REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5055 OF 2012
(Arising out of SLP (C) No. 7440 of 2012)
Asha … Appellant
Versus
Pt. B.D. Sharma University of Health
Sciences & Ors. …Respondents
J U D G M E N T
Swatanter Kumar, J.
1. Leave granted.
2. Admission to the medical courses (MBBS and BDS) has been
consistently a subject of judicial scrutiny and review for more than three
decades. While this Court has enunciated the law and put to rest the
controversy arising in relation to one facet of the admission and selection
process to the medical courses, because of ingenuity of the authorities
involved in this process, even more complex and sophisticated set of
questions have come up for consideration of the Court with the passage of
time. One can hardly find any infirmities, inaccuracies or
impracticalities in the prescribed scheme and notifications in regard to
the process of selection and grant of admission. It is the arbitrary and
colourable use of power and manipulation in implementation of the schedule
as well as the apparently perverse handling of the process by the concerned
persons or the authorities involved, in collusion with the students or
otherwise, that have rendered the entire admission process faulty and
questionable before the courts. It is the admissions granted arbitrarily,
discriminately or in a manner repugnant to the regulations dealing with the
subject that have invited judicial catechism. With the passage of time,
the quantum of this litigation has increased manifold.
3. Thus, it is both the need of the hour and the demand of
justice that this Court clarifies its decision and states the principles
with greater precision so as to ensure elimination of colourable abuse and
arbitrary exercise of power in the process of selection and admission to
these professional courses by all concerned.
4. Therefore, in our view, though the present appeal arises
from very simple facts, yet it raises questions of considerable importance
and application. These questions are bound to arise repeatedly not only
before this Court, but even before the High Courts. Therefore, it is
imperative for us to formulate the questions and answer them in accordance
with law.
5. The questions are :-
a) Is there any exception to the principle of strict adherence to the
Rule of Merit for preference of courses and colleges regarding
admission to such courses?
b) Whether the cut-off date of 30th September of the relevant academic
year is a date which admits any exception?
c) What relief the courts can grant and to what extent they can mould
it while ensuring adherence to the rule of merit, fairness and
transparency in admission in terms of rules and regulations?
d) What issues need to be dealt with and finding returned by the court
before passing orders which may be more equitable, but still in
strict compliance with the framework of regulations and judgments
of this court governing the subject?
6. The appellant cleared her Secondary examination (medical
stream) with 75% marks and was eligible for taking medical entrance
examination as she fulfilled the requisite criteria to take that exam. Pt.
B.D. Sharma University (for short ‘the University’) issued a
notification/advertisement for the entrance examination for MBBS, BDS and
BAMS to be held in the first week of May, 2011. The appellant applied for
the same in the Backward Class ‘B’ (for short ‘BCB’) and dependent of Ex-
Serviceman (ESM) category. Her application was accepted and roll number
was issued to her. The date of the examination was fixed for 12th June,
2011 by the University. The appellant was declared successful in the
entrance examination having secured 832 marks. The appellant was at serial
number 13 of the ESM category. All concerned were informed that the first
counseling for allotment of seats was to be held on 14th -15th July, 2011.
In this counseling, the appellant was not admitted to MBBS Course as she
was lower in merit. Consequently, she took admission in the BDS Course on
that very day. Thereafter, a declaration was made by the respondents that
the second counseling for allotment of seats in the MBBS course would be
held on 20th September, 2011. The appellant again participated in the
counseling but her name and roll number was not declared by the respondents
for the said admissions. However, when the list of allocation of seats was
displayed, it came to light that though the appellant had not been admitted
to the MBBS Course, candidates who ranked below her in the merit list,
including the respondent no.3, Vineeta Yadav, who had obtained 821 marks
and was at serial number 14 of the ESM Category, had been given admission
to the MBBS Course.
