Shristi Deka vs State Of Assam And Ors

N. Kotiswar Singh, J

Heard Mr. K. N. Choudhury, learned Senior Counsel assisted by Mr. J. Patowary, learned counsel for the appellant. Also heard Mr. B. Gogoi,

learned Standing Counsel Health Department; Mr. D. K. Baidya, learned counsel appearing for respondent No. 5 and Mr. P. Deka, learned counsel

appearing for respondent No. 6.

The present appeal has been preferred by the appellant, namely, Ms. Shristi Deka, who was the writ petitioner No. 2 in WP(C) No. 6949/2018,

being aggrieved by the judgment and order dated 09.08.2019 passed in the aforesaid writ petition, by which it was held that the petitioner Nos. 2 to 5 in

the writ petition were not entitled for any relief sought as the admission of the respondent Nos. 6 to 17 therein in WP(C) No. 6949/2018 for the MBBS

Course had not been found to be illegal.

Without going in detail on the facts and submissions advanced in the writ petition and herein, it would suffice for the purpose for deciding this writ

appeal to mention only a few relevant facts.

The petitioner No. 2 in the said writ petition [WP(C) No. 6949/2018], had participated in the National Eligibility-cum-Entrance Test, 2018- Under

Graduate (NEET-UG, in short) conducted by the Central Board of Secondary Education (CBSE, in short) for admission in MBBS/BDS Course. The

CBSE provided the following timeline regarding the NEET(UG) 2018 Examination:

(i) Date of online submission of application - 08.02.2018 to 09.03.2018.

(ii) Date of online correction of application - 15.03.2018 to 17.03.2018.

(iii) Date of uploading Admit Card on Website â€" 2nd week of April, 2018.

(iv) Date of NEET (UG) 2018 Examination - 06.05.2018.

(v) Date of declaration of result - By 05.06.2018.

The result of the said NEET (UG) 2018 was declared on 04.06.2018, which was uploaded in the website of the CBSE. The appellant/petitioner No.

2 was placed in the merit position No. 348 in the State Rank of Assam under the unreserved category. Counselling in respect of State Rank holders

from Serial No. 291 to 452 was held on 01.07.2018. Though the petitioner No. 2 appeared on 01.07.2018 for counselling, the admission in MBBS in

the State was given only upto the State Rank No. 324, leaving out the petitioner No. 2. The Mop-up round for selection of candidates for admission in

the 1st year MBBS/BDS Course was held on 21.08.2018, wherein the appellant/writ petitioner No. 2 had also appeared, but did not get admission.

According to the appellant, later on, it came to light that the respondent No.6, Sri Ramyak Pranjal Sarma was given admission in MBBS Course,

though his name was not included in the State Rank List.

It is the case of the appellant/petitioner No. 2 that the admission of the respondent No. 6, in MBBS Course was illegal for the reason that his name

did not appear in the State List of Assam prepared in terms of the NEET-UG, 2018 Examination. According to the appellant, at the time of applying in

the NEET-UG, 2018 Examination, the respondent No. 6 had opted for Maharashtra State Quota and not the Assam State Quota, as he mentioned

“Maharashtra†under the Column “State/Country of Eligibility†and accordingly, he was assigned the Examination Centre in Navi Mumbai,

Maharashtra.

According to the appellant, it was thus, clear that the respondent No. 6 did not apply for admission under the Assam State Quota and his name also

did not figure in the Assam State Merit List of NEET-UG, 2018. However, at the time of giving admission by the State Government, his State Rank

was shown to be 345, though in the said Merit List, the name of another person, namely, Sri Doyeal Paul has been reflected with Rank No. 345.

The plea of the appellant is that the said admission of the respondent No. 6 has been manipulated in connivance with the official respondents of the

State.

