CWP No.3350 of 2009 1 IN THE HIGH COURT OF PUNJABAND HARYANA AT CHANDIGARH CWP No.3350 of 2009 Date of Decision 27.03.2009 Dr.Tarundeep Singh ...Petitioner Vs. Sri Guru Ram Das Institute of Medical Sciences & Research, Mehta Road, Amritsar & Ors. ...Respondents CORAM: HON'BLE MR. JUSTICE VINOD K.SHARMA Present: Mr.Rajiv Atma Ram, Sr.Advocate, with Ms.Sunita Chauhan, Advocate, for the petitioner. Mr.J.S.Sidhu, Advocate, for respondent No.1. Mr.T.S.Dhindsa, Advocate, for respondent No.2. Mr.R.L.Gupta, Addl. A.G., Punjab, for respondent No.3. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- CWP No.3350 of 2009 2 Vinod K.Sharma, J. (Oral) The petitioner has invoked the jurisdiction of this court under Article 226 of the Constitution of India seeking a writ of mandamus directing respondent No.1/College to admit the petitioner to M.D. (Medicine) Course in the academic session commencing 2009-10. The facts leading to the filing of the present writ petition which are not in dispute are that the petitioner qualified MBBS Examination including internship test in the year 2005. The petitioner appeared in Common Entrance Test conducted on behalf of the State of Punjab by the Baba Farid University of Health Sciences, for admission to M.D/M.S/MDS Courses in the academic session commencing September, 2007. As per the prospectus issued the admissions were to be made on the basis of merit in the Common Entrance Test. However, separate merit position was determined for 50 per cent of open seats and separate merit position was maintained for 50 Sikh minority quota seats. Petitioner obtained 504 marks as against Dr.Charanpreet Singh who was also one of the candidates for admission to M.D.(Medicine) Course who got 460 marks. Overall rank of the petitioner was 181 as against Dr.Charanpreet Singh who was ranked 321. Counselling for the admission under the Sikh minority quota was held on 29.6.2007 in which the petitioner appeared for counselling and was placed at Sr.No.4 in waiting list. However, Dr.Charanpreet Singh was not called for counselling in view of his merit position. After first counselling person at Sr.No.1 of the waiting list refused to accept the available seat and accordingly, seats were offered to persons at Sr.No.2 CWP No.3350 of 2009 3 and 3 of the waiting list on their refusal, the petitioner became first candidate in the waiting list against minority quota. Another seat fell vacant on 9.11.2007. However, said seat was not offered to the petitioner but offered to Dr.Charanpreet Singh by invoking institutional preference in minority quota. The petitioner filed CWP No.16818 of 2007. The writ petition was contested by the College. However,vide order dated 21.12.2007 this court was pleased to hold that the admission granted to Dr.Charanpreet Singh was illegal and as a result of bias in his favour, accordingly, his admission was ordered to be suspended. During the intervening period this court was pleased to set aside the Sikh minority quota in the State of Punjab in the case of Sahil Mittal Vs. State of Punjab 2008 (1) SLR 373 on the ground that Sikhs do not constitute minority within the State of Punjab and therefore, Sikh minority quota was bad in law. In view of decision in case of Sahil Mittal (supra) no directions were issued for admission of the petitioner under the Sikh minority quota. However, writ petition was posted for final disposal after issuing notice to other respondents who were earlier not issued notice. In the final order passed on 7.5.2008 this court affirmed the interim order holding that admission of Dr.Charanpreet Singh was bad in law and directions were issued for refund of his fee. However, keeping in view the judgment in Sahil Mittal's case (supra) the request of the petitioner to consider his case for admission in next academic session was left open by passing the following operative order:- “ Mr.Rajiv Atma Ram states that in case the SLP is CWP No.3350 of 2009 4 allowed, then the petitioner be given an opportunity to file a writ petition afresh for claiming admission in the next academic session on the basis of wrongful exclusion of the petitioner in the session 2007-08. As far as respondent No.4 is concerned, this Court has already held that he has got admission under Institutional preference wrongfully. His admission was suspended by this court vide order dated 21st December, 2007 and he has not been studying thereafter. In this view of the matter, respondent No.4 would also not be entitled to get admission in MD Medicine course. However, as respondent No.4 has already deposited, the fee, therefore, he shall be entitled to get refund of entire fee. Resultantly, we dispose of this writ petition with direction that in case Sikh minority quota is upheld by the Hon'ble Apex Court, then the petitioner may file writ petition afresh for claiming admission in the next academic session. We further direct that respondent No.1 shall refund the entire fee,which respondent No.4 has deposited. Writ petition disposed off” It is the case of the petitioner that the order passed by this court in Sahil Mittal's case has been stayed by Hon'ble Supreme Court and therefore, Sikh minority quota has become available for the purposes of admission, and further that respondent No.1, College is making admissions against the said quota by inviting fresh applications for this academic session. Copy of the advertisement has been annexed as Annexure P. 4 with CWP No.3350 of 2009 5 this writ petition. In view of the admitted position the petitioner claims that he is entitled to admission to M.D. (Medicines) course for the session 2009-10 for having been wrongfully ignored for admission though he was meritorious and has taken all necessary steps for being admitted to the course. Mr.Rajiv Atma Ram, learned