Miss Divashree Sharma and Others Vs State of Madhya Pradesh and Another

@JUDGMENTTAG-ORDER

A.K. Shrivastava, J.

By this petition under Article 226 of the Constitution of India, the Petitioners have sought the following reliefs:

In view of the facts mentioned in Para 6 above the Petitioners prays that a writ of mandamus or any other suitable writ, direction may kindly be issued and following relief may be granted to the Petitioners:

(i) That the Respondents be directed to henceforth permit Petitioners, to participate in the counselling for admission in MDS Course and consequently they be also directed to grant admission to the Petitioners in MDS Course without insisting upon the condition of recognition of the Institute from where the Petitioners have undergone BDS Course studies.

(ii) That, the other relief doing justice including cost be awarded.

All the Petitioners are the students of Maharana Pratap College of Dentistry and Research Centre at Gwalior (hereinafter referred to as ''the MPCD''). The said Institution was granted permission to conduct BDS Course and thereafter from time to time upto 2007-08, the permission was so granted by the Dental Council of India (hereinafter referred as DO) which has been placed on record as Annexure P-2. The Petitioners were admitted by general counselling conducted in the academic session 2004 and at the relevant time, MPCD was duly granted permission by the DO. The Petitioners have completed their BDS Course from the MPCD in July, 2008 (academic session 2007-08). After successful completion of the BDS Course, the Petitioners intended to take admission in MDS Course and for that purpose, they did appear in the entrance test for admission in MDS Course conducted by the VYAPAM. Copy of the admission Rules have been placed on record as Annexure P-4.

In the academic session 2007-08, a dispute arose between the MPCD and with that Chairman of the DO and accordingly a decision was taken by the DO not to grant recognition for BDS Course to the MPCD Institution for the academic session 2008-09 vide order (Annexure P-5), with a further recommendation that no admission in academic session 2008-09 shall be made by the said Institution.

The contention of Shri Pawan Dwivedi, learned Counsel for the Petitioners is that the condition so imposed in Annexure P-5 is applicable for the academic year 2008-09 only, in view of Sections 16 and 16A of the Dentists Act, 1948 (hereinafter referred to as the Act), and, therefore, the true meaning, which is to be given to Annexure P-5 is that for only academic session 2008-09, recognition was not granted and not for those students who had already cleared their BDS Course in the previous academic session. In this context, learned Counsel has invited our attention to Section 16 of the Act. Further, it has been contended by him that all the writ Petitioners looking to their meritorious status should have been permitted in the first Counselling itself by the VYAPAM, having not done so, the State of Madhya Pradesh and its functionaries have acted arbitrarily and contrary to Article 14 of the Constitution of India.

It has been then put forth by learned Counsel for the Petitioners that now the entire counselling is over and therefore in view of the decision of Division Bench of this Court in Sunil Harioudh v. State of Madhya Pradesh and Ors. 2006 (4) M.P.H.T. 426 , in which, decisions of Supreme Court in the cases of Punjab Engineering College Chandigarh through its Principal Vs. Sanjay Gulati and Others, Anil Kumar Gupta and Others Vs. State of U.P. and Others, and Dolly Chhanda Vs. Chairman, JEE and Others, were relied, it has held that the State of Madhya Pradesh as well as its functionaries shall create the new seats and counselling be made to admit them in MDS Course and therefore the similar treatment be provided to the Petitioners also.

On the other hand, Shri Gupta, learned Government Advocate argued that because the MPCD from where the Petitioners passed the BDS Course was not recognized and, therefore, the Petitioners were not allowed to appear in the counselling.

Further, it has been contended by learned Government Advocate that later on, the Petitioners were directed to appear in second counselling but they did not appear and in this context learned Government Advocate has invited our attention to Paras 4 and 5 of the return and, therefore, now the Petitioners are dragging the dead horses and, therefore this petition be dismissed.

In reply, it has been contended by Shri Dwivedi, learned Counsel for the Petitioners that although the Petitioners were entitled to appear in the first counselling only and as per their own showing in the return filed by them, they did not allow the Petitioners to appear in first counselling. So far as second counselling is concerned, learned Counsel submitted that only two seats of oral pathology were available one for the general category and one for Scheduled Caste category and, therefore, looking to their merit, the Petitioners were entitled to clinical seat only. From a bare perusal of Annexure R-9 filed by the Respondents, it is clear that the candidates of lesser merit were directed to appear in the Counselling and they were also selected.

Having heard learned Counsel for the parties, we are of the considered view that this petition deserves to be allowed.

The maxim actus curiae neminem gravabit which means that Court''s action or in action will not prejudice a party, according to us, why this maxim will not be applicable for the State of Madhya Pradesh and its functionaries discharging their statutory duties and why the citizens of India should be debarred and should face the consequences adverse to their fundamental right on account of action or in action of the State and its functionaries.