The appellant has also challenged the admission of the respondent No. 7, namely, Sri Partho Pratim Saikia. However, we need not be detained any

further for the reason that said Sri Partho Pratim Saikia (respondent No.7) was given admission under OBC (Non-Creamy Layer) Category. Since,

the appellant does not belong to the aforesaid category, the issue relating to the admission of the respondent No. 7 under OBC (Non-Creamy Layer)

Category need not be examined further, as the appellant cannot be given admission under the aforesaid category.

The plea of the respondent No. 6 on the other hand was that he had inadvertently filled “Maharashtra†against the “State/Country of

Eligibility†in the application form and on realising the mistake, he sent an email to the CBSE seeking correction of the aforesaid inadvertent mistake

in filling up the form but no action was taken by the CBSE. The CBSE generated the Admit Card on the basis of the mistakenly filled admission form

and accordingly, he had to appear in the designated Examination Centre as per the Admit Card i.e. in Navi Mumbai, Maharashtra.

It is the case of the respondent No. 6 that he obtained 419 marks and qualified the NEET-UG, 2018 though he could not qualify for a seat under

All India Quota. According to him, he came to know later that all other States had started distribution of forms online for the State Quota and

thereafter, he approached the Director of Medical Education, Assam for allowing him to take part in the counselling. He was, however, informed that

a list of candidates for State Quota had been already published in the official website. Thereafter, the respondent No. 6 preferred an application on

03.06.2018 before the State authorities stating that he had inadvertently and mistakenly filled the form of NEET (UG) Examination 2018 as

“Maharashtra†instead of “Assam†in the “State/Country of Eligibilityâ€, though otherwise, he is entitled to apply for the State Quota of

Assam in terms of the proviso to Rule 3(1)(c) of Medical Colleges and Dental Colleges of Assam (Regulation of Admission into 1st Year

MBBS/BDS Course) Rules, 2017 (Medical Admission Rules, 2017, in short) framed by the State Government. The aforesaid Rule 3(1)(c) reads as

follows:

“3. Eligibility for State Quota Seats:

The following conditions must be fulfilled:-

(1) (a) ………………………

(b) …………………….

(c) The candidate must study in all classes from Class VII to XII in the State of Assam and must pass the Qualifying Examination or its equivalent

examination from any Institute situated in the State of Assam. (Certificate at Annexure â€"II in Application Form at Schedule-I of these rules must be

submitted if a candidate is called for counselling):

Provided that if a candidate studies outside Assam from Class-VII onwards because his/her father/mother is posted outside Assam as a Assam State

Government employee or as a Central Government Employee or as an Employee of a Corporation/Agency/Instrumentality under Govt. of Assam or

Central Govt. whether on deputation or transfer or regular posting, then the period for which the said father/mother is working outside the State shall

be relaxable for such candidate. (Certificate of employment of father/mother outside the State indicating the period of service from the concerned

authority must be submitted if a candidate is called for counselling).â€​

The respondent No. 6 contends that he was eligible as per Rule 3(1)(c) to be considered for admission under the State Quota of Assam in the

terms of the NEET results, but as he was denied counselling, his father approached this Court by filing a writ petition, being WP(C) No. 4156/2018.

The Court passed an interim order on 25.06.2018 in the said writ petition, observing that the Court was of the prima-facie view that if a candidate had

made some mistakes in filling up the application form, there must be some mechanism to correct the said mistakes, if such mistakes in the entries of

the application form do not touch the merit of the student concerned who appeared in the competitive examination and that it must be decided on the

basis of the performance in examination and not merely because of the mistakes in filling up the application form.

Accordingly, the Court in the said writ petition directed the Director Medical Education, Assam to permit the respondent no. 6 to participate in the

counselling session for admission to MBBS/BDS Course for the year 2018-19. However, the Court also clarified that this order shall not be construed

as a direction for admission in the MBBS/BDS courses. The Court also observed that the entry of “Maharashtra†against the column of

“State/Country of Eligibility†in the Application Form of Ramyak Pranjal Sarma, respondent No. 6 herein shall not prevent him to appear in the

counselling session. It was also clarified that any such admission made would be subject to the outcome of the writ petition and/or any further or other

order to be passed in the writ petition.

