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Judgment
This writ petition has been listed under heading ‘To Be Mentioned’ pursuant to direction made in order dated 9th October, 2018. Parties have
been heard. Mr. Sanyal, learned advocate appears on behalf of petitioner and on earlier occasion had submitted, his client wants admission to
respondent college for pursuing MBBS degree course. On cut off date mop up counseling, his client though was told he would be allowed to pay
admission fee and furnish security but had sought one day's time to secure, by bank guarantee, entire course fees. This, the college did not allow and
he did not get admission. His client immediately made representation on 31st August, 2018, being cut off date, as well as thereafter on 13th
September, 2018. His client wants admission against management quota seats going vacant for current academic year.
Mr. Ray, learned advocate appears on behalf of the college and, also on earlier occasion, had submitted, bond amount is Rs. 50,72,000/- against
management quota seats, to be secured by bank guarantee. As on cut off date his client could not allot a seat to any candidate who did not secure this
amount. Such allotment would mean blocking a seat against a candidate on assurance of furnishing security and, thereafter, if security was not
furnished, the seat would go vacant. This is why petitioner’s request could not be kept. However, fact is that there are vacant seats in the college
and, if directed, his client will accept admission fee and the security to give admission to petitioner. On query of Court regarding progress of course
study he had required instructions. Today, he hands up undated letter written by his client to his instructing learned advocate, content of which is
reproduced below :-
“Sub-Regarding MBBS class
Sir,
This letter is to bring to your notice that the 1st MBBS classes commenced from 1st August, 2018 as per notice from the MCI. But since the
subsequent rounds of MBBS counselling was going on till 31/08/2018 and also many of our students are outstation, the college was conducting
orientation program for the students and the regular escalating classes will be starting full-fledged after the Durga Puja festival i.e. 25/10/2018.â€
Mr. Bhattacharya, learned advocate appears on behalf of Medical Council of India and opposes. He begins with relying on my judgment dated 26th
June, 2018 in WP 7040 (W) of 2018 [Dr. Paban Mandal vs. The West Bengal University of Health Sciences & Ors.]. He relies on following extract
from judgment :-
“Petitioner’s case does not involve midstream admission. He, being eligible, registered himself for mop up counselling for on spot admission to
be held on cut off date. It is clear he was not in need of counselling, he knew exactly what course he wants to study for post graduate degree. There
is no laches on his part to have done what he could. Omission is on the part of the authorities. A clear case of arbitrariness emerges and an attempt to
cover it up. Petitioner rushing to Court on 31st May, 2018 instead of participating in mop up counselling for on spot admission resulted in the following
order.
“List this matter before the Regular Bench.â€
At best the said order can be interpreted to be one which implies further hearing was necessary. There is neither mention in the order of lack urgency
nor rejection of prayer for interim order. By no stretch of imagination this order can be attributed to laches or lack of diligence of petitioner himself.â€
He submits, this judgment was carried in appeal by West Bengal University of Health Sciences (WBUHS). Application for stay of operation of the
judgment was dismissed but the appeal is pending. His client carried order of Division Bench to Supreme Court in a Special Leave Petition. By order
dated 17th September, 2018 the Special Leave Petition was disposed of with observation that the question of law is left open. He then relies on two
judgments of Supreme Court, firstly in Asha v. Pt. B.D. Sharma University of Health Sciences & Ors. reported in AIR 2012 SC 3396, to paragraphs
7, 20 and 31. Relied on passages are extracted below :-
“7. …. …. …. In view of the fact that the appellant had filed the writ petition within a week of the second counselling, the Court accepted the
facts averred in the writ petition and directed the respondents to admit the appellant to the MBBS course while further directing that it would be open
for the respondents to see that admission of other students lower in merit is not cancelled, if so permissible and possible under the relevant Rules.â€
The appellant filed the writ petition before the High Court without any undue delay and on 4th November, 2011, the judgment by the court was
passed in her favour. The cumulative effect of the above factual matrix, the pleadings of the parties and the expeditious manner in which the appellant
had taken action before the authorities and then before the court and pursued her remedies, persuade the Court to believe that the case of the
appellant is truthful. The cases of the present kind are not required to be tested by us on the touchstone of stringent principles of burden of proof
applicable to criminal jurisprudence. … … …â€
… … …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. … …
â€
Secondly he relies on Medical Council of India vs. Naina Verma & Ors. reported in (2005) 12 SCC 626 to paragraphs 4 and 6 which are reproduced
below :-
“4. Needless to say that the direction of the High Court was wholly contrary to the decision of this Court in Medical Council of India v. Madhu
Singh in which this Court has categorically laid down that the time schedule framed by MCI should not be interfered with by the Court. The principle
is that the courses having begun, apart from maintaining the discipline in the matter of education, it was imperative that the students had the benefit of
education which is to be imparted from the first day on which the students started prosecuting their studies to become doctors ultimately. There is no
question of giving a retrospective education in such matters and this is particularly so in matters pertaining to medical training.â€