7. On the above facts, the learned Single Judge of the High
Court of Punjab and Haryana at Chandigarh, observed that according to
the respondents, the ‘appellant left the counseling place’ without
appearing before the Counseling Board. Resultantly, her candidature
was not considered for admission to the MBBS course under the ESM
category and the candidate next in merit was given the admission. It
was the opinion of the Court that it would be too far fetched to accept
that the appellant, though was physically present at the time of taking
of attendance, thumb impressions and photography, did not respond to the
call for counseling at the relevant time. Further, the Court observed
that no reason whatsoever could be seen for absence of the appellant at
the relevant moment from the record before the Court. In view of the
fact that the appellant had filed the writ petition within a week of the
second counseling, the Court accepted the facts averred in the writ
petition and directed the respondents to admit the appellant to the MBBS
course while further directing that it would be open for the respondents
to see that admission of other students lower in merit is not cancelled,
if so permissible and possible under the relevant Rules.
8. Upon appeal, the Division Bench of that Court upset the
judgment of the learned Single Judge and held as under:-
“We find that such directions could not have been issued on the
basis of possibilities. In view the process of counseling, we
find that the writ petitioner herself has failed to appear
before the counseling board at the relevant time. It is not
that she has not got admission. She is pursuing BDS course at
Rohtak whereas, the other two candidates are pursuing their
courses at PGI Rohtak and Medical College Agroha. At this
stage, to disturb the entire admission process would not in the
interest of academics when there is no substantive allegation in
respect of admission process.”
3 9. The Division Bench also noticed the contention
of the respondents that the appellant was a student of the same college and
other candidates were even outstation, thus it was possible that the
appellant was not present when the call for her name was made, may be due
to her negligence or carelessness.
4 10. The Court also observed that since there was no allegation
of mala fides against any member of the Counseling Board and there also
being no allegations of misconduct and favouritism, the conclusion arrived
at by the learned Single Judge was not sustainable in law.
5 11. The moot question which falls for consideration of this
Court in view of the divergent views taken by the Single Judge and the
Division Bench of the High Court is whether the decision of the learned
Single Judge is based on inferences or assumptions or whether it was a
reasonable conclusion which the Court could arrive at in view of the
pleadings of the parties and the relevant rules in force.
6 12. Notification for the second counseling was issued on 26th
August, 2011. The second counseling was to be held for admission to
MBBS and BDS courses in Government Aided Medical Dental Colleges in
the State of Haryana on 20th September, 2011 in the Office of the
Director, Pandit B.D. Sharma University of Health Sciences, PGI,
Rohtak, as per the schedule given therein.
13. The notification inter alia also stated:-
| Date |Reporting Time |Category |Rank |
|20.09.2011 |8.00 A.M. |General |01 to 704 |
| | |(Common Merit | |
| | |List) | |
| | |SC |01 to 65 |
| | |BCA |01 to 144 |
| | |BCB |01 to 150 |
| | |PH |01 |
| | |ESM |01 to 30 |
| | |FF |01 |
14. In furtherance to this notification, there is no dispute to
the fact that the appellant, who was at Sr. No. 13 of ESM category, had
appeared before the authorities and marked her attendance in the
attendance sheet on 20th September, 2011. It is interesting to note
that the same sheet had been signed by the candidates to mark their
presence even on 15th July, 2011, when the first counseling was held.
The appellant had also signed on 15th July, 2011 and, as already
noticed, was given admission to the BDS course.
15. Another important aspect which needs to be noticed at this
stage is the original merit list which has been produced before us.
This merit list relates to the date of first counseling, i.e., 15th
July, 2011. According to the respondents, the appellant had been given
admission to the BDS course but in this merit list the column for
signature in front of her name is empty. This document does not have
any of the members of the Board or any candidate specifying the date of
this counseling. Therefore, we would take it that this document is
dated and relates to the proceedings of 15th July, 2011. If that be
so, it is difficult to understand as to how the appellant was given
admission to the BDS course on 15th July, 2011 when nothing is noted in
front of her name. It does not even say, whether she was given
admission to MBBS or BDS course. Interestingly, in the remark column,
the members of the Board have noted the candidates who have already been
given admission to a college or who were not interested in BDS course or
who had vacated the seat of BDS. The merit list for admission dated
20th September, 2011 has not been placed on record. There is no
explanation available from the records produced before us, as to why
this has not been done. It has also not been clarified in the
affidavit filed on behalf of respondent Nos. 1 and 2.