senior counsel appearing on behalf of the petitioner contends that as the petitioner was wrongly denied admission for the session 2007-08 and liberty was granted to him, in the previous writ petition, to seek admission in the next academic session in case of order of this court being set aside by Hon'ble Supreme Court, he was entitled to be admitted in the next academic session for his wrongful exclusion. In support of his contention, learned senior counsel for the petitioner has placed reliance on the judgment of Hon'ble Supreme Court in the case of Aman Deep Jaswal Vs. State of Punjab & Ors. (2006) 9 Supreme Court Cases 597, wherein Hon'ble Supreme Court was pleased to lay down as under:- “3. It is not in dispute that the appellant Aman Deep Jaswal was much higher in rank in the selection and had also opted for MD Anaesthesia as one of the options. There could be no valid reason for denying her admission simply because of the word “any” written by her as third preference. Her first preference was MD Gynecology and the next was MD Anaesthesia but in the second counselling her first option was MD Anaesthesia. CWP No.3350 of 2009 6 The same could not be denied of the use of the word “any” when it is not disputed that she was more meritorious than Dr.Radhika Dhawan. The High Court was, however, right, despite these facts, in denying admission being granted to her during mid-session. 4. On these peculiar facts, we are of the view that the appellant Aman Deep Jaswal is entitled to be admitted in MD Anaesthesia in Government Medial College, Patiala in the next academic year 2006-07 within the sanctioned intake of the college. Ordered accordingly.” Reliance was also placed on the judgment of Hon'ble Supreme Court in the case of Dolly Chhanda Vs. Chairman, JEE and Ors. 2004 (6) SLR 399, wherein Hon'ble Supreme Court was pleased to lay down as under:- “10. The appellant had qualified in the JEE-2003 but the said academic year is already over. But for this situation the fault lies with the respondents, who adopted a highly technical and rigid attitude and not with the appellant. We are, therefore, of the opinion that the appellant should be given admission in MBBS course in any of the State medical colleges in the current academic year.” Mr.J.S.Sidhu, learned counsel appearing on behalf of respondent No.1. opposed this writ petition on the contention that there is solitary seat in M.D.(Medicines) course for the Sikh minority quota category for the academic session 2009-10. The claim raised in the writ CWP No.3350 of 2009 7 petition is against the provisions of prospectus as well as the Government notification, and the statutory provisions of Punjab Private Health Sciences Educational Instructions (Regulation of Admission, Fixation of Fee and Making of Reservation) Act, 2006 as well as the Medical Council of India Act, 1956. The contention of learned counsel for respondent No.1 is that admission to the medical course cannot be made midstream nor can admission be made de-hors the statutory provisions of the Medical Council of the India Act and the Rules made thereunder. In support of this contention, learned counsel for respondent No.1 has placed strong reliance on the judgment of Hon'ble Supreme Court of India in the case of Medical Council of India Vs. Madhu Singh and Ors (2002) 7 Supreme Court Cases 258 to contend that there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year in view of section 10-A of the Medical Council of India Act, which reads as under:- “10-A. Permission for establishment of new medical college, new course of study, etc. --(I) Notwithstanding anything contained in this Act or any other law for the time being in force-- (a) no person shall establish a medical college; or (b) no medical college shall-- (i) open a new or higher course of study or training (including a postgraduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognized CWP No.3350 of 2009 8 medical qualification; or (ii) increase its admission capacity in any course of study or training (including a postgraduate course of study or training), except with the previous permission of the Central Government obtained in accordance with the provisions of this section. Explanation I.-- For the purpose of this section, 'person' includes any university or a trust but does not include the Central Government.” The conclusion drawn by Hon'ble Supreme Court in the said judgment reads as under:- “In conclusion (i) there is no scope for admitting students midstream as that would be against the very spirit of statutes governing medical education; (ii) even if seats are unfilled that cannot be a ground for making mid-session admissions; (iii) there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year; (iv) MCI shall ensure that the examining bodies fix a time schedule specifying the duration of this course, the date of commencement of the course and the last date of admission; (v) different modalities for admission can be worked out and necessary steps like holding of examination if prescribed, counselling and the like have to be completed within the CWP No.3350 of 2009 9 specified time; (vi) no variation of the schedule so far as admissions are concerned shall be allowed; (vii) in case of any deviation by the institution concerned, action as prescribed shall be taken by MCI.”: Reliance has also been placed on the judgment of Hon'ble Supreme Court in the case of Mridul Dhar (minor) and another Vs. Union of India and Ors (2005) 2 Supreme Court Cases 65 to contend that Boards, Universities, and Examining Authorities etc. are required to strictly adhere to the time schedule whereever provided for and there should not be midstream admissions. It has further been held by Hon'ble Supreme Court that admissions should not be in excess