Case: DR. VINAYAK VARMA Vs. MEDICAL COUNSELLING COMMITTEE

1. Heard the learned counsel for the parties at great length. 2. Leave granted. 3. Facts are very peculiar in this case. By adopting totally illegal method of filling seats by All India Merit list by way of Central counseling, which were required to be filled by the State Quota/Institutional candidates. The appellant had been illegally deprived of pursuing the course of MS (Surgery) to which he was entitled as per his merit. 4. Six seats of MS (Surgery) were created as communicated vide letter dated 7th May, 2018 issued by Under Secretary, Government of India, Ministry of Health & Family Welfare (Department of Health & Family Welfare). It was ordered at the same time that 50% seats i.e. 3 seats to be filled by All India quota except the college in Jammu and Kashmir. Thus, three seats were to be filled by the State quota and three seats were to be filled by the All India Quota. 5. The Regulations framed by the Medical Council of India (MCI) called the Postgraduate Medical Education Regulations 2000; as amended by Postgraduate Medical Education (Amendment) Regulations 2018 on 5th April, 2018, para 11 of the Notification dated 5th April, 2018 appended following note to the Postgraduate Medical Education (Amendment) Regulations 2008: 11. In the postgraduate medical Education Regulations 2000, in appendix the following note shall be added below the Admission schedule from the academic year 2018-19 onwards for Postgraduate Courses (broad Speciality):- Note: 1. All India Quota Seats remaining vacant after last date for joining i.e. 10th may will be deemed to be converted into State Quota. 2. Institute/college/Courses permitted after 28th February will not be considered for admission/allotment of seats for current academic year. 3. In any circumstances, last date for admission/joining will not be extended after 31st May. 4. For the purpose of ensuring faithful obedience to the above time-schedule, Saturday, Sunday or Holidays (except National Holiday) shall be treated as working day. 6. It is apparent from the Regulation as amended in 2018 that All India Quota seats which remain vacant after last date of joining i.e. 10th may, 2018 will be deemed to be converted into State Quota. However, a notice (Annexure P-5) was issued by the Committee MCC/DGHS to conduct the counseling of the Central institutes relating to the Postgraduate Medical Education and Research Dr. RML Hospital, New Delhi, 3 seats to be filled on the basis of All India merit list. Notice is extracted hereunder: This is to inform all the candidates that seats of central institutes lying vacant and freshly added seats for which Letter of Permission (LOP) was issued after the All India Quota counselling conducted by MCC/DGHS. As DGHS vide to conduct the counselling of the central institutes: 1. Postgraduate Medical Education and Research Dr. RML Hospital, New Delhi (03 M.S. (Surgery) seats were freshly added) 2. Central Institute of Psychiatry Ranchi Jhakhand (02 seats of M.D. -Psychiatry and 08 seats of Diploma in psychological medicine lying vacant) In this regard candidates willing to participate for vacant seats in above mentioned institutes are required to go for fresh registration under the category central institutes alongwith payment of prescribed fee as per counselling scheme. Candidates already registered under the category of deemed university and not allotted and seats were eligible of direct choice filling of such vacant seats. Candidates eligible for counselling after the revised cut off score issued by NBE are also required to go for fresh registration as per counselling and to make payment as per the counselling scheme. 7. As a matter of fact, All India counselling was over in the month of April,2018 itself, however, committee issued a notice to fill up the seats of Central Institutes by conducting counselling. The counselling was held on All India merit basis of NEET examination for the three seats; out of the six newly created seats. However, as seats of All India quota which remained vacant after 10th May, 2018; may be that were newly created seats on 7th May, 2018 and in fact were not placed for allotment before the All India candidates when the counselling was held which was over in the month of April, 2018. Since these seats remained vacant as on 10th May, 2018 as per the Regulations, 2000 as amended in 2018, were required to be filled by the State quota seats only as per Note 1 appended to the Regulation of 2000 as on expiry of period fixed in Regulation i.e. 10th May, 2018 there was deemed conversion of the vacant All India quota seats to State quota automatically. There was no authority with Government of India or with the Committee MCC/the DGHS to violate the provisions of the Regulations under the guise of Government Order on the ground that they were newly created seats on 7th May, 2018. The Regulations do not make any distinction on the basis of date of creation. Regulations merely lays down the system of filling the seats which are vacant on a particular date and are mandatory to be followed. 8. Thus, it is apparent that the 3 seats of All India quota were also required to be filled after 10th May, 2018 by State quota seats only and no counselling could have been held on All India merit basis and that too of Central Institute by way of novice method devised in notice dated 11.5.2018 as that was not a mode provided under the Regulations and All India counselling was already over and whatever seats which remained vacant had already been reverted to the State quota as per the deeming fiction and were required to be filled and allotted to the State quota candidates only. 9. Notwithstanding the provision of Regulations, the counselling was held for three seats on 18th May, 2018 for the aforesaid three seats by MCC/DGHS however, only two seats of MS (Surgery) could be allotted in the counselling. One seat remained vacant. With respect to filling of that a writ petition was filed by Dr. Rohan Kapoor and Ors. before the High Court, in which an order was passed on 30th May, 2018 relying upon an order passed by this Court in W.P.