Subsequently, when the aforesaid writ petition, WP(C) No. 4156/2018 was taken up on 29.08.2018, Mr. D. Saikia, learned Senior Counsel

appearing for the State of Assam made a statement before the Court that the respondent no.6 had earlier participated in two rounds of counselling in

terms of the order of the Court, but was found ineligible in terms of merit. However, it was also submitted that if he satisfies the conditions as

stipulated in Rule 3(1)(c) of the Medical Admission Rules, 2017 in the Mopping up counselling for the remaining seats, in that event, a reasoned order

would be passed by the authority. With the above direction, the observations and directions, the said writ petition was disposed of on 29.08.2018.

In terms of the order passed by this Court on 29.08.2018, it appears that the Selection Committee on examining the case of the respondent No. 6

was satisfied that he fulfilled the eligibility criteria in terms of Clause 3(1)(c) of the 2017 Rules and admitted him in the First Year MBBS Course in

F.A. Ahmed Medical College, Barpeta, Assam by assigning the State Rank of 345-A.

It is this admission of the respondent No. 6 in the MBBS Course, which has been challenged by the appellant, the writ petitioner No. 2 and others

in WP(C) No. 6949/2018. The appellant, who was the petitioner No. 2 in the said petition has assailed the admission of respondent No. 6 on the

following inter-alia grounds.

Firstly, it has been contended that as the respondent No. 6 never applied as a State candidate of Assam, but as a resident of Maharashtra, he can

never be considered as a candidate eligible for admission under the State Quota of Assam.

Secondly, the contention that he (respondent No. 6) tried to make correction for change of the “State/Country of eligibility†is merely an

afterthought and he obtained admission in connivance with the officials of the State.

The aforesaid allegations of the appellant, of course, have been vociferously denied by the respondent No. 6 as well as the official respondents.

Before this Court, the respondent No. 6 has contended that after mistakenly filling up the admission form by showing “Maharashtra†in the

column of “State/Country of Eligibilityâ€, he applied to the CBSE for correction of the same, as can be seen from the email application submitted

by the respondent No. 6 on 19.05.2018.

It has been submitted by the respondent No. 6 that the window for correction candidates who did commit mistake in filling up the form was

opened from 15.05.2018 to 18.05.2018, up to 5 PM, but the said correction window was only for the following categories of information relating:

Date of Birth.

Category.

Status of person with disability.

It has been submitted that there was no provision for correction of “State/Country of Eligibilityâ€. Yet, he made the application for correction,

before the results were declared.

It has been, accordingly, contended that there was no intention to misrepresent on the part of the respondent No. 6 as the NEET-UG 2018 result

was not yet declared, and though he had submitted an application by way of email to the CBSE for correction of the said category, there was no

response from the CBSE, in connection with which the father of the respondent No.6 filed a writ petition, WP(C) No. 4156/2019 seeking a direction to

the State authority to consider his admission under the State Quota.

It is further contended that as the respondent No. 6 was ultimately found to have satisfied the conditions mentioned under Rule 3(1)(c) of the

Medical Admission Rules, 2017, he was given admission, as can be seen from the minutes of the meeting of the Selection Committee For 1st Year

MBBS/BDS Courses, Session 2018 held on 31.08.2018 in terms of the order passed this Court passed in WP(C) No. 4156/2018.

In short, the submission of the respondent No. 6 is that he had mistakenly filled up the form by showing “Maharashtra†instead of

“Assam†as the “State/Country of eligibility†and had been approaching the authorities for correcting it to “Assam†and the State

authorities had also found him eligible and accordingly, granted him admission under the State Quota in terms of the direction of this Court and as such,

there is no illegality the admission granted to the respondent No. 6.

