IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 1-8-2011 CORAM THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR WRIT PETITION No.17601 of 2011 M.P.Nos.1, 2 of 2011 M. Sathiskumar ... Petitioner Vs 1. The Director of Medical Education, No.162, E.V.R.Periyar Road, Kilpauk, Chennai – 10. 2. The Secretary, Selection Committee, O/o.The Director of Medical Education, No.162, E.V.R.Periyar Road, Kilpauk, Chennai – 10. 3. The Medical Council of India, rep.by its Secretary, New Delhi. ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of mandamus directing the respondents to admit the petitioner to the course of M.B.B.S. for the academic year 2011-2012 and pass appropriate order or direction. For Petitioner : Mr.L.Chandrakumar, for Mr.Jothimanian For Respondents 1 & 2 : Mr.S.T.S.Moorthy, Special Government Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E R By consent of the petitioner and the contesting respondents the writ petition is taken up for final disposal. The third respondent is only a formal respondent, against whom no relief is sought for. 2. The prayer in the writ petition is to issue a writ of mandamus directing the respondents to admit the petitioner in M.B.B.S. Course commencing from the academic year 2011-2012. 3. The brief facts necessary for disposal of the writ petition are as follows: (a) The petitioner has passed Plus Two examination in May, 2011 with 1151 marks out of 1200 marks. Petitioner belongs to MBC community. Initially the petitioner scored 1149/1200 marks and he applied for revaluation in Science subject and got two more marks and by adding the additional two marks, the total marks comes to 1151/1200. (b) Petitioner applied for admission to the first year M.B.B.S course for the academic year 2011-2012 pursuant to the notification issued by the second respondent Selection Committee, inviting applications. The last date fixed for submitting applications was upto 5.00 p.m on 2.6.2011. Petitioner's application bearing No.73131 was received by the second respondent on 30.5.2011. (c) The provisional merit list for the courses M.B.B.S./B.D.S. was announced on 22.6.2011. After receiving the revised marks from the petitioner as well as other candidates, who secured more marks after retotalling or revaluation, petitioner was ranked at 399A in the community rank list (MBC) and at 2097C in the overall rank list (open) as he got 196.50/200 marks. (d) The petitioner was found eligible to attend the first phase of counselling held from 30.6.2011 to 6.7.2011 for admission to M.B.B.S. Course in Government Medical Colleges, however he was not given any intimation or call letter to attend the said phase of counselling. According to the petitioner, he was not aware of the date of the first phase of counselling as he is residing in a remote village called "Chellamudi" in Pennagaram Taluk, Dharmapuri District, where there is no internet access. Petitioner, if gets admission, would be the first graduate in his family and he is eligible to get admission in the first year M.B.B.S. Course in a Government Medical College, that too at free of cost as per the Government policy. (e) It is the specific case of the petitioner that one A.Kosalairaman, who scored 193.5/200 marks, belongs to MBC community, got a call letter from the second respondent and he was selected for the M.B.B.S.course during the first phase of https://hcservices.ecourts.gov.in/hcservices/ counselling. The petitioner, though secured 196.50/200 marks, due to the non-communication of the call letter, his right to get admission to first year M.B.B.S course is deprived. (f) On 25.7.2011 the petitioner went to the office of the second respondent and enquired about the same and he also submitted a representation on the same day. The petitioner was not given any reply as to whether call letter/intimation was sent to the petitioner in the given address in terms of the prospectus, but no reply was given by the officials. The petitioner also pointed out that in his village there is no internet facility to see the website. (g) As the petitioner could not attend the first phase of counselling due to non intimation and the second phase of counselling having been fixed on 28.7.2011 at 9.00 a.m., the petitioner prayed for permitting him to participate in the second phase counselling by issuing a call letter. Even after the receipt of representation dated 25.7.2011 no intimation or call letter to attend the second phase of counselling was issued, though seats are available in Government Medical Colleges. Hence the petitioner has filed this writ petition with the above said prayer on 26.7.2011. 4. The writ petition came up for admission on 27.7.2011 and taking note of the high rank secured by the petitioner under MBC quota and having noticed the availability of seats in Government Medical Colleges, this court granted an interim direction, directing the respondents 1 and 2 to keep one seat of first year MBBS course in any one of the Government Colleges as vacant for the academic year 2011-12 pending further orders. The said order was extended on 28.7.2011 and as such there is a vacancy available in the first year MBBS course in one of the Government college. 