Esha Negi vs Hemwati Nandan Bahuguna Uttarakhand & Others

Pankaj Purohit, J

The petitioner has sought the indulgence of this Court by filing this writ petition for a direction to the respondent to consider the petitioner’s candidature as against the vacant seat available after mop-up round i.e. stray round and further direct the respondent to issue necessary direction for admission of the petitioner on MBBS course as per her merit and suitability for the vacant seats available in MBBS seats for State of Uttarakhand.

Heard learned counsel for the parties.

It is the case of the petitioner that petitioner has appeared in NEET Examination-2022 and she secured qualifying marks in the aforesaid entrance examination. Petitioner did not participate in the first round of counselling. In the second round of counselling, she appeared and deposited a sum of Rs.1,05,000/- as counselling fees and she was selected and was allotted a MBBS seat in Gautam Budhha, Chiktisa, Mahavidhyalya, Dehradun, but she did not take admission there. Petitioner again appeared in the mop-up round and a sum of Rs.1,04,000/- was deposited as counselling fees, she was not selected owing her low merit. She participated in STRAY Round of counselling and was selected and her name was at serial no.26 out of the 31 candidates selected in the list. But, petitioner could not reach to the college of respondent no.2 by the last date i.e. 21.12.2022. It is also the case of the petitioner that the information regarding her selection in the stray round could not come to her notice and owing to that reason, she could not reach there.

Learned Senior Advocate for the petitioner further submits that petitioner is a resident of a remote place in District Pauri Garhwal, where the facility of the internet service is very slow and most of the time, the internet services are out of order. He further submits that on 07.01.2023, petitioner submitted a representation/ application through email to the respondent nos.1 & 2 with a request to allow her to participate against the vacant seat for the reason that she has already deposited the counselling fee and she was selected and her name was figured in the official website of the respondent no.2. It is also pointed out that due to her living in a remote area in Pauri Garhwal and due to geographical condition of the village, she could not see the online result. He further submits that petitioner on the very next date on 08.01.2023 filed this writ petition for the reliefs mentioned hereinabove.

The counter affidavits separately filed by respondent nos.1 & 2, admitted the fact that there is one vacant seat available in the MBBS Course.

Learned counsel for respondent no.1 submits that schedule of counselling, including counselling for of stray vacancy round was published in the website of the counselling board on 08.12.2022 and it was specifically mentioned in that notice that no separate information shall be given to any of the candidate who have been selected; candidates are advised to visit the University website regularly for various updates/instructions and notices.

In the counter affidavit filed by respondent no.2, it has been specifically stated that there is one vacancy available in the MBBS course under All India Management Quota with the respondent no.2.

Learned Senior Advocate for the petitioner vehemently submitted that owing to the fact that petitioner resides in a remote place in District Pauri Garhwal, she could not get the knowledge of her selection in the stray round and for that reason she could not submit her application before last date of admission i.e. 21.12.2022 and she could not appear before the University for taking admission. He further submits that petitioner is a meritorious student and without there being any fault on her part, she should not be deprived of the result of her being qualified in the NEET Examination-2022. He also submits that when she got the said information, she immediately sent the application through e-mail on 07.01.2023, therefore, petitioner is entitled to get admission in the MBBS course against the vacant seat, which is admittedly, available with the respondent no.2 under the All India Management Quota.

As against this, learned counsel for respondent no.3-National Medical Commission opposed the argument made by learned senior counsel for the petitioner for the reason that there is a cut-off date fixed by the Hon’ble Apex Court in the case of Ashish Ranjan & others vs. Union of India & others; (2016) 11 SCC 225 i.e. 30th September of each academic year, the admission in the under graduate course of medical education shall be made before that date. He further submits that since the NEET examination itself was held with a delayed schedule owing to Covid-19 Pandemic, the National Medical Commission postponed the cut-off date to 21.12.2022 for all admissions. According to him, since the first year has been completed and the process for admission of 2023 is also over, therefore, there would be no reason to permit the petitioner to take admission in the MBBS course.

