IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY NINETH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 18073 of 2008 Between: Medikonda Divya Sree, D/o. M. Srinivasa Rao, R/o. Garlamadugu, Kavvagunta Post, Pedavegi Madnal, Eluru, West Godavari District. ..... PETITIONER AND 1 Alluri Sitarama Rajuj Academy of Medical Sciences, Rep. by its Principal, Malkapuram, Eluru, West Godavari District. 2 N.T.R. University of Health Sciences, Vijayawada, Krishna District, Rep. by its Vice-Chancellor. .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court may be pleased to issue a Writ, Order or direction more in the nature of Writ of Mandamus declaring the action of the 1st respondent in deliberately avoiding to receive and consider the application of the petitioner, dated 12-06-2008 sent by registered post on 12-07-2008 for admission into the ﬁrst year MBBS course under Management Quota (Category-C) for the academy year 2008-09 or for issuance of application form as illegal, arbitrary, malaﬁde, violative of principles of natural justice and oﬀending Article 14 of the Constitution of India after declaring that the Admission Notiﬁcation, dated 10-07-2008 published on 15-07-2008 in Vartha Daily is not in accordance with the Rule 6(C) of the Rules and consequentially to direct the respondent No.1 to consider the case of the Petitioner for admission on merit basis to the ﬁrst year MBBS Course under Category-C seats for the academic year 2008-09 along with other applications in the interest of justice. Counsel for the Petitioner: MR.M.SUDHIR KUMAR Counsel for the Respondent : MR.D.V.NAGARJUNA BABU The Court made the following : ORDER: The petitioner appeared for EAMCET, 2008 Examination for admission into MBBS course and secured 33452 rank. She aspired admission in to 1st year MBBS Course under management seats (Category-C) for the academic year 2008-2009. She submitted application dated 12.06.2008 to the 1st respondent College for admission under management seats (Category-C) for the academic year 2008-2009. She claims to have sent the application by registered post on 12.07.2008. When there was no response to her application from the 1st respondent College, she approached this Court by ﬁling W.P.No.15713 of 2008. An interim order came to be passed in the said writ petition directing the 1st respondent College to issue application to the petitioner as and when notiﬁcation given for admission in the management seats (Category-C). In the said writ petition, the 1st respondent College ﬁled counter-aﬃdavit stating that notiﬁcation had been issued on 13.07.2008 as required under Rule 6 [c] of the Andhra Pradesh Un-aided Non-Minority Professional Institutions (Regulations of Admissions into Under Graduate Medical and Dental Professional Courses) Rules, 2007 (for short, ‘the Rules, 2007’). The petitioner asserts that on veriﬁcation of VAARTHA main edition of 13.07.2008, she could not get any notiﬁcation published by the 1st respondent- College. However, it was published on 15.07.2008 under the caption ‘ENGINEERING SPECIAL feature’, inviting applications for admission under management seats (Category-C) ﬁxing the last date for receipt of the applications as 17.07.2008. According to the petitioner, the notiﬁcation given by the 1st respondent-College inviting applications for admissions under Category-C for 1st year MBBS course is not in conformity with Rule 6 [c] of the Rules, 2007. For better understanding of the grievance of the petitioner, I deem it appropriate to refer para.6 of the affidavit filed in support of the writ petition and it is thus: “6. I further respectfully submit that, I have submitted my application, dated 12.06.2008 to the 1st respondent through professional couriers on 02.07.2008 at the address of the college and the same was received and acknowledged by one Suryakala on behalf of the college on 03.07.2008. The copy of the acknowledgement issued by the Professional couriers is herewith filed. I have also sent the said application by way of fax to the college on 02.07.2008. In addition to that I have sent the application to the 1st respondent and also to the Secretary of the 1st respondent by registered post with acknowledgement due on 12.07.2008. The copies of the receipts issued by the postal authorities are herewith ﬁled for ready reference. But, unfortunately, the 1st respondent college authorities deliberately avoided to receive the said application sent through registered post on 15th to 18th July, 2008 on the ground that the person is not available in the college. The registered post was addressed to the Principal of the 1st respondent college and also to the Secretary