(C) No. 556 of 2018 (U.P. Un aided Medical Colleges Welfare Association v. Union of India and Others) and it was ordered that the said seat be filled by All India NEET merit list by holding counselling on 31st May 2018 at 4 p.m. 10. While passing the aforesaid Order on 30th May, 2018, in Dr. Rohan Kapoors petition, the High Court has not considered the order passed by it earlier which was filed by the appellant in the High Court on 16th may, 2018 in which an interim order was passed by the High Court on 18th May, 2018. The petitioner has claimed in the said Writ Petition that seat which remained vacant on 10th May, 2018 of All India Quota should be filled by State quota/Institutional candidate and could not have been filled in the manner as proposed by notice issued on 11th May, 2018 by the MCC/DGHS. For the newly created seats of MS (Surgery) of All India Quota, the petitioners interest was protected by the High Court by passing the following interim order on 18th May, 2018: Learned counsels for the parties jointly submit that, in view of the nature of relief sought in the present petition, it would be appropriate if the Medical Council of India is also impleaded as a party respondent. Accoridngly, at the oral request of the learned senior counsel for the petitioner, Medical Council of India, through its Secretary is impleaded as respondent No.2. Mr. T. Singhdev, learned counsel, who is present in court has requested to enter appearance on behalf of respondent no.2. Issue notice. Mr. T. Singhdev, learned counsel accepts notice on behalf of the respondent no.2. Learned counsels for the respondents are granted three weeks to file counter affidavit. Rejoinder thereto, if any, be filled within two weeks thereafter. It is made clear that the diversion of three seats of the all India Quota would remain subject to outcome of the present petition and therefore, candidates who will be allotted the said seats would be accordingly informed. (emphasis added) 11. It was clearly observed by the High Court that diversion of three seats of All India quota would remain subject to the outcome of the petition, candidates who would be allotted the said seats should be accordingly informed. Thus, the said interim order made it clear that rights of the petitioner were clearly protected under the order and admissions so given as against the seats filled by All India merit list after 10th May, 2018 were subject to ultimate outcome of the said writ application. 12. As per Regulations out of three newly seats given to All India quota remained vacant after 10th May, 2018 were to be filled by the State Quota. As one seat out of that remained vacant, after the counselling was held on 18.5.2018 the appellant filed yet another application in the High Court on 30th May, 2018 for allotment of the said vacant seat to him, in which he has again pointed out that the said seat could not be filled up by the counselling on All India basis and has to be filled by the State/Institutional quota. The High Court again protected the interest of the appellant by passing the following order on 31st May, 2018: C.M. No. 24404 of 2018 The present application has been taken up at 4.30 p.m. upon urgent mentioning by the orders of Honble the Acting Chief Justice. Vide the present application, the petitioner, prays that he may be provisionally admitted in M.S. Surgery vacant seat available at I.P. University. In my considered view, the present application is wholly misconceived in view of the order already passed by this Court on 18.05.2018 in the present petition. The application is dismissed in the above terms. (emphasis added by us) 13. It is apparent that the High Court has re-affirmed the order dated 18th May, 2018. In all fairness when the High Court has passed the said order on 31st May, 2018 yet another order was passed on 30th May, 2018 in Dr. Rohan Kapoors case ought to have been pointed out and taken note of. Be that as it may. We will consider the propriety of the order passed by the High Court in the case of Dr. Rohan Kapoor (supra) relying upon the decision in U.P. Un-Aided Medical Colleges Welfare Associations case (supra) later. 14. Thus, all the three seats were filled up by All India Merit list candidates by the respondents, after 10th May, 2018 pursuant to the notice dated 11th May, 2018. The appellant obtained further information under the RTI and it is not in dispute that four candidates who were allotted the seats of MS (Surgery) left the seats in between on 24th May, 2018 till 30 May, 2018. Thus, four seats of MS (Surgery) are still lying vacant whereas in this case the High Court has passed the order on 18th May, 2018 and 30th May, 2018 protecting the interest of the appellant as well as permitting the admission in one seat to be held on the basis of All India Merit list subject to decision of this case. 15. Ultimately, the High Court by the Order dated 24th September, 2018 refused to give relief of admission to the appellant on the ground that cut-off date 31st May, 2018 which is the sacrosanct is over and thereafter it is not open to the High Court to make any indulgence in view of the decisions in Mridul Dhar v. Union of India (2005(2) SCC 65) and Ashish Ranjan v. UOI (2016 (11) SCC 225 ). 