IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 01.10.2009 CORAM THE HONOURABLE MR. JUSTICE D.MURUGESAN and THE HONOURABLE MR. JUSTICE M.JAICHANDREN W.A.Nos.1404 to 1406 of 2009 and W.P.No.19783 of 2009 and M.P.Nos.1 of 2009 (3 Nos.) in W.A.Nos.1404-1406/09 & M.P.No.1 & 2 of 2009 in W.P.No.19783/09 W.A.No.1404/09 1. The Secretary Selection Committee, 162, Periyar E.V.R. High Road, Kilpauk, Chennai. 2. Government of Tamil Nadu rep. by the Secretary to Government, Higher Education Department, Secretariat, Chennai. ..Appellants Vs 1. M.Deepika 2. The Tamil Nadu Dr.M.G.R. Medical University, rep. By its Registrar, Post Box No.1200, No.69, Anna Salai, Guindy, Chennai. ..Respondents W.A.No.1405/09 1. The Additional Director of Medical Education/Secretary, Selection Committee, Office of the Directorate of Medical Education, Kilpauk, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 2. The Director, Office of the Directorate of Medical Education, Kilpauk, Chennai. ..Appellants -vs- L.Gomathy ..Respondent W.A.No.1406/09 1. The State of Tamil Nadu rep. by its Secretary to Government, Higher Education Department, Secretariat, Chennai. 2. The Secretary, Selection Committee, Directorate of Medical Education, Kilpauk, Chennai. ..Appellants Vs 1. S.Aarthy 2. The Medical Council of India, Rep. By its Secretary, Flat No.14, Sector 8, Dwaraka Phase I, New Delhi. ..Respondents W.P.No.19783/09 Minor.A.M.Dinesh Rep. By Father and Guardian, M.Marimuthu. ..Petitioner Vs 1. State of Tamil Nadu, rep. by its Secretary to Government, Higher Education Department, Secretariat, Chennai. 2. Secretary, Selection Committee, Directorate of Medical Education, Kilpauk, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 3. Medical Council of India, Rep. by its Secretary, Pocket 14, Sector-8, Dwarka Phase I, New Delhi. ..Respondents Writ Appeals against the common order of this Court dated 24.9.2009 made in M.P.Nos.1 of 2009 in W.P.Nos.19762, 19771 and 19701 of 2009 and Writ Petition is for issue of Writ of Mandamus directing the respondents therein to admit the petitioner in M.B.B.S. Course, bearing A.R.No.943 and Random No.8748913995 and allot the college according to the ranking and communal reservation for the year 2009- 2010 or in subsequent year. W.A.No.1404 of 2009 in WP.No.19762 of 2009: The petition presented to this Court under Article 226 of Constitution of India to issue a writ of Order or direction, declaring the action of the 1st respondent Selection Committee in not calling the petitioner for counselling for the admission to the 85 MBBS seats in the Government Medical College, Dharmapuri, 65 seats in the Karpaga Vinayaga Medical College, near Maduranthagam under Government quota to be held on 25.9.2009 (now postponed to 26th September 2009) or on any other date and for the self financing Course in the other Medical Colleges/BDS Course in the Government College to be held on 26.9.2009 (now postponed to 28th September 2009) or on any other date grant admission to the Course, when candidates who had secured lower rank than the petitioner are called for counselling as illegal, arbitrary and unconstitutional. W.A.No.1405 of 2009 in WP.No.19771 of 2009: The petition presented to this Court under Article 226 of Constitution of India to issue a writ of mandamus directing the 1st respondent to issue a Call letter to the petitioner for the counseling for Re-allotment and Allotment in M.B.B.S GOVT./S.F.MEDICAL COLLEGES AND ALLOTMENT IN GOVT. DENTAL COLLEGE-2009-2010 SESSION to be held on 25.9.2009 and 26.9.2009, now re-scheduled to be held on 26.9.2009 and 28.9.2009. W.A.No.1405 of 2009 in WP.No.19771 of 2009: The petition presented to this Court under Article 226 of Constitution of India to issue a writ of mandamus directing the respondent to permit the petitioner to attend the counselling to be held on 25.09.2009 or on any other subsequent date allot the college according to merit as well as petitioner the petitioner in first year M.B.B.S. Course for 2009-2010. For Appellants in Writ Appeals : Mr.P.Wilson, Addl. Advocate General Assisted by Mr.G.Sankaran, Spl. Govt. Pleader. https://hcservices.ecourts.gov.in/hcservices/ For Respondents in W.A.No.1404/09 : Mr.N.G.R.Prasad for R-1 in W.A.No.1405/09 : Mr.Nagasundaram in W.A.No.1406/09 : Mr.C.Selvaraju, S.C. For Mr.Mani. For Petitioner in W.P. : Mr.C.Selvaraju, S.C. For Mr.Mani. For Respondents in W.P. : Mr.P.Wilson, Addl. Advocate General Assisted by Mr.G.Sankaran, Spl. Govt. Pleader. J U D G M E N T (Delivered by D.MURUGESAN, J.) The writ appeals arise out of the interim order in the writ petitions directing the Secretary, Selection Committee for M.B.B.S. Degree course to extend the counselling to the candidates for admission to M.B.B.S. Seat to be held on 25.9.2009 or any subsequent date and the writ petition is filed for a similar direction. 