim order of this court does not evince that students not allotted colleges for reasons of the then extant Regulation 4 (2)(a) of

the Regulations of 1997 were to be considered eligible of the mop up round of counseling. Mr.S.K. Gupta submitted that the petitioner therefore has

been held to be ineligible at the mop up round counseling on 21st and 22nd August 2018 for reasons of not having continuously studied two years of

Biology/Biotechnology at the Senior Secondary level. Mr.S.K. Gupta submitted that now the mop up round of counseling has been completed on

22.08.2018 and the admission process is near completion. Only allotment of

Government vacant seats in various colleges in the State of Rajasthan remains to be done in the two days, following such that the admission process is

completed finally before 31.08.2018 as directed by the Apex Court and mandatory under the Regulations of 1997.

Mr.M.S. Saharan, counsel for the petitioner in rejoinder submitted that the defence of the respondents is quite baseless and without any legal

foundation. He submitted that in the event the said defence were to prevail, it would entail treating one homogeneous grouping of candidates, who

qualified NEET 2018 and had passed Biology as an additional subject in the subsequent year following the secondary examination passed in the

previous year into two distinct categories. To do so, would entail classification without any intelligible differentia and also be without any nexus to any

objective, purported or real, to he achieved. Mr.M.S. Saharan further submitted that the petitioner is as much eligible as those earlier allotted colleges

despite having subsequently passed Biology as an additional subject without two years continuous and regular study while others similarly placed were

allotted colleges (though not admitted) the petitioner was not allotted college. He submitted that to perpetuate the arbitrary distinction would be to

perpetuate an invidious discrimination against the petitioner. Mr.M.S. Saharan submitted that the equitable jurisdiction of this court should in the

circumstance of the case be invoked to retrieving the petitioner from discrimination and injustice now that the obstruction to his eligibility which lay in

Regulation 4(2)(a) of the Regulations of 1997 has been removed with the said regulation being struck off the statute in Tanishq Gangwar & Others

Versus Union of India & Others (supra). He submitted that on 21st and 22nd August of 2018 during the mop up round of counseling for admission into

MBBS he sought admission in the OBC quota. Less meritorious than him with reference to their performance in the NEET 2018 examination were

admitted to three seats in the OBC category in the Government Medical College, Bhilwara and Government Medical College, Dungarpur but he was

illegally overlooked.

Heard. Considered.

I am unable to find any merit in the contention of Mr.S.K. Gupta, AAG that no matter Regulation 4(2) (a) of the Regulations of 1997 having been

struck off by the Delhi High Court in the case of Tanishq Gangwar & Others Versus Union of India & Others (supra) and no matter this court having

followed the said judgment in its interim order dated 20.08.2018 the case of Neha Choudhary Versus National Eligibility Cum Entrance Test, UG

Medical and Dental Admission/Counseling Board-2018 & Others (supra), on the mere fortuitous circumstance of the petitioner not earlier being

allotted a medical college by the counseling and admission Board 2018 even while others similarly placed were, he should be treated differently and

left to suffer destructive disadvantage and discrimination. The Apex Court as also this court have repeatedly held, the obvious, that in medical

admissions merit in the concerned categories as provided should be a nonnegotiable criteria. The petitioner’s purported ineligibility for being

admitted to MBBS/BDS for having not studied Biology/Biotechnology on a regular and continuous basis for two years at the senior Secondary level

stands wholly irrelevant in view of the Regulation 4(2)(a) being struck off by the Delhi High Court. That was the law obtaining on 21st and 22nd

August of 2018 when the petitioner presented himself for the mop up round of counseling for being considered in the OBC category on the strength of

his qualifying marks and comparative merit in NEET 2018 for admission to MBBS. He ought in law to have been considered. Sadly, a contrary view

to the petitioner’s detriment was taken hopefully bonafideâ€"no malafides have been alleged against the petitioner by the Admission/counseling

Board 2018. The petitioner’s exclusion cannot stand for reasons of both law and equity. Not to so hold would be in the teeth of the Article 14 of

the Constitution of India. It has transpired on an answer by Mr.S.K. Gupta (on instruction of the OIC present) to the court’s query that the

petitioner is more meritorious (in the category of OBC) than three students/candidates admitted at the Government Medical College, Bhilwara and

three in the Government Medical College, Dungarpur. The petitioner has obviously been served injustice by the respondents on their unthinking and

resultant arbitrary action by overlooking him for admission to MBBS 2018 in the mop up round despite his comparative merit and availability of seats in

the OBC quota to which he was an applicant. Again on a query by the court, it was stated by Mr.S.K. Gupta, AAG that a vacant seat in MBBS at

Government Medical College, Kota is available even after the mop up round of 21st and 22nd August 2018 which now stands transferred as a

Government seat to be filled on merit of those in the waiting lists.

I am of the considered view that in the facts of the case for reasons of law and equity, as also to resuscitate the eclipsed right of the petitioner a

direction should issue in his favour and to the respondents to admit him to the vacant Government seat at the Government Medical College, Kota. In

view of the urgency of the matter, as the filling up of the vacant seats after the mop up round of counseling is likely to be completed today/tomorrow,

the Officer-Incharge Prakash Gupta, also a Member of the Admission/counselling board who is present in court is directed to ensure compliance with

this order in letter and spirit.

The petition stands allowed accordingly.

A copy of this order be furnished to Mr.S.K. Gupta, AAG for onward transmission and compliance.