WP(C) 2537/2008 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE B.K.SHARMA Ranjan Gogoi, J Writ Appeal No. 162/2008 has been instituted against an order da ted 9.6.2008 passed by a learned Single Judge of this Court in a proceeding regi stered and numbered as WP(C) No. 1954/2008. By the aforesaid order dated 9.6.200 8, the Writ Petition filed by the present appellant has been dismissed. Another Writ Petition i.e. WP(C) No. 2537/2008 has been instituted by the present appell ant seeking certain extended reliefs, on additional grounds based on facts not p leaded in the earlier Writ Petition i.e. WP(C) No. 1954/2008. Both the Writ Appe al and the Writ Petition i.e. WP(C) No. 2537/2008 having been listed for analogo us consideration were heard together and are being disposed of by this common or der. 2. We have heard Mrs A Sharma, learned counsel for the appellant/ w rit petitioner; Mr D Saikia, learned Standing Counsel, Health Department; Mr DC Chakraborty, learned counsel for the respondent Nos. 6,7 and 8; Mr GP Bhowmik, l earned counsel for the respondent No.9 and Mrs P Barman, learned counsel for the respondent No.10. (The reference to the parties is as per the list of responden ts in WP(C) No. 2537/2008 in view of the extended issues arising in the said wri t petition). 3. The relevant facts which emanate from the pleadings of the parti es in WP(C) No. 1954/2008, W.A. No. 162/2008 and WP(C) No. 2537/2008 may now be briefly recapitulated. The appellant/ writ petitioner completed his BDS Course from the Regional Dental College at Guwahati in the year 2005. On 3.1.2008, an advertise ment was published by the Principal of the Regional Dental College inviting appl ications for an entrance examination to be held on 30.1.2008 for admission into the Post Graduate Dental Course for the session 2008-2009. The said admissions w ere in respect of the Assam quota and were stipulated to be for two seats in the specialties of Periodontics and Prosthodontics. On 18.2.2008, a corrigendum was issued to the effect that the entrance examination will be for the specialty su bjects of Prosthodontics and Orthodontics instead of Periodontics and Prosthodo ntics. The date of the entrance examination remained as earlier stipulated i.e. 30.1.2008. 4. Ten seats in five different specialty courses, the details of wh ich are noted below, are available in the Regional Dental College at Guwahati: Subject Total Seats AIQ Assam Quota NEC Quota Operative/Conservative Dentistry 2 1 - 1 Oral & Maxiofacial Surgery 2 1 - 1 Orthodontic 2 1 1 - Periodontic 2 1 1 - Prosthodontic 2 1 1 - _____________________________________________________ Total seats 10 5 3 2 Out of the aforesaid ten seats (two each in the five specialty s ubjects), five seats are allotted under the All India Quota whereas the remain ing five seats are for the North-Eastern States. Out of the five seats of the St ates’ quota, two seats are reserved under the North Eastern Council and three se ats are available against the quota for the State of Assam. The advertisement da ted 3.1.2008 was, however, for two seats, as already noticed, inspite of the quo ta for the State of Assam being three. Further details in this regard will be no ticed in due course. The specialty courses in the subjects of Periodontics and O perative Dentistry commenced in the Regional Dental College in the year 1997 whe reas other subjects i.e. Orthodentics, Prosthodentics and Oral Surgery started f rom the year 2006-07. It may be put on record, at this stage, that for the afore said subjects i.e. Orthodentics, Prosthodentics and Oral Surgery the Dental Coll ege had to await approval of the Dental Council of India before formally admitti ng students to the Post Graduate courses of the year 2008-09. 5. In so far as admission to the Post Graduate Dental Courses are c oncerned, there are two circulars which lay down the norms for such admission. T he first circular is dated 26.8.97 and the second circular is dated 2.9.98. Whil e in terms of the first circular dated 26.8.97 admission is to be governed by th e aggregate of marks secured in the BDS Examination, the second circular dated 2 .9.98 contemplates admission on the basis of an entrance examination. 