11 16. We may notice that in the writ petition before the High
Court the appellant had specifically averred that she was present in
the second counseling at the time of attendance and even subsequent
thereto. However, despite such presence, her name and roll number were
not declared by the respondents for the purpose of admission to the MBBS
course. However, the list of successful candidates revealed that
candidates of merit lower to her had been admitted to the MBBS course.
According to her, she instantly raised her claim and even submitted a
representation upon the respondents but to no avail. Paragraphs 7 to 9
of the writ petition read as follows :
“7. That the respondents have decided to take second counseling
and the date for second counseling was fixed for 20.09.2011.
The petitioner again participated in the second counseling
but her name and roll number was again not declared by the
respondents for the said admission in the MBBS course.
8. That after the date of second counseling, the petitioner
was shocked to know that one Vinita Yadav daughter of Sh. Arvind
Kumar Yadav Roll No. 126038 having the same category i.e. BCB-
ESM and having 821 marks which is lower then the marks secured
by the petitioner got admission in MBBS Course conducted by the
respondents. The petitioner has visited the office of the
respondent just after getting the information that a candidate
who is lower in merit/marks got admission in MBBS Course and
requested the respondents that this is totally illegal and
discriminatory on the part of them that they are giving
admission to a candidate who is having lesser marks than the
petitioner but the respondents have not considered her genuine
claim and legal rights and willfully ignored the request of the
petitioner.
9. That the petitioner has not continuously visited the office
of the respondents and raised her voice for her genuine claim
for the admission in MBBS Course and she has specifically
mentioned that a candidate having lesser marks as compared to
the petitioner has got admission in MBBS course but in vain.
The petitioner submitted a representation before the respondents
mentioning everything about the incident but the respondents
have not considered her request. A true typed copy of the
representation is attached herewith as ANNEXURE P-3.”
17. In the reply filed on merits by the respondents, these
paragraphs were dealt with in a most casual manner and no specific
denial was made. Paragraphs 7 to 9 of the reply read as under:-
“7. That in reply to Para No. 7 of the petition averments made
in Para No. 3 and 4 of the preliminary submissions are
reiterated here.
8. That in reply to Para No. 8 of the petition it is submitted
that since the Petitioner left the counseling place without
appearing before the counseling board her candidature was not
considered for admission to MBBS course under ESM category and
the Respondent No. 3 who was next in merit than the Petitioner
got the admission in MBBS course under ESM category. Averments
made in Para No. 3 and 4 of the preliminary submissions are also
reiterated here.
9. That Para No. 9 of the writ petition is wrong and denied.
The Petitioner has never approached to the answering Respondents
with regard to her admission in MBBS course after 2nd counseling
as claimed in this para. However, in any case she is not
entitled for admission to MBBS Course under ESM category in
present circumstances in view of facts mentioned in Para No. 2,
3 & 4 of the preliminary submissions.”
18. From a bare reading of the reply filed by the respondents,
it is clear that there is no specific denial of the above-noted averments
made by the appellant. It is a settled principle of the law of pleadings
that an averment made by the appellant is expected to be specifically
denied by the replying party. If there is no specific denial, then such
averment is deemed to have been admitted by the respondent. In the present
case, it is evident that the above-noted averments in the writ petition
were relevant and material to the case. In fact, the entire case of the
appellant hinged on these three paragraphs of the writ petition. It was
thus, expected of the respondents to reply these averments specifically, in
fact to make a proper reference to the records relevant to these
paragraphs. In view of the omission on part of the respondents to refer to
any relevant records and failure to specifically deny the averments made by
the appellant, we are of the considered view that the appellant has been
able to make out a case for interference.
19. Not only this, if the averments made in paragraph 9 are
correct and the appellant had instantaneously raised her claim before the
respondents, followed by making of the representation, we see no reason why
the claim of the appellant could not be settled at that time or in any case
in the subsequent counseling held on 30th September, 2011, where the
appellant was admittedly present. The attendance sheet produced before us
shows that the appellant was present on all the three days. Even the
records produced by the respondents before the Court support the case of
the appellant.
