^L FS ' i-t;^?^ C1=-( CSO ® IN THE HI6H COURT OF CHHATTIS6ARH AT BILASPUR WRIT PETITION No. ^'l-l^ OF 2006 PETITIONER Vs RESPONbENTS •^Xr ^x'.s: ^^^.^ ^>a^y ^s^'^'" x^'^' Abhishek Agrawal, son of Shri ' Gopal Prasad Agrauual, aged about 20 years, resident of C-99, Sector-1, Devendra Nagar, Raipur. 1.5tate of Chhattisgarh, through^ the Secretary, Department of Public Health and "Pamily Welfare/ Medical Education, Ci.K.S. Bhavan, Raipur(C.(5.). 2. The Director, Health Services,, Sovernment of Chhattisyarh, D.K.S. Bhawan, Raipur (C.6.) 3. C.6. Personnel Examination Board, Tagore Nagar, Raipur. 4. Chhattisgarh Institute of Medical Sciences (CIMS); Bilaspur, through the Dean, CIMS, Bilaspur. 5. Medical Council of India, Aiwan- E-fialib Mdrg, Kotla Road; New Delhi - 110002 6. Ku. Renu Patil, daughter of Shri S.K. Patil, resident of Bilaspur, through Dean, Chhattisgarh Institute of Medical Sciences (CIMS), Bilaspur. PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF IN&IA ITCU /*"! IB' AF SHATTTfifi4 3.ft..^v s^U *r "s> ^s^s - N0.5719 OF &».tS??^ 'E 1 J.TIONER I, i ¥S nt^n^rf-S ~n'' ,w. UK|^|^< r Sd/- Dhirendra Mishra Judge Sd/- L.C.Bhadoo Judge ncT pno ncncB nM ?a*" .Ti <Me yn.iT i^'*^ i < »!^i-=» t^s-'i^^^i3* ^./j''i <-^ ^Wi'^S. ^w~'*i'ff Sd/- Dhirendra Mishra Judge u^'il!'.^?JM-^*li?'-y;-: /y-s < HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION N0. 5719 OF 2006 DIVISION BENCH Petitioner Respondente Y'ii. -»-i11 HON. SHRI L.C. BHADOO & HON. SHRI DHIRENDRA MISHRA, JJ Abhishek Agrawal, son of Shri Gopal Prasad Agrawal, aged about20 years, resident of C- 99, Sector-1, Devendra Nagar, Raipur. Vs 1. State of Chhattisgarh, through the Secretary, Department of Public Health and Family Welfare/Medical Educadon, D.K.S. Bhavan, Raipur (C.G.) 2. The Director, Health Services, Government of Chhattisgarh, D.K.S. Bhavan, Raipur (C.G.) 3. C.G. Personnel Examination Board, Tagor Nagar, Raipur. 4. Chhattisgarh Institute of Medical Sciences (CIMS), Bilaspur, through the Dean, CIMS, Bilaspur. 5. Medical Council of India, Aiwan-E-Galib Marg, Kotla Road, New Delhi - 1 10002. 6. Ku. Renu Patil, daughter of Shri S.K.Patil, resident of Bilaspur, through Dean, 1 ';cS!':?^fe llK Chhatisgarh Institute of Medical Sciences (CIMS), Bilaspur. Present: Mr. B.P. Sharma, learned counsel for the petitioner. Mr. U.N.S. Deo, learned G.A. for respondents No.l 85 2. Mr. Pankaj Agrawal, learned counsel for respondent No. 3. Mr. Manindra Shrivastava, learned Sr. Advocate with Mrs. Smita Ghai, learned counsel for respondent No. 4. Mr. Ranbir Singh Marhas, learned counsel'for respondent No. 5. Mr. Sanjay K. Agrawal, leamed counsel for respondent No. 6. ORDER (Passed on 2441>June 2007) Dhirendra Mishra. J The petitioner by the instant petidon under Article 226/227 of the Constitution of India seeks a writ or an order in fhe nature of writ of mandamus calling upon respondents-State authorities and particulariy respondent No.4 CIMS to admit the petitioner in M.B.B.S. course and any other relief which may be granted in the interest ofjustice. 2. Grievance of the petitioner, in brief, is that he appeared in the entrance examination for the year 2006-07 for admission in the M.B.B.S. course (PMT Examination) as a candidate of unreserved category (No class). His rank was 208 in the State. He appeared for counseling on 22nd August 2006 as per call letter issued by respondent No.2 of Annexure P/3. On the date of counseling he was apprised that in cas& he opts, he may be admitted to B.D.S. course, however, he opted for M.B.B.S. course and decided to remain in the waiting list as his name was at Sl.No.5 of the waiting list as per information given to him. The petitioner learnt froni newspaper reporting that final counseling was to be held on 28th September 2006. He was informed orally that the seats of M.B.B.S. course have already filled up and if he is willing to join B.D.S. course, then only he may appear in the counseling to be held on 28th September 2006. On the saine day, he came to know that three students who were eligible for admission in the M.B.B.S. course have not opted for the course/have not completed their formalities, therefore, three seats of M.B.B.S. course are lying vacant. However, all the candidates who were placed above the petitioner in the merit list opted and admitted in the M.B.B.S. course. The candidate who was at Sl.No. 1 in the waiting list did not opt for admission and after final counseling the position emerged that he was at wait list No. 1 and was entitled for admission in M.B.B.S. course, if any seat fell vacant of general category. Subsequently, two days before flling of petition he learnt that one student who was admitted to M.B.B.S. did not join the said course in CIMS and respondent No.6 was admitted against the vacant seat available at CIMS. His representations and requests with fhe authorities to allot the vacant seat of M.B.B.S. course to him on the ground that he was at Sl.No. 1 in the waiting list and as such had preferential right of admission, were ignored and in his place respondent No.6, whose overall rank is 1139 in unreserved (No class) category and who securedjust 269.09 marks in P.M.T. was admitted. The action of the respondents-State authorities is arbitrary and malafide. It was further alleged that respondent No. 6 was daughter of Mr. S.K. Patil, who is working as professor with respondent No. 4, CIMS, and therefore, she was admitted from the backdoor. 