IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12144 of 2011 Dr.Spriha Smriti D/O Dr.I.S.Thakur Resident Of Malahi Pakri,Ps-Kankarbagh,District-Patna----------Petitioner Versus 1. The State Of Bihar Principal Secretary, Department Of Health, Medical Education and Family Welfare Govt. Of n Bihar Patna 2. Bihar Combined Entrance Competitive Board Govt. Of Bihar I.A.S. Bhawan Patna through its Secretary Bihar, Patna 3. The Principal, Patna Medical College & Hospital Patna----- --------------------------------------------------Respondents ---------------------------------- For the Petitioner: Mr. Ashok Singh Sr. Advocate Mr. P.K.Singh, Advocate Mr. Manisha Singh, Advocate For the BCECE Board: Mr. Vikas Kumar, Advocate For M.C.I : Mr. Kumar Brijnandan, Advocate For the State: Mr. Alok Ranjan, Advocate A.C to GP-17 ------------------- 3 26.8.2011 Petitioner has invoked the jurisdiction of the High Court under Article 226 of the Constitution of India. She wants issuance of mandamus against respondent no 2 i. e. Bihar Combined Entrance Competitive Board to permit her to be admitted in M. D. Pathology seat vacated on 28.6.2011 due to resignation of a candidate and acceptance thereof by the Principal of P.M.C.H. Submission of learned Senior counsel is that in terms of order of the Apex Court rendered in the case of Vivek Dudeja & Ors. Vs. Union of India along with another case (Writ Petition (Civil) No. 197 of 2011), a copy whereof has been annexed as annexure-A to the counter affidavit, filed on behalf of respondent no.2, the State authority specially respondent no.2 had an obligation to notify the vacant seat so caused by non-joining of any candidate from an All India Quota seats. Since the last date for allotment of seats had been fixed by Hon’ble Apex Court of 30th June, 2011. If the vacancy 2 position was notified well in time then the petitioner could have had a fair chance to opt for a course of her liking i.e. M.D. Pathology in PMCH instead of M.D. Physiology in DMCH. There is opposition to the writ application in the counter affidavit which has been filed both on behalf of respondent no.2 and the Medical Council of India. Their stand is that no relief of such kind can be given to the petitioner because even in terms of Hon’ble Supreme Court direction the vacancy position on 25th June, 2011 had to be notified for the second extended counselling which was held for others in terms of counter affidavit filed by respondent no.2. If the petitioner had exercised her option on 27.6.2011 during the extended seconding counselling and based on her option, admission was granted to her. Any vacancy caused on 28.6.2011 is of no avail to the petitioner. Even otherwise it is the stand of respondent no.2 that counselling for general category concluded on 27.6.2011. Counselling for all reserved category was held on 28th and 29th June, 20011 and the counselling closed on 30th June, 2011 i.e. last fixed by the Hon’ble Apex Court. In any manner the vacancy caused on 28.6.2011 in general category cannot be made available to petitioner alone. There is no mechanism for further counselling or counselling after 30th June, 2011. Yet anther circumstance is that any vacancy caused in the above circumstance cannot accrue in favour of the petitioner as that seat has to be made open to all eligible candidates as per their merit position. All these aspects are unknown aspects. Therefore allowing the prayer in favour of the petitioner would amount to an unfair 3 advantage vis-à-vis other meritorious candidates. The stand of the MCI is that the schedule or the dates are fixed what learned counsel for the petitioner is talking about notifying the vacancy position relates to 25th of that month and not any vacancy caused thereafter. Since in the present case vacancy arose on 28th, there is no occasion for the Court to offer that vacancy to the petitioner in the circumstances indicated in their counter affidavit. Considering the rival submission and considering the strict time frame which has been fixed by Hon’ble Supreme Court in such matters, as also considering the fact that petitioner was not the natural claimant to the vacancy caused at PMCH in M.D. Pathology, the Court cannot extend the benefit which the petitioner is looking for by way of a fortuitous circumstance of a vacancy having been caused due to resignation of a candidate on 28th June, 2011. Even though one seat which is a precious seat of Post Graduate will go unfilled but in such a situation may be modality or a way out may be provided by the Hon’ble Supreme Court. In these circumstances no direction can be issued by this Court in favour of the petitioner as she has no absolute right. This writ application is dismissed. RPS ( Ajay Kumar Tripathi, J.)