20. The appellant filed the writ petition before the High Court
without any undue delay and on 4th November, 2011, the judgment by the
court was passed in her favour. The cumulative effect of the above factual
matrix, the pleadings of the parties and the expeditious manner in which
the appellant had taken action before the authorities and then before the
court and pursued her remedies, persuade the Court to believe that the case
of the appellant is truthful. The cases of the present kind are not
required to be tested by us on the touchstone of stringent principles of
burden of proof applicable to criminal jurisprudence. As already
mentioned, it was the obligation of the respondents to specifically deny
the averments made by the appellant and to produce the relevant records to
show that the stand taken by them is worthy of credence. Having failed to
do so, they cannot shift the burden upon the appellant and expect this
Court to believe that a student of the same college, would disappear at the
relevant time of counseling after having marked her presence at the
counseling.
21. It is not necessary for the appellant to plead and prove
mala fides, misconduct or favouritism and nepotism on the part of the
parties concerned. Failure to do the same could be an error,
intentional or otherwise, but in either event, we see no reason why the
appellant should be made to suffer despite being a candidate of higher
merit.
22. At this stage, we may refer to certain judgments of the
Court where it has clearly spelt out that the criteria for selection has
to be merit alone. In fact, merit, fairness and transparency are the
ethos of the process for admission to such courses. It will be
travesty of the scheme formulated by this Court and duly notified by the
states, if the Rule of Merit is defeated by inefficiency, inaccuracy or
improper methods of admission. There cannot be any circumstance where
the Rule of merit can be compromised. From the facts of the present
case, it is evident that merit has been a casuality. It will be useful
to refer to the view consistently taken by this Court that merit alone
is the criteria for such admissions and circumvention of merit is not
only impermissible but is also abuse of the process of law. Ref. Priya
Gupta Vs. State of Chhatisgarh & Anr. [CA @ SLP(C) No. 27089 of 2011,
decided on 8th May, 2012], Harshali v. State of Maharashtra and Others
[(2005) 13 SCC 464], Pradeep Jain v. UOI [1984 (3) SCC 654], Sharwan
Kumar and Others v. Director of Health Services and Another [1993 Supp
(1) SCC 632], Preeti Srivastava v. State of MP [(1999) 7 SCC 120], Guru
Nanak Dev University v. Saumil Garg and Others [2005 (13) SCC 749],
AIIMS Students’ Union v. AIIMS and Others [(2002) 1 SCC 428].
16 23. It is true that the notification dated 26th August, 2011 had
clearly stated that the candidate should appear before the second
Counseling Board well in time along with all the original documents and
that the photograph and thumb impression of the candidate would be taken at
the time of the counseling. The notification stated the reporting time as
8.00 a.m. The exact time when the candidates of each category i.e.
General, SC, PH (MS), EMS and FF were to be present was nowhere stated. In
other words all candidates were required to be present at 8.00 a.m.. It
cannot be disputed that the appellant was present at that time and
undisputedly she had marked her presence in the attendance register. She
admittedly participated in the photography and taking of thumb impressions
held by the concerned authority. However, her absence at the crucial time
of counseling is the essence of dispute in the present case.
17 24. Adherence to the schedule is the obligation of the
authorities and the students both. The prescribed schedule is to be
maintained stricto sensu by all the stakeholders because if one party
adheres to the schedule and others do not or there is some kind of lack of
communication or omission to make proper announcements and maintain proper
records for such counseling, disastrous results can follow, of which the
present case is an apt example.
18 25. The Court cannot ignore the fact that these admissions relate to
professional courses and the entire life of a student depends upon his
admission to a particular course. Every candidate of higher merit would
always aspire admission to the course which is more promising.
