IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIRST DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE THE CHIEF JUSTICE AND THE HON'BLE MR JUSTICE R.SUBHASH REDDY Writ Petition No.11793 of 2008 Between: 1) Dr.S.Nagesh S/o.S.Brahmaiah Resident of Room No.352 New Men`s Hostel, Osmania Medical College, Koti, Hyderabad 2) Dr.G.Srinath S/o.D. Gopinath Resident of 6-4-361/5, Bholakpur, Secunderabad 3) Dr.G.Sravan Kumar S/o.Krishnamurthy Resident of 15-103, Beside MM Court narsampet, Warangal 4) Dr.K.Sailaja D/o.K.Nagaraju H.No.18-53/2, Kamalanagar, Dilsukhnagar Hyderabad 5) Dr.Shiva Kumar Wurity S/o.nagehswar Rao R/o.H.No.3-4-174/7/1/A Behind Fillmore Petrol Pump Hyderguda, Hyderabad 6) Dr.G.V.V.Sivaram S/o.G.Seetharamaiah D-316, Renuka Apartments Ananadnagar, Khairatabad, Hyderabad ... PETITIONERS AND 1) State of AP., rep. by its Principal Secretary, Health & Medical Department, Government of Andhra Pradesh, Saifabad, Hyderabad 2) The Dr.NTR University of Health Sciences, Andhra Pradesh Vijayawada, Rep. by its Registrar 3) Medical Council of India., rep. by its Secretary, Pocket 14 Sector 8, Dwaraka Phase-1, New Delhi-77 ...RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue an appropriate writ or order or direction one in the nature of writ or mandamus: i. declaring in Rule III of G.O.Ms.No.74 dated 21.3.2006 and Regulation 9 of Regulations as notiﬁed in the prospectus and AP Educational Institutions (Regulation of Admissions) Order 1974, for admission into PG Medical Degree./Diploma Courses for the academic year 2008-09 as arbitrary, illegal, void and violative of Article 14 and 371 D of the Constitution of India and consequently set aside the illegal admissions appropriate direction may be issued in the circumstances of the case ii. a direction may be issued to the Respondents to conduct fresh counseling for admission into PG Medical Degree and Diploma Courses for the Academic year 2008-09 by following due procedure prescribed in G.O.Ms.No.74 dated 21.3.2006 and regulations notiﬁed in the prospectus iii. costs be awarded to the petitioners. Counsel for the Petitioners: MR.B.MAHENDER REDDY Counsel for Respondent No.1: GP FOR MEDICAL HEALTH & FAMILY WELFARE Counsel for Respondent No.2: MR.D.V. NAGARJUNA BABU Counsel for Respondent No.3: MR. S. NIRANJAN REDDY The Court made the following: O R D E R: (per Hon’ble Shri Anil R. Dave, Chief Justice) 1. By way of public interest litigation, the petitioners, who are all possessing MBBS Degree and are aspiring to do post-graduation in medical degree and/or diploma courses for the academic year 2008-09, have approached this Court with a grievance that counseling and selection process for admission to Post-Graduate Medical Degree and Diploma Courses for the afore-stated academic year was not done as per the provisions of the Andhra Pradesh Medical Colleges (Admission into Post-Graduate Medical Courses) Rules, 1997 (for short, ‘the 1997 Rules’). 2. The main grievance, which has been ventilated in the petition ﬁled by them, is that at the time of the continued ﬁrst phase of counseling, all the candidates were not oﬀered 93 seats, which had been additionally notiﬁed during the process of counseling. According to them, because of the said irregularity committed by the respondent authorities, not only they have suﬀered, but several other similarly situated candidates have also suﬀered and, therefore, the entire process should be set aside and a fresh counseling for admission to Post-Graduate Medical Degree and Diploma Courses for the academic year 2008-09 should be done. 3. Relevant facts necessary to decide the grievance ventilated in the petition are as under: Notiﬁcation dated 15.4.2008 was issued by respondent No.2 declaring that counseling would be conducted for 819 seats for admission to Post-Graduate Medical Degree/Diploma Courses for the academic year 2008-09. The counseling was scheduled to commence on 21.4.2008 and the same was to be over by 27.4.2008. The said counseling was to be conducted in respect of 819 candidates. 4. After completion of the ﬁrst phase counseling, a Larger Bench of this Court in Writ Petition No.15267 of 2008 and batch passed an interim order on 29.4.2008 staying the reservations to B.C. (E) category i.e. reservations to Socially and Educationally Backward Classes of Muslim Minority students. In pursuance of the said order of this Court, the respondent authorities vide Notiﬁcation dated 11.5.2008 cancelled the afore-stated counseling held from 21.4.2008 to 27.4.2008. In the said notiﬁcation, the respondent authorities have also intimated the dates for re-counseling of the admissions from 17.5.2008 to 22.5.2008. 5. Being aggrieved by the order dated 29.4.2008 passed by the Larger Bench of this Court in Writ Petition No.15267 of 2008, the concerned parties carried the matter to the Hon’ble Supreme Court challenging the afore-stated interim order. The Hon’ble Supreme Court passed an order permitting the respondent authorities to proceed with the counseling, but not to admit B.C. (E) Category candidates. 6. In the meanwhile, by a communication dated 26.4.2008 received by respondent No.2 from the Director of Medical Education on 07.5.2008, intimation with regard to sanction of 93 additional seats for admission to Post Graduate Medical and Diploma Courses was received. 