ARINDAM SINHA, J.
Petitioner says he is a doctor by profession. He passed Bachelor of Medicine and Surgery Course under University of Calcutta in year 2002. Upon
getting MBBS degree he joined West Bengal Health Services. He belongs to Scheduled Caste category. He wants to obtain Master’s in Surgery
(General Surgery) [MS (General Surgery)]. He participated in National Eligibility-cum-Entrance Test - Post Graduate (NEET-PG), 2017 and scored
sufficient marks for being eligible to participate in counselling. Unfortunately for him, in spite of best efforts, including moving this Court, he was
unable to secure a seat in his chosen course study for Master’s degree. Subsequently he successfully cleared NEET-PG, 2018 and obtained rank
of 84,564. He was found eligible to participate in counselling conducted by respondent no.1 University.
Mr. Sanyal, learned advocate appeared on behalf of petitioner and submitted, his client had earlier by WP 7031 (W) of 2018 sought to move a
Vacation Bench of this Court on 29th May, 2018 for interference in compelling respondent no.1 to make 31st May, 2018 cut off date for admission of
students who had cleared NEET-PG, 2018. His client was unsuccessful but what is of importance is, Circular dated 15th May, 2018, impugned in that
writ petition, contained direction upon college authorities which direction assumes significance in this case. The direction is reproduced below:
“The college authorities are to inform such candidates through phone number and email ID regarding such vacancy and willing candidates may
attend the office of the Principal/Director of the College on 18.05.2018 at 2 pm (cut off time).....†On 26th May, 2018 Government of West Bengal,
Office of Director IPGM&R was in receipt of a letter by which an allotee of a seat in MS (General Surgery) wanted to surrender the same. Said
allottee paid prescribed penalty by demand draft on 28th May, 2018. On the same day petitioner had written to the University as follows:
“I came to know from a reliable source on 26.05.2018 that one seat is still lying vacant in M.S. (General Surgery) in the academic session 2018-19
at IPGMER/S.S.K.M. Hospital. My name alongwith merit list has also been forwarded to IPGMER/S.S.K.M. Hospital by you being Memo no.
COE/UAS/585/2018 dated 15.05.2018.â€
The letter was received by respondent no.1 at 1:25PM on 28th May, 2018. Mr. Sanyal handed up information, obtained by his client on 5th June, 2018
under Right to Information Act, 2005, that one seat in MS (General Surgery) at IPGM&R became vacant after surrender on 28th May, 2018.
Respondent no.1 by memo dated 29th May, 2018 issued urgent notice for further centralised mop up WB PG Medical, 2018. The notice was issued
pursuant to order dated 25th May, 2018 of Supreme Court of India to fill up existing vacancies. Eligibility criteria notified was unallotted non-registered
candidates through NEET-PG, 2018 who will register for centralised mop up counselling on 31st May, 2018. Events of centralised mop up notified
included publication of vacancies as on 29th May, 2018, mop up counselling and on spot admission on 31st May, 2018. He submitted, publication of
vacancies on 29th May, 2018 by respondent no.1 did not include the vacancy occasioned by surrender of seat in his client’s chosen course of
study. On becoming aware of omission on the part of respondent no.1, to notify the said surrendered vacancy being an existing vacancy as on 29th
May, 2018, his client by letter dated 30th May, 2018, received by respondent no.1 on that day at 3:28PM, said, inter alia, as reproduced below:
“I beg to state that I Dr. Paban Mandal have made All India Ranked 84564 in NEET PG-2018 and my Roll no-1805071139. I have been
participated in the ensuing counselling process in 2nd round on 04-05-18 on words under W.B.U.HS and W.B.M.C.C. Subsequently also participated
in University level online Mop-up counselling and college level Mop-up counselling. I have given my choices on majority seats of M.S. (General
Surgery) amongst the colleges. But the seat has not been allotted to me for my admission of M.S (General Surgery) in the session 2018-19 in any
college whatsoever.
I came to know from a reliable sources on 28-5.2018 that one seat is still lying vacant in M.S. (General Surgery) in the academic session 2018-19 at
IPGMER/SSKM Hospital and other Colleges. But those vacant seats & left out seats of MS (General Surgery) have not been released in the
University level centralised counselling in the seat matrix published on 29-5-2018.†Mr. Sanyal submitted, there can be no doubt raised regarding his
client’s conduct in trying to secure for himself a seat to pursue post graduate study in his chosen course. Writ petitions filed by him in this Court
will bear out his diligence in the matter.
