Case: DR. VINAYAK VARMA Vs. MEDICAL COUNSELLING COMMITTEE

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.     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).

Reasoning:
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.