The stand of the State also has been that initially the respondent No. 6 was declined counselling as his name was not reflected in the State list as

he did not apply under the State Quota of Assam. However, pursuant to the direction of this Court in WP(C) No. 4156/2018, the authorities did

consider as to whether he was eligible to apply for the State Quota and as the Selection Committee found that he fulfilled the eligibility criteria in terms

of Clause 3(1)(c) of the Assam Medical Admission Rules, 2017, he got admission.

On the basis of the rival contentions, the issue which arises for consideration of this Court is whether the respondent No. 6 had mistakenly filled up

the form by showing “Maharashtra†as the “State/Country of Eligibility†and whether he can be considered for inclusion for the State Quota

for the State of Assam.

Under normal circumstances, whenever, anyone fills up a form for admission, some of the information required would be unique to the applicant

and some which would reflect one’s preference or intent. For example, as regards information relating to name, date of birth, education

qualification, category as to whether one belongs to unreserved category or reserved category, these information are unique and cannot be variable as

there cannot be two names of a person, nor two dates of birth etc. In that sense, if there be any mistake in the entries made in respect of such

information, such mistakes can happen either because of inadvertence or negligence in not correctly reproducing the information in the form or due to

deliberate concealment or by way of a misleading act to avoid certain undesirable consequence which may follow. For example, one may conceal or

furnish wrong information about any antecedent history, viz., previous conviction etc. At the same time, there may be information required to be

disclosed in the admission form, which would require certain amount of discretion on the part of the applicant to furnish, if there are more than one

possibility of information available with the application. For example, information about the address whereunder, one could choose to give the

permanent address or a temporary address or any place where one ordinarily resides, depending on the context and necessity of the application and/or

which the applicant considers more convenient or beneficial. In such a case, the applicant has a choice to give from more than one information

available to him which also indicates his intention, preference and priority.

In the present case, the whole issue revolves round the information furnished by the respondent No. 6 about the address given by the applicant of

Mumbai in Maharashtra and also of option under the “State/Country of Eligibilityâ€. It is an undisputed fact that the respondent No.6 had indeed

filled “Maharashtra†in the column of “State/Country of Eligibility†in his application form and he had given the address of Mumbai,

Maharashtra. Since the respondent No. 6 had given “Maharashtra†as the “State of eligibilityâ€, obviously it would be treated as his choice or

the preferred State and since the said application was accepted by the CBSE and was assigned the Examination Centre in Navi Mumbai in

Maharashtra, it would prima-facie indicate that he fulfilled the eligibility criteria as a candidate of Maharashtra State. Since he was eligible to apply as

a candidate of “State of Maharashtraâ€, under normal circumstances, the respondent No. 6 would be treated as an applicant for admission under

the State Quota of Maharashtra in addition to the All India Quota if he qualifies for the same. If the respondent No. 6 could fulfil the conditions of

eligibility for the State of Assam, the respondent No. 6 could have also filled up the form by mentioning “Assam†against the column

“State/Country of eligibilityâ€. But he did not do it. Thus, it can be said that though the respondent no.6 had a discretion or choice in this matter, in

the sense that if the respondent No. 6 was also eligible to apply for the State of Assam in spite of temporarily residing in Mumbai, he could have very

well given the entry of “Assamâ€​ against the Column “State/Country of Eligibilityâ€​, but he chose “Maharashtraâ€​ State.

As mentioned above, the CBSE had granted a window of opportunity for making correction in the application form only in respect of date of birth,

category and status of person with disability. The fact that the CBSE did not provide any such opportunity to make change or correction in respect of

other information would indicate that one cannot make any change in the information in respect of other subjects/categories. If that is so, unless the

Rules permit, framed either by the Medical Council of India or by the CBSE or by the State Government which controls the admission under the State

Quota, any change in the application form would not be permissible. Nothing has been shown in the records, nor it has been pointed out by anyone that

any such rule exists allowing change in the information given in the application form other than the three categories.