2.W.A.No.1404 of 2009 arises out of the interim order in M.P.No.1 of 2009 in W.P.No.19762 of 2009. The first respondent herein by name M.Deepika (hereinafter referred to as 'the candidate'), belongs to M.B.C. Category and her cut-off mark is 193. She was called for counselling and as the cut-off mark for filling up the seats in Government colleges was 193.25, she was wait-listed in serial No.25. Thereafter, when the third counselling was scheduled to be held on 25.9.2009, she was not called. Hence, she has approached this Court for a declaration to declare the action of the Selection Committee in not calling her for counselling for the admission to the 85 MBBS seats in the Government Medical College, Dharmapuri, 65 seats in the Karpaga Vinayaga Medical College, near Maduranthagam under Government quota to be held on 25.09.2009 (now postponed to 26th September 2009) or on any other date and for the self financing course in the other Medical colleges/BDS course in the Government Colleges to be held on 26.09.2009 (now postponed to 28th September 2009) or on any other date, when candidates who had secured lower rank than the petitioner are called for counselling as illegal, arbitrary and unconstitutional. 3.W.A.No.1405 of 2009 arises out of an interim order in M.P.No.1 of 2009 in W.P.No.19771 of 2009. The respondent by name L.Gomathy (hereinafter referred to as 'the candidate') belongs to B.C. Category and her cut-off mark is 194.75. She was called for counselling and as the cut-off mark for filling up the seats in Government colleges https://hcservices.ecourts.gov.in/hcservices/ was 195.05, she was wait-listed in serial No.172. Thereafter, when the final counselling was scheduled to be held on 25.9.2009, she was not called. Hence, she approached this Court for a direction to the Selection Committee to issue a call letter to her for the counselling for re-allotment and allotment in M.B.B.S. Govt./S.F.Medical Colleges and Allotment in Govt. Dental College – 2009-2010 session to be held on 25.9.2009 and 26.9.2009, now re-scheduled to be held on 26.9.2009 and 28.9.2009. 4.W.A.No.1406 of 2009 arises out of an interim order in M.P.No.1 of 2009 in W.P.No.19701 of 2009. The first respondent herein by name S.Aarthy (hereinafter referred to as 'the candidate') belongs to B.C. Category and her cut-off mark is 195.25. She was not selected for M.B.B.S. Seat and she opted to be wait-listed in the Government College and she was in serial No.83. However, she opted for B.D.S. Course and also joined. She has filed the writ petition for a direction to the respondents to permit her to attend the counselling to be held on 25.9.2009 or on any other subsequent date, allot the college according to merit as well as according to her option in the first year M.B.B.S. Course for 2009-2010. 5.W.P.No.19783 of 2009 is by Minor A.M.Dinesh. He belongs to B.C. Category and his cut-off mark is 194.05. He was not selected for M.B.B.S. seat in Government colleges, as the cut-off mark was 195.75 and he opted for being wait-listed. Thereafter, when the final counselling was scheduled to be held on 25.9.2009, he was not called. Hence, he approached this Court for a Mandamus directing the respondents therein to admit him in M.B.B.S. Course, bearing A.R.No.943 and Random No.8748913995 and allot the College according to the ranking and communal reservation, for the year 2009-2010 or in subsequent year. 6.Mr.P.Wilson, learned Additional Advocate General, assisted by Mr.G.Sankaran, learned Special Government Pleader for Education, would submit that in terms of the specific clauses of the prospectus, once option is given for a particular category of seats, then it becomes final and the candidate cannot later on turn to say that the option was obtained giving an impression to the candidate that even when the seats in Government colleges have already been filled up, they will be given a seat in Self-financing colleges under Government quota and going by the communal ranking, none of the candidates are eligible to be considered for a Government college. He would also submit that even going by the ranks in waiting list, they will not be entitled to be considered for selection as they do not come within the zone of consideration and therefore, they are not called for counselling. Hence, the learned Additional Advocate General would submit that the direction in question in these writ appeals are contrary to the prospectus and if it is applied for selection, number of candidates who have given such declaration may also claim such benefit thereby unsettling the entire selection process. https://hcservices.ecourts.gov.in/hcservices/ 7.On the contrary, Mr.N.G.R.Prasad, learned counsel appearing for the candidate in W.A.No.1404 of 2009 would submit that the declaration form was not clear as to the exact option to be given by the candidates, as it speaks only about Government/Self-financing colleges, when there is another category of seats known as Government seats in self-financing colleges. The learned counsel would further submit that even after the first counselling was made, all the Government seats were filled up and there was no option for