Undoubtedly, any candidate would prefer course of MBBS over BDS given the
high-competitiveness in the present times, where on a fraction of a mark,
the admission to course could vary. Higher the competition, greater is the
duty on the part of the concerned authorities to act with utmost caution to
ensure transparency and fairness. It is one of their primary obligations
to see that a candidate of higher merit is not denied seat to the
appropriate course and college, as per his preference. We are not
oblivious of the fact that the process of admissions is a cumbersome task
for the authorities but that per se cannot be a ground for compromising
merit. The concerned authorities are expected to perform certain
functions, which must be performed in a fair and proper manner i.e.
strictly in consonance with the relevant rules and regulations.
26. Strict adherence to the time schedule has again been a
matter of controversy before the courts. The courts have consistently
taken the view that the schedule is sacrosanct like the rule of merit
and all the stakeholders including the concerned authorities should
adhere to it and should in no circumstances permit its violation. This,
in our opinion, gives rise to dual problem. Firstly, it jeopardizes
the interest and future of the students. Secondly, which is more
serious, is that such action would be ex- facie in violation of the
orders of the court, and therefore, would invite wrath of the courts
under the provisions of the Contempt of Courts Act, 1971. In this
regard, we may appropriately refer to the judgments of this Court in the
cases of Priya Gupta (supra), State of Bihar v. Sanjay Kumar Sinha &
Ors. [(1990) 4 SCC 624], Medical Council of India v. Madhu Singh & Ors.
[(2002) 7 SCC 258], GSF Medical and Paramedical Association v.
Association of Management of Self Financing Technical Institutes and
Anr. [2003 (12) SCC 414], Christian Medical College v. State of Punjab
and Others [(2010) 12 SCC 167].
27. The judgments of this Court constitute the law of the land in terms
of Article 141 of the Constitution and the regulations framed by the
Medical Council of India are statutorily having the force of law and are
binding on all the concerned parties. Various aspects of the
admission process as of now are covered either by the respective
notifications issued by the State Governments, prospectus issued by the
colleges and, in any case, by the regulations framed by the Medical
Council of India. There is no reason why every act of the authorities
be not done as per the procedure prescribed under the Rules and why due
records thereof be not maintained.
28. This proposition of law or this issue is no more res integra
and has been firmly stated by this Court in its various judgments which
may usefully be referred at this stage. Ref. State of M.P. v. Gopal D.
Tirthani and Others [(2003) 7 SCC 83], State of Punjab v. Dayanand
Medical College & Hospital and Ors. [AIR 2001 SC 3006], Bharati
Vidyapeeth v. State of Maharashtra and Another [(2004) 11 SCC 755],
Chowdhury Navin Hemabhai and Others v. State of Gujarat and Others
[(2011) 3 SCC 617], Harish Verma and Others v. Ajay Srivastava and
Another [(2003) 8 SCC 69].
29. In the prospectus issued by the respondents, Chapter 9 dealt
with the method of selection and admission. Clause 3.1 stated that it
was mandatory for the qualified candidates to appear before the
Counseling Board in person. No relaxation was to be given to the
candidates who were unable to appear before the Counseling Board on the
fixed dates. Further, it was stated in the prospectus that at the time
of the counseling, the candidates would be required to exercise their
choice for the institution and the course. The allotment of the seats
would be made according to the merit and preference exercised by the
candidates at the time of counseling. During the subsequent counseling
the Course/Institution would be allotted as per the merit of the
candidates depending on the availability of seats.
30. All these clauses are in accordance with the regulations
framed by the Medical Council of India or the notifications issued by
the concerned State Government. Relaxation of the Rule of Merit for
reason of non-appearance is not permissible. In the present case,
there is no dispute that the appellant was present at the place and on
the date of the second counseling but the dispute relates to her absence
at the particular time when her name was called out for the purpose of
counseling. As far as this issue is concerned, we have already
expressed the opinion that there is no substance in the defence taken by
the respondents and the appellant should be entitled to the relief
prayed for. However, the question that immediately follows is whether
any mid-term admission can be granted after 30th September of the
concerned academic year, that being the last date for admissions. The
respondents before us have argued with some vehemence that it will
amount to a mid-term admission which is impermissible, will result in
indiscipline and will cause prejudice to other candidates. Reliance has
been placed upon the judgments of this Court in Medical Council of India
v. Madhu Singh and Others [(2002) 7 SCC 258], Ms. Neelu Arora and
Another v. Union of India and Others [(2003) 3 SCC 366], Aman Deep
Jaswal v. State of Punjab and Others [(2006) 9 SCC 597], Medical Council
of India v. Naina Verma and Others [(2005) 12 SCC 626], Mridul Dhar and
Another v Union of India and Others [(2005) 2 SCC 65], Medical Council
of India v Madhu Singh and Others [(2002) 7 SCC 258].
