West Bengal University Of Health Sciences And Ors. vs Dr. Paban Mandal And Ors.

The West Bengal University of Health Sciences, its vice-chancellor, registrar and controller of examination are in appeal against the judgment and

order dated 26th June, 2018 passed by a learned Single Judge of this Court whereby W.P. 7040(W) of 2018, presented by the writ

petitioner/respondent no. 1 herein (hereafter the writ petitioner), was disposed of with directions. The operative part of the order reveals that the writ

petitioner was directed to be admitted in the M.S. (General Surgery) course in the vacancy caused due to surrender of 1 (one) seat by an erstwhile

selected candidate.

The appellants by filing an application for stay in the appeal have sought for interim relief primarily on the ground that 31st May, 2018 being the cut-off

date for admission in terms of an order passed by the Hon’ble Supreme Court of India, the learned Judge exceeded jurisdiction in so directing and

admission of the writ petitioner, if allowed, would be in clear breach of the direction passed by such Court. We have heard the parties on the question

of interim relief.

Although it has been contended by Mr. Roy, learned advocate for the appellants that they were not made aware by the relevant college of surrender

of the seat by a selected candidate, it has not been disputed before us that the writ petitioner by his letter dated 30th May, 2018, received by the

appellants on that day itself at 3.28 P.M., had duly informed them of a vacancy having occurred due to surrender of a seat by a selected candidate.

The source from where the appellants derived information is not too relevant, so long the information is genuine and could have been acted upon.

Despite being duly informed of surrender of seat resulting in a vacancy having arisen, the omission of the appellants to notify the vacancy for mop up

counselling has been held by the learned Judge to be arbitrary and, prima facie, we share such view. We have also heard Mr. Roy submit that the

learned Judge was appraised of the appellants not having information from the concerned college regarding surrender of the seat, as aforesaid. A

ground to that effect has been urged in the memorandum of appeal (Ground No. III). We, however, find from the impugned order the following finding

returned by His Lordship:

“He made no submission regarding omission of his client to take steps to see that said information of seat available on surrender reached registered

candidates before mop up counselling and on spot admission date 31st May, 2018â€​. By ‘he’ in the aforesaid extract, the learned Judge referred

to Mr. Roy. If indeed the appellants challenge such finding as not based on the submissions made on their behalf by Mr. Roy, we are afraid an appeal

does not lie; in that case, it would be for the appellants to approach the learned Judge in the review jurisdiction. If any authority is required, one can

usefully refer to the decision reported in AIR 1964 S.C. 377 : Bank of Bihar â€"vs- Mahasin Lal.

Regarding the other contention that was raised before the learned Judge to the effect that granting admission to the writ petitioner would have the

effect of merit being compromised, we do not see any reason to be persuaded thereby at this stage. The records clearly speak that it is only the writ

petitioner who has been knocking the doors of the appellants as well as this Court for admission in the M.S. (General Surgery) course and, in fact, no

other candidate figuring at a higher position in the merit list than the writ petitioner, has evinced any interest to be admitted in such course. We can

reasonably infer from the facts and circumstances that no candidate other than the writ petitioner is interested to take admission.

Mr. Bhattacharya, learned advocate for the Medical Council of India, referring to two orders passed by the Hon’ble Supreme Court dated 25th

May, 2018 and 31st May, 2018 in Writ Petition (Civil) No. 556 of 2018, contends that in no event can any admission be made beyond the cut-off date

i.e. 31st May, 2018 and the learned Judge erred in so directing. We are conscious of the directions made by the Hon’ble Supreme Court in the

aforesaid writ petition; however, prima facie, we are also of the opinion that such direction may not stand in the way of making a direction for

admission in a case of the present nature. The Hon’ble Supreme Court may not have intended that a seat, which could not be filled up by

admission before 31st May, 2018 because of laches of the authorities, should never be filled up; more so, when the writ petitioner is not at fault and

the blame for omission to notify the surrendered vacancy for mop up counselling should be shouldered by the appellants who, despite having

information from the writ petitioner on 30th May, 2018 at 3.28

P.M., were in deep slumber and did not take steps to upload such vacancy on its website so that the vacant seat in M.S. (General Surgery) which is in

great demand, does not go waste. The view taken by us finds support from the decision of the Hon’ble Supreme Court reported in (2012) 7 SCC

389 : Asha â€"vs- Pt. B.D. Sharma University of Health Sciences. We record the submission of Mr. Mukherjee, learned Additional Government

Pleader appearing for the State to the effect that having regard to the dearth of qualified doctors in this State, the State would have no objection if the

writ petitioner is admitted in the M.S. (General Surgery) course in terms of the order of the learned Judge and continues his study as, in the long run, it

is likely to benefit the people of West Bengal.

For the reasons aforesaid, we are not inclined to stay the operation of the impugned order. The application for stay stands dismissed. We make it clear

that admission of the writ petitioner in M.S. (General Surgery) course shall be without prejudice to the rights and contentions of the appellants as well

as the medical council and pursuing of studies by him in the said course would abide by the result of the appeal. Since all the parties are on notice and

are before us, we dispense with all the formalities. The appellants shall be at liberty to prepare requisite number of informal paper books, enclosing all

the relevant documents used before the learned Judge as also before us and file the same within four weeks. The respondents shall be served with

copies of such paper books. Liberty is given to the appellants to mention the appeal, as and when it is ready for hearing.