From the above, we would conclude that if the respondent No. 6 had given entry “Maharashtra†under the Column “State/Country of

Eligibilityâ€​, it would be deemed that he had the intention to apply under the Maharashtra Quota and not under the Assam Quota.

Of course, it has been submitted by the respondent No.6 that it was an inadvertent mistake and after realising his mistake he did apply to the

CBSE for correction after he appeared in the examination and before declaration of the results. However, this does not distract from the fact that he

did apply for Maharashtra State Quota and not for the Assam Quota.

We are also aware that the admission of the respondent no.6 under the State Quota of Assam came up for consideration before this Court in

WP(C) No. 4156/2018, in which none of other candidates taking part in the counselling including the present appellant were impleaded though it was

very clearly evident that success of the respondent No. 6 in the said writ petition would have had adversely affected the claim of another candidate in

the State List.

We also have noted that this Court did not give any specific finding as to whether the said mistake of the respondent no.6 was inadvertent or not

as claimed by him and whether any such mistake even if bona fide, can be allowed to be rectified. Further, the issue whether, a candidate can be

given admission under a State Quota, when such a State was not mentioned in the application form, was not considered. The other connected issue is

how the State wise list is prepared after the common entrance test is announced and at what stage can a candidate apply for being considered for

admission under the State quota. Could any candidate on the basis of the all India ranking, later on, apply for admission under the State Quota of a

particular State, even if, he did not mention in the admission form the particular State as the “State of Eligibilityâ€. To be more specific in the

context of the factual background in the present case, the issue that was involved is whether the respondent No. 6, who did not mention the State of

Assam in his application form as the “State of Eligibility†be allowed to apply subsequently for admission under the State quota of Assam on the

ground that he fulfils the condition under Rule 3(1)(c) of Medical Admission Rules, 2017. Further, no Rule has been referred to show that once a

person is qualified under the NEET, he can still apply against any State Quota if he is eligible under such State Quota.

A reading of the order dated 29.08.2018 passed in W.P.(C) No. 4156 of 2018 however, does not indicate that any such issue was framed nor the

decision of the Court was based on any existing rules or based on certain legal premise. The decision was essentially based on the submission made

on behalf of the State Government that the admission can be considered if he fulfils the requirements of the State rules. It was, thus, not on the basis

of any finding of fact or law by the Court that the respondent no.6 was allowed to be considered for admission under the State Quota of Assam even

if he did not mention the State of Assam in his application form, and also in spite of the fact that his name did not appear in the State list published by

the Government of Assam. The aforesaid order dated 29.08.2018 passed in WP(C) No.4156/2018 is accordingly reproduced hereinbelow:

“Heard Mr. P. Deka, learned counsel for the petitioner. Also heard Mr. D. Saikia, learned Senior Additional Advocate General for the State of

Assam appearing for the Medical Education Department.

The son of petitioner who had participated in the NEET-2018 for an admission to the medical college in Assam while filling up the form had

inadvertently written his place of domicile to be Maharashtra and not Assam. According to the petitioner he was posted in the State of Maharashtra in

course of his service and therefore, in fact, he was residing in Maharashtra because of his posting in Mumbai. But otherwise taking the true legal

meaning of the expression domicile for the purpose of admission to a medical college in Assam, the petitioner is a domicile of Assam and not a

domicile of Maharashtra.

In the circumstances, the petitioner seeks for a direction to the respondent CBSE that he be allowed to correct the entry made in the application form

of his son. The CBSE in turn states that they were entrusted only to conduct the NEET-2018 and after the final result were declared, the entire record

had been transmitted to the Director General of Health Services, Government of India and as such the CBSE is functos officio, for the purpose and

the necessary correction cannot be done at this stage.

In the circumstances, the petitioner files an application for impleading the Director General of Health Services respondent in this case. But, Mr. D.

Saika, had made a statement before the Court that the son of the petitioner had earlier participated in two rounds of counselling in terms of the order

of this Court where he was found ineligible in terms of merit. But nevertheless moping up counselling would be held on 31.08.2018 for the remaining

seats.