7. In view of the orders passed by the Hon’ble Supreme Court, the respondent authorities, vide Notiﬁcation dated 19.5.2008, revived the ﬁrst phase counseling done from 21.4.2008 to 27.4.2008 and informed that the admissions made during the said period are valid. In the said notiﬁcation, the respondent authorities had also cancelled the scheduled re-counseling, which was to take place from 17.5.2008 to 22.5.2008. 8. In the same notiﬁcation, the respondent authorities announced the dates for continuing the ﬁrst phase of counseling on 22.5.2008 and 23.5.2008 to ﬁll up the 93 additional seats, which were made available under communication dated 26.4.2008. 9. In the notiﬁcation dated 19.5.2008, the respondent authorities had also announced the dates for the second phase of counseling i.e. for ﬁlling up the vacant seats after the first counseling, as 24th, 25th and 26th May, 2008. 10. As there was addition to the existing 819 seats, at the time of continued ﬁrst phase of counseling, those 93 new seats had been added and the candidates, including those who had participated in the ﬁrst counseling and had selected their course of studies, were oﬀered the additional seats so as to enable them to make changes, if they thought it necessary. 11. Accordingly, during the continued ﬁrst phase counseling, the additional 93 seats were also oﬀered to each and every candidate and in the process of counseling several students opted for admission to the degree courses, which they had selected in the ﬁrst phase of counseling whereas some candidates switched over to diﬀerent degree/diploma courses. Thus, options were given to each and every candidate with regard to 93 additional seats and the candidates duly availed the beneﬁt of those 93 seats in the course of the continued first phase counseling. 12. The grievance, which has been ventilated by the petitioners, is that the entire counseling process should have been started de novo upon 93 additional seats being made available to the candidates. According to the petitioners, certain seats which became vacant in the course of the continued ﬁrst phase counseling were not oﬀered to less meritorious persons at the time when counseling was going on for them i.e. the resultant vacancies were not oﬀered to less meritorious students in the continued ﬁrst phase counseling. 13. It is pertinent to note that by virtue of Regulation 11 of the Regulations for admission to Post-Graduate Medical Courses and Diploma Courses, 2008, the matter with regard to counseling should be over and admission to the selected Post-Graduate Medical Degree/Diploma Courses should have been over by 31.5.2008. In the instant case, the second phase counseling was over by 26.5.2008 and vide Notiﬁcation dated 19.5.2008 issued by respondent No.2 the selected candidates were also intimated that they should report to the Principals of the respective colleges on or before 27.5.2008 without fail. 14. This petition, which is in the nature of public interest litigation, was ﬁled on 30.6.2008 making a grievance that the counseling was not properly done and as a result thereof, some injustice was caused to several persons. 15. In pursuance of notice issued to the respondents, the respondents have appeared and ﬁled their counter- affidavits. 16. Upon perusal of the counter-aﬃdavits, it is clear that in the continued ﬁrst phase of counseling, the candidates were oﬀered 93 additional seats, which were made available on 07.5.2008 along with other seats which had remained vacant in the course of the ﬁrst phase counseling held from 21.4.2008 to 27.4.2008. Thus, according to the stand taken by the respondent authorities, no harm had been caused to any of the candidates. It has been speciﬁcally stated in the counter-aﬃdavit ﬁled on behalf of respondent No.2 that, in fact, petitioner Nos.1 to 3 had opted for another degree/diploma course at the time of continued ﬁrst phase counseling whereas petitioner Nos.4, 5 and 6 did not opt for any change in the continued ﬁrst phase of counseling either because they had got admission to the degree course which they wanted or it was not possible for them to have a better choice in view of their position in the merit list, but it is undisputed that out of six petitioners, at the time of continued ﬁrst phase counseling, three petitioners had opted for courses other than those which they had selected earlier. 17. We have heard the learned advocates at length and have also perused the record pertaining to the case. 18. Though it has been submitted that no harm was caused to any of the students in the process of counseling because the respondent authorities had acted in accordance with the rules and more particularly the provisions of Rule 3 of the 1997 Rules, upon perusal of the counter-aﬃdavit ﬁled by respondent No.2 it appears that the seats vacated by the students in the ﬁrst phase of counseling had not been oﬀered to less meritorious students in the continued ﬁrst phase of counseling. This denotes that resultant vacancies created in the continued ﬁrst phase of counseling had not been oﬀered to less meritorious students, who were below in the merit list, but the resultant vacancies were oﬀered to students only in the second phase of counseling. This could have made some changes in the subjects selected by the students. 