Namita Agarwal and Others vs State of Rajasthan and Others

M.N. Bhandari, J.—By these writ petitions, a direction is sought for admission to the petitioners in the MBBS Course based on the letter of allotment dated 30th September, 2015.

Learned counsel submits that in pursuance to the entrance test, namely, PCPMT, the petitioners appeared in the selection test followed by result. The petitioner could not pass the entrance test to get admission in the MBBS course but on a litigation by other candidates, this Court passed a judgment on 29th September, 2015 giving liberty to Mehrishi Dayanand Saraswati Medical College (for short "MDS University") to remove negative marking for assessment of result. It was neither provided in the prospectus nor in the advertisement. The candidates appeared in the selection were not knowing about negative marking. They were surprised to get result with negative marking, thus was challenged with the prayer for declaration of result again by removing negative marking. It is taking into consideration the pattern of the examination of other examining bodies. It was found that other examining bodies did not follow negative marking system. This Court gave liberty to the University to declare the result afresh after removing negative marking.

The litigation remain pending in the Court for service of notice on the respondents and even to seek reply of respondents. It could be decided only on 29th September, 2015. The revised result was declared by the University on the same day followed by counselling by the Association on 30th September, 2015. As per the time Schedule given for admission in MBBS Course, last counselling need to be made before 15 days from the last date for admission. It was in exceptional circumstances that counselling took place on 30th September, 2015 wherein the petitioner(s) was also called after revision of result. She was found eligible and allotted NIMS Medical College at Jaipur. The counselling was held at Udaipur and petitioner''s turn came at 4.00 PM, thus she could not reach to Jaipur on the same day before 5.00 PM. She reached to Jaipur and appeared before the NIMS Medical College on 01st October, 2015 along with fee. It was not accepted by the college as the last date for admission was 30th September, 2015.

Learned counsel submits that the petitioner(s) is a meritorious candidate, thus could get merit position after revised result and admission after the counselling. This litigation was also brought before the Court by filing a writ petition on 05th October, 2015 without lapse of time. The NIMS Medical College is having one seat vacant, thus out of two petitioners, one meritorious candidate can be accommodated. The similar directions have been given by the Apex Court in the case of Asha Vs. Pt. B.D. Sharma University of Health Sciences and Others, . Therein, the writ petition was filed after the last date for admission. The Apex Court gave relief to the candidate keeping in mind her merit position. In the light of the direction of the Apex Court in the case of Asha (supra), the petitioner(s) deserves to be given same relief, as her case is also of an exceptional nature.

Learned counsel, appearing for NIMS Medical College submits that petitioner approached them for admission on 01st October, 2015. They refused to accept the fee for admission as last date was 30th September, 2015. It is despite fact that they were having one vacant seat. There was no ill-will or illegality on their part in doing so, however, they have no objection if a direction is given by this Court for admission to one petitioner, out of two, as one vacant seat still exists with the college.

Learned counsel for the Association submits that in pursuance to the judgment of this Court in the case of Arundhati Sharma & Ors. v. Coordinator, PCPMT, 2015 & Ors. in SB Civil Writ Petition No. 13552/2015 decided on 29th September, 2015 along with other petitions, result was revised by the MDS University by removing negative marking, as it should not have been applied by them without notice to the candidates. The counselling was held immediately thereupon. The petitioner(s) was found eligible for admission and accordingly, allotted NIMS Medical College for admission in MBBS course. The admission was denied, as fee was not deposited on or before the last date. In view of the above, there is no fault on the part of the Association in holding counselling.

Learned counsel, appearing for Medical Council of India, submits that petitioners may not be at fault, rather they were found eligible for admission but a direction for admission may not be given by this Court now after the expiry of last date for it. It is moreso when, the Supreme Court has directed for strict adherence of the time schedule.