The learned senior counsel states that the case of the son of the petitioner would also be considered and he will also be subjected to a counselling on

31.08.2018. But in the counselling the petitioner along with his son, who is the candidate, would have to satisfy the authorities that the son of the

petitioner had to undertaken his studies outside the State of Assam, as because his father was posted outside the State, in course of his service.

According, to the learned senior counsel, in the event the said aspect is satisfied by the petitioner, the son of the petitioner would come within the

exception to Rule 3(1)(c) of the Medical Admission Rules, 2017 and as such he would be entitled for a seat. Accordingly, it is submitted that in the

counselling, if the aforesaid aspect can be satisfied by the petitioner and further the son of the petitioner comes within the purview of the merit for

being offered a seat, a reasoned order thereon be passed by the authority.

The aforesaid submission of the learned senior counsel is accepted and accordingly a direction strictly to that effect is passed.

In terms of the above, this writ petitions stands closed.â€​

However, since the respondent No. 6 had been given admission in terms of the aforesaid order passed by this Court in WP(C) No. 4156/2018,

which has not been appealed against, we do not wish to disturb the consequence flowing out of the aforesaid order and to that extent, we are not

inclined to disturb the admission of the respondent No. 6, more so when he has already completed the first year of the MBBS Course.

However, as mentioned above, there is no specific judicial finding recorded to the effect that making of the entry as “Maharashtra†against

the “State/Country of Eligibility†by the respondent no.6 was an inadvertent mistake. There is also no judicial finding that change of the choice of

State Quota after filling up the form is permissible under the Rules. There is also no decision as to how a State List is prepared after the

announcement of the common entrance examination and as to whether anyone who has not mentioned the State of Assam as the “State of

Eligibilityâ€​ can apply for admission under the State Quota of Assam.

Even though we are not inclined to make any observation as regards the judicial order passed in WP(C) No. 4156/2018 on the basis of which the

Respondent no.6 got the admission, as has been noted, the present appellant was not a party in the said proceeding and as such, any finding in the said

writ petition may not, perhaps, bind the appellant, if, it causes prejudice to the appellant. Had the appellant and others who were called for counselling

were made parties in the said writ petition, perhaps this plea of the respondent no.6 that he did mistakenly and by inadvertence mentioned

“Maharashtra†and not “Assam†as the “State of Eligibility†would have been required to be decided by the Court, in which event, any

such observation and finding rendered in such a proceeding would have been binding upon the appellant as well. As can be seen from above, the issue

whether the respondent No. 6 inadvertently and mistakenly put “Maharashtra†in lieu of “Assam†as “State/Country of Eligibility†was

not at all decided, but the said writ petition was decided primarily based on the stand of the State Government that they would be ready to accept the

candidature of the respondent No. 6 if he fulfils the conditions mentioned under Rule 3(1)(c) of Medical Admission Rules, 2017. If there be any such

rules permitting the claim of the respondent No.6 to apply for State Quota of Assam, the same had not been brought to the notice of this Court. The

admission of the respondent no.6 in the MBBS course appears to be more on the basis of concession by a generous State Government, rather than

based on any permissible rules or finding or direction of the Court on merit.

As discussed above, a mistake in an entry relating to name or date of birth of an applicant could be due to inadvertence or deliberate with the

intention to mislead, for the reason that there cannot be two dates of birth of an applicant. However, the said position will be different, in case of an

entry in which there can be more than one option available to the applicant, as in the case of address of the applicant or the “State of Eligibilityâ€.

One may give his permanent address or a temporary address where he is ordinarily residing for the purpose of admission as the applicant may deem

more convenience and beneficial.

