IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1629 of 2009 1. THE NATIONAL BOARD OF EXAMINATIONS, A SOCIETY FORMED BY THE MINISTRY OF HEALTH & FAMILY WELFARE GOVERNMENT OF INDIA, NAMS BUILDING, ANSARI NAGAR, MAHATMA GANDHI MARG (RING ROAD), NEW DELHI– 110029. 2. THE EXECUTIVE DIRECTOR, MINISTRY OF HEALTH & FAMILY WELFARE, GOVERNMENT OF INDIA, NAMS BUILDING, ANSARI NAGAR, MAHATMA GANDHI MARG (RING ROAD), NEW DELHI – 110029. ….RESPONDENTS-APPELLANTS. VERSUS 1. DR. RANJIT KUMAR S/O SH RAMJIWAN KUMAR R/O BEENA NURSING HOME, POKHARIA, NEAR S.P. OFFICE, P.S.- BEGUSARAI (TOWN), DISTT.- BEGUSARAI, BIHAR. …WRIT PETITIONER-RESPONDENT. 2. THE DIRECTOR, INDIRA GANDHI INSTITUTE OF MEDICAL SCIENCES BAILEY ROAD, SHEIKHPURA, PATNA. (MEMBER OF SELECTION COMMITTEE FOR INSTITUTIONAL ASSESSMENT). 3. THE HEAD OF DEPARTMENT (UROLOGY) INDIRA GANDHI INSTITUTE OF MEDICAL SCIENCES, BAILEY ROAD, SHEIKHPURA, PATNA (MEMBER OF SELECTION COMMITTEE FOR INSTITUTIONAL ASSESSMENT). 4. DR. AKHILESH PRASAD SINHA, THE EXPERT R/O EAST BORING CANAL ROAD, PATNA (MEMBER OF SELECTION COMMITTEE FOR INSTITUTIONAL ASSESSMENT). 5. THE DEAN, INDIRA GANDHI INSTITUTE OF MEDICAL SCIENCES, BAILEY ROAD, SHEIKHPURA, PATNA (MEMBER OF SELECTION COMMITTEE FOR INSTITUTIONAL ASSESSMENT). 6. THE REGISTRAR INDIRA GANDHI INSTITUTE OF MEDICAL SCIENCES, BAILEY ROAD, SHEIKHPURA, PATNA. 7. THE UNION OF INDIA, THROUGH THE SECRETARY MINISTRY OF HEALTH & FAMILY WELFARE, GOVERNMENT OF INDIA, NEW DELHI – 110029. - 2 - 8. THE STATE OF BIHAR THROUGH THE COMMISSIONER - CUM - SECRETARY DEPARTMENT OF HEALTH, GOVERNMENT OF BIHAR, PATNA. 9. THE DIRECTOR, INDIRA GANDHI INSTITUTE OF MEDICAL SCIENCES, BAILEY ROAD, SHEIKHPURA, PATNA. ..RESPONDENTS/RESPONDENTS. For the appellants : Mr. Abhaya Kumar Singh, Senior Advocate. For respondent no.1 : Mr. Binod Kumar Singh, Advocate. ----- 08. 22.03.2010 Though this appeal was directed to be listed on 23.03.2010, yet it has been erroneously listed today. Ordinarily, we would have adjourned to 23.03.2010, but Mr. Abhaya Kumar Singh, learned senior counsel appearing for the appellants fairly stated that he has no objection to argue the matter. Mr. Binod Kumar Singh, learned counsel who was representing the writ petitioner, has entered appearance and fairly stated that he has no objection if the matter is taken up today. In view of the aforesaid concession given, the appeal is heard. 2. In this appeal, the challenge is to the order dated 17.09.2009 passed by the learned single Judge in CWJC No.12304 of 2009. 3. The facts in a nutshell are that the writ petitioner- the respondent no.1 herein had applied for - 3 - admission in Super Specialty Course in pursuance of the National Board Centralised Entrance Test Super Specialty Courses (CET-NBE) 2009. He became successful and was placed at serial no.2 in the merit list below serial no.1 Dr. Sanjay Prakash. Dr. Sanjay Prakash who was issued a call letter for admission on 25.03.2009 by the I.G.I.M.S., Patna after the expiry of the last date fixed for admission. He chose not to join the course. At that juncture, the 1st respondent- writ petitioner applied for admission on the ground that as he was placed below Dr. Sanjay Prakash, his case be considered for admission in the Super Specialty Course at I.G.I.M.S. Patna. As his request was not considered, he moved this court in CWJC No.7761 of 2009 wherein this court directed the authorities of the National Board of Examinations to consider the request of the petitioner for admission in the course. The Board, as is manifest, rejected the prayer of the writ petitioner which compelled him to move this court under Article 226 of the Constitution of India. 4. It was contended before the learned Single Judge that the delay and laches were on the part of I.G.I.M.S, Patna and the writ petitioner was not at fault - 4 - and, therefore, he should not be allowed to suffer. It was also submitted that as he had become successful in the selection test, which was undisputed fact, there was no reason to deny him admission. The learned Single Judge appreciating the aforesaid submissions has held thus: “I however taking into account the nature of dispute and the contents of the impugned order deemed unnecessary to grant time to file counter affidavit as it is evident from the impugned order dated 13th August,2009, Annexure-1, that the request of the petitioner for admission has been refused by the Executive Director of the National Board of Examinations on the ground of laches on the part of the institution, namely, I.G.I.M.S., Patna in issuing the offer of admission to Dr. Sanjay Prakash on 25th March,2009 i.e. after expiry of the last date for admission i.e. 7th March,2009. According to this Court delay and laches on the part of the institution can hardly be a ground to refuse admission to a candidate who has become successful in the examination. 5. In this connection, it is pointed out that there is only one seat of Super Specialty/ subject in the I.G.I.M.S., Patna and the course shall begin after the candidate is admitted. According to counsel for the petitioner, it is hardly relevant if delay was caused in admission by the institution concerned. The student admitted in the Super Specialty subject/ course shall be completing the course after passage of the required time from the date of his admission as there is no other student for the course.” 5. Being of this view, the learned Single Judge directed the National Board of Examinations to admit the - 5 - writ petitioner in I.G.I.M.S, Patna. The said order is the subject matter of assail in this appeal. 