5. The first respondent has filed a counter affidavit on 28.7.2011 by stating that the petitioner initially scored 195.50/200 marks and he was ranked at 2770 (in General) and at 532 (MBC community). As per the revaluation marks, his total became 196.50/200 and therefore his rank was also revised to 2079A and 399A respectively. The revised rank was published in the website on 30.6.2011, immediately on receiving the results of revaluation/retotalling from the Director of Government Examinations. The counselling schedule was hosted in the internet on 27.6.2011 stating that the candidates, whose marks got revised are permitted to attend the counselling as per the counselling schedule with proper evidence. Clause 25 of the prospectus is relied on to state that the counselling schedule will be available in the website and the candidates who have not received the call letter in time can also attend the counselling as per the schedule and as per their merit/rank and revaluation/retotalling marks were https://hcservices.ecourts.gov.in/hcservices/ also counted as per clause 32 of the prospectus. It is also stated in the counter affidavit that as per Clause 27(ii) of the prospectus for MBBS/BDS course 2011-2012, if any candidate absented in the first phase, he/she cannot attend in the second phase of counselling. It is further stated that 31 candidates did not attend the first phase of counselling like the petitioner and if the petitioner is allowed to attend counselling in the second phase, the respondents will have to allow all other 30 candidates, which will cause confusion and upset the selection already made. It is the mistake of the petitioner in not attending the counselling after getting the revised mark sheet on 29.6.2011. According to the respondents the conditions contained in the prospectus are binding on the petitioner and therefore the petitioner is not entitled to attend the second phase of counselling for admission this year. 6. Mr.L.Chandrakumar, learned counsel for the petitioner relied on clause 25, 27, 29 and 30 of the prospectus and emphasised on clause 29 and submitted that it is assured in the prospectus that intimation/call letters will be sent either by certificate of posting, registered post, speed post, courier service or by telegram, whichever is possible and selection committee is not responsible for any postal delay or non-receipt of call letters. The learned counsel also submitted that as per clause 27(ii)(b), due to unforeseen reasons if a candidate could not attend counselling on the specified date and time, he can attend on the subsequent date/time during that counselling phase and therefore the petitioner is entitled to be called for the second phase of counselling, and only due to the non-communication of the call letter the petitioner was unable to participate in the counselling even though he was having more marks than several candidates selected under the MBC quota, which is not disputed in the counter affidavit and therefore the writ petition is to be allowed. 7. Mr.S.T.S.Moorthy, learned Special Government Pleader appearing for the respondents 1 and 2 on the other hand submitted that it is the duty of the petitioner to see the website and attend counselling and the Selection Committee permitted candidates even without intimation letter based on their rankings and the petitioner alone can be blamed for not attending the first phase of counselling. Petitioner cannot compel the respondents to permit him to attend the second phase of counselling as he has failed to attend the first phase of the counselling and no indulgence can be shown to the petitioner merely because he has approached this Court and he can be treated like other 30 candidates. https://hcservices.ecourts.gov.in/hcservices/ 8. I have considered the rival submissions made by the learned counsel for the petitioner as well as respondents. 9. The petitioner's mark of 196.50 out of 200 for selection to the first year M.B.B.S course; he is hailing from a remote village called "Chellamudi", Pennagaram Taluk, Dhamapuri District; his community status as MBC; his ranking given viz., 399A (MBC community ranking) and 2097C (overall ranking) are not in dispute. In the affidavit filed in support of the writ petition, the petitioner has stated that one A.Kosalairaman belonging to MBC community, who secured 193.5/200 marks was already selected during the first phase of counselling conducted by the Selection Committee. The said fact is also not disputed by the respondents in their counter affidavit. The rank assigned to the petitioner by the Selection Committee is also proved by the petitioner through the merit list published, a copy of which is filed in the typed set of papers. 10. The grievance of the petitioner is that during the first phase of counselling the petitioner was not given any intimation/call letter as required to be given under Clause 29 of the prospectus. For proper appreciation the following clauses in the prospectus, which are relevant, are extracted hereunder: "22. The Secretary, Selection Committee will draw a merit list and publish the same at the notice board of Selection Committee. Directorate of Medical Education and on the website: http://www.tnhealth.org / www.tn.gov.in. 25. Counselling Schedule will be available on the website. Candidates who have not received the call letter in time can also attend the counselling session as per schedule and as per their merit. 