of the 1st respondent college. Hen the registered post was addressed in the oﬃcial capacity of the principal the question of concerned person not being available does not arise. But the 1st respondent deliberately postponed the receipt of the same till 19.07.2008. Thus, the respondent No.1 herein having acted in an arbitrary manner with malaﬁde intention now stating that my application was not received before 17.07.2008. Even otherwise the applications sent through courier were very much available with the 1st respondent even by the date of publication of the notification. Therefore, it is not open to the respondent college to contend that no application was received before 17.08.2008. Further I respectfully submit that there should be at least minimum of two weeks time should be there for submission of the application from the date of publication of the notiﬁcation. The Notiﬁcation that was published now was dated 10.07.2008 and the last date for submission of application was ﬁxed as 17.07.2008 i.e. giving one weeks time. But the said notiﬁcation was published only on 15.07.2008 leaving only 2 days time for submission of the applications. This Hon’ble Court has been pleased to direct the respondent No.1 herein to furnish the application tome by an order, dated 22.07.2008 i.e. within one week from the date of publication of the notiﬁcation. But the respondent failed to furnish the application to me.” The petitioner calls in question in this writ petition the action of the 1st respondent College in avoiding to receive and consider her application dated 12.06.2008 sent by her by registered post with acknowledgement due on 12.07.2008 for admission in to 1st year MBBS course for the academic year 2008-2009 under management seats (Category-C). She also seeks declaration that the admission notiﬁcation dated 10.07.2008 published on 15.07.2008 in VAARTHA daily is not in accordance with Rule 6 [c] of the Rules, 2007 and consequently direct the respondents to consider her case for admission on merit basis in to the 1st year MBBS course under management seats (Category-C) for the academic year 2008-2009. 2. Rule Nisi came to be issued on 27.08.2008. Respondents 1 to 3 filed separate counter-affidavits on their behalf. 3. Dr.Ch.Lakshmi Kumar, Vice-Principal of 1st respondent College has sworn to the counter-aﬃdavit ﬁled on behalf of the 1st respondent. It is stated in the counter-aﬃdavit that the 2 nd respondent University vide its letter dated 10.07.2008 directed the 1st respondent College to comply with the rules of admission to ﬁll up the management seats as per the procedure prescribed under the Rules and submit the merit list on or before 18.07.2008. In pursuance of the instructions issued by the 2nd respondent University, this respondent College issued notiﬁcation in VAARTHA Daily on 15.07.2008 in main edition and received 32 applications and as per the merit of the candidates, top 30 students have been given admission in management seats (‘C’ category) and sent the list of selected candidates to the 2nd respondent University. It is further stated in the counter-aﬃdavit that the petitioner has not submitted any application to this respondent for the purpose of admission into 1st year MBBS course pursuant to the notiﬁcation dated 15.07.2008. 1st respondent College received the application dated 12.06.2008 of the petitioner on 19.07.2008. Even if the application dated 12.06.2008 reached the oﬃce of this respondent College prior to 17.07.2008, this respondent would not have responded to it as it was only a letter and there was no obligation to enter into correspondence with the prospective candidates. It is further stated in the counter-aﬃdavit that as per letter No.MCI-26(3)/2004-Med.8020, dated 21.06.2004 of the Medical Council of India, New Delhi, all the concerned were required to strictly adhere and enforce the time of schedule ﬁxed by the Council in compliance with the direction of the Supreme Court. 4. Sri Y.Kotaiah, Registrar in-Charge of Dr.NTR University of Health Sciences, Vijayawada, has sworn to the counter-aﬃdavit ﬁled on behalf of the 2nd respondent-University. It is stated in the counter-aﬃdavit that the 2 nd respondent University vide its letter dated 10.07.2008 addressed to all the colleges informing that they have to complete the procedure prescribed under the rules and forward the applications to the 2nd respondent University on or before July, 2008. In response thereto, many colleges including the 1st respondent College sent the list. However, some colleges sought extension of time for various grounds and where there is a genuine problem, the University had extended the