31. There is no doubt that 30th September is the cut-off date.
The authorities cannot grant admission beyond the cut-off date which is
specifically postulated. But where no fault is attributable to a
candidate and she is denied admission for arbitrary reasons, should the
cut-off date be permitted to operate as a bar to admission to such
students particularly when it would result in complete ruining of the
professional career of a meritorious candidate, is the question we have
to answer. Having recorded that the appellant is not at fault and she
pursued her rights and remedies as expeditiously as possible, we are of
the considered view that the cut-off date cannot be used as a technical
instrument or tool to deny admission to a meritorious students. The
rule of merit stands completely defeated in the facts of the present
case. The appellant was a candidate placed higher in the merit list.
It cannot be disputed that candidates having merit much lower to her
have already been given admission in the MBBS course. The appellant had
attained 832 marks while the students who had attained 821, 792, 752,
740 and 731 marks have already been given admission in the ESM category
in the MBBS course. It is not only unfortunate but apparently unfair
that the appellant be denied admission. Though there can be rarest of
rare cases or exceptional circumstances where the courts may have to
mould the relief and make exception to the cut-off date of 30th
September, but in those cases, the Court must first return a finding
that no fault is attributable to the candidate, the candidate has
pursued her rights and legal remedies expeditiously without any delay
and that there is fault on the part of the authorities and apparent
breach of some rules, regulations and principles in the process of
selection and grant of admission. Where denial of admission violates
the right to equality and equal treatment of the candidate, it would be
completely unjust and unfair to deny such exceptional relief to the
candidate. [Refer Arti Sapru and Others v. State of J & K and Others
[(1981) 2 SCC 484]; Chavi Mehrotra v. Director General Health Services
[(1994) 2 SCC 370]; and Aravind Kumar Kankane v. State of UP and Others
[(2001) 8 SCC 355].
25 32. We must hasten to add at this stage that even if these
conditions are satisfied, still, the court would be called upon to decide
whether the relief should or should not be granted and, if granted, should
it be with or without compensation.
33. This brings us to the last phase of this case as to what
relief, if any, the appellant is entitled to. Having returned a finding
on merits in favour of the appellant, the Court has to grant relief to
the appellant even, if necessary, by moulding the relief appropriately
and in accordance with law. This Court must do complete justice between
the parties, particularly, where the legitimate right of the appellant
stands frustrated because of inaction or inappropriate action on the
part of the concerned respondents. In fact, normally keeping in view
the factual matrix of this case, we would have directed the admission of
the appellant to the MBBS course in the academic year 2011-2012 and
would further have directed the respondents to pay compensation to the
appellant towards the mental agony and expense of litigation and the
valuable period of her life that stands wasted for failure on the part
of the respondents to adhere to the proper procedure of selection and
admission process. May be the Court would have granted this relief
subject to some further conditions. However, we are unable to grant
this relief to the appellant in its totality for reason of her own
doing. She has completely faulted in pursuing her academic course in
accordance with the Rules and like a diligent student should do. In the
reply filed on behalf of respondent Nos.1 and 2, it has been stated that
as per the Dental Council of India Norms, minimum required attendance is
75 per cent in Theory as well as in Practical of each subject
individually for issuance of roll numbers in the BDS course.
Undoubtedly, the appellant was admitted to the BDS course and she was
expected to complete her academic course in terms of the Norms of Dental
Council of India. It is also not disputed before us and, in fact, was
confirmed to us on behalf of the Medical Council of India and the
respondent University that the course for the first year of both, BDS
and MBBS, is more or less the same. Except one paper of Anatomy, rest
of the subjects and papers are more or less similar particularly for the
first six months. If the appellant had pursued the BDS course to which
she was admitted diligently and had attended all the lectures, she might
have been eligible to pursue her MBBS course in continuation thereto.