the appellants to ask the candidates to give option to be considered for seats in Government colleges. Therefore, the declaration with regard to the option is only false and in such circumstances, it can be ignored and the candidates must be considered for selection as against the newly available seats in the self-financing colleges as well. He would also submit that after the second counselling was over, 85 seats were available to the Government in Dharmapuri Government Medical College and 65 seats were available in Karpaga Vinayaga Medical College, Maduranthagam. Though the candidate has opted to be wait-listed in the Government college, in view of the impression created in the mind of the candidate that she would be considered as against the Government seats that may be available in future as well, the candidate has declared to be wait-listed for the consideration of selection to the Government colleges. Hence, the learned counsel would submit that the direction issued by the learned Judge is justified. 8.Mr.Nagasundaram, learned counsel appearing for the respondent in W.A.No.1405 of 2009, has submitted almost on the similar lines. He would also submit that merely because a declaration was made, which is not supported by the prospectus as such, the candidate shall not be denied a seat in the self-financing colleges. 9.Mr.C.Selvaraju, learned senior counsel appearing for the first respondent in W.A.No.1406 of 2009 and for the petitioner in W.P.No.19783 of 2009, would submit in addition to the above submissions that when the option was given, clause 34(b) relating to the re-allotment from one self-financing college to another self- financing college will not be permitted was in force. On the impression that if the candidate opts for one self-financing college, thereafter he/she cannot seek for allotment in another college, most of the candidates have not opted for self-financing colleges. However, the said clause has been removed subsequently after the second counselling, i.e. before the counselling that was called to be held on 25.9.2009. In view of the change in the circumstances, the declaration form cannot be put against the candidates to deny the seats in the self-financing colleges as well. He would also submit that the option as referred to in clause 27 is only in respect of the colleges and not in respect of whether the Government seat or a self- financing seat. On the impression that the candidates would be considered as against the self-financing seats, which could be filled up by the Government, they have made such a declaration. Hence, the https://hcservices.ecourts.gov.in/hcservices/ learned senior counsel would submit that the declaration form cannot be put against the candidates. 10.We have considered the rival contentions. It is by now well settled in law that the prospectus is not only binding on the authorities who issued the same, but also the candidates. The prospectus is issued pursuant to the Government orders passed in each year in exercise of the powers conferred under Article 162 of the Constitution of India, keeping in mind the policy of the Government relating to the admission to the medical courses for that year. This policy may change from year to year. Once the Government order is issued and the prospectus is drawn on the basis of the Government order, each and every clause in the prospectus must be strictly followed, because any liberal approach to the individual clauses in the prospectus may be detrimental to the candidates, who apply for admission. Therefore only the Courts have taken an uniform view that the clauses must be strictly adhered to and only when the clauses are opposed to any statute or the rights guaranteed under the Constitution is violated, it could be interfered with. Keeping this in mind, let us first consider the relevant clauses in the prospectus. 11.As per clause-9 relating procedure for filling and submission of application, the candidates are instructed to read all the instructions carefully before filling up the application form and OMR sheets. Therefore, it is necessary for each candidate to read the entire instructions as well as other clauses relating to the procedures for the purpose of applying to the course. In terms of clause 23, the candidates are informed that they will be called for counselling as per their merit and they may exercise their option as per their eligibility norms mentioned in the prospectus. In terms of clause 27.1, the option exercised during the counselling would be final. Therefore, it is clear that the candidates are made aware that on the basis of their merit, they will be called for counselling and at the time of counselling, they are entitled to opt for the seats whether it be in Government colleges or self-financing colleges. As per clause 40 (a), the candidates are also entitled to give option for allotment of seats subject to the availability in any of the categories listed in clause 41. Clause 41(i) relates to Category I, that is, seats