time. In the list sent by the 1st respondent College, the petitioner’s name does not figure. After receipt of the merit list from the 1st respondent College, the 2nd respondent University scrutinized the claims of the candidates and approved the merit list. 5. It is stated in the counter-aﬃdavit ﬁled on behalf of the 3 rd respondent that he got admission in to 1st year MBBS Course under management seats (‘c’ category) in the 1st respondent College for the academic year 2008-2009 and he has been attending the classes. It is further stated in the counter- aﬃdavit that even assuming that the notiﬁcation dated 10.07.2008 is declared as illegal, all the admissions made thereunder are to be set aside and in which case the said seats will have to go vacant inasmuch as no admissions can be made as the course has already commenced. 6. Heard learned counsel appearing for the petitioner; learned counsel appearing for the 1st respondent College; learned Standing Counsel appearing for the 2nd respondent University; and learned counsel appearing for the 3rd respondent. 7. Learned counsel appearing for the petitioner submits that the 1st respondent College has purposefully avoided receiving the application dated 12.06.2008 of the petitioner and therefore, any admission process taken up by the 1st respondent College ignoring the application of the petitioner, dated 12.06.2008 is unsustainable. A further submission has been made that notiﬁcation dated 10.07.2008 published on 15.07.2008 cannot be construed as a valid notiﬁcation within the meaning of Rule 6 [c] of the Rules, 2007. In elaborating his arguments, he contends that the application dated 12.06.2008 sent by the petitioner contains all the necessary particulars which are required to be furnished by a candidate pursuant to the notiﬁcation dated 15.07.2008 and in which case, the case of the petitioner deserves to be considered along with the other candidates, who responded to the notiﬁcation. According to him, the petitioner is more meritorious when compared to the 3rd respondent, who ﬁgured as a last candidate in the merit list, and in which case, the petitioner is to be accommodated in place of the 3rd respondent. Learned counsel placed reliance on the Division Bench Judgment of this Court in W.P.No.15555 of 2006 & Batch. (Mohammed Zakria & Ors. v. The State of A.P. rep. by its Principal Secretary, HM & FW (E1) Department, Hyderabad & Ors.), wherein, certain guidelines have been issued with regard to admission to B-category seats so that the meritorious students may not be deprived to the right of admission. The guidelines issued therein are as follows: “1) I) The Management of every college/institution, including the minority college/institution, shall, immediately after allocation of A & B category seats, notify their respective web sites to Dr.NTR University of Health Sciences, Medical and Health Department of the State Government and also publish information regarding the same in two leading newspapers (one English and one vernacular). 2) 2) The entire information regarding admission process to be followed by the management of the college/institution for making admission against A & B category seats should be notiﬁed in the web site. 3) 3) the name and designation of the authority to whom the complaints can be addressed should be printed in the applications along with Telephone, Fax numbers and e-mail address and the same should also be displayed on the web site of the colleges, Dr.NTR University of Health Sciences and the Director of Medical Education. 4) 4) the admission form should be loaded in the web site of the concerned college/institution so that the prospective candidates can download the same. 5) 5) The candidate should be allowed to ﬁll up the admission form and submit the same through e-mail, apart from sending the same by post or courier along with relevant documents. 6) 6) The list of applications received up to the last date along with inter se merit of candidates should be uploaded and displayed on the web site of the college/institution. This shall be in addition to display of the list of applicants and their inter se merit on the notice board of college/institution. 7) 7) Copies of the list of applicants and their inter set merit should also be sent to Director of Medical Education, Andhra Pradesh and Dr. NTR University of Health Sciences. 8) 8) Time for submission of documents by the candidates should be notiﬁed on the web site, besides newspapers and the candidates should be allowed reasonable time for complying with the requirement of submission of documents. 