Akash Kumar v. All India Institute of Medical Sciences

8. The sole petitioner in W.P.(C) No.7769/2015, Akash Kumar belongs to the Scheduled Caste for which one (01) out of the six (06) seats is reserved and is first on the waiting list for admission in the said category. His contention is that the SC candidate namely, Ms. Varsha (petitioner in W.P.(C) No.7880/2015), entitled to admission as per the merit list of the result of the Entrance Examination having failed to, within