We are not recording any finding in this behalf as, in our opinion, the
appellant is not entitled to this particular relief, as already
indicated, and for the same she has to blame none else but herself.
34. In the reply, the respondents have specifically explained by
the figures on record that the appellant had attended only 28 per cent to
42 per cent lectures (minimum being 28% and maximum 42%) instead of the
required 75 per cent and as such she has not even pursued her BDS course
properly. The table given in the reply reads as under :
|S.No. |Name of Deptt. |Practical |Theory |
| | |Lect. |Lec. |%age |Lect. |Lec. |%age |
| | |Deliv. |Attnd. | |Deliv. |Attnd. | |
|1. |Prosthodontics |95 |22 |23% |Nil |Nil |Nil |
|2. |Dental Anatomy |93 |31 |33% |95 |28 |29% |
|3. |Dental Material |Nil |Nil |Nil |35 |13 |37% |
|4. |Anatomy |125 |39 |31% |86 |25 |29% |
|5. |Physiology |30 |09 |30% |94 |27 |28% |
|6. |Biochemistry |32 |12 |37% |59 |25 |42% |
35. From the above data, it is clear that the appellant has
miserably failed to pursue her BDS course in accordance with Rules and,
thus, she has not fulfilled even the pre-requisites for MBBS course,
assuming that the BDS and MBBS courses are similar for the first six
months. In these circumstances and finding that the appellant is at fault
to this limited extent, we are of the considered view that the only relief
the appellant can be granted in the present appeal is a direction to the
respondents to give the appellant admission to the MBBS course not in the
academic year 2011-12 but in the current academic year i.e. 2012-2013, that
too, subject to the condition that she will pursue her MBBS course right
from the beginning without any advantage of her course in the BDS. If any
examinations have been held in the meanwhile, it shall be deemed that she
had not appeared in those examinations and be treated as such for all
intent and purpose. While giving her admission to the MBBS course,
preferably and if it is permissible, admission of none of the other
candidates to the MBBS course may be disturbed. If for whatever reasons,
it is not possible to do so, in that event, the candidate last in the merit
who has been granted admission to the MBBS course shall be transferred to
the BDS course and appellant shall be admitted to the MBBS course. We also
direct that such candidate would not be required to commence her/his BDS
course from the beginning provided the candidate has satisfied the
attendance requirements of the Dental Council of India.
36. Now, we shall proceed to answer the questions posed by us in
the opening part of this judgment.
ANSWERS
a) The rule of merit for preference of courses and colleges
admits no exception. It is an absolute rule and all stakeholders and
concerned authorities are required to follow this rule strictly and
without demur.
b) 30th September is undoubtedly the last date by which the
admitted students should report to their respective colleges without
fail. In the normal course, the admissions must close by holding of
second counseling by 15th September of the relevant academic year [in
terms of the decision of this Court in Priya Gupta (supra)].
Thereafter, only in very rare and exceptional cases of unequivocal
discrimination or arbitrariness or pressing emergency, admission may
be permissible but such power may preferably be exercised by the
courts. Further, it will be in the rarest of rare cases and where
the ends of justice would be subverted or the process of law would
stand frustrated that the courts would exercise their extra-ordinary
jurisdiction of admitting candidates to the courses after the
deadline of 30th September of the current academic year. This,
however, can only be done if the conditions stated by this Court in
the case of Priya Gupta (supra) and this judgment are found to be
unexceptionally satisfied and the reasons therefor are recorded by
the court of competent jurisdiction.
c) & d) Wherever the court finds that action of the authorities has been
arbitrary, contrary to the judgments of this Court and violative of
the Rules, regulations and conditions of the prospectus, causing
prejudice to the rights of the students, the Court shall award
compensation to such students as well as direct initiation of
disciplinary action against the erring officers/officials. The court
shall also ensure that the proceedings under the Contempt of Courts
Act, 1971 are initiated against the erring authorities irrespective
of their stature and empowerment.