16. Aggrieved thereby the appellant preferred LPA No. 564 of 2018 that has been dismissed by the High Court vide order dated 11.10.2018 relying upon the aforesaid decision of Mridul Dhar and Ashish Ranjan the appellant had been put in piquent situation on the one hand his rights were protected by the interim order on the other hand illegality was committed by the respondents by filling the seats by issuing notice to fill up the 3 seats on 11th May, 2018 on All India basis in derogation to Regulations. The High court has not at all dealt with the legality of the action of the respondent in any of the orders passed in the present case in the case of the appellant or in that case of Dr. Rohan Kapoor vis-a-vis to Regulations. The High Court has simply relied upon the decision of this court in U.P. Un-aided Medical Colleges Welfare Associations case (supra). 17. Having heard learned counsel for the parties at length, we are of the considered opinion that once the Regulations holds the field, it was not permissible in view of the note appended to the Regulation of 2000 to fill up the seats of All India Quota and they were such seats which were created on 7th May, 2018 could have been filled up to 10th May, 2018 by All India Merit Candidates but they remained vacant after 10th May, 2018 as such they were deemed to be converted into State quota seats. It was not open to any of the respondents to violate the provisions of the Regulations which are having statutory force, having been framed by MCI in exercise of powers conferred under Section 33 of the MCI Act 1956. 18. Thus, notice dated 11.5.2018 and the action taken pursuant to the said notice was per se illegal and impermissible and in violation of the provisions contained in the Regulation. 19. Coming to the order of the High Court passed in the case of Dr. Rohan Kapoor, the High Court has relied upon the order of 25th May, 2018 passed by this court in WP (C) No. 556 of 2018 to hold that seats which remained vacant after 18th May, 2018 have to be filled on the basis of All India NEET Merit list on or before 31st May, 2018. The High Court has opined that in view of the aforesaid order of this Court it was incumbent upon the respondent to offer all the available vacant seats to the candidates only on the basis of the All India NEET merit list. The High Court has not considered the factual matrix in which the aforesaid order came to be passed by this Court in exercise of power under Article 142 of the Constitution of India. This Court has never issued the general directions to hold good for seats of All India quota which had to be filled and have remained vacant after 10th May, 2018. There is no conversion of State Quota Seats to All India Merit Seats. On the contrary there was a piquent situation which arose in the State of UP as 41.95% seats in un aided medical colleges remained vacant for the academic year 20182019 and cut-off date for admission in the State Quota was already over. The seats could not be filled up in the counselling by State quota candidates as such the unaided institutions filed writ application to permit them to fill the vacant seats out of the candidates of All India NEET Merit. In that aforesaid context as the seats remained vacant in the State of U.P. after State counselling and they were in fact offered to the State quota candidates first. This court specially permitted the seats to be filled up by way of All India NEET Merit. It was a totally different factual matrix and is not at all applicable to the 3 seats in question which were created in Delhi, have never been put up for the counselling before the State quota/institution quota candidates as required under the Regulations after last date of joining i.e., 10th May, 2018 was over. 20. Appellants would have obtained the admission in MS (Surgery) as per his merit position had the seats been offered to State quota/institutional candidates but he was illegally deprived of staking his claim as per his merit placement in the list. The act of filling three seats by All India merit list candidates was in gross violation of the provisions of the regulation of 2000 as amended in 2018. Provisions of Regulation are binding. This Court in U.P. Unaided Medical Colleges Welfare Associations case (supra) never intended nor observed that the said Regulations can be violated. The decision was for the State of U.P. in the aforesaid different factual matrix and was rendered so that seats should not go waste. 21. The appellant was clearly entitled for admission as per his merit, by declining the relief, the very writ petition had been virtually rendered infructuous for practical purposes. In the circumstances, we have heard the matter finally on merits and we are of the considered opinion that the High Court has erred in law in permitting admission contrary to the Regulation 2000 as amended in 2018. The appellant has been wrongly deprived of MS (Surgery). However, it would not be appropriate for us to disturb the admission given on those three seats as candidates who have been given admissions have pursued their course for the last 4-5 months and in one of the case of Dr. Rohan Kapoor the SLP has been dismissed by this Court in limine and they are not made parties in the instant matter in this Court. 22. It is a case of illegal deprivation of admission in spite of the fact that the rights were protected vide High Courts order dated 18th May, 2018 extracted herein above as well as vide order dated 31st May, 2018 the appellant has been made to suffer for no fault on his part. It is settled proposition when court has protected interest. The Maxim Actus Curiae Neminem Gravabit comes to rescue of appellant. It would be travesty of justice in the facts of the case to deny him admissions on the ground that 31.05.2018 cut-off date for admission is over.