Undisputedly, the Petitioners appeared in the entrance exam of MDS and they were duly selected. However, they were not permitted to appear in the counselling for the simple reason that the BDS Course conducted by MPCD was directed to be not recognized for the academic session 2008-09. Admittedly, all the Petitioners cleared their BDS Course prior to commencement of academic session 2008-09 and on this date, the Institution of MPCD was duly recognized.

So far as, the hurdle of Annexure P-5 in respect of recognition is concerned, if we examine the said order Annexure P-5 on the touch stone and anvil of Section 16(3) as well as Section 16A of the Act, we find that the authority was duty bound to specify the date of non-recognition, but no specific date was mentioned in order (Annexure P-5). Hence, we hereby hold that the said order (Annexure P-5) is applicable prospectively from the date of commencement of the session 2008-09 only and not earlier to it. Since all the Petitioners cleared their BDS Course earlier to the commencement of the session 2008-09, according to us, looking to the mandate of the aforesaid provision under the Act, they were entitled for participation in the first counselling itself.

As per Respondents'' own showing they were not permitted in the first counselling. So far as the second counselling is concerned, we have gone through the return filed by the Respondents in that regard. At the first blush, the argument put forth by learned Government Advocate appears to be quite attractive that although, the Petitioners were directed to appear in second counselling but they did not appear and the seats were allotted to lesser meritorious students. Suffice it to say that, in the second counselling only two seats were available one for Scheduled Caste category and another for general category and that too of Oral Pathology which is a seat on the non-clinical side. Since all the Petitioners are meritorious and as per own showing of the Respondents, seats were allotted to lesser meritorious students, according to us, the Petitioners cannot be made responsible, because they were not permitted to appear in the first counselling on account of restriction imposed by the Respondents.

So far as the contention of learned Government Advocate that now entire procedure of counselling is over and no seat is available, therefore, now counselling cannot be made and the Petitioners cannot be admitted in MDS Course is concerned, the said objection cannot be accepted in view of decision of a Division Bench of this Court in the case of Sunil Harioudh (supra), which is based on three decisions of Supreme Court and in this context it would be profitable to rely Para 6 which reads as under:

6. In Punjab Engineering College Chandigarh through its Principal Vs. Sanjay Gulati and Others, , the Supreme Court has held that the authority, who makes admission by ignoring the rules of admission, must pay for such lapse and wrong done to the deserving candidates, who have been admitted, has to be rectified and the best solution under the circumstances is to ensure that the strength of seats is increased in proportion to the wrong admissions made. In the said case, a contention was raised by the State Government that in case of Medical Colleges, the Medical Council of India will not sanction additional seats, but the Supreme Court rejected the said contention raised by the State Government. Paragraph 6 of the judgment of the Supreme Court in the case of Punjab Engineering College, Chandigarh v. Sanjay Gulati (supra), is quoted herein below:

It is strange that in all such cases, the authorities who make admissions by ignoring the rules of admission contend that the seats cannot correspondingly be increased, since the State Government cannot meet the additional expenditure which will be caused by increasing the number of seats or that the institution will not be able to cope up with the additional influx of students. An additional plea available in regard to medical colleges is that the Indian Medical Council will not sanction additional seats. We cannot entertain this submission. Those who infringe the rules must pay for their lapse and the wrong done to the deserving students who ought to have been admitted has to be rectified. The best solution under the circumstances is to ensure that the strength of seats is increased in proportion to the wrong admissions made.

Similarly in Anil Kumar Gupta and Others Vs. State of U.P. and Others, the Supreme Court directed creation of thirty-four seats in the MBBS course for admission of 34 students from the OC category for the purpose of rectifying the injustice done to the OC Category candidates. In Dolly Chhanda Vs. Chairman, JEE and Others, the Supreme Court having found that the Appellant in that case has been illegally denied admission in MBBS Course, directed the authorities to give admission to the Appellant in any one of the State Medical Colleges and further observed that in case the State seats have already been filled up, one extra seat shall be created for the Appellant.

In the said decision, it was directed to State of Madhya Pradesh and its functionaries to create the seats and similarly by adopting the same view we hereby directs Respondents to create five seats and all the Petitioners may be permitted to appear in counselling and to allot seats in terms of their merit vis-a-vis the students who have been admitted who were having lesser merit.

This petition is accordingly allowed with costs. Counsel fee Rs. 5000/- if pre-certified. Let this process be completed by the Respondents on or before 30th September, 2010 because rightly it has been submitted by Shri Pawan Dwivedi, learned Counsel for the Petitioners that cut off date 30th September of each year is prescribed by the Apex Court in the case of Mridul Dhar (Minor) and Another Vs. Union of India (UOI) and Others,