3. Respondent No. 4 in its reply has submitted that the answering respondent-Institution has 50 free seats and 50 payment seats of M.B.B.S. course, as per rules and instrucdons of the G^overnment centralized counseling was conducted by Director Medical Education (for brevity DME) at Raipur, admissions were to be made in accordance with the rules notified vide Annexure R- 4/1. After final counseling list of admitted students was prepared and the same was forwarded to CIMS for giving them admission. The admissions were made strictly in accordance with the list .r- f furnished by D.M.E. as per counseling held on 13th/14U1 July, 22nd/23rd August and 28U1 September 2006, subject to the candidates fulfilling other requirements such as deposit of necessary fees etc. The last list after counseling dated 28th September 2006 of selected candidates was forwarded from D.M.E. and accordingly, allotment/provisional admission letters in respect of seven candidates were received vide Annexure R-4/2. The admitted candidates were to take admission latest by 12.00 noon of 30th September 2006. No seat was allotted to the petitioner in the final counseling on 28th September 2006. Out of seven seats five were to be filled up against payment quota and two seats were to be filled up against free quota. When the petidoner could not get admission in the M.B.B.S. course in the final counseling, probably he opted for B.D.S. course and continued pursuing his studies in the B.D.S. course. All the admissions were granted to those candidates who appeared within the time stipulated and fulfilled other condidons regarding deposit of fees, fumishing of original mark-sheets etc. In reply to the Fax message dated 30th September 2006 received at 4.12 p.in. of Annexure R-4/3 Dean, CIMS vide Fax message of Annexure R-4/4, 5.08 p.m. communicated the list of admitted students and list of absent students. By this communication directions were sought regarding vacant seats. Admission ofone candidate namely Ku. B.K. Rashmi was cancelled and communication to this effect was sent to her vide Annexure R-4/5 intimating her that since she could not produce original mark-sheets of Class-XII till 4.00 p.m. on 30th September 2006 and she did not appear personally till 7.00 p.m. on that date, her admission was cancelled and tuition fee deposited by her was directed to be refunded. A copy of this communication was also forwarded to D.M.E., Raipur for information and final list of admission given on 30th September 2006 was sent to D.M.E. vide Annexure R-4/7. It has been further averred that after cancellation of admission of Ku. B.K. Rashmi, the admission process committee of the CIMS decided to grant admission to the candidates who were present in the office of Dean as they did not have telephone nuaibers and addresses of other candidates and only few hours were left for completing the admission process. Allegation of favouring respondent No.6 on the ground that she happened to be the daughter of one doctor working in CIMS, was denied and it was contended that due to eleventh hour cancellation of adniission of B.K. Rashmi, CIMS acted bonafidely under given circumstances as per their best judgment and gave admission to respondent No. 6 as she was present along with requisite fees and original documents. 4. Respondent No. 6 in her return has stated that the petitioner is pursuing his studies in B.D.S. course since 2005 in Govt. Dental College, Raipur and while pursuing his studies he appeared in the entrance examination of B.D.S. course held in the year 2006 and this fact has been suppressed by the petitioner in the petition. Her admission to the M.B.B.S. course was strictly in accordance with the law and allegation of favouritism and backdoor admission, has been denied. 