Asha Vs B.D.Sharma University of Health Sci.&ors

10 July 2012
Supreme Court
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ASHA Vs B.D.SHARMA UNIVERSITY OF HEALTH SCI.&ORS

Bench: SWATANTER KUMAR,RANJAN GOGOI
Case number: C.A. No.-005055-005055 / 2012
Diary number: 6361 / 2012
Advocates: ANIL KUMAR TANDALE Vs M. C. DHINGRA

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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

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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.

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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

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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

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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.

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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.

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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.”

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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.

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.

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.

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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:-

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Date Reporting Time Category Rank

20.09.2011 8.00 A.M. General (Common Merit List)

01 to 704

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.

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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

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behalf of respondent Nos. 1 and 2.

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

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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

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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

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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

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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.

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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.

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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].

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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

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.

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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.

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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.

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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].

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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].

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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.

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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

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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].

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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.

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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].

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.

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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.

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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

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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. Deliv.

Lec. Attnd.

%age Lect. Deliv.

Lec. Attnd.

%age

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

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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

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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.

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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

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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

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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.

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

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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

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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]

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.…................................J. [Ranjan Gogoi]

New Delhi; July 10, 2012