Learned counsel further submits that after judgment in the case of Asha (supra), the Apex Court had an occasion to consider the issue again in the case of Chandigarh Administration Vs. Jasmine Kaur, . In the para No. 33 of the judgment, certain directions have been given regarding admission and to maintain the time schedule. In sub-para (2) of para No. 33 of the said judgment, an exception has been made for admission in MBBS Course within the time schedule. In the instant case, the last date for admission was 30th September, 2015 and now if a direction is given for admission, it would be beyond the time schedule and is not permissible in the light of the subsequent judgment in the case of Chandigarh Administration & Anr. (supra). A litigation was brought within time to challenge the result declared by MDS Medical College which conducted entrance test on behalf of the Association of Medical Colleges. The method of negative marking was applied without notice to the candidates, hence, this Court gave liberty to the University to change the result and to declare it thereupon without negative marking. The result was declared within the time schedule followed by counselling. This Court did not give direction for admission after the last date prescribed by the Apex Court. In the light of the aforesaid, it may be a hard case of the petitioner and even one seat is available in the NIMS Medical College but the direction for admission may not be given in the midst of the session.

A reference of judgment of Apex Court in the case of Royal Medical Trust (Regd.) and Others Vs. Union of India and Others--> has also been given apart from the judgment of Apex Court in the case of S. Nihaal Ahmed v. The Medical Council of India & Ors. in Civil Appeal Nos. 8067-8068 of 2015 decided on 30th September, 2015. A prayer is accordingly made to dismiss the petitions.

I have considered rival submissions made by learned counsel for the parties and scanned the matter carefully.

The facts of this case have been narrated in the preceding paras, thus need not to be reiterated.

It has come that after revision of the result, in pursuance to the liberty given by this Court in the case of Arundhati Sharma & Ors. (supra), the petitioners were found eligible for admission in MBBS Course. They were called and appeared in the counselling. It was unfortunate on the part of the petitioners to get turn in the counselling at 4.00 PM on 30th September, 2015. The petitioners could not reach to Jaipur, rather were not in position to reach Jaipur and to get admission in NIMS Medical College on the same day. The petitioners appeared before the Medical College on the next date, i.e., 01st October, 2015 but were denied admission. The act of the medical college cannot be said to be illegal or malicious in this case. They did not accept fee for the reason that last date for admission is 30th September of the year concerned.

So far as the roll of the Association is concerned, it is also not objectionable because they conducted counselling immediately on revision of result and allocated the college to the eligible meritorious candidates. The process obviously takes time, thus petitioners'' turn came at 4.00 PM whereas other students could be allocated colleges in prior session. It is also a fact that there was no fault on the part of the petitioners in seeking admission, inasmuch as, after her counselling at 4.00 PM and allocation of NIMS Medical College, she immediately reached to Jaipur from Udaipur on first available date for admission, i.e., 01st October, 2015. In view of the above, I find that neither the petitioners are at fault nor any of the agencies involved herein. It is also not in dispute that petitioners are meritorious candidates, thus have been given admission in NIMS Medical College, hence, denial of admission to the petitioners is despite of higher merit position. On the facts, one petitioner is having a case to get admission in the MBBS course against one vacant seat.

The question for my consideration is as to whether this Court can issue direction for admission after the last date declared by the Supreme Court.

In the case of Asha (supra), a direction for admission was given despite expiry of last date for admission where litigation itself was initiated subsequent to the last date. The case of the petitioners falls within four corners of the said judgment. It is for the reason that the case in hand can be said to be of an exceptional nature and if a direction is given, it can be considered to be case of rare of rarest nature.

The position of facts does not end here only. Subsequent to the judgment in the case of Asha (supra), the Apex Court considered the same issue in the case of Chandigarh Administration & Anr. (supra). Therein, referring to the judgment of Asha (supra), certain directions have been given in para No. 33. For ready reference, para No. 33 of the judgment in the case of Chandigarh Administration & Anr. (supra) is quoted thus :

"33. Having noted the various decisions relied upon by the Appellant in SLP (C) No. 18099 of 2014 and the contesting Respondent, we are able to discern the following principles:

33.1 The schedule relating to admissions to the professional colleges should be strictly and scrupulously adhered to and shall not be deviated under any circumstance either by the courts or the Board and midstream admission should not be permitted.

33.2 Under exceptional circumstances, if the court finds that there is no fault attributable to the candidate i.e., the candidate has pursued his or her legal right expeditiously without any delay and that there is fault only on the part of the authorities or there is an apparent breach of rules and regulations as well as related principles in the process of grant of admission which would violate the right to equality and equal treatment to the competing candidates and the relief of admission can be directed within the time schedule prescribed, it would be completely just and fair to provide exceptional reliefs to the candidate under such circumstance alone.

