1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22/07/2011 C O R A M THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD) No.5415 of 2011 and M.P.(MD).No.1 of 2011 Saurabh Saxena ... Petitioner Vs. 1.Union of India, rep. by its Secretary to Government, Ministry of Health of Family Welfare, New Delhi. 2.The Director General of Health Service, Medical Examination Cell, New Delhi. 3.The Dean, KAP Viswanathan Government Medical College, Tiruchirappalli. 4.The Medical Council of India,Pocket - 14, Sector -8, Phase - I, Dwarka, New Delhi - 110 077. ... Respondents Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus, to call for the records of the 3rd respondent in its communication Reference No.3010/ME1/2009 dated 22.06.2010 and quash the same and further direct the respondents to provide the petitioner admission into the third respondent institution for the academic year 2011-2012 onwards. For petitioner .. Mr.K.Harishankar For respondents 1 & 2 .. Mr.M.S.Senthil Kumar,Central Government Counsel For 3rd respondent .. Mr.B.Pugalenthi, Special Government Pleader For 4th respondent ... Mr.V.P.Raman ORDER The order impugned in this writ petition, dated 22.06.2010, passed by the Dean, KAP Viswanathan Government Medical College, Tiruchirappalli, the third respondent herein reads as follows; "The provisional admission order issued to Mr.Saurabh Saxena bearing roll No.5900250, selected for MBBS course during the academic year 2009-10 under All India Quota to this College as per the order 1st cited is hereby CANCELLED and terminated with retrospective effect on 30.09.09, since all the fifteen seats of All India Quota were filled up. All the original following certificates, which are received at the time of provisional admission, are returned herewith. 1. S.S.L.C. Mark Sheet 2. H.Sc. Mark Sheet 3. Admit Card - 2 Nos. 4. Rank Letter 5. Migration Certificate 6.Eligibility Certificate 7.Transfer Certificate The same may be acknowledged by return of post, without fail." 2.It is the case of the petitioner that he appeared for the All India Medical Entrance Examination conducted by the Central Board of Secondary Education, for the Academic Year 2009-2010. The preliminary examination was conducted on 05.04.2009 and he took up the examination at https://hcservices.ecourts.gov.in/hcservices/ 2 Jaipur Centre. He was declared as a successful candidate and appeared for the main examination in Bhopal Centre. Thereafter, he met with an accident on 03.08.2009. The accident took place at Panna District, Madhya Pradesh and he suffered a serious head injury and he was admitted in a nearby hospital and thereafter shifted to Metro Hospital and Cancer Research Centre, at Jabalpur on 04.08.2009. Meanwhile, the date of counselling was fixed on 07.08.2009. As the petitioner was unconscious and hospitalised, his uncle Mr.Abhay Saxena was present, on his behalf at the time of counselling, at New Delhi. A memorandum dated 07.08.2009 was issued for admission to MBBS course in KAP Viswanathan Government Medical College, Tiruchirapalli and in the said memorandum, the petitioner was directed to report before the Dean, KAP Viswanathan Government Medical College, Tiruchirapalli, third respondent herein, within 15 days, from the date of memorandum. As there was no improvement in his medical condition, the petitioner was shifted to New Delhi by Air Ambulance on 08.08.2009 and admitted to Sir Gangaram Hospital, New Delhi. The petitioner's uncle Mr.Abhay Saxena reported before the third respondent with necessary medical certificates and authorisation letter from his father, who could not be present in Tamil on account of his son's illness. Eligibility certificate was also obtained from the Tamil Nadu Dr.M.G.R. Medical University, Chennai and all the relevant papers were submitted to the Dean, KAP Viswanathan Government Medical College, Tiruchirapalli, third respondent, on 18.08.2009, by his uncle, on his behalf. On 18.08.2009, the third respondent issued a letter to the Assistant Director General (Medical Examination), Nirman Bhawan, New Delhi seeking guidance in the matter. On 20.08.2009, the third respondent also obtained a letter from the petitioner's uncle and the fees for MBBS course, was also received, for which a receipt dated 20.08.2009 was issued by the third respondent. It is the further case of the petitioner that upon payment of fees prescribed for the course, the admission formality had come to an end and that, he is deemed to be admitted as a student in the third respondent institution. As the petitioner did not recover from coma, his father sent applications to the third respondent College for granting extension of time. However, the third respondent by letter dated 22.06.2010 intimated that the petitioner's admission has been cancelled and terminated with retrospective effect from 30.09.2009. The said letter is impugned in this writ petition. 