6. As already noticed, the advertisement dated 3.1.2008 had mention ed two seats for which the entrance examination was to be held, though the State quota was three. This was because the respondent No. 10 in WP(C) 2537/2008, Dr. Arup Kumar Rabha was allotted one seat in Periodontics (subsequently changed to Orthodontics) as a departmental candidate. The appellant/ writ petitioner appea red in the entrance examination held on 30.1.2008 which was conducted by the Gau hati University and on the basis of marks secured by him in the said examination he was placed in the second position. The respondent No. 9 in the said writ pet ition (respondent No.8 in the Writ Appeal), Dr. Debojyoti Roy having secured the highest marks in the entrance examination was placed in the first position. The first counseling took place on 9.4.2008 and at the conclusion of the same while Dr. Debojyoti Roy was placed at serial No. 1, the appellant/ writ petitioner wa s placed at serial No.2. Thereafter, anther round of counseling took place on 11 .4.2008 for allotment of the specialty subject. The proceedings of the said coun seling were conducted on the basis of the aggregate marks secured by the candida tes in the BDS Examination. At the conclusion of the said second round of counse ling, while the appellant/ writ petitioner was placed at 1st position, the respo ndent, Dr. Debojyoti Roy was placed in the 2nd position. The appellant/ writ pe titioner was allotted the subject of Orthodontics whereas the respondent Dr. Deb ojyoti Roy was allotted the subject of Prosthodontics. As the necessary approval of the Dental Council of India for commencement of the Post Graduate courses in the aforesaid two subjects as well as Oral Surgery was yet to be received, both the aforesaid two candidates were required to furnish an undertaking to the eff ect that they would not have any claim over any other subject in case the Dental Council of India does not grant the necessary approval. 7. On 26.4.2008 the Dental Council of India granted approval for co mmencement of the Post Graduate courses in the subjects of Oral Surgery and Orth odontics for the session 2008-2009 but refused such approval in respect of the s ubject of Prosthodontics which was allotted to the respondent No.8 in the Appeal , Dr. Debojyoti Roy. Thereafter, the respondents held a re-counseling of the can didates on 23.5.2008 wherein the seat in the subject of Orthodontics earlier all otted to the appellant/ writ petitioner came to be subsequently allotted to the respondent Dr. Debojyoti Roy. Aggrieved by the aforesaid re-counseling, WP(C) No . 1954/2008 out of which this appeal has arisen, was instituted. The said Writ P etition having been dismissed, as already noticed, Writ Appeal No. 162/2008 has been instituted. Challenging the nomination of Dr. Arup Kr. Rabha [respondent No .10 in WP(C) 2537/2008], as a departmental candidate as well as the nomination o f the respondent Nos.11 and 12, the subsequent Writ Petition i.e. WP(C) No. 2537 /2008 has been instituted. 8. Three main grounds have been projected on behalf of the appellan t/ writ petitioner in the appeal filed as well as in the subsequent Writ Petitio n i.e. WP(C) No. 2537/2008. According to the appellant/ writ petitioner, the cir cular of 1998 provided for initial admission to the Post Graduate courses on the basis of the entrance examination. The selected candidates are to be allotted s ubjects of their preference in terms of the circular of 1997 under which the agg regate marks secured in the BDS Examination are to be taken into account. The ap pellant/ writ petitioner has brought on record the proceedings of the similar ex ercise done earlier to contend that such a practice has been all along followed. In such a situation, according to the appellant/ writ petitioner, the re-counse ling held on 23.5.2008, on the basis of which the seat in Orthodontics was allot ted to Dr. Debojyoti Roy, is wholly illegal. The next ground urged on behalf of the appellant/ writ petitioner is that the nomination of the respondent No.10, D r. Arup Kr. Rabha as a departmental candidate is wholly bad. In this regard, the explanation offered by the official respondents in para 14 of the counter affid avit filed in WP(C) No. 2537/2008 has been contended to be disclosing an exercis e which is impermissible and unacceptable in law. Consequential violation of the Rule of maximum permissible reservation (3 out of the 5 seats earmarked against the States’ quota came to be ’reserved’) has also been pointed out on behalf of the appellant/writ petitioner. It is, therefore, urged that the seat allotted t o Dr. Arup Kr. Rabha should go to the pool of seats for which the entrance exami nation was held, in which event, even if the subject/ specialty is to be decided on the basis of the 1998 circular, the appellant/writ petitioner being at seria l No.2, would have been entitled to admission against the said seat. Lastly, it has been urged that the candidates nominated by the North Eastern Council could not have been so nominated for admission without appearing in the entrance exami nation. 