In the present case, though the respondent No. 6 can be said to be a permanent resident of Assam, he also can claim to be temporary resident of

Mumbai, Maharashtra on account of employment of his parent and he did mention so in his application form. Thus, he had the choice of giving either

the Assam address or the Maharashtra address as the case may be, but the respondent No. 6 chose to give the Maharashtra address. In doing so,

there was an element of choice and as such, under such circumstances, if the applicant states that it was an inadvertent mistake, it had to be subjected

to much more critical scrutiny. The respondent No. 6 has endeavoured to explain that upon realising his mistake, he applied to the CBSE for correction

without explaining the circumstances of his inadvertent mistake. Since, the respondent no.6 had cleared the common entrance test, his name would

have found place in the Maharashtra State List also. Unfortunately, there is nothing on record to indicate that he made any application to the State of

Maharashtra to shift his name from the Maharashtra List to the Assam List.

Similarly, as noted above, there is no finding by the Court that though the respondent no. 6 did not mention Assam as his “State/Country of

Eligibility†due to inadvertent mistake, he could be permitted to apply for admission under the State Quota. The fact remains that the respondent no.6

did put “Maharashtra†as his choice in the Column “State/Country of Eligibilityâ€. Even if it is considered to be a mistaken entry, it was

certainly not a wrong entry in the sense that it was also permissible entry and it will be deemed that he indeed considered himself to be a resident of

Maharashtra for the purpose of seeking admission in MBBS Course by showing his address to be Mumbai, Maharashtra. The Court in W.P.(C) No.

4156 of 2018 did not give any finding that the respondent No.6 had made an inadvertent mistake in writing “Maharashtra†in lieu of “Assamâ€

and as such he could apply for admission under the State Quota of Assam. In absence of any such judicial finding by the Court of the right of the

respondent no.6 to be considered for admission under the State Quota of Assam, even if he did not mention Assam as the “State of Eligibilityâ€

and in absence of extant rules, his admission will be considered de-hors the rules.

As submitted at the Bar, normally it is only when the candidate puts a particular State as the “State/Country of Eligibilityâ€, the name of such

candidate will be also reflected in the list of the concerned State. Accordingly, the name of the respondent No. 6 did not find place in the list prepared

by the State of Assam for the purpose of admission in the State Quota of Assam as he did not mention Assam State. To that extent, it can be deemed

that as the respondent No. 6 did not apply for admission under the State Quota of Assam and thus, he cannot be given admission under the Assam

State Quota, even if, he may be eligible also for the State Quota.

However, as mentioned above, since the admission to respondent No. 6 has already been given with the prop of a judicial order passed in WP(C)

No. 4156/2018 with the consent of the State Government, we do not intend to disturb his admission.

Yet, we are also mindful of the fact that because of admission given to respondent No. 6 who was not included in the State List, certainly, a

candidate who was already included in the State List lost an opportunity of getting admission under the State Quota. The appellant could have been

also considered for admission against the aforesaid seat given to the respondent no.6. Therefore, we are inclined to give an opportunity to the appellant

to be considered for admission against one seat which was given to the respondent No. 6.

It leads to the issue as to whether any such consideration can be directed now, in respect of an admission for the academic session 2018-2019,

after a lapse of about 2 (two) years.

In this regard, learned senior counsel for the appellant has relied on the decision of the Hon’ble Supreme Court in Dolly Chhanda-Vs.-

Chairman, JEE & Ors., (2005) 9 SCC 77,9 wherein it was held that for a situation or fault which lies with the authorities and not with the candidate,

the candidate should be given admission in a subsequent academic year.

Similar beneficial approach continues to be adopted as can be seen from the decision rendered in S. Krishna Sradha Vs. The State of Andhra

Pradesh and Ors., AIR 2020 SC 47, wherein the Hon’ble Supreme Court, after considering the law in this regard, had issued certain directions,

which had been followed in National Medical Commission Vs. Mothukuru Sriyah Koumudi and Ors., in Civil Appeal No. 3940 of 2020, decided on

07.12.2020, in which, the Hon’ble Supreme Court by following the decision rendered in S. Krishna Sradha (supra) directed the authorities to grant

admission to the aggrieved candidate in the next academic year 2020-2021.