9) 9) The complaints received from the aggrieved parties should be disposed of by the Inspecting Authority, constituted in terms of Rule 2(d), within seven days and the decision be communicated to the candidate. We hope and trust that the State Government and Dr.NTR University of Health Sciences will ensure that the above mentioned guidelines are strictly followed by all the private colleges and institutions while making admissions in the medical and other professional courses from the year 2008-2009 and onwards.” The learned counsel appearing for the petitioner placing reliance on the decision of the Supreme Court in Mridul Dhar v. Union of India[1] submits that last date up to which students can be admitted against vacancies arising due to any reason is 30th September, and therefore, mere approval of the list by the 2nd respondent University does not come in the way of setting aside the selection list which is not in accordance with Rule 6 [c] of the Rules, 2007 and directing the 2nd respondent- University to delete the last candidate’s name in the list and include the petitioner’s name in the selected list. 8. Learned counsel appearing for the 1st respondent College submits that the 1st respondent College is not under the obligation to enter into correspondence with the petitioner, who allegedly sent an application dated 12.06.2008, which is much prior to the issuance of the notiﬁcation. He would also contend that the 1st respondent College completed the process of selection within the stipulated time prescribed by the 2nd respondent University and therefore, the action of the 1st respondent College in ﬁxing two days time for receiving the applications cannot be termed as arbitrary or unreasonable. 9. Learned Standing Counsel appearing for the 2nd respondent University submits that instructions have been issued on 10.07.2008 to the Principals of all the unaided non-minority medical and dental colleges aﬃliated to the University to send the merit list of the candidates prepared under management seats (Category-C) in the professional courses on or before 18.07.2008 to the Registrar of the University and accordingly, the 1st respondent College sent the list and the same came to be approved and therefore, nothing survives in the writ petition for adjudication. 10. Learned counsel appearing for the 3rd respondent submits that in case the notiﬁcation dated 15.07.2008 is not in accordance with the Rule 6 [c] of the Rules, 2007, the entire selection list has to go and in which case the relief sought for by the petitioner for inclusion of her name in his place does not arise. 11. The two points that arise for consideration in this writ petition are: 1) Whether the application dated 12.06.2008 sent by the petitioner on 12.07.2008 can be construed as an application pursuant to the notiﬁcation issued by the 1st respondent College on 15.07.2008. 2) Whether the period stipulated in the notiﬁcation published on 15.07.2008 for submission of duly ﬁlled in applications for admission into management seats (‘c’ category) in the college of the 1st respondent is reasonable? 12. Point No.1: Indisputably, the petitioner’s application dated 12.06.2008 is much prior to the notiﬁcation issued by the 1st respondent College calling for applications for admission into 1st year MBBS Course for the academic year 2008-2008 under management seats (Category-C). The notiﬁcation dated 10.07.2008 came to be published in VAARTHA daily main edition on 15.07.2008 informing the eligible candidates to approach the College authorities for admission into 1st year MBBS Course under Management seats. According to the petitioner, she sent the application dated 12.06.2008 through Professional Courier service on 02.07.2008 and also by registered post on 12.07.2008. It can be said without any controversy that by the date of the petitioner sending the application through Professional Courier service there was no notiﬁcation at all. Therefore, the application dated 12.06.2008 cannot be construed as a valid application pursuant to the notiﬁcation issued by the 1st respondent College inviting applications from the eligible candidates for admission into 1st year MBBS Course for the academic year 2008-2009 under management seats (Category-C). With regard to the application sent by the petitioner by registered post with acknowledgement due on 12.07.2008, the petitioner contends that the 1st respondent College purposefully avoided receiving the said application from 15th to 18th July, 2008 on the ground that the addressee is not available in the College. Even assuming that the application dated 12.06.2008 of the petitioner reached the Principal of the 1st respondent College on 15.07.2008, since it was not pursuant to the notiﬁcation dated 15.07.2008, the 1st respondent was under no obligation to respond to it. Therefore, I am of the view that the application dated 12.06.2008 cannot be construed as an application sent pursuant to the notiﬁcation issued by the 1st respondent College calling for applications from the eligible candidates for admission in to 1st year MBBS Course for the academic year 2008-2009 under management seats (Category-C). 