Imanjeet Singh Arora vs State of Punjab

G.S. Sandhawalia, J.—Challenge in the present writ petition is to the order dated 03.01.2014 (wrongly typed as 03.04.2014) (Annexure P11) whereby the petitioner''s request for denying him admission against the 7th seat in the MBBS Course, as per his merit, for the current academic session, i.e., 2013-14, in the category code No. 20, i.e., wards of terrorist/riot affected persons, has been rejected in view of the fact that the cut-off date for admission in MBBS Course was 30th September, as per the judgment of the Apex Court in Priya Gupta Vs. State of Chhatishgarh and Others, . The pleaded case of the petitioner is that the respondent-State issued notification dated 05.06.2013, for the purpose of admission from amongst eligible candidates, for the course of MBBS/BDS, in the Government as well as private Medical/Dental Colleges, in the State of Punjab, for the academic session 2013-14. As per the reservation policy, there was 2% reservation for category-wards of terrorist/riots affected persons, which was further sub-categorised as under, bearing category code 19 and 20 respectively:

(a) persons killed in terrorist action in Punjab/Riots outside Punjab;

(b) Terrorist/Riots affected/displaced persons.

In pursuance of the said notification, respondent No. 2-University issued prospectus for the academic session 2013-14 and the petitioner applied for admission in the MBBS/BDS Course, as per the prospectus in Sub Category 9-(b), having category code as 20, as he belongs to a riot affected family. The merit list for category 20 was prepared wherein the petitioner was placed at Sr. No. 10. As per the parameter for reservation, the respondents were supposed to admit 7 candidates against 7 seats, out of 340 seats, for the MBBS/BDS Course, for the category 19 and 20 respectively, i.e., wards of terrorist/riots affected persons. The candidates in category 19 were held ineligible for admission, being grandchildren. The petitioner was not given admission in the MBBS Course, in the counselling held on 18.10.2013, against the 7th seat, for the said category, but was offered BDS Course and he was pursuing the same since 18.10.2013. Since the 7th seat was not being offered in the MBBS Course, CWP No. 20481 of 2013 titled Arshpreet Kaur & another v. State of Punjab & others was filed by one Arshpreet Kaur and another, in this Court, seeking allocation of 7 seats for the category 19/20, in consonance with the decision dated 10.12.2012 of a Division Bench of this Court in LPA No. 1749 of 2012 titled Gurkaran Singh v. State of Punjab & others. In the said writ petition, the petitioner was arrayed as respondent No. 5 and the prayer of the said petitioner''s, in the said case, was accepted on 10.12.2013, to the extent that 2% seats reserved for the category of terrorist affected persons would come to 7 seats instead of 6.

The petitioner approached the respondents through representation dated 12.12.2013, claiming the 7th seat, in view of the judgment of this Court dated 10.12.2013 but he was told that since there was no direction by this Court to grant admission as the said writ petition had been dismissed and therefore, his claim could not be considered. The petitioner filed CM No. 18318 of 2013, in the said case, for a direction that the respondents be directed to fill 7th seat for the MBBS Course, in view of the judgment and it be clarified that the writ petition had been partly allowed. The said application was allowed on 20.12.2013 (Annexure P9) and the order dated 10.12.2013 was modified and it was ordered that the writ petition is partly allowed, with regard to the first grievance of the petitioner, which was accepted and that 2% seats under the terrorist affected persons in that category, would be 7 seats instead of 6. Thereafter, LPA No. 2136 of 2013 titled Arshpreet Kaur & others v. State of Punjab & others, challenging the judgment dated 10.12.2013, was dismissed and the order passed by Learned Single Judge, was upheld on 21.12.2013 (Annexure P10). Thereafter, the request of the petitioner dated 12.12.2013 was rejected vide the impugned order. Resultantly, the present writ petition was filed and reliance was placed upon the judgment of the Apex Court in Asha Vs. Pt. B.D. Sharma University of Health Sciences and Others, to contend that the cut-off date of 30th September and could be extended by the Courts, where the candidate was denied admission for some arbitrary reason and there was no fault, attributable to the candidate who had pursued his right and legal remedies, expeditiously, without any delay.

In the written statement filed by the State, the plea taken is that the admission was over and no admissions could be made beyond 30th September, of the academic year and the view taken by respondent No. 2-University was justified.

In the reply filed by respondent No. 2-University, it was admitted that the number of seats under category 20 had increased to 7 from 6, in view of the order passed in Arshpreet Kaur''s case (supra) but since the cut-off date was 30.09.2013, in view of the judgment in Priya Gupta''s case (supra), he was not liable to be considered since counselling was also over.