In Krishna Sradha (supra), Hon’ble Supreme Court held as follows:

“9. In light of the discussion/observations made hereinabove, a meritorious candidate/student who has been denied an admission in MBBS Course

illegally or irrationally by the authorities for no fault of his/her and who has approached the Court in time and so as to see that such a meritorious

candidate may not have to suffer for no fault of his/her, we answer the reference as under:

(i) That in a case where candidate/student has approached the court at the earliest and without any delay and that the question is with respect to the

admission in medical course all the efforts shall be made by the concerned court to dispose of the proceedings by giving priority and at the earliest.

(ii) 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 â€" 30thSeptember, 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 30thSeptember, i.e., cut off date and under no circumstances, the Court

shall order any Admission in the same year beyond 30thOctober. 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.

(iii) 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.

(iv) Grant of the compensation could be an additional remedy but not a substitute for restitutional remedies. Therefore, in an appropriate case the

Court may award the compensation to such a meritorious candidate who for no fault of his/her has to lose one full academic year and who could not

be granted any relief of admission in the same academic year.

(vi) It is clarified that the aforesaid directions pertain for Admission in MBBS Course only and we have not dealt with Post Graduate Medical

Course.â€​

In the present case, we are of the opinion that the admission given to respondent No. 6 cannot be attributed to any fault on the part of the appellant

and other candidates. In fact, the respondent No.6 is a beneficiary of a generous State. We are also mindful of the fact that the decision of this Court

in WP(C) No. 4156/2018 cannot affect the right of the appellant and others who were not party in the said writ proceeding.

It has been stated by Mr. Choudhury, learned senior counsel as well as Mr. B. Gogoi, learned counsel appearing for the State that the counselling

is still going on and will conclude this month, which indicates that the admission process is not yet over. Accordingly, the State authorities are directed

to increase the medical seat by one to accommodate the appellant, if necessary, if no vacancy is available during this academic session.

Under the circumstances, we direct the respondent authorities, more particularly, respondent Nos. 1 to 4 to include the appellant in the ongoing

counselling process going on and accordingly, grant the appellant admission to MBBS Course, after necessary verification, on the strength of her merit

position in the NEET-UG 2018 under the State List against any vacancy presently existing, and if necessary, increase the allotted MBBS seat by one

more, and also on the basis of the academic criteria/eligibility laid down by the MCI under which she qualified the NEET-UG 2018.

For this purpose, the appellant will also immediately report to the concerned State authorities and the State would do the needful in terms of our

direction.

It has been also stated on behalf of the appellant that she is presently pursuing BDS Course on the basis of the result of the NEET (UG) 2018 and

has completed the First Year Course in BDS, which is stated to be common in respect to both the BDS and MBBS Courses and as such the appellant

can be given admission in the Second Year of MBBS Course. This is for the authorities to examine, as to whether such admission in the Second Year

of the MBBS Course is permissible under the rules or not.

We have also observed that the appellant is ranked at Sl. No. 348 of Assam State Merit List of NEET-UG 2018 and the respondent No. 6 had

been given admission by giving him the State Rank of 345 A. Thus, there are two candidates above the appellant on merit. Normally, the candidates

above the appellant, i.e. at Serial No. 346 and 347 ought to have been also considered for admission. However, it appears that they never made any

claim for admission and are not before this Court seeking any such similar relief. On the other hand, the appellant had been pursuing her claim by

promptly approaching this Court in time and accordingly, we confine our direction in respect of the present appellant, namely, Ms. Shristi Deka only.

With the above observation and direction, the present appeal is allowed by modifying the impugned order passed by the learned Single Judge in

WP(C) No. 6949/2018 on 09.08.2019 in so far as the appellant (petitioner No. 2 in the aforesaid writ petition No. 6949/2018) is concerned, without

disturbing the admission already granted to the respondent Nos.6 and 7.