Decision reasoning: 1[ds]17. Having heard learned counsel for the parties at length, we are of the considered opinion that once the Regulations holds the field, it was not permissible in view of the note appended to the Regulation of 2000 to fill up the seats of All India Quota and they were such seats which were created on 7th May, 2018 could have been filled up to 10th May, 2018 by All India Merit Candidates but they remained vacant after 10th May, 2018 as such they were deemed to be converted into State quota seats. It was not open to any of the respondents to violate the provisions of the Regulations which are having statutory force, having been framed by MCI in exercise of powers conferred under Section 33 of the MCI Act 1956.18. Thus, notice dated 11.5.2018 and the action taken pursuant to the said notice was per se illegal and impermissible and in violation of the provisions contained in the Regulation.19. Coming to the order of the High Court passed in the case of Dr. Rohan Kapoor, the High Court has relied upon the order of 25th May, 2018 passed by this court in WP (C) No. 556 of 2018 to hold that seats which remained vacant after 18th May, 2018 have to be filled on the basis of All India NEET Merit list on or before 31st May, 2018. The High Court has opined that in view of the aforesaid order of this Court it was incumbent upon the respondent to offer all the available vacant seats to the candidates only on the basis of the All India NEET merit list. The High Court has not considered the factual matrix in which the aforesaid order came to be passed by this Court in exercise of power under Article 142 of the Constitution of India. This Court has never issued the general directions to hold good for seats of All India quota which had to be filled and have remained vacant after 10th May, 2018. There is no conversion of State Quota Seats to All India Merit Seats. On the contrary there was a piquent situation which arose in the State of UP as 41.95% seats in un aided medical colleges remained vacant for the academic year 20182019 and cut-off date for admission in the State Quota was already over. The seats could not be filled up in the counselling by State quota candidates as such the unaided institutions filed writ application to permit them to fill the vacant seats out of the candidates of All India NEET Merit. In that aforesaid context as the seats remained vacant in the State of U.P. after State counselling and they were in fact offered to the State quota candidates first. This court specially permitted the seats to be filled up by way of All India NEET Merit. It was a totally different factual matrix and is not at all applicable to the 3 seats in question which were created in Delhi, have never been put up for the counselling before the State quota/institution quota candidates as required under the Regulations after last date of joining i.e., 10th May, 2018 was over.20. Appellants would have obtained the admission in MS (Surgery) as per his merit position had the seats been offered to State quota/institutional candidates but he was illegally deprived of staking his claim as per his merit placement in the list. The act of filling three seats by All India merit list candidates was in gross violation of the provisions of the regulation of 2000 as amended in 2018. Provisions of Regulation are binding. This Court in U.P. Unaided Medical Colleges Welfare Associations case (supra) never intended nor observed that the said Regulations can be violated. The decision was for the State of U.P. in the aforesaid different factual matrix and was rendered so that seats should not go waste.21. The appellant was clearly entitled for admission as per his merit, by declining the relief, the very writ petition had been virtually rendered infructuous for practical purposes. In the circumstances, we have heard the matter finally on merits and we are of the considered opinion that the High Court has erred in law in permitting admission contrary to the Regulation 2000 as amended in 2018. The appellant has been wrongly deprived of MS (Surgery). However, it would not be appropriate for us to disturb the admission given on those three seats as candidates who have been given admissions have pursued their course for the last 4-5 months and in one of the case of Dr. Rohan Kapoor the SLP has been dismissed by this Court in limine and they are not made parties in the instant matter in this Court.22. It is a case of illegal deprivation of admission in spite of the fact that the rights were protected vide High Courts order dated 18th May, 2018 extracted herein above as well as vide order dated 31st May, 2018 the appellant has been made to suffer for no fault on his part. It is settled proposition when court has protected interest. The Maxim Actus Curiae Neminem Gravabit comes to rescue of appellant. It would be travesty of justice in the facts of the case to deny him admissions on the ground that 31.05.2018 cut-off date for admission is over.