Counsel for the petitioner vehemently submits that once the number of seats had increased, by virtue of the order passed by this Court on 10.12.2013 and it was clarified on 20.12.2013 that there would be 7 seats, the University was not justified in rejecting the claim and the decision was pending consideration before this Court and was only finally decided on 10/20.12.2013. It was further submitted that as the petitioner was already studying in the BDS Course and the syllabus was same as of the MBBS Course, in the 1st semester, no prejudice would be caused if the petitioner is given admission in the MBBS Course against the 7th seat.

Counsel for the University, on the other hand, submitted that under Clause 24(e) of the prospectus, no admissions were liable to be made after 30.09.2013, regardless of any vacancy and reliance was placed upon the observations made in CWP No. 16795 of 2013 titled Ekjot Kaur v. State of Punjab & others decided on 12.09.2013. The petitioner had never pursued her case though the notification had been issued on June, 2013. Reliance was placed upon para No. 31 of the judgment of the Apex Court in Asha''s case (supra).

After hearing counsel for the parties, this Court is of the opinion that the present writ petition is liable to be allowed and the order dated 03.01.2014 (Annexure P11) is liable to be quashed. The reasons given in the said orders are as under:

(i) That in compliance with the orders of the Hon''ble SC and as per Punjab Government Notification governing the admission to MBBS/BDS course, admission process of MBBS/BDS courses was required to be over by 30.09.2013 and accordingly, it is over and closed.

(ii) That as per the schedule of 2nd centralized counseling, there was no interim order in favour of Imanjeet Singh Arora. Accordingly he was offered BDS seat at Government Dental College, Amritsar which she accepted and attending the classes.

(iii) That even the centralized counseling process was over by 18.09.2013 at University level and by 30.09.2013 at College level.

(iv) That there was no vacant seat of category 19 and 20 available at Government Medical Colleges, as asked to be obtained by the applicant after 18.09.2013. And even it is not available now.

(v) That if any seat remain vacant after cut off date i.e. 30.09.2013 due to any reason, it cannot be filed at this stage.

There is no dispute that in Arshpreet''s case (supra), to which the petitioner was a party, it was held that 2% seats under the terrorist affected persons category would come to 7 seats instead of 6. The relevant observation of the Learned Single Judge dated 10.12.2013 read as under: "Applying the ratio of the aforesaid decision in Gurkaran Singh''s case (supra), the first grievance of the petitioners is accepted and it is held that 2% seats under the Terrorist Affected Persons category would come to 7 seats instead of 6 seats."

However, while dealing with the second contention of the petitioner, in the said case, which pertained to the fact that wards of the terrorist affected persons, would have precedence over the grandchildren of the terrorist affected persons, was rejected and the writ petition was dismissed. The petitioner immediately filed an application for modification of the operative part of the order that the writ petition should have been partly allowed. The Learned Single Judge, after hearing counsel for the petitioner, allowed the application. The operative part of the order dated 20.12.2013 read as under:

After hearing counsel for the parties and keeping in view the facts and circumstances, order dated 10.12.2013 is hereby modified and it is ordered that writ petition is partly allowed in terms of the order passed with regard to first grievance of the petitioners which was accepted and held that 2% seats under the Terrorist Affected Persons category would be 7 instead of 6. CM disposed of.

The submission of counsel for the respondents that the petitioner was not being vigilant and not pursuing his case, is without any basis. A perusal of the record would show that Arshpreet Kaur''s case (supra) was filed in this Court on 16.09.2013, on which date, notice of motion was issued and the petitioner had put in appearance and filed reply on 04.10.2013 and therefore, the issue was still pending consideration before this Court. The said issue was only decided finally on 10.12.2013 and the clarification was given on 20.12.2013. Thus, is was clarified that there were 7 seats against the said category and not 6 and by that time, the cut-off date had expired. The petitioner, being higher in merit to Arshpreet Kaur and being a party to the said lis, was also entitled for the said benefit as the admission was to be done on the basis of merit, against the 7 seats. There was no fault on the part of the petitioner and his case would fall within the exceptions which have been carved out by the Apex Court in Asha (supra), whereby the judgment passed in Priya Gupta (supra) was also discussed. Relevant observations of the Apex Court read as under:

There is no doubt that 30th September is the cut-off date. The authorities cannot grant admission beyond the cut-off date which is specifically postulated. But where no fault is attributable to a candidate and she is denied admission for arbitrary reasons, should the cutoff date be permitted to operate as a bar to admission to such students particularly when it would result in complete ruining of the professional career of a meritorious candidate, is the question we have to answer. Having recorded that the appellant is not at fault and she pursued her rights and remedies as expeditiously as possible, we are of the considered view that the cut-off date cannot be used as a technical instrument or tool to deny admission to a meritorious students. The rule of merit stands completely defeated in the facts of the present case. The appellant was a candidate placed higher in the merit list. It cannot be disputed that candidates having merit much lower to her have already been given admission in the MBBS course. The appellant had attained 832 marks while the students who had attained 821, 792, 752, 740 and 731 marks have already been given admission in the ESM category in the MBBS course. It is not only unfortunate but apparently unfair that the appellant be denied admission. Though there can be rarest of rare cases or exceptional circumstances where the courts may have to mould the relief and make exception to the cut-off date of 30th September, but in those cases, the Court must first return a finding that no fault is attributable to the candidate, the candidate has pursued her rights and legal remedies expeditiously without any delay and that there is fault on the part of the authorities and apparent breach of some rules, regulations and principles in the process of selection and grant of admission. Where denial of admission violates the right to equality and equal treatment of the candidate, it would be completely unjust and unfair to deny such exceptional relief to the candidate. [Refer Miss Arti Sapru and Others Vs. State of Jammu & Kashmir and Others, ; Chhavi Mehrotra (Miss) Vs. Director General Health Services, ; and Arvind Kumar Kankane. Vs. State of U.P. and Others, ].

It was further held that the Courts can grant proper relief and mould the relief, appropriately, in accordance with law, to do complete justice and in rare and exceptional cases, after recording reasons, Courts could extend the deadline of 30th September. Relevant observation read as under:

(a) The rule of merit for preference of courses and colleges admits no exception. It is an absolute rule and all stakeholders and concerned authorities are required to follow this rule strictly and without demur.

(b) 30th September is undoubtedly the last date by which the admitted students should report to their respective colleges without fail. In the normal course, the admissions must close by holding of second counseling by 15th September of the relevant academic year [in terms of the decision of this Court in Priya Gupta (supra)]. Thereafter, only in very rare and exceptional cases of unequivocal discrimination or arbitrariness or pressing emergency, admission may be permissible but such power may preferably be exercised by the courts. Further, it will be in the rarest of rare cases and where the ends of justice would be subverted or the process of law would stand frustrated that the courts would exercise their extra-ordinary jurisdiction of admitting candidates to the courses after the deadline of 30th September of the current academic year. This, however, can only be done if the conditions stated by this Court in the case of Priya Gupta (supra) and this judgment are found to be unexceptionally satisfied and the reasons therefor are recorded by the court of competent jurisdiction.

The judgment in Ekjot Kaur (supra) would not be applicable since in the said case, the petitioner had not filed the writ petition, immediately, raising a grievance of the denial of admission, which was for the academic session 2012-13 and the writ petition was only filed in the year 2013, on the strength of the judgment in Gurkaran Singh''s case (supra).

The reasoning given by the University that there was no interim order in favour of the petitioner and that the counselling was over by 30.09.2013 and therefore, there was no vacant seat, at that point of time and that if any seat remained vacant after the cut-off date, it could not have been filled up, at that stage, is not justifiable. However, the authorities failed to take into consideration the fact that the 7th seat only came into existence, after the order was passed by this Court on 10/20.12.2013, after the cut off date and the petitioner was already studying in the BDS Course, in the Government Dental College, Amritsar. It is not denied at the time of arguments that the syllabus for MBBS and BDS Courses are the same for the 1st semester. The solitary purpose of the cut-off date, as laid down by the Apex Court, is only for the purpose of ensuring that the admission is finalized by a particular date and the courses start and the candidates could attend their classes. In the present case, since the petitioner is already attending the classes of the BDS Course and therefore, will not fall short of lectures, it would be unfair to deny a meritorious candidate admission to a better course, to which, he wants to pursue, to further his career. In such circumstances, this Court is of the opinion that the writ petition is liable to be allowed and falls in the category of such exceptional circumstances, as has been laid down in Asha''s case (supra). The writ petition is, accordingly, allowed and the order dated 03.01.2014 (Annexure P11) is quashed and a direction is issued to respondent No. 2-University to allocate the 7th seat for the MBBS Course against the category 20, i.e. of wards of terrorist/riots affected persons, in consonance with the spirit/mandate of the judgment of Arshpreet Kaur (supra) dated 10/20.12.2013. Respondent No. 2-University shall also take into consideration the fact that the petitioner has already attended classes for the BDS Course and the attendance of the said course will be adjusted against the classes for MBBS Course so that it shall not create any impediment regarding the said issue, subsequently, in view of the reasons given above.