9. In reply, it is the case of the respondents that the 1997 circul ar stood superceded by the subsequent circular of 1998. This is also what has b een held by the learned Single Judge in the order dated 9.6.2008 disposing of WP (C) No.1954/2008. In so far as the nomination of Dr. Arup Kr. Rabha is concerne d, the averments made in para-14 of the counter affidavit, have been pointed out to contend that when additional six seats in three specialty courses of Orthodo ntics, Prosthodontics and Oral Surgery became available for the first time for t he academic session 2006-07, the State Government moved the Central Government f or extension of time for staring the Post Graduate Courses in the aforesaid thre e specialty subjects. Eventually communication came to the State Government at a stage when there was no time for holding any entrance examination. The seats were going waste, and, therefore, the State Government took a conscious policy d ecision that the departmental candidates may be chosen to undertake the said Pos t Graduate courses. This was done in larger public interest. However, one candi date i.e. Dr. Arup Kr. Rabha was inadvertently left out of the process and on re presentations being submitted by him, another conscious decision was taken that one seat from the State quota for the academic session 2008-09 should be kept ou t of the purview of the entrance examination to accommodate the aforesaid candid ate who was inadvertently left out. Accordingly, one seat was allotted to the s aid candidate thereby bringing down the number of seats advertised to two. In s o far as the nomination of the North Eastern Council candidates is concerned, it is the case of the official respondents that 1998 circular applies to the seats under the Assam Quota and not to the North Eastern Council quota of seats 10. Apart from the above contentions, Sri Saikia, learned department al counsel has submitted that the 2008-2009 course commenced from the first week of June, 2008 and presently more that 1 ‰ years of the three years course is ov er. Sri Saikia has further submitted that in terms of the law laid down by the A pex Court in Medical Council of India -vs- Madhu Singh & Ors. reported in (2002) 7 SCC 258 and Mridul Dhar (Minor) & Anr. -vs- Union of India & Ors. reported in (2005) 2 SCC 65, the appellant/ writ petitioner can, in no event, be admitted t o the academic session of 2008-2009 at this stage. 11. On a careful consideration of the issues that arise in the prese nt proceedings in the light of the pleadings of the parties and the arguments ad vanced, the Court is of the view that the first issue that needs to be decided i s the validity of the nomination of the respondent No.10 i.e. Dr. Arup Kr. Rabh a. This is because if the seat offered to the aforesaid candidate is found to ha ve been at the cost of the appellant/ writ petitioner, one more seat would come to the pool of the State quota increasing the number to three. Approval of the D ental Council in respect of two seats in the subjects of Oral Surgery and Orthod ontics, as already noticed, was accorded on 26.4.2008. The appellant/ writ petit ioner, undoubtedly, is second in order of merit even on the basis of the entranc e examination held as per the circular of 1998. 12. The explanation offered by the respondent State for the nominati on of Dr. Arup Kr. Rabha in para 14 of the counter affidavit has been noticed in details in an earlier part of this order. While the actions of the State in n ominating the departmental candidate to undertake the academic session of 2006-2 007 in a situation where the approval thereof came late leaving no time for hold ing the entrance examination has to be appreciated and acknowledged to be in pub lic interest, the subsequent decision of the Government taken in the year 2008 t o allot a further seat from the quota of open candidates to the departmental can didate on the ground that the said person was inadvertently left out in the year 2006-07 can hardly be appreciated. In the altered situation, where the seats un der the State quota were to be filled up by holding a competitive examination, s urely, the acceptable course of action would have been not to take away one seat from the open pool and allot it to a departmental candidate but to fill up all the seats available against the States’ quota on the basis of the entrance exami nation. Not much persuasion, therefore, will be required for the Court to take t he view that the allotment of the seat to the respondent No. 10, Dr. Arup Kr. Ra bha has been on grounds which are not legally tenable and acceptable. The afores aid seat should have been included in the pool of seats to be filled up by compe titive/ entrance examination, in which event, the appellant/ writ petitioner bei ng at Serial No. 2 in order of merit, was, surely, entitled to the said seat eve n if the contention of the appellant/ writ petitioner that allotment of subjects is to be made on the basis of aggregate marks is to be rejected and the submiss ion of the State that such allotment is to be on the basis of the result of the entrance examination is to be accepted. 