of sanctioned intake capacity or in excess of quota of anyone whether State or Management. Carrying forward any unfilled seats of one academic year to next academic year is also not permissible. Mr.J.S.Sidhu, learned counsel for respondent No.2 has further placed reliance on the judgment of Hon'ble Supreme Court in the case of Dr.Ajay Pradhan Vs. State of Madhya Pradesh and Ors. (1988) 4 Supreme Court Cases 514, wherein it has been held that the candidates in the waiting list have no right of admission where vacancy occurs in the midst of or towards the end of the academic session. Learned counsel for respondent No.1, therefore, contended that in view of the law laid down by Hon'ble Supreme Court referred to above and taking in view the provisions of Medical Council of India Act the petitioner cannot claim admission to M.D. (Medicines) course for the CWP No.3350 of 2009 10 session 2009-10. Learned counsel for respondent No.1 further contends that the judgments relied upon by the petitioner can be of no help to him as the Hon'ble Supreme Court while ordering admission in the next academic session has not taken into consideration the judgments relied upon by the respondents. However, on consideration of the matter, I find force in the contentions raised by the learned senior counsel for the petitioner. In this case we are concerned to interpretation of judgment passed in the previous writ petition inter se between the parties. It is not in dispute that in the previous writ filed by the petitioner, denial by respondent No.1 to admission of the petitioner was not approved. The only reason for denying the relief to the petitioner was of judgment of this court in Sahil Mittal's case (supra), where in the minority quota was ordered to be struck down. Hon'ble Division Bench of this court was aware of the situation, which was for that reason that opportunity was granted to the petitioner to file a fresh writ petition, to claim admission in the next session, otherwise, there was hardly any necessity of granting, such permission as admittedly session was to be over at that time of passing the order, still, specific permission was granted to the petitioner to file a fresh writ petition for admission to the next academic session in the event of judgment of this court is set aside by Hon'ble Supreme Court. It is not in dispute that the judgment passed by this court has been stayed and in pursuance thereto respondent No.1 issued notice CWP No.3350 of 2009 11 Annexure P.4 inviting applications for admission to M.D. Course against Sikh minority quota Thus, the petitioner has a right to ask admissions. The judgments relied upon by respondent No.1 are binding precedent for regulating admissions to the professional colleges. However, respondent No.1 cannot be permitted to take benefit of his own wrongs in denying admission to a candidate and thereafter raising plea that under the regulations now no admission can be granted even in the next academic session. This view finds support from the judgment of Hon'ble Supreme Court in the case of Paramjeet Gambhir & Anr. Vs. State of M.P. & Ors. JT 2003 (5) SC 99, wherein Hon'ble Supreme Court permitted the candidates admission wrongly ignored. Para No.5 of the judgment reads as under:- “5. We have given our careful consideration to the submissions made by the learned counsel for the parties. It is true that in a series of decisions of this Court starting from Dr.Dinesh Kumar Vs. Motilal Nehru Medical College, Allahabad & Ors; State of Bihar V. Dr.Sanjay Kumar Sinha & Ors; State of U.P. V. Dr.Anupam Gupta etc. and finally Medical Council of India Vs. Madhu Singh & Ors, it has been held that the time table for the course should be strictly adhered to and there is no scope for admitting students midstream which would be against the very spirit of the statute governing the medical education. However, in the present case what we find is that certain seats which had been surrendered CWP No.3350 of 2009 12 from all India quota even before the first couselling had been done were not included in the said counselling. The second feature is that the State government made a provision in the 2002 Rules whereby the system of opt for waiting was abolished but subsequently in the counter-affidavit filed in the writ petition it was pleaded that Rule 15.8 had been deleted and the old system of opt for waiting had been revived. In view of this stand of the State government the appellants were entitled to participate in the second counselling wherein all the vacant seats/colleges should have been made available. The appellants filed the special leave petitions prior to the holding of the second counsel.” If plea of the learned counsel for the respondents is accepted it would be giving premium to their own fault in denying the admission to eligible candidate by an attempt to admit another candidate for extraneous consideration as held in the judgment inter se between the parties. In view of the facts and circumstances of the case the judgments relied upon by the petitioner of the Hon'ble Supreme Court would be applicable and the petitioner is held entitled to be considered for admission to M.D. (Medicines) Course having been denied admission though he was found to be eligible in the previous academic session. Consequently, this writ petition is allowed. Respondent No.1 is directed to consider the case of the petitioner for admission to M.D. (Medicines) course for the current session 2009-10 against wrongful rejection of his claim for admission in previous session. CWP No.3350 of 2009 13 However, it is made clear that admission shall be made against the sanctioned intake strength of the college and not by creating any additional seat, which is not permissible. (Vinod K.Sharma) 27.2.2009 Judge rp