3.On the above said pleadings, Mr.K.Harishankar, learned counsel for the petitioner submitted that the impugned order of cancellation dated 22.06.2010, served on the petitioner on 01.07.2010 is arbitrary and passed without taking into consideration the factual position, relating to the petitioner's health. He further submitted that once the prescribed fee for MBBS course is received and when the admission formalities are over, there cannot be any retrospective cancellation of admission, with effect from 30.09.2009. Inviting the attention of this Court to the letter dated 24.08.2009 of the Dean, KAP Viswanathan Government Medical College, Tiruchirappalli, the third respondent herein, addressed to the Director General (Medical Examination), Directorate General of Health Services, Medical Examination Cell, Nirman Bhawan, New Delhi, learned counsel for the petitioner further submitted that the petitioner has been admitted in absentia on 20.08.2009 itself, and that only one candidate did not report for admission to MBBS course in the third respondent College and in such circumstances, there cannot be any forfeiture or cancellation of admission retrospectively from 30.09.2009. Learned counsel for the petitioner further submitted that an admission to an educational institution is different from joining and therefore, even if the petitioner was prevented https://hcservices.ecourts.gov.in/hcservices/ 3 from joining the institution for a bona fide cause, like in the instant case, where the petitioner had met with a serious accident resulting in state of coma, the admission cannot be cancelled retrospectively and at the most, the petitioner can be denied of appearance in the examination, if there is any lack of attendance. Learned counsel for the petitioner further submitted that production of a medical fitness certificate before the notified date is not a mandatory requirement for admission to MBBS course and what is stated in the memorandum dated 07.08.2009 issued by the Assistant Director General (Medical Education), Directorate General of Health Services, New Delhi, is that the candidate should report before the Principal of the College and take his admission within 15 days from the date of the letter, failing which he would forfeit the claim for admission. According to the learned counsel for the petitioner, the memorandum dated 07.08.2009 only states that the selected candidate will be required to undergo medical examination by the institution at his own cost on the notified date and if for any bona fide reason, a candidate was prevented from undergoing the medical examination on the notified date, the same can be had even after admission and that should not be a ground for forfeiture. According to him, a candidate has to report to the Principal/Dean of the institution within fifteen days from the date of receipt of the letter of admission and subject to the verification of the original certificates such as, date of birth certificate, transfer certificate, caste certificate (in original in case of SC/SC/OBC), OPH certificate, if the candidate has taken a seat under PH category, mark sheet, admit card (CBSE), etc., in original, as required by College/University concerned, in fulfilment of his admission and production of medical fitness certificate for admission, is not one of an essential certificates required for admission. 4.Once again, inviting the attention of this Court to the impugned order dated 22.06.2010 of the Dean, KAP Viswanathan Government Medical College, Tiruchirapalli, learned counsel for the petitioner further submitted that when the admission is said to be cancelled and terminated with retrospective effect from 30.09.2009, the Directorate has erred in sending a fresh list of seven candidates on 27.09.2009 itself, directing the third respondent institution to fill up seven seats. According to him, when admission has been granted on 20.08.2009, after obtaining necessary instructions from the Director General of Health Services, New Delhi, (All India quota) and that when the Dean, KAP Viswanathan Government Medical College, Tiruchirapalli, third respondent herein, has intimated the Directorate stating that there was only one vacancy in the college, on account of non joining of Arushi Puri, who did not report for admission on 24.08.2009, the seat allotted to the petitioner, which admission had been granted, ought not to have been cancelled and that the petitioner should have been allowed to join the course, with necessary medical certificates. According to the learned counsel for the petitioner, getting admission in MBBS course is a very difficult proposition and the petitioner being a meritorious candidate, who had succeeded after two rounds of examination, cannot be deprived of his chances to undergo the course on the sole ground that he had not produced the medical fitness certificate on the notified date. For the above said reasons, he prayed to set aside the impugned order and grant a direction to the respondents to permit him to participate in the counselling for admission to MBBS course for the current year 2011-2012, with the same marks. 5.Mr.Senthil Kumar, Learned Assistant Solicitor General, Government of India, who appeared for respondents 1 & 2, on instructions, submitted that the petitioner was allotted to MBBS seat at KAP Vishwanathan https://hcservices.ecourts.gov.in/hcservices/ 4 Government Medical College, Tiruchirappalli, under 15% All India Quota, 2009. 