6. When this matter was listed on 21.01.2010 this court passed the following order: “Heard Mr. Abhay Kumar Singh, learned Senior counsel for the appellant and Mr. Vinod Kumar Singh, learned counsel for the 1st respondent. In course of hearing of this appeal a suggestion was given to Mr. Abhay Kumar Singh whether the National Board of Examinations, without prejudice to the contentions raised on behalf of the appellant and resistance of the contesting respondents, would be gracious enough, not as a principle but as an one time measure to sustain the admission of the student, who might have on an erroneous conception, given admission. Mr. Abhay Kumar Singh, learned Senior counsel for the appellant, fairly stated that he would like to impress upon the National Board of Examinations keeping in view the special features of the case as the petitioner is lone one of its breed so that the authorities do not harbour any kind of apprehension that they will be slammed with similar orders in future. To enable Mr. Singh to obtain the requisite instruction, let the matter be listed on 02-02- 2010. The matter shall be taken at 2. 30 P.M. Let a free copy of the order be handed over to Mr. Avanish Kumar Singh, learned instructing counsel to the National Board of Examinations by tomorrow (22-01-2010).” 7. Again on 18.03.2010, the following order came to be passed: “Heard Mr. Abhaya Kumar Singh, learned - 6 - Senior counsel appearing for the appellant. None appears for the respondents. It is submitted by Mr. Singh that National Board of Examination is not in a position to take any decision to adjust respondents in the College in question to prosecute studies. At this juncture, we made query from Mr.Singh whether respondents are prosecuting studies at present. Mr. Singh being assisted by Mr. Avanish Kumar, prays for some time to obtain instruction in the matter. Let the appeal be listed on 23-03-2010. It shall be indicated in the cause list that appeal shall be taken up at 2 P.M.” 8. Mr. Singh, learned senior counsel appearing for the appellants has apprised us that the 1st respondent- writ petitioner has already been admitted on 08.10.2009 and prosecuting his studies. In this context, it is urged by Mr. Singh that the writ petitioner has been admitted but the said admission has taken place after the cut-off date, i.e. 07th March, 2009. It has also been fairly stated by Mr. Singh that the writ petitioner was the only contestant and a singular seat was vacant. 9. Mr. Binod Kumar Singh, learned counsel appearing for the 1st respondent herein submitted that as the writ petitioner has already been admitted and prosecuting his studies and there has been no laches on his part and he does not suffer from any kind of ineligibility, setting aside - 7 - the admission would not be appropriate. In essence, Mr. Binod Kumar Singh, learned counsel for the 1st respondent –writ petitioner submitted that equity is in his favour and this may be done as a one time measure keeping in view the concept of complete justice. 10. In this context, we may fruitfully refer to the decision of the Apex Court in Medical Council of India Versus Manas Ranjan Behera and others, (2010) 1 Supreme Court Cases 173, wherein their Lordships after referring the decision in Mridul Dhar V. Union of India, (2005) 2 SCC 65, have passed the following order: “2. It may be noticed in Mridul Dhar v. Union of India, (2005) 2 SCC 65, this Court directed that all the parties shall comply with the directions issued by this Court as regards admission of students in the medical and dental colleges. In Direction 15 of para 35 of the judgment, we had also indicated. “Time schedule provided in the Regulations shall be strictly adhered to by all concerned failing which the defaulting party would be liable to be personally proceeded with.” In view of these directions, the High Court should not have passed the impugned order. 3. However, we have noticed that these twelve students were eligible and because of unprecedented situation, they could not secure admission within the prescribed time-limit. We condone the delay in giving admission to them as a one –time measure. However, we clarify that the time schedule prescribed by this court should be followed strictly.” - 8 - 11. Mr. Abhaya Kumar Singh, learned senior counsel appearing for the appellants submitted that the said direction had been issued in exercise of power conferred under Article 142 of the Constitution of India and cannot be treated as a precedent. 12. Though we find substance in the submission of Mr. Abhaya Kumar Singh, learned senior counsel appearing for the appellants that the said direction of their Lordships of the Apex Court has been issued in exercise of power under Article 142 of the Constitution of India, yet regard being had to the special features which have been frescoed in the present case, we are inclined to hold that the admission given to the writ petitioner-the respondent no.1 herein, should not be disturbed inasmuch as the institution which is an accredited institution with the National Board of Examinations was at fault and the first respondent-student was vigilant and his conduct does not reflect any kind of delay and laches. 13. Considering the totality of the circumstances, as a one time measure, we uphold the admission and proceed to state that in every case of admission after the cut-off date it cannot be treated as a - 9 - precedent case, having special features. Needless to emphasise, once the admission is upheld, the National Board of Examinations shall proceed to complete all other formalities as required under the Rules and Regulations. 14. The appeal is disposed of accordingly. There shall be no order as to costs. Sunil (Dipak Misra, C.J.) (Mihir Kumar Jha, J.)