33.3 If a candidate is not selected during a particular academic year due to the fault of the Institutions/Authorities and in this process if the seats are filled up and the scope for granting admission is lost due to eclipse of time schedule, then under such circumstances, the candidate should not be victimised for no fault of his/her and the Court may consider grant of appropriate compensation to offset the loss caused, if any.

33.4 When a candidate does not exercise or pursue his/her rights or legal remedies against his/her non-selection expeditiously and promptly, then the Courts cannot grant any relief to the candidate in the form of securing an admission.

33.5 If the candidate takes a calculated risk/chance by subjecting himself/herself to the selection process and after knowing his/her non- selection, he/she cannot subsequently turn around and contend that the process of selection was unfair.

33.6 If it is found that the candidate acquiesces or waives his/her right to claim relief before the Court promptly, then in such cases, the legal maxim vigilantibus non dormientibus aequitas subvenit, which means that equity aids only the vigilant and not the ones who sleep over their rights, will be highly appropriate.

33.7 No relief can be granted even though the prospectus is declared illegal or invalid if the same is not challenged promptly. Once the candidate is aware that he/she does not fulfil the criteria of the prospectus he/she cannot be heard to state that, he/she chose to challenge the same only after preferring the application and after the same is refused on the ground of eligibility.

33.8 There cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year i.e., carry forward of seats cannot be permitted how much ever meritorious a candidate is and deserved admission. In such circumstances, the Courts cannot grant any relief to the candidate but it is up to the candidate to re-apply next academic year.

33.9 There cannot be at any point of time a direction given either by the Court or the Board to increase the number of seats which is exclusively in the realm of the Medical Council of India.

33.10 Each of these above mentioned principles should be applied based on the unique and distinguishable facts and circumstances of each case and no two cases can be held to be identical."

Sub-para No. 1 of para No. 33 of the judgment requires admission before the last date and to adhere to the schedule given by the Apex Court strictly. Sub-para No. 2 of para No. 33 of the judgment makes an exception for giving directions for admission in rare of rarest case. The direction can, however, be given within time schedule. In view of the directions aforesaid, the Court can give direction for admission in exceptional cases but it should be within the time schedule given by the Apex Court.

In the light of the above, so far as the judgment in the case of Arundhati Sharma & Ors. (supra) is concerned, it was decided keeping the exceptional circumstance and within time schedule. The present litigation was brought before this Court subsequent to the schedule and if, a direction is now given for admission, obviously it would be after the last date of admission given by the Apex Court and beyond the schedule prescribed therein. It is, no doubt true that in the case of Asha (supra), direction for admission is subsequent to the last date given for admission but said judgment was considered and explained by the Apex Court subsequently in the case of Chandigarh Administration & Anr. (supra). The subsequent judgment in the case of S. Nihaal Ahmed (supra) also explains as to when a direction for admission in such circumstance can be given.

The latest judgment of the Apex Court is in the case of Royal Medical Trust (Registered) & Anr. (supra). Therein also, it gives a specific direction that the deadline of 30th September should not be deviated. In the said case, the right of the Central Government to change the time schedule has been recognized but it was to be managed in such a manner, which may not deviate the last date of admission, i.e., 30th September for making admission in the MBBS Course, as was directed by the Apex Court in the case of Madhu Singh and thereafter in the case of Mridul Dhar (Minor) and Another Vs. Union of India (UOI) and Others, . The Apex Court in the case of Lipika Gupta & Anr. v. UOI & Ors. in Writ Petition (Civil) No(s). 737 of 2013 has prescribed new time Schedule but therein also, the last date for admission has been maintained. In the view of the judgment of Apex Court in the case of Chandigarh Administration & Anr.(supra), I am unable to accept the prayer made in the writ petitions for a direction to give admission to the petitioners subsequent to the last date for admission in the light of the para 33.2 of the judgment in the case of Chandigarh Administration & Anr. (supra), though I find it to be a hard case of the petitioners, as denial of admission is not due to any fault on their part or on the part of any of the agencies but due to circumstances, explained above.

These writ petitions are accordingly dismissed so as the stay applications.