15% of All India Quota Seat is allotted to eligible candidates, who have qualified in the All India PMT examination conducted by CBSE, New Delhi, as per scheme approved by the Supreme Court. According to him, as per the scheme approved by the Supreme Court, the Directorate is responsible for allotment of seats to eligible candidates, by personal appearance in the counselling. In the Instant case, the petitioner was allotted a seat and that he was also admitted in the third respondent Medical College. He further stated that the Directorate General of Health Services has discharged its responsibility, by allocating a seat to the petitioner and that it is also clear that he was admitted in the third respondent College. Therefore, according to Assistant Solicitor General, Government of India, no action is pending on the file of Directorate General of Health Services. He also submitted that in so far as the admission to the current academic year in the third respondent institution is concerned, the Director General of Health Services had already conducted a first round All India Quota counselling 2011 (MBBS/BDS admission) between 2nd July and 11th July, 2011 and at the end of the counselling all the 15 seats of MBBS of KAP Vishwanathan Government Medical College, Tiruchirapalli have been filled up and as per the information available with the Directorate, there is no vacant seat. For the abovesaid reasons, he submitted that once the allocation has been made by the Directorate, it is the bounden duty of the third respondent College to fill up the seats. 6.Reiterating the avements made in the counter affidavit filed by the Dean of DAP Viswanatham Government Medical College, Tiruchirapalli and on the basis of the documents filled in the typed set of papers, Mr.B.Pugalenthi, learned Special Government Pleader submitted that the petitioner was provisionally allotted to the third respondent College, under All India Quota, for MBBS Course, during 2009-2010 academic year and by a memorandum dated 07.08.2009 issued by the Assistant Director General (Medical Education), Directorate General of Health Services, Medical Examination Cell, Nirman Bhavan, New Delhi, the petitioner was directed to report to the Principal/Dean of the above mentioned institution/college, within 15 days from the date of the said letter for admission and that the same would be subject to verification of the original certificates and eligibility for admission. According to him, the eligibility for admission will be as per the Bulletin of Information/Prospectus published by Central Board of Secondary Education, New Delhi and that the allotted candidate will have to present, other certificates, namely Date of Birth, Transfer Certificate, Caste Certificate (in original in case of SC/ST/OBC) OPH certificate, in original, as required by College/University concerned in fulfilment of his admission. He further submitted that on 20.08.2009 Mr.Abai Saxena, uncle of the writ petitioner appeared along with a memorandum and insisted for taking the fee for the course. It is his further submission that as per the conditions stipulated in the provisional selection order, the selected candidate is expected to report before the Principal of the College, within 15 days from the date of the memorandum i.e., from 07.08.2009. Otherwise, he has to forfeit the claim for admission and that the seat under 15% All India Quota 2009 would be forfeited without any further reference. Learned Special Government Pleader further submitted that though Mr.Abai Saxena uncle of the writ petitioner gave a declaration that the writ petitioner would appear on or before 28.08.2009 for medical fitness certificate. The time given to the candidate was restricted only upto 22.08.2009. The decision was also intimated to the Director General of Medical Education, New Delhi. https://hcservices.ecourts.gov.in/hcservices/ 5 According to him, as per the instructions, the petitioner was provisionally admitted with a specific condition that he should appear for medical examination on or before 22.08.2009 and it is not final. 7.Learned Special Government Pleader further submitted that the Hon'ble Supreme Court, after considering various aspects, has fixed a time schedule i.e., 30th September of every year as the last date for admission to MBBS course, in all the Colleges in the country and that appropriate instructions have been issued by the Directorate in this regard. He further submitted that as the petitioner has failed to appear for medical examination on or before 22.08.2009, the third respondent College by letter dated 24.08.2009 has intimated the same to the Director General of Health Services, New Delhi, the second respondent herein, along with the details of list of the candidate, who has not reported for admission, within the stipulated time. According to him, among 15 candidates allotted to the third respondent College, the writ petitioner did not appear for medical examination and Arushi Puri did not join the course. Five other candidates were transferred to other medical colleges, Accordingly, an intimation was given to this effect, pursuant to which, the Assistant Director of General, Directorate General of Health Services, New Delhi, allotted seven other candidates, to the third respondent institute in the second memorandum with a specific condition that the second set of candidates should join on or before 30.09.2009. According to learned Special Government Pleader, all the seven candidates forwarded by the second respondent have appeared for medical fitness and joined the course on 29.09.2009 and 30.09.2009 respectively.It is also his further contention that merely because fees was received on 28.02.2009, that would not confer any right on the petitioner to seek for admission for the reason that fees was received subject to the condition that the petitioner would appear for examination on or before 22.08.2009. According to him, an admission slip would be issued only after production of medical fitness certificate obtained from the Medical Board and it is his further contention that even before getting admission, the petitioner cannot claim leave, as a regular student of the third respondent college and therefore, the question of granting leave does not arise. In this context, learned Special Government Pleader invited the attention of this Court to the file note on record. For the above said reasons, he prayed for dismissal of the writ petition. 8.Though the Medical Council of India, New Delhi, the fourth respondent herein has filed a detailed counter affidavit setting out the provisions of the Act and explaining the responsibilities in discharging the duties of the Medical Council of India in maintaining the highest standards of medical education, as held by the supreme Court in various decisions, Learned counsel for the Medical Council of India submitted that there are no regulations or rules, relating to the date on which the selected candidate should join the College. He also stated that in an eventuality of this nature, where the selected candidate has met with a major accident and laid up in coma or prevented from any lawful cause, the Medical Council of India regulations are silent. His submission is placed on record. In addition to the above, Mr.P.Raman, learned counsel for the Medical Council of India further submitted that the primary responsibility for making admissions in the Medical Courses is with the Medical Council of India, in accordance with the directions of the Supreme Court issued from time to time. He also submitted that the course should start form 1st August of every academic year and no admission should be permissible after 30th September of any academic year. As regards the contention for https://hcservices.ecourts.gov.in/hcservices/ 6 admission of the petitioner in the year 2009-2010 academic year, the learned counsel for the Medical Council of India submitted that there cannot be any admission for the academic year 2009-2010. For the above said reasons, he prayed for appropriate reasons. 9.Heard the learned counsel for the parties and perused the materials available on record. 10.As per memorandum dated 17.08.2009 the Director General of Education, Nirman Bhawan, New Delhi, the petitioner has been selected and allotted a seat in the third respondent College, during the second round of UG counselling and that he has been directed to report before Principal/Dean of the third respondent College within 15 days from the date of the memorandum for admission. The selection and allotment of the seat to the writ petitioner for first year MBBS course is subject to the verification of original certificates and eligibility for admission. The eligibility of admission will be as per the Bulletin of information/prospectus published by the Central Board of Secondary Education, New Delhi. He will also have to produce other certificates namely Date of Birth, Transfer Certificate, Caste Certificate (in original in case of SC/ST/OBC) OPH certificate, if the candidate has taken seat under PH category, Mark Sheet, Admit Card (CBSE) etc., in original, as required by the College/University concerned in fulfilment of their admission. The selected candidates will be required to undergo medical examination in the institution at his own cost on notified date. Memorandum states that a selected candidate has to report before the Principal/Dean of the College to which he is allotted and that the selection subject to the verification of the original certificate and eligibility for admission. Nowhere in the memorandum it is stated the selection and admission is subject to medical examination. The only condition in the memorandum is that the selection is subject to verification of the original certificates and eligibility for admission. Eligibility for admission means that the candidate should have completed the prescribed age, secured the required marks in qualifying examinations, etc., and it does not mean that he must be medically fit on the date of reporting. Medical admission is granted for a mentioning student, who had participated in the All India Examination and not on the basis of the medical fitness and the same cannot be an eligibility criteria for admission. An admission to a course can be cancelled only if the candidates does not satisfy the eligibility criteria prescribed for a course and not for protection of Medical Certificate. Medical education cannot be equated with any service where physical fitness is a mandatory requirement for instance to any disciplined force. According to me, subjecting a candidate for medical examination by the institute on or before the notified date is a routine procedure and merely because, the candidate has not subject himself for examination on the said date, his selection and admission cannot be forfeited/cancelled. In the case on hand, the petitioner has met with a major accident on 3.8.2009 at Panna District, Madhya Pradesh, within four days prior to the admission letter and therefore, he could not appear. 11.Pleadings and material on record disclose that he was in the State of Coma and therefore, his uncle Mr.Abhay Saxena had appeared before the Dean of the 3rd respondent College and explained the difficulties and on that basis instructions have been obtained from the Director General of Medical Education, New Delhi to admit the petitioner in absentia on 20.08.2009. Once the admission is granted to the petitioner on receipt of a prescribed fee for the course and verifying all certificates relating to eligibility for selection, it is not open to the Director General of https://hcservices.ecourts.gov.in/hcservices/ 7 Medical Education, New Delhi, to send a fresh list, by including the seat for admission had already been granted. In this context, it could be seen from the intimation sent by the Dean K.P.A.Viswanatham, Government Medical Hospital, Tiruchirappalli, dated 24.08.2009. It is specifically stated that Saurabh Saxena, the petitioner bearing roll No.5900250 is provisionally allotted as per the telephonic instruction from the Director General of Health Service, New Delhi, (All India Quota) on 20.09.2008. The candidate is admitted in absentia on 20.08.2009. The uncle of this candidate alone appeared before the Dean, K.A.P.V.Government Medical College and the Dean instructed him to get Medical fitness certificate of the candidate on or before 22.08.2009. But, the medical fitness certificate of the candidate is not received till 24.08.2009. 12.The above communication of the Dean of the 3rd respondent college categorically states that the candidate has been admitted in the course and it does not even indicate that for non-production of the fitness certificate, the admission of the writ petitioner has been cancelled or the seat as forfeited. Even according to the Dean, only one candidate viz., Arushi Puri had not reported for admission to MBBS course as on 24.08.2009. The contention of the Special Government Pleader that the admission itself is only provisional subject to the production of the Medical fitness certificate and therefore, when the Director General of Health Services, New Delhi, sent a list of fresh students, they were filled up, cannot be accepted for the reason, that there is nothing to indicate in the file note that on 20.08.2009 or in the communication dated 28.04.2009 addressed to the Director General of Health Services, New Delhi, the Dean has indicated the forfeiture of the seat for non-production of any fitness certificate. There is also nothing on record to indicate that the admission granted is provisional as per the Medical Council of India Regulation or the Registrar of the Dr.MGR Medical University. 13.At this juncture, it is to be noted that even the Medical Council of India has not specifically stated anything in its counter affidavit about any provisional or final admission and therefore, it is not open to the Government to contend that the admission is only provisional. The averments at para No.5 of the counter affidavit filed by Dean, K.A.P.Viswanatham, Government Medical College, Tiruchirapall, that as per the condition stipulated in the provisional selection order, the candidate is expected to report before the principal of the College within 15 days from the date of memorandum i.e., on 07.08.2009 and failure to report for medical examination would entail cancellation, cannot be accepted for the foregoing reasons. 14.The contention of the writ petitioner that he was in state of coma from 03.08.2009 and admitted in hospital has not been disputed. Admission to a course and joining the college are entirely different. If admission had already been made, subject to eligibility criteria prescribed in the prospectus for admission to the course and after scrutiny of necessary documents, such as mark sheet, date of birth, transfer certificate, admit card (CBSE) in original, as required by the College concerned in fulfilment for admission, then the candidate is said to be duly admitted to the course. Having received the fees for the course and verified all the certificates relating to eligibility for selection, it is not open to the respondents to contend that it was only a provisional admission. There is no such concept of provisional admission in the selection letter issued by the Director General of Health Services. In a case of