5. Respondent No. 1 8s 2 in their joint return have stated that the petitioner was already pursuing B.D.S. course in Govt. Dental College, Raipur since 2005 and Rule 7.2 of Chhattisgarh Medical and Dental Graduate Admission Examination Rules, 2006 (for brevity 'the Rules 2006) imposes a bar for change of college, course and seat etc. at any circumstance. It was further contended that CIMS and University had exclusive jurisdiction for admission to M.B.B.S. course and respondents No. 1 8s 2 were not concerned. After each counseling the candidates who did not opt for admission or who were not allotted seats, remain in the waiting list and D.M.E. vide Fax message sent at 4.10 p.m. on 30.9.2006 directed all the institutions including CIMS to complete all the formalities of admission by 30.9.2006 itself being the last date of admission and in case of vacancy seek further direction/guidance from D.M.E. The D.M.E. further communicated CIMS vide document of Annexure R-l/3 by Fax, to act in accordance with and on the basis of their rules as the alleged vacant seats fell within the management quota. Final counseling was held on 28th September 2006, seats were allotted on the basis of inerit and successful candidates were given fime limit of two days for getting admission in the allotted colleges. Since the seat fell vacant only on 30th September 2006, it was not practicable to intimate the candidates within a period of few hours, that too, in the late hours of the deadline. It was duty of the petitioner to be vigilant for seeking admission in the M.B.B.S. course and he ought to have remained present at the time of admission as the candidates who were present at that time were considered for admission. 6. Respondent No.5, Medical Council of India, in a separate return has also opposed contentions of the petitioner in the petition. 7. The petitioner in his rejoinder to the reply disputed the contentions of respondents No. 1 8s 2 that respondent No. 6 has been adinitted against the management quota and contended that she was admitted in general seat and has paid fees payable under fhe general category. He has further stated that he had every right to appear in P.M.T. examination in order to get admission in M.B.B.S. course and condnuance ofhis studies in B.D.S. course in Govt. Dental College, Raipur since the year 2005, does not prohibit him from securing admission in the medical college. He was present on the date of counseling before the authorides of the respondents, no efforts were made by respondentNo. 4 to contact the eligible candidates as per waiting list over telephone as per directions of the D.M.E. The petitioner has mentioned his telephone number in the bio data annexed with the application form of 2006 vide Annexure P/11 and also O.M.R. sheet annexed with the application. CIMS did not seek any instructions regarding admission to vacant seat of general category froin D.M.E. f-'1 8. Learned counsel for the petitioner submitted that petitioner was the only candidate entitled for admission to M.B.B.S. course for the year 2006-07 in CIMS as after final counseling held on 28th September 2006, the petitioner's number was first in the waiting list and his overall rank in unreserved category (No class) was 208 whereas the rank of respondent No. 6 was 1139 and under these circumstances, suitable orders/directions may be passed under Article 226 of the Constitution of India. 9. Reliance is placed on the judgn-ient of the Hontile Apex Court in the matter of Sardar Ainarjit Singh Kalra (deadl by L.Rs.and others Versus Pramod Gupta (Snit.l (dead) by L.Rs. and others reuorted in (2003) 3 SCC 272 and it is submitted that "ubijus ibi remedium" (where there is a right, there is a remedy) is the basic principle of jurisprudence. Suitable orders/directions may be passed so that right of the petitioner is protected and the pleadings in the writ petition may not be allowed to come in the way of giving justice to the petitioner who is admittedly more meritorious than respondent No.6 and has been denied admission. The stand of the respondents particularly respondent No.4 that one vacancy in the general category arose all of a sudden due to non-appearance of admitted student Ku. B.K. Rashmi and non- production of original mark sheet of Class-XII, therefore, to fill up the certain vacancy on the last date of adn-iission naines of the candidates who were present in fhe institute were considered and since respondent No.6 was found the only candidate whose rank was higher in the merit list than others, she was given admission as per directions of the D.M.E., is not convincing. No document has been filed which shows that other candidates of general category below the rank of respondent No. 6 were present at the relevant time. It is unconceivable that candidates of general category ranking 1139 and below, could be present in CIMS premises with the huge amount of Rs.40,000/- and their testimonials with the hope that they may get admission against the vacancy generated at the last inoment. The whole circumstances is to be viewed in the background of the fact that fafher of respondent No. 6 was member of the coinmittee constituted by CIMS for the purposes of admission. It was further argued that right of