Centralised mop up counselling and on spot admission exercise undertaken by respondent no.1, as notified on 29th May, 2018, was in respect of 117
published existing vacancies. The mop up counselling should have but did not include the surrendered seat. It was an available seat in MS (General
Surgery). Respondent no.1 did not also otherwise inform his client by phone or email that this vacancy existed. As such petitioner, though having
registered himself for centralised mop up counselling on 31st May, 2018 for on spot admission, on being aware that the existing vacancies published
did not contain the vacancy and having already made demand for justice by said letter dated 30th May, 2018, instead of presenting himself for
counselling again moved a Vacation Bench of this Court on 31st May, 2018. He submitted, his client didn’t get interim order that day. He is one of
registered eligible candidates for said mop up counselling who is seeking admission to MS (General Surgery). Being eligible to participate in the
counselling he cannot be said to be without merit. Hence, he is before Regular Bench seeking interference where there has been arbitrary denial of
allotment, of existing vacancy in chosen course, to his client. He relied on judgment of Supreme Court in Asha vs. Pt. B.D. Sharma University of
Health Sciences and Ors. reported in (2012) 7 SCC 389 to paragraph 31. He submitted, Supreme Court had found that where no fault is attributable to
a candidate who is denied admission for arbitrary reasons, cut off date cannot be used as a technical instrument or tool to deny to meritorious students.
Mr. Supratic Roy, learned advocate appeared on behalf of respondent no.1. He handed up a brief of three documents containing information regarding
centralised mop up WB PG Medical Counselling on 31st May, 2018 for total vacancies 117 before counselling to submit, the exercise resulted in on
spot allotment of five seats. Petitioner had registered himself but was absent on 31st May, 2018 when counselling took place and spot admission of
five seats were given. On queries from Court he submitted, only five seats found takers from among candidates who presented themselves for
counselling on 31st May, 2018, the rest having declined. Further, the vacancy on surrender was informed to his client on 29th May, 2018. He made no
submission regarding omission of his client to take steps to see that said information of seat available on surrender reached registered candidates
before mop up counselling and on spot admission date 31st May, 2018.
Mr. De, learned advocate appeared on behalf of State and submitted, petitioner after having registered for centralised mop up counselling and on spot
admission pursuant to notice dated 29th May, 2018, not having presented himself, stood thereby disqualified and cannot now turn around and seek
interference of Court where cut off date was 31st May, 2018. No admission can be given beyond cut off date of 31st May, 2018 prescribed by
Medical Council of India. He submitted further, in any event petitioner had failed to obtain any order on 31st May, 2018 being cut off date after which
there cannot be done anything.
Mr. Bhattacharya, learned advocate appeared on behalf of Medical Council of India and relied on order dated 3rd May, 2018 of Supreme Court in
Writ Petition (C) no.357 of 2018 (Rachit Sinha and Ors. vs. Union of India and Ors.), to paragraph 9 and submitted, for this year’s admission
process the said Court did not interfere with notified schedule in spite of petitioners therein having had asked for the same. This stands in the way of
this Court interfering as the said order is binding. His next submission was petitioner ranked 84,564 in NEET-PG, 2018. In the event petitioner is
accommodated in the surrendered seat it would interfere with order of merit. He also relied on paragraph 26 of the writ petition to submit, petitioner
did not present himself for mop up counselling purportedly on the pretext there was no notified vacancy in MS (General Surgery). He relied on several
decisions of Supreme Court to submit, said Court had consistently enforced, for admission process, schedule notified by his client.
i. Faiza Choudhary vs. State of Jammu and Kashmir reported in AIR 2013 SC 1115, to paragraphs 12 and 13 wherein it was said that a medical seat
has life only in the year it falls. Carry forward principle is unknown to professional courses like medical, engineering, dental etc. State of Punjab and
Ors. vs. Renuka Singla reported in (1994) 1 SCC 175 was referred to for said Court having held therein that High Courts or Supreme Court cannot be
generous or liberal in issuing such directions which in substance amount to directing authorities concerned to violate their own statutory rules and
regulations in respect of admission of students.
ii. Priya Gupta vs. State of Chhattisgarh reported in AIR 2012 SC 2413, to paragraph 27 wherein said Court in examining adverse consequences of
non-adherence to prescribed schedules said, it is difficult to comprehend that any authority can have the discretion to alter the schedule to suit a given
situation, whether such authority is Medical Council of India, Government of India, State Government, University or the selection bodies constituted at
the college level for allotment of seats by way of counselling. Mr. Bhattacharya relied upon the instance given by said Court, that it would be
impermissible to give admission in an arbitrary manner and without recourse to the prescribed rule of merit, in support of his submission that petitioner
lacked merit.