27(i) Option once exercised during counselling will be final and cannot be changed. (ii) a) Candidates who fail to attend the counselling at the specified date and time will forfeit their right to admission and their name will not be considered later. b) Due to unforseen reasons, if a candidate could not attend the counselling on the specified date and time he/she can attend on a subsequent time/date during that counselling phase and allowed to take the course and https://hcservices.ecourts.gov.in/hcservices/ college available at the time of counselling when he/she actually attends. He/she can authorise his/her parent on his/her behalf and the parent's decision will be binding on the candidate. The authorisation letter must be in the prescribed format in the Annexure XIV (a&b) If the candidate is absent during the 1st phase of counselling, he/she cannot attend the 2nd phase of counselling. 29. All communications will be sent only to the mailing address given in the application and self addressed envelopes (size 23x10 cms). Candidates are requested to intimate any change of address immediately. The intimation/ call letters will be sent either by Certificate of Posting, Registered post, Speed Post, Courier Service or by Telegram, whichever is feasible. Selection Committee is not responsible for any potal delay or non-receipt of call letters. 30.(a) Candidates can exercise their option for the course and the college of their own choice at the time of counselling and allotment will be subject to availability of seats. (b) They are eligible to attend the counselling for reallotment of colleges. The date of such counselling will be published in the website and also will be informed to the Deans of respective Medical/Dental Colleges. No individual intimation will be sent to the candidates." (Emphasis Supplied) From the perusal of the said clauses contained in the prospectus it is evident that counselling schedule will be available on the website and candidates, who have not received the call letter in time, can also attend the counselling as per the schedule and as per their merit. Clause 29 clearly states that all communications will be sent only to the mailing address given in the application and the candidates are requested to enclose a self-addressed envelop with size 23x10 cms and are requested to intimate any change in the address immediately. The intimation/call letters will be sent either by certificate of posting, registered post, speed post, courier service or by telegram, which is feasible. A combined reading of Clauses 25 and 29 establishes a fact that sending of call letter/intimation either under certificate of https://hcservices.ecourts.gov.in/hcservices/ posting, registered post, speed post, courier service or by telegram is mandatory, though it is stated in the said clause that Selection Committee is not responsible for any postal delay or non-receipt of call letters. 11. In the counter affidavit filed by the respondents nowhere it is stated that the petitioner was given intimation/call letter in anyone of the modes mentioned. If the second respondent has sent the call letter through anyone of the above referred modes, then the second respondent may be justified in contending that the non-delivery may not be put against the Selection Committee. In the absence of any call letter sent or even prepared in the name of the petitioner, the respondents are not justified in contending that the petitioner should have verified from the website and ought to have attended the first phase of counselling. 12. It is also the specific case of the respondents that call letter was not issued to only 31 candidates, who are eligible to get admission as per their ranking out of 1654 seats available in Government Medical Colleges. The respondents having issued individual call letter/intimation as promised in the prospectus to almost all candidates barring few, who took part in the counselling on seeing the internet, and only 31 candidates were not issued with any call letter during the first phase of counselling, gives a clear indication that the respondents also treated the said clause in the prospectus, viz., Clause 29 as mandatory. Clause 27(ii)(a) of the prospectus states that candidates, who fail to attend on the specified date and time will forfeit their right to admission, is admittedly a penal consequence. It is well settled in law that a provision if not followed will attract penal consequence, that provision should be construed as mandatory. Therefore the learned Special Government Pleader cannot justify the non-sending of call letter/intimation to the petitioner and contend that the petitioner has to be blamed for not attending the first phase of counselling. 