We are of the view that this is not a matter which calls for any compromise. The respondent must complete the MBBS course with effect from day
one. There is no short-circuiting the process of education by means of litigation or otherwise. We are supported in the view that we have taken by the
decision of this Court in Muskan Dogra v. State of Punjab. In that case the writ petitioner had been admitted in the BDS course whereas according to
his ranking he should have been permitted to join MBBS course. By the time the writ petition was disposed of and the matter came up to this Court,
the writ petitioner had been studying for one-and-half year in the dental course. This Court while upholding the petitioner’s claim to be admitted in
the MBBS course made it clear that he would have to forego one-and-half years spent in the dental course and start the MBBS course from day
one.â€
Mr. Sanyal, in reply submits, there was arbitrariness on two counts. At first instance arbitrariness was on part of the college in insisting security for
entire course fees. Nothing has been brought before Court to show this is mandated to be an entitlement to be enforced by private colleges. On
second count arbitrariness was against his client in being expected to do something not notified. So far as delay or laches on part of his client is
concerned, he submits, his client is a candidate/student who wants to achieve qualification of being a Doctor. His efforts and energies are directed
towards gaining admission for improving himself. The Authorities, institution and statutory body, instead of supporting him are against him. Authorities
have not been called upon to explain their conduct. His client, a student candidate not having achieved admission, in spite of arranging for financial
consequences of it, had made representations, which he followed up. There was no reply given to his representations. As a last resort he approached
this Court by this writ petition filed on 4th October, 2018. In all there were 34 days taken by him to file for relief in Court as are beyond cut off date.
Court now has information regarding status of commencement of course study as well as other facts, which entitles petitioner to interference and
relief.
It appears, in Dr. Paban Mandal (supra) petitioner therein was seeking admission for post graduate course in a particular subject ‘MS (General
Surgery)’. He started asserting his candidature for admission prior to cut off date. A writ petition, seeking extension of cut off date of college
concerned, had been filed by him on ground that said cut off date was scheduled before cut off date directed by Supreme Court. Though his that writ
petition was dismissed but cut off date was extended to date directed by Supreme Court. His second writ petition was on that final cut off date and,
thereafter, it was heard and judgment delivered. In this case petitioner was ready for taking admission, as eligible on merit, on cut off date. Admission
was denied on failure to furnish security. Petitioner’s cause arose at that time and on making two representations he is before Court. Facts in Dr.
Paban Mandal (supra) which weighed in favour of petitioner therein are similar to facts in this case, if taken from the point where the two
petitioners’ respective grievances were born. So far as arbitrariness is concerned, this Court accepts petitioner’s contentions regarding it.
On commencement of course, reliance was placed on Naina Verma (supra). It would be useful to also reproduce paragraph 3 from that judgment :-
“3. The writ petition was filed on 4-7-2003. During the pendency of the writ petition, Respondent 1 was admitted in the dental course for a BDS
degree. The writ petition was ultimately allowed on 28-11-2003 by which time the MBBS course for 2003-2004 had long since started. The writ
petition allowed, the respondent to be admitted to the MBBS course. In compliance with the high Court’s direction, on 9-1-2004 the respondent
was admitted to the MBBS course.â€
In reading paragraphs 3 as well as 4 and 6, relied upon by Medical Council of India, this Court finds petitioner’s case distinguishable on facts. In
this case cut off date for admission was 31st August, 2018. As such, earlier commencement of course had to factor this contingency of students being
admitted to a commenced course. Court is also in possession of particulars regarding course study covered in current academic year, by said letter of
the college. There is thus no impediment for petitioner to be allowed to continue in the way he wants to. The college will give petitioner admission on
payment of admission fee along with furnishing security for discontinuation, of amount of Rs, 50,72,000/-, provided tender of admission fees and
security is made by 25th October, 2018. At this stage Mr. Bhattacharya submits further from paragraph 35 in Asha (supra), it would be evident that
Supreme Court directed appellant to be given admission in next academic year. He then relies on another judgment of Supreme Court in Medical
Council of India vs. Madhu Singh & Ors. reported in (2002) 7 SCC 258, to paragraphs 22 and 23 to submit, there be direction for petitioner to be
admitted in next academic year.
Mr. Bhattacharya submits still further, there is nexus between the college, petitioner and other candidates similarly placed as petitioner. It is only after
private colleges find their respective management quota seats are going vacant, they instigate candidates to approach Court to petition for
interference. This, his client could not bring on record since affidavits were not called for. He prays for stay of operation of this order.
Prayer for stay is considered and rejected. Madhu Singh (supra) was considered in Dr. Paban Mandal (supra), already relied upon by Mr.
Bhattacharya. Submissions made with the prayer are not taken cognizance of as there was no dispute raised by Medical Council of India regarding
facts of petitioner having had sought admission on cut off date, denied admission, made representation on that day and thereafter on 13th September,
2018 as remained not replied to. On behalf of the college, submission made on behalf of Medical council of India, regarding nexus, is denied. Writ
petition is disposed of.