iii. Mridul Dhar (5) vs. Union of India reported in (2005) 2 SCC 65, to paragraphs 11, 32 and 35. He submitted, said Court had confirmed time
schedule of admission in directing there should not be midstream admission and admissions should not be in excess of sanctioned intake capacity or in
excess of quota of anyone whether State or management. The carrying forward of unfilled seats of one academic year to next academic year is not
permissible. He relied on one of several directions issued in the judgment being that time schedule for grant of admission to postgraduate courses shall
also be adhered to.
iv. Medical Council of India vs. Madhu Singh and Ors. reported in (2002)7 SCC 258 to submit, said Court was dealing with issue of admission to
medical colleges in different courses both post pre-graduate and post graduate. In paragraphs 22 and 23 Supreme Court said that if any student is
admitted after commencement of the course it would be against the intended objects of fixing a time schedule. In fact, as the factual position goes to
show, the inevitable result is increase in the number of seats for the next session to accommodate the students who are admitted after commencement
of the course for the relevant session. He relied on, inter alia, the conclusion that there is no scope for admitting students midstream even if seats are
unfilled as there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year.
Mr. Bhattacharya relied on two judgments of this Court, one by a Division Bench and another by a learned Single Judge. They are judgment dated
18th July, 2013 of a Division Bench in, inter alia, MAT 561 of 2013 (Medical Council of India vs. Dr. Sukarna Mukherjee and Ors.) and judgment
dated 21st September, 2017 by a learned Single Judge in, inter alia, AST 277 of 2017 (Merajul Hoque vs. The State of West Bengal and Ors.). He
submitted, the Division Bench by its judgment had said direction in impugned order for second counselling was in violation of decision of Supreme
Court and cut off date. The learned Single Judge had followed Priya Gupta (supra) Madhu Singh (supra) Mridul Dhar (supra) and Faiza Choudhary
(supra).
Mr. Bhattcharya also relied on judgment dated 7th June, 2017 of Supreme Court in, inter alia, Civil Appeal 8268 of 2017 (Dr. Saurabh Dwivedi and
Ors. vs. Union of India and Ors.), to paragraphs 17, 20 and 21. He submitted Supreme Court by the judgment found that concerned High Court had
transgressed its jurisdiction and went beyond the scope of the writ petition. By impugned order High Court had set at naught the entire selection
process only two days before last date of admission making it virtually impossible to comply with the directions of the High Court within the short
period of two days. Hence, there was extension of cut off date of admissions directed by Supreme Court. He submitted by relying on this judgment,
High Court did not have the power to extend cut off date. If petitioner has any grievance he ought to have directly approached Supreme Court. He
cannot obtain relief in present proceedings. He must be directed to approach Apex Court.
He sought to distinguish Asha (supra) by submitting there was no arbitrariness in the facts of present case since petitioner was not discriminated
against. It cannot be and therefore was not demonstrated that any candidate who was lower in rank than petitioner had been admitted which was the
situation Supreme Court found had happened with appellant candidate before it. He reiterated his submission that petitioner is not meritorious and did
not deserve to be given admission as the same would result in disturbing order of merit.
Case on facts before this Court is petitioner aspires to obtain post graduate degree in MS (General Surgery). Mop up counselling was for filling up 117
published vacancies pursuant to direction made by Supreme Court by order dated 25th May, 2018 in WP Civil 556/2018, as appears from urgent notice
dated 29th May, 2018 issued by respondent no.1. On 28th May, 2018 there arose a vacancy in MS (General Surgery) by surrender of a seat available
for the year of admission. Respondent no.1 found him eligible to participate in further centralised mop up WB PG Medical 2018. As on 29th May,
2018 there was an existing vacancy in MS (General Surgery) but not informed to petitioner at all. Filling up existing vacancies was to be done on mop
up counselling of eligible participants by on spot admission. Unequivocal submission on behalf of respondent no.1 was that five on spot admissions
were given, rest of existing vacancies declined by those who participated, there being one absentee, petitioner.