available in MBBS Course in Government Medical Colleges. Clause 41 (ii) refers to Category II - Self- Financing Medical Colleges, under which, clause (a) refers to 65% of the total MBBS seats in Self-financing Non-Minority Medical Colleges including IRT, Perundurai Medical College, which is run by the Institute of Road Transport and clause (b) refers to 50% of the total MBBS seats in Self-Financing Minority Medical Colleges. Appendix-II is the list of Government Medical Colleges and Self-Financing Medical Colleges. As far as Government Medical Colleges, there are 15 such colleges are mentioned including Dharmapuri Medical College College, Dharmapuri. Insofar as Self-Financing Medical Colleges are https://hcservices.ecourts.gov.in/hcservices/ concerned, IRT Perundurai Medical College, P.S.G. Institute of Medical Sciences & Research Institution, Coimbatore, Sree Moogambigai Institute of Medical Sciences and Research Institute, Padanilam, Kanyakumari District and Adhiparasakthi Medical College, Melmaruvathur, are mentioned. In view of these clauses, when a candidate is called for counselling, he is made aware that at the time of exercising option, he or she could exercise such option either in respect of seats in Category I – Government Medical Colleges or Category II – Self-Financing Medical Colleges. The candidates are also made known that such option for allotment of seats is subject to the availability of seat in any of the categories listed. 12.In the light of the above clauses, the declaration made by each of the candidates must be considered. Insofar as the candidate M.Deepika is concerned, she has opted to be wait-listed in the seats available in the Government colleges, i.e. Category I. She has specifically stated that she does not want to opt a MBBS seat in self-financing colleges, as she has indicated 'No' against the column earmarked. Similarly, the candidate by name L.Gomathy has also opted only to be wait-listed in Government colleges and she has also specifically made an endorsement 'No' in the column earmarked for self-financing colleges. Insofar as the candidate S.Aarthy is concerned, she has opted to be wait-listed in Category I – Government Medical Colleges and she has not mentioned anything about her option relating to self-financing colleges. Insofar as the candidate A.M.Dinesh is concerned, he has opted to be wait-listed in Category I – Government colleges and has mentioned 'No' in the column earmarked for self-financing colleges. The declaration forms of each of the candidates contain both the signature of the candidate as well as the parents. In the declaration form, it is stated that the candidate has fully understood that he/she is not eligible and has no right to claim in the category of seats not opted for in future. This declaration form is questioned by the candidates mainly on the ground that such declarations were obtained even before the deletion of Clause 34(b) in the prospectus and the declaration form is not clear as to whether the column relating to 'Government' refers to seats available in the Government colleges or the Government seats in self- financing colleges. The declaration form is also questioned on the ground that it is not included in the prospectus as such and the form is given at the time of counselling only taking the candidate by surprise. 13.Insofar as the first contention as to the declaration form is concerned, it is true that when the prospectus was issued initially clause 34(b) stipulated that the re-allotment from one self financing college to another self financing college will not be permitted. In our opinion, even when the said clause was in force, there cannot be any possibility of doubt in the mind of the candidate while they opt for a seat at the time of counselling, in the wake of specific https://hcservices.ecourts.gov.in/hcservices/ categories of seats in respect of Government Medical Colleges and Self-financing Medical Colleges as provided under Clause 41. The candidate is very well aware that when the column relates to 'Government' in declaration form, it would certainly refer to the seats in Category I – Government Medical Colleges. The candidate is also aware that even at the time of counselling, the candidate could opt for a Government seat under Category II – Self-financing Medical Colleges to an extent of 65% of seats in Self-financing Non Minority Medical College including IRT Medical College and 50% of the seats in Self-financing Minority Medical Colleges. Having put on notice by the prospectus and the candidates were also made aware of their right to be opted against 65% of the seats in Self-financing Non Minority Medical Colleges and 50% of seats in Self-financing Minority Medical Colleges, except the candidate by name S.Aarthy, others have specifically mentioned 'No' to the seats mentioned in Category II – Self-financing Medical Colleges. Therefore, it would not be correct to say that by virtue of deletion of clause 34(b) subsequently, they will be entitled to be considered for a seat under Category II – Self-financing Medical Colleges. The deletion of such provision makes no difference in the selection process. As far as the candidate by name S.Aarthy is concerned, though she has not made any endorsement in the column relating to Self-financing Medical Colleges, for the reason that by making endorsement of wait-listed only as against the Government seat, it is necessarily to be held that she has not opted to be considered for selection as against the seats under Category II – Self-financing Medical Colleges. 