counseling is vested with the counseling cominittee having D.M.E., Dean, Medical or Dental College and representadves of C.G. Personnel Examination Board as members. The committee was monitoring the admissions at Raipur up to 30th September 2006 and respondent No. 4 was in live contact with the committee. However, no direction was sought from the counseling committee about the vacancy against the general category arose at the last moment due to cancellation of admission of Ku. B.K. Rashmi and respondent No. 6 was admitted without obtaining concurrence of the committee and without making any endeavour to contact either the counseling coinmittee or any other eligible candidates over telephone. Respondent No. 6 has been admitted in the medical course by unauthorized committee, the same was done by illegally exercising the jurisdiction not vested in theni and by practicing fraud with the petitioner, therefore, in these circuinstances, admission of respondent No.6 deserves to be cancelled. 10. Reliance is placed on the judginent of the Hon'ble Apex Court in the matter of Ainan Deep Jaswal Versus State of Punjab and others reported in (2006) 9 SCC 597 and it has been argued that the petitioner may be admitted in the M.B.B.S. course in the next academic year i.e. 2007-2008 within the sanctioned intake of CIMS. 11. Further relying upon the judgment of the Hon'ble Supreme Court in the matter of U.P. State Brassware Cornn. Ltd. Versus Uday Narain Pandey reported in (2006) 1 SCC 479 , it is argued that the relief may be moulded in the given situation and such reliefs niay be granted as the parties may be found to be entitled to in equity and justice. t- 12. Reliance.is also placed on the judgment of the Hon'ble Supreme Court in the matter of Harshali Vs. State of Maharashtra and others reported in (2005) 13 SCC 464 and it is contended that the HonTsle Supreme Court has severally deprecated the manner of grant of admission to less ineritorious students and denial of the same to the meritorious students, while granting admission in the government quota seats and in the facts of that case, respondents were directed to give admission to the appellant in first year M.B.B.S. course for the next session leaving open the other questions about loss of one year of career of the appellant. 13. On the other hand, leamed counsel appearing on behalf of respondent No. 4 argued that after final counseling held on 28th September 2006 eligible candidates were admitted against the seats available in CIMS under unreserved category (No class) by the counseling comniittee, seven students were recruited for admission on that date and out of seven seats five were to be filled up against payment quota and two seats were to be filled up against free quota, a communication to this effect was sent by D.M.E. vide Annexure R-4/2. Recruited candidates were to take admission positively by 12.00 noon of 30th September 2006, failing which their admission was to be cancelled automatically. Directions were sought by CIMS from DME regarding vacant seats vide Annexure R-4/4 whereupon the DME vide Fax message of Annexure R-4/6 at 4.45 p.in. directed to contact next candidate in the merit list through telephone and in case they are unable to contact, the seats should be filled up in accordance with merit froin the candidates of the same class and only thereafter, other candidates may be admitted after conversion. Since Ku. B.K. Rashini was the candidate of unreserved category (No class), contact number of next candidate in the merit list was not available and respondent No. 6 and other candidates of the same category were present in the CIMS premises and respondent No. 6 was above in rank from all the available candidates, she was given 10 admission. Ku. B.K. Rashmi was recruited in the counseling, she had also deposited the requisite fees, therefore, management waited for her up to 7.00 p.m. on 30th September 2006 and thereafter, canceling her adinission, respondent No. 6 was admitted as the last date of admission was 30th September 2006. 14. Placing reliance on the judgment of the Hontile Supreme Court in the matter of Mridul Dhar (ininor) and aaother Versus Union of India and others reoorted in (20051 2 SCC 88, it is contended fhat due to eleventh hour cancellation of admission of Ku. B.K. Rashmi, CIMS acted bonafidely under the given and compelling circumstances as per their best judgment and gave admission to respondent No. 6. 15. Further placing reliance on the judgment of the Hon'ble Supreme Court reported in J.T. (2007) 2 S.C., 250 in the matter of Vikrani Dhillon -v- State of Haryana and others, it is argued that one seat fell vacant due to eleventh hour cancellation of admission of Ku. B.K. Rashmi Yadav and the same has been filled by CIMS from among the wait listed candidates who were present in the college on that date and since the petitioner was not present on that date, he was not admitted. In these circurnstances, the respondent No. 6 was admitted to the course as she was also the wait listed candidate and was above in ranking than others who were present. 