13. Point No.2: The 1st respondent College issued notification on 15.07.2008 informing that the eligible candidates can approach the college authorities for admission into 1st year MBBS course for the academic year 2008-2009 under management seats (Category-C). The last date of receipt of applications is 17.07.2008. Hardly a day is left out between the date of publication of the notiﬁcation and the date of receipt of applications. Rule 6 [c] of the Rules, 2007, which deals with filling up of the management seats reads as hereunder: “[c] T o Fill Up Management Seats: (C- Category – 30% of the sanctioned intake of the seats) “Management Seats” – The seats shall be ﬁlled by the individual College Managements/Committee of Managements in the order of merit in a transparent manner by following the procedure as detailed below:- (1) Individual College management shall give a notiﬁcation in a leading newspaper inviting the prospective candidates to approach the college oﬃce for the applications for the said course. (2) The College oﬃce shall invariably issue applications to all the candidates who request for applications. (3) The ﬁlled in applications along with the necessary certiﬁcates shall be submitted by the candidates to the College office within the prescribed time period fixed by the College office. (4) The College shall invariably issue a receipt of the application received. (5) The College shall scrutinize all the applications received in respect of the eligibility in Biology, Physics and Chemistry subjects in 10 + 2 Course. (6) The College shall prepare a merit list of all the candidates who have applied to the College based on the marks obtained in the three subjects mentioned in instruction (5) above. (7) The merit list prepared by the College shall be sent to the Dr. NTR University of Health Sciences for scrutiny and approval. (8) Dr. NTR University of Health Sciences shall verify the merit list and accord approval. (9) The merit list approved by Dr.NTR University of Health Sciences containing the names of the applicants and the marks obtained by them shall be prominently displayed on the notice board of the college. (10) Admissions shall be made by the College only on the basis of the merit list approved by the Dr.NTR University of Health Sciences.” A reading of the above referred Rule indicates that individual college management shall give a notiﬁcation in a leading newspaper inviting the prospective candidates to approach the college oﬃce for the applications for the said course. Giving a day’s time for the candidates to rush to the college and submit the duly ﬁlled in applications cannot, in my considered view, a reasonable time. A Division Bench of this Court in W.P.No.15555 of 2006 & Batch. (Mohammed Zakria & Ors. v. The State of A.P. rep. by its Principal Secretary, HM & FW (E1) Department, Hyderabad & Ors.) has issued guidelines, which have been extracted above, whereunder it is stated that the candidates should be allowed reasonable time for complying with the requirement of submission of documents. By reading Rule 6 [c] of the Rules, 2007 and keeping in view the guidelines issued by the Division Bench of this Court in the above referred decision, I do not hesitate to record a ﬁnding that the notiﬁcation issued by the 1st respondent College giving hardly a day’s time for the candidates to respond to the notiﬁcation is unreasonable. Since the merit list has been sent by the 1st respondent College and the same has been approved by the 2nd respondent University, I am not inclined to disturb the admissions made by the 1st respondent College under management seats (‘C’ Category). However, I hope and trust that the 2nd respondent University will issue instructions to the respective Colleges to give reasonable time to the candidates to respond to the notiﬁcation calling for applications for admission into management seats (‘C’ Category) at least from the academic year 2009-2010 onwards. 14. With the above observation, the writ petition is disposed of. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:29th September, 2008. Note: Issue by tomorrow. B/O cs ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{SPJS} [1] (2005) 2 Supreme Court Cases 65