19. Learned advocates for the respondents have mainly submitted in the course of their arguments that counseling was already over and the students had been given admissions to PG Medical Diploma or Degree Courses. It has been speciﬁcally stated in the counter that MCI has prescribed the cut-oﬀ date for admission to PG Medical Diploma and Degree Courses and as per the cut-oﬀ date, the admissions should be closed by 31.5.2008 and, therefore, no admission should be made after 31.5.2008. It has also been stated in the counter-aﬃdavit that classes had commenced from 2.5.2008 as per the directions of MCI. Possibly, the date appears to have been stated incorrectly because the counseling had been continued in the month of May, 2008 and we believe that the classes might have commenced from 2.6.2008 and not from 2.5.2008, as stated in the counter- affidavit. Be that as it may, the fact remains that as on today, procedure for admission is over and the academic year has also started. 20. Learned advocates appearing for the respondents have relied upon the following three judgments delivered by the Hon’ble Apex Court - Dinesh Kumar v. Motilal Nehru Medical College[1], Medical Council of India v. Madhu Singh[2] and Mridul Dhar v. Union of India[3]. 21. Upon looking to the ratio laid down in the said judgments, it is very clear that no admission should be given after the cut-off date. It is not in dispute that the cut- oﬀ date in the instant case is 31.5.2008 and classes have already commenced. If the counseling is done again, as prayed for in the petition, it might result into cancellation of some of the admissions because, some students might get admission to diﬀerent degree/diploma courses. Though the resultant changes might be less, we cannot rule out the possibility of some changes and in that event certain admissions to certain PG Medical Diploma or Degree Courses will have to be cancelled. In that event, upon cancellation of certain admissions, certain changes will have to be eﬀected and some students will be getting admissions in diﬀerent specialities – specialities which they had not opted for earlier. The result would be that fresh admissions will have to be given to such students at this juncture i.e. after the cut-oﬀ date i.e. 31.5.2008 and that would be in violation of not only the directions given by MCI, but also in violation of the law laid down by the Hon’ble Supreme Court in the case of Medical Council of India v. Madhu Singh (supra). The Hon’ble Supreme Court has clearly observed in para 22 of the said judgment that if any student is admitted after commencement of the course, it would be against the intended objects of ﬁxing the time schedule. Submission made before the Hon’ble Apex Court was that extra classes can serve the purpose by preventing loss to the national exchequer. Even while concluding the judgment, in clear terms, the Hon’ble Supreme Court has observed that there is no scope of admitting students’ mid-stream as it would be against the very spirit of statutes governing medical admission. 22. In our opinion, even in the instant case, making any change at this stage or a direction for re-counseling would result into cancellation of some admissions and consequently the students will have to be admitted to diﬀerent degree courses mid-stream and such an action would not only be disturbing the academic schedule of the students, but it would also result into violation of the law laid down by the Hon’ble Supreme Court. 23. The afore-stated principle has been reiterated by the Hon’ble Supreme Court in the case of Mridul Dhar v. Union of India (supra). 24. Looking to the law laid down by the Hon’ble Supreme Court in the afore-stated judgments, in our opinion, it would not be just and proper to pass any order with regard to re- counseling even though we cannot rule out the possibility of some changes if re-counseling is directed in the instant case. Re-counseling would ultimately result into new admissions to PG Medical Diploma and Degree courses and the students opting for a new course would be deprived of any admission because they cannot be given any admission mid-stream i.e. at this stage when classes have started for the present academic term. 25. For the afore-stated reasons, we do not think it proper to interfere in the matter though, in fact, we feel that re- counseling might result into some changes. We, therefore, do not entertain this petition in the larger interest of the students. 26. At this juncture, we are constrained to say that the government authorities including Medical Council of India should have given intimation with regard to new seats well in advance because the entire problem arose as additional seats were declared when the counseling had already been started. Of course, the delayed action or so-called mistake could have been rectiﬁed by respondent No.2 by canceling the entire ﬁrst phase of counseling and starting the counseling de novo, but somehow that has not been done. We are sure that in future, due care shall be taken to see that such situations are not created. 27. For the afore-stated reasons, Writ Petition No.11793 of 2008 is rejected with no order as to costs. ANIL R. DAVE, CJ August , 2008 R. SUBHASH REDDY, J svs ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{TRK} [1] (1987) 4 SCC 122 [2] (2002) 7 SCC 258 [3] (2005) 2 SCC 65