16. Shri Sanjay K. Agrawal, learned counsel appearing on behalf of respondent No. 6 submitted that the petitioner has not sought the relief of cancellation of admission of respondent No. 6 and therefore, admission of Ku. Renu Patil, respondent No. 6, who is pursuing her studies since 2006 in CIMS, cannot be cancelled. 17. Reliance is placed on the judgment of the Hon'ble Supreme Court in the matter of Chandiearh Adtninistration Vs. Laxman Roller Flour MiUs Pvt. Ltd. reoorted in 11998) 8 SCC 326 and it 11 is argued that it is settled law that unless the allegations rnade in the writ petition and a relief to that effect is also prayed for in the writ petition, the High Court is not justified in issuing any order in excess ofthe reliefprayed for in the writ petition. 18. Further placing reliance on the judgment of the Hon'ble Supreme Court in the matter of Vikram Dhillon (supra), learned counsel for respondent No. 6 has adopted the arguments of respondent No. 4/CIMS. 19. We have heard learned counsel for the parties and gone through the material available on record. 20. The undisputed facts that emerge from the pleadings and documents filed by the respective parties, are as under: (i) after conclusion of final counseling on 28th September 2006, petidoner as well as respondent No. 6 were not .given admission in the medical course in any of the medical colleges in the State. In the last counseling, allotment/provisional admission letters in respect of seven candidates against seven vacant seats, out of which five were against payment quota and two were against free quota, were forwarded to the CIMS by the DME; (ii) Ku. B.K. Rashmi Yadav was selected against free seat of MBBS course, Medical College, Bilaspur (CIMS). She had also deposited the requisite fees. The candidates who were selected after final counseling were directed to take admission on 30th September 2006 by 12.00 noon positively, failing which their admission was deemed to be cancelled automatically. The DME vide communication of Annexure R-4/3 dated 30th September 2006 at 4.12. p.m. instmcted 12 respondent No. 4 to send the current list of admitted students through Fax forthwith and in the event of vacancy, seek instructions from the Directorate; (iii) Dean, CIMS in reply to Annexure R-4/3, sent by way of Fax on the saine day at 5.08 p.m., the list of admitted candidates in which two students of S.T. and O.B.C category were shown absent and guidelines were sought for filling the vacant seats. In reply to the above Fax message, DME through Fax dated 30th September 2006 at 7.04 p.m. instructed CIMS that in order to fill up the vacant seats of S.T. and O.B.C. category, they should try to contact the candidates on the basis of P.M.T. merits over telephone, if contact is not possible, they should stick to the guidelines given in the admission rules book of CIMS. Accordingly, firstly consider the candidates in the lower order of merit and lastly in case of non-availability of the candidates in those categories, admission after conversion is permissible; (iv) A Fax message (Annexure R-4/7) was sent on 30.9.2006 by CIMS and it was informed that respondent No. 6 has been admitted against unreserved (No class) category and admission of Ku. B.K. Rashmi Yadav has been cancelled on the ground of non-production of original mark sheet of Class-XII; (v) The pedtioner was pursuing his studies in B.D.S. course in Govt. Dental College, Raipur for the academic year 2005-06, original documents of the petitioner were deposited in the Govt. Dental College, Raipur and the same could be released only after the candidate tenders his resignation (Annexure P/9). 13 21. Thus, from the admitted facts as mendoned above, it is manifestly clear that vacancy in unreserved category (No class) occasioned in CIMS, Bilaspur only on 30th September 2006 at 7.00 p.m. when admission of Ku. B.K.Rashmi Yadav was cancelled for not producing the original mark sheet of Class-XII. It is also evident that the petidoner was not present in CIMS on the last date of admission to take chance of admission against the last minute cancellation. 22. Learned counsel for the petidoner vehemently argued that as per Rule 6 of the Rules 2006, admission to the course could be given as per decisions of the counseling comniittee whereas in the instant case, admission against the vacancy has been given by the management of CIMS without seeking any direction from DME. He argued that the petitioner was present before the authorities of counseling committee at Raipur on 30th September