13. The net result of the above discussion is that the seat allotted to Dr. Arup Kr. Rabha will now have to be treated as a seat available for being filled-up on the basis of the entrance examination. However, we have noticed th at more that 1 ‰ years of the three years’ course is over. In view the decision laid down by the Apex Court in Madhu Singh (supra) and Mridul Dhar (supra) mid -stream admissions cannot be allowed. Details of the time schedule as published by the Central Government pursuant to the decision in Madhu Singh (supra) laying down the precise date(s) for conduct of the admissions to Graduate, Post Gradua te and Specialty Courses in Medical Sciences clearly indicating the last date wi thin which all admissions are to be made has been noticed in Mridhul Dhar (supra ) . In terms of the time schedule published by the Central Government, the Medic al Council of India has made appropriate provisions in its Regulations governing admissions, the details of which have also been noticed in Mridul Dhar (supra). No departures from the time schedule laid down would be permissible in any situ ation 14. The Court has noticed that as per the time schedule published by the Central Government and engrafted in the Regulations of the Medical Council of India, the Post Graduate courses are to begin on 1st May of a calendar year, though 31st May has been stipulated as the last date for all categories of admis sions for whatever reason(s). In other words, after completion of the admission process the anomalies therein can be corrected, though all such corrections, inc luding corrections on the strength of Court orders, would have to be completed b y 31st May of a calendar year. The operation of the aforesaid Rule must have giv en rise to certain difficulties and even exceptional cases, perhaps, had to be t urned down on the ground that the last date for admission is over. To ameliorate the situation, the Apex Court had once again stepped in by holding that in such cases directions for admission in a subsequent academic session would be permis sible. Such directions have been rendered by the Apex Court in the case of Aman Deep Jaswas -vs- State of Punjab & Ors., reported in (2006) 9 SCC 597 and in Med ical Council of India -vs- Naina Verma & Ors., reported in (2005) 12 SCC 626. 15. A reading of the aforesaid two judgments of the Apex court would indicate that while admission beyond the last date stipulated by the time sched ule laid down by the Central Government and adopted by the Medical Council of In dia as a part of its Regulations is not permissible even to a candidate who had been wrongfully denied admission, the case of such a candidate can be directed t o be considered against a subsequent academic session. In Aman Deep Jaswal (sup ra) the Apex Court had also taken the view that a candidate wrongly admitted may , if the facts of the case so justified, be allowed to continue and complete the course notwithstanding the initial illegalities in his admission. 16. In the present cases, there can be no manner of doubt that the r espondent No. 10, Dr. Arup Kr. Rabha had been wrongly admitted in the academic s ession 2008-2009 whereas the appellant/ writ petitioner was wrongfully denied ad mission in the same academic session. The law laid down by the Apex Court in Ama n Deep Jaswal (supra) and Naina Verma (supra) would act as a binding precedent on this Court to take the view that the equitable considerations surrounding the case of Dr. Arup Kr. Rabha must receive due consideration of the Court in formu lating the final relief that should be afforded to the parties. On such consider ation, we are of the view that it would be just and proper to direct that Dr. Ar up Kr. Rabha be allowed to complete the Post Graduate Course of the session 2008 -2009 and the wrong committed in so far as the appellant/ writ petitioner is con cerned, be redressed by admitting him in the next academic session i.e. 2010-201 1 by allotting one seat out of the State quota, if possible in the subject of hi s choice i.e. Orthodontics. So viewed no other issue arising in the case would r equire our consideration. 17. Consequently, both the Writ Appeal as well as the Writ Petition shall stand disposed in the above terms.