Where the admissions given by the concerned authorities are
found by the courts to be legally unsustainable and where there is no
reason to permit the students to continue with the course, the mere
fact that such students have put in a year or so into the academic
course is not by itself a ground to permit them to continue with the
course.
37. With all humility, we reiterate the request that we have
made to all the High Courts in Priya Gupta’s case (supra) that the courts
should avoid giving interim orders where admissions are the matter of
dispute before the Court. Even in case where the candidates are permitted
to continue with the courses, they should normally be not permitted to take
further examinations of the professional courses. The students who pursue
the courses under the orders of the Court would not be entitled to claim
any equity at the final decision of the case nor should it weigh with the
courts of competent jurisdiction.
38. Besides providing the above answers to the questions, we
also issue the following directions to put the matters to rest beyond
ambiguity and to ensure that the authorities act in accordance with law :
(a) From the records of this case, it is clear that two
different records are being maintained at the time of counseling.
Firstly, the attendance register and thereafter photography and thumb
impressions are taken and, secondly, the Committee maintains a record
of the counseling where the students are actually given a specific
college/course of his/her preference. We direct that the second set
of records shall be maintained more accurately. It shall not only
contain the signatures of the candidate and the Committee members but
also the date and time when the candidate is given a seat and it
shall also be signed by the candidate with the course clearly written
by the Committee and signed by the candidate in the remarks column.
(b) The essence of all the judgments dealing with this issue is
to nurture discipline, fairness and transparency in the selection and
admission process and avoid prejudice to any of the stake-holders.
Thus, while we expect the authorities to be perfect, fair and
transparent in the discharge of their duties, we make it clear that
the students who adopt malpractices in collusion with the authorities
or otherwise for seeking admissions and if their admissions are found
to be irregular or faulty in law by the courts, they shall normally
be held responsible for paying compensation to such other candidates
who have been denied admission as a result of admission of the wrong
candidates.
(c) The law requires adherence to a settled protocol in the
process of selection and grant of admission. None should be able to
circumvene or trounce this process, with or without an ulterior
motive. The courts are duty bound to ensure that litigation relating
to academic courses, particularly, professional courses should not be
generated for want of will on the part of the stake holders to follow
the process of selection and admission fairly, transparently and
without exploitation.
(d) Keeping in mind the hard reality that there are number of
petitions filed in each High Court of the country, on the one hand
challenging the admissions on varied grounds while, on the other,
praying for grant of admission on merit to the respective
professional courses of MBBS/BDS, the Court cannot lose sight of the
fact that the career of the meritorious youth is at stake. These are
matters relating to adherence to the rule of merit and when its
breach is complained of, the judiciary may be expected to deal with
the said grievances preferentially and effectively. The diversity of
our country and the fact that the larger population lives in rural
areas and there being demand for consistent increase in the strength
of qualified medical practitioners, we are of the considered view
that such cases, at least as of now and particularly for a specific
period of the year require higher priority in the heavy business of
court cases. We are not oblivious of the fact that the Hon’ble
Judges of the High Court are working under great pressure and with
some limitations. However, we would still make a request to the
Hon’ble Chief Justices of the respective High Courts to direct
listing of all medical admission cases before one Bench of the Court
as far as possible and in accordance with the Rules of that Court.
It would further be highly appreciable if the said Bench is requested
to deal with such cases within a definite period, particularly during
the period from July to October of a particular year. We express a
pious hope that our request would weigh with the Hon’ble Chief
Justices of the respective High Courts as it would greatly help in
serving the ends of justice as well as the national interest.
39. For the reasons afore-recorded and with the directions as
mentioned above, we direct the respondents to grant admission to the
appellant to the MBBS course in the current academic year subject to the
condition that she will pursue her MBBS course right from its beginning and
to the conditions afore-noticed. However, in the facts and circumstances
of the case, we award no costs.
Appeal is disposed of accordingly.
.…................................J.
[Swatanter Kumar]
.…................................J.
[Ranjan Gogoi]
New Delhi;
July 10, 2012