Learned Senior Advocate for the petitioner heavily placed reliance on a judgment passed by Hon’ble Apex Court in the case of S. Krishna Sradha vs. State of Andhra Pradesh & others, (2020) 17 SCC 465. Learned Senior Advocate has drawn the attention of this Court on para 13.2 and 13.3 of the aforesaid judgment and on the strength of these paragraphs, he vehemently argued that there is no fault on the part of the petitioner and she should be given admission and even the Hon’ble Apex Court went on to give admission in the subsequent year of the medical course.

Paragraphs 13.2 and 13.3 of the aforesaid judgment are quoted hereinbelow:-

“13.2. Under exceptional circumstances, if the court finds that there is no fault attributable to the candidate and the candidate has pursued his/her legal right expeditiously without any delay and there is fault only on the part of the authorities and/or there is apparent breach of rules and regulations as well as related principles in the process of grant of admission which would violate the right of equality and equal treatment to the competing candidates and if the time schedule prescribed — 30th September, is over, to do the complete justice, the Court under exceptional circumstances and in rarest of rare cases direct the admission in the same year by directing to increase the seats, however, it should not be more than one or two seats and such admissions can be ordered within reasonable time i.e. within one month from 30th September i.e. cut-off date and under no circumstances, the Court shall order any admission in the same year beyond 30th October. However, it is observed that such relief can be granted only in exceptional circumstances and in the rarest of rare cases. In case of such an eventuality, the Court may also pass an order cancelling the admission given to a candidate who is at the bottom of the merit list of the category who, if the admission would have been given to a more meritorious candidate who has been denied admission illegally, would not have got the admission, if the Court deems it fit and proper, however, after giving an opportunity of hearing to a student whose admission is sought to be cancelled.

13.3. In case the Court is of the opinion that no relief of admission can be granted to such a candidate in the very academic year and wherever it finds that the action of the authorities has been arbitrary and in breach of the rules and regulations or the prospectus affecting the rights of the students and that a candidate is found to be meritorious and such candidate/student has approached the court at the earliest and without any delay, the court can mould the relief and direct the admission to be granted to such a candidate in the next academic year by issuing appropriate directions by directing to increase in the number of seats as may be considered appropriate in the case and in case of such an eventuality and if it is found that the management was at fault and wrongly denied the admission to the meritorious candidate, in that case, the Court may direct to reduce the number of seats in the management quota of that year, meaning thereby the student/students who was/were denied admission illegally to be accommodated in the next academic year out of the seats allotted in the management quota.”

I have considered the argument advanced on behalf of the petitioner by learned Senior Advocate and have gone through the paragraphs 13.2 and 13.3 of the said judgment, this much can be culled out that wherever the action of the authorities is arbitrary and in breach of the Rules and Regulations or the prospectus, affecting the rights of the students are there the admission can be given. But, here in the case, learned Senior Advocate could not show to the Court that there is any arbitrariness in the action of the authorities or as to whether the authorities are in breach of any rules and regulations or the prospectus. The petitioner was herself not vigilant and for her fault, she cannot be permitted to take any advantage of her own fault.

In this view of the matter, this Court is not coming to the rescue of the petitioner simply for the reason that it is simply due to the fault of the petitioner that she could not visit the website when the result was uploaded by the counselling body on 19.12.2022, she failed to reach to the college before the last date of admission i.e. 21.12.2022.

It is, at last submitted by learned Senior Advocate that even if the case of the respondent is admitted, the same could not find favour for the reason that only 48 hours time was given to the selected candidates to reach to the college of respondent no.2.

When a pointed query was made to the learned counsel for respondent no.1, it has been submitted by him that the programme schedule of the admission and the counselling has always been published in advance and this schedule of counselling has been published on 08.12.2022. The attention of this Court is drawn to annexure-1 to the counter affidavit of respondent no.1 and from that it is reflected that the entire programme of the counselling was published well before on 08.12.2022 which although includes the last date of admission at college level on the basis of waiting list of mop-up round and other stray round as well.

In this view of the facts and circumstances hereinabove, I do not find merit in the case of the petitioner and the writ petition deserves to be dismissed.

Accordingly, the writ petition is dismissed.

Let a certified copy of this order be issued to learned counsel for the parties, today itself, on payment of usual charges.