From the brief of three documents produced by respondent no.1 it appears sixteen candidates were found eligible to participate in mop up counselling
for on spot admission on 31st May, 2018. Emphasis on the fact petitioner did not present himself for mop up counselling on 31st May, 2018, by all
parties opposing his claim for admission, to contend that thereby he was disqualified or should not be given admission by interference of Court, leaves
unsaid as to what would have happened if he had appeared and participated. What would have happened on petitioner’s participation for
counselling and assertion of his claim to admission in a course for which existing vacancy subsisted but was not published? Would he have been given
on spot admission to the vacancy by surrender? These are questions this Court has to answer.
Concise Oxford English Dictionary carries the meaning of counsel, including the word counselling often used as a noun, as, inter alia, to recommend a
course of action. When there are vacancies in several courses of study, eligible candidates are counselled to help them choose  the course that they
would be best suited for. This counselling is rendered by professionals. What becomes clear is that when eligible candidates are called for counselling
it is no longer a selection of a course on the basis of merit unless there are more eligible candidates than seats. That hurdle candidates already cross in
being invited for counselling. In this case petitioner was registered for said counselling as found eligible by respondent no.1 according to criteria
mentioned in said notice dated 29th May, 2018.
There is no dispute regarding that. In addition this Court has no hesitation to infer that even if petitioner presented himself for mop up counselling and
spot admission on 31st May, 2018, he would not have been given admission against existing vacancy in MS (General Surgery) being a vacancy not
published as existentially vacant. A further inevitable conclusion on above facts is that petitioner was the only registered participant in mop up
counselling on 31st May, 2018 for on spot admission in MS (General Surgery) as all who declined to avail existing vacancies published and offered by
counselling, did not hold out their candidacy for MS (General Surgery). In the premises, this Court is not prevented, by omission of petitioner to
participate in mop up counselling on 31st May, 2018 for on spot admission, from proceeding further to adjudicate whether he is entitled to relief.
Respondent no.1 has miserably failed to justify its omission of notifying said existing vacancy. It had no answer. The authorities instead of complying
with directions made by Supreme Court in said order dated 25th May, 2018, to fill up existing vacancies, appear to have closed ranks against
petitioner. They have tried to shift the adjudication to whether or not Court has power to interfere to extend cut off date. That is not the issue here. In
Asha (supra) Supreme Court gave directions in paragraph 38, two of which are reproduced below:
“38.....
(c) The law requires adherence to a settled protocol in the process of selectionand 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 to 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 ineach 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 Courts 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.â€
Further direction in paragraph 9 was to respondents therein to grant admission to the appellant, to 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 noticed in the judgment. There was no extension
of cut off date in that case but a simple direction for grant of admission because said Court found appellant had been wronged. Hence, the direction
upon all concerned to prevent circumvention of or trouncing the admission process, with or without an ulterior motive. Petitioner’s case does not
involve midstream admission. He, being eligible, registered himself for mop up counselling for on spot admission to be held on cut off date. It is clear
he was not in need of counselling, he knew exactly what course he wants to study for post graduate degree. There is no laches on his part to have
done what he could.
Omission is on the part of the authorities. A clear case of arbitrariness emerges and an attempt to cover it up. Petitioner rushing to Court on 31st May,
2018 instead of participating in mop up counselling for on spot admission resulted in the following order. “List this matter before the Regular
Bench.â€At best the said order can be interpreted to be one which implies further hearing was necessary. There is neither mention in the order of
lack urgency nor rejection of prayer for interim order. By no stretch of imagination this order can be attributed to laches or lack of diligence of
petitioner himself.
None of the cases relied upon by Mr. Bhattacharya are applicable to the present case. Controversy between petitioner and the authorities is not
regarding extension of cut off date. Merajul Hoque is also not applicable to this case since facts of that case were found to be distinguishable from
Asha (supra) and the learned Single Judge was of the view, Asha (supra) didn’t help petitioner therein. This Court has found petitioner to be one
in whose case Asha (supra) is applicable.
The contention petitioner is without merit is rejected. He was found eligible for mop up counselling on 31st May, 2018 for on spot admission. This
Court has also found there was no other eligible candidate for petitioner to have lost out on competing marks or ranks in NEET-PG 2018. In giving him
admission by allotting existing vacant seat on surrender, there could be no disturbance in order of merit.Respondents are directed to grant admission to
petitioner to MS (General Surgery) course in current academic year subject to the condition that petitioner will pursue the course right from its
beginning. The admission is to be given forthwith. Writ petition is disposed of as above.
(ARINDAM SINHA, J.)
Later 26.06.2018.
On delivery of judgment learned advocates on behalf of University and Medical Council of India both pray for stay of operation of this judgment for a
period of four weeks. The prayer is considered and rejected.