14.The second challenge to the declaration form, i.e. failure to mention in the declaration specifically as to the seats available in the Government Colleges, Government seats available in the Self- financing Medical Colleges and the seats available under Management quota in the Self-financing Medical Colleges are concerned, this challenge to the declaration is totally of misconception. First of all, it must be noticed that the counselling is being done only for allotment of seats earmarked for the Government, be it to a Government college or a Government seat available in a self-financing college. As already pointed out, the prospectus refers only two categories of seats, i.e., Category I – Government Medical Colleges and Category II – Self-financing Medical Colleges. Therefore, the two columns in the declaration form must relate to Category I and Category II seats respectively and not otherwise. Further, the admission to self-financing colleges as against the seats meant for Management quota is not covered under Clauses 23, 27(1), 40 (a) and 41. If that be so, the column referring to Government must relate to the seats available in Category I – Government Medical Colleges and the column referring to Self-financing colleges must relate to the Government seats available under Category II – Self Financing Medical Colleges. When the candidates had not opted to be considered for their selection as against self-financing seats in Category II, it cannot be now contended that the column is vague. That apart, it is https://hcservices.ecourts.gov.in/hcservices/ to be noticed that on the date when each of the candidates had opted to be wait-listed as against the Category I seats, seats in the self- financing colleges were available and even then they had not chosen to opt for the same. 15.As far as the third contention that this declaration form was furnished at the time of counselling taking the candidate by surprise and therefore, any declaration made in the form cannot be taken into consideration to disentitle the candidates to opt for self-financing colleges as well is concerned, we find some force in the contention as to the declaration form which is produced to the candidate at the time of counselling even without any indication of the contents of the form in the prospectus. It would be a full proof prospectus if the prospectus also includes the declaration form so as to enable the candidate to go through the contents of the declaration form well in advance and to make up their mind. However, that cannot be a ground now to question that the declaration form cannot be taken to be binding on the candidates. So long as the declaration form is in conformity with the provisions of the prospectus, merely because it is not included in the prospectus by way of an Annexure, the declaration so made cannot be invalidated or we cannot hold that it is not binding on the candidates so as to give a go-by to such declaration to claim a seat to which otherwise such candidate has not opted for. Hence, for all the above reasons, we reject all the contentions relating to the challenge to the declaration form. 16.That apart, we have made an effort by comparing the merit of each of the candidates as to their entitlement for selection. We have made comparison on two aspects, viz., 1) on communal roster basis and 2) on the basis of merit (rank). Insofar as the candidate by name Deepika is concerned, she belongs to M.B.C. and her cut-off mark is 193. At the time when she was considered for Government colleges, as the cut-off mark was 193.25, she was wait-listed in serial No.25. When the third counselling candidates belonging to M.B.C. with communal reservation No.360 to 403 were called for, she was not considered, as her communal roster number is 407. Therefore, the said candidate cannot have any grievance over the failure on the part of the appellants to call her for counselling. Even going by the rank on the basis of merit, her cut-off mark is 193 and as the cut-off mark for the counselling for selection was 193.25, she was wait-listed in serial No.25. The seats reserved for M.B.C. candidates in Dharmapuri college are only 16 and therefore, she will not be eligible for selection, as there are eight candidates over and above her beyond the 16th candidate. 17.Insofar as the candidate Gomathy is concerned, she belongs to B.C. and her cut-off mark is 194.75. When the cut-off mark for the last candidate to