13. It is the specific case of the petitioner that he is hailing from a remote village where there is no internet facility available. No one in his family has studied upto graduation. The petitioner being a meritorious candidate, eligible to get admission as per the ranking announced by the Selection Committee, his right to get selection cannot be deprived by raising a technical plea, without even sending a call letter or intimation letter to the petitioner for counselling, which is a mandatory requirement as per Clause 29 of the prospectus. https://hcservices.ecourts.gov.in/hcservices/ 14. The provision contained in the prospectus, viz., Clause 25 is an enabling provision, permitting the candidates to attend counselling even without call letter. The said clause cannot be construed as the respondents need not send the call letter/intimation letter at all. If such an interpretation is given as argued by the learned Special Government Pleader, Clause 29 will be rendered meaningless. Clause 29 gives a promise in unequivocal terms to all candidates (who have enclosed an envelop) that call letter will be issued by anyone of the modes mentioned therein. The respondents cannot violate the said assurance given to the candidates, while conducting counselling for admission to first year M.B.B.S. Course. 15. The binding nature of the prospectus/instructions to both the Selecting authority and the candidate applying for admission or appointment is well settled. The following decisions can be usefully cited in this regard: (1976) 3 SCC 585 (G. Sarana (Dr.) v. University of Lucknow); 1986 (Supp) SCC 285 : AIR 1986 SC 1043) (Om Prakash Shukla v. Akhilesh Kumar Shukla)(para 24); AIR 1995 SC 1988 :(1995) 3 SCC 486 (Madan Lal v. State of Jammu & Kashmir)(para 9); AIR 2000 Madras 174(FB) (R.Murali v. R.Kamalakkannan); (2007) 5 MLJ 648(DB) (Indian Airlines Ltd. v. K.Narayanan); (2008) 4 SCC 171 (Dhananjay Malik & Others v. State of Uttaranchal & Others); 2009 WLR 223 (Dr.S.Rajesh v. The State of Tamil Nadu & Others); (2010) 12 SCC 576 (Manish Kumar Shahi v. State of Bihar); 2011 (1) CTC 469(DB) (V. Yamuna Devl v. The Registrar General, High Court, Madras); and (2011) 1 SCC 150 (Vijendra Kumar Verma v. Public Service Commission). 16. The petitioner has submitted a representation on 26.7.2011 after coming to know about the admission given to a candidate, who was placed far below to his rank, i.e, two days prior to the commencement of second phase of counselling to fill up the vacant seats available in the Government Medical Colleges as well as in the Self-financing Medical Colleges under Government quota. He has also approached this Court on 26.7.2011 making the said complaint and on 27.7.2011 notice was taken by the learned Special Government Pleader. At least after filing the writ petition the petitioner could have been called to attend counselling. On the other hand, the respondents took a hyper technical plea as if the petitioner is at fault in not attending the first phase of counselling and therefore he cannot claim a seat in the second phase of counselling. The said conduct of the second respondent is erroneous, unreasonable and arbitrary and also violative of clause 29 of the prospectus extracted above. https://hcservices.ecourts.gov.in/hcservices/ 17. Taking note of the above said fact, on 27.7.2011 i.e, one day prior to the commencement of second phase of counselling, an interim direction was issued to the respondents to keep one seat vacant in any one of the Government Medical College for admission to first year M.B.B.S course. Therefore, there shall not be any difficulty to the respondents in accommodating the petitioner by permitting him to attend the counselling. 18. If the second counselling date was over and if no seat is available in Government Medical Colleges, the respondents can possibly contend that there is no seat available and permitting the petitioner to attend counselling for selection will upset the selection already made. In this case, as one seat is kept vacant pursuant to the interim order passed by this Court, without disturbing the selected candidates, the petitioner can be accommodated in anyone of the Government Medical College. 19. This Court took a view that even if xerox copies of the certificates were not enclosed by a candidate by inadvertence or otherwise and if that candidate is otherwise meritorious, he is entitled to get admission. The said decision was rendered by D.Hari Paranthaman,J., in W.P.No.14780 of 2011 on 7.7.2011. Though the said decision was reversed in W.A.No.1100 of 2011 by the Division Bench judgment dated 20.7.2011, the Honourable Supreme Court in S.L.P.(Civil)No.20533 of 2011 by order dated 27.7.2011 restored the order made in W.P.No.14780 of 2011, so as to enable the student to get a seat in the Government Medical College. Thus, the respondents are not justified in raising hyper technical ground to deny admission to the petitioner herein. 20. On the basis of the above findings and decisions, the writ petition is allowed with a direction to the respondents to admit the petitioner in any one of the Government Medical College in the first year M.B.B.S. course during the academic year 2011- 2012 based on his MBC ranking 399A, forthwith. There is no order as to costs. Connected miscellaneous petitions are closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. vr https://hcservices.ecourts.gov.in/hcservices/ To 1. The Director of Medical Education, No.162, E.V.R.Periyar Road, Kilpauk, Chennai – 10. 2. The Secretary, Selection Committee, O/o.The Director of Medical Education, No.162, E.V.R.Periyar Road, Kilpauk, Chennai – 10. 3. The Secretary, Medical Council of India, New Delhi. 1 cc to Mr.M.R. Jothimanian, Advocate, Sr. 46603 W.P.No.17601 of 2011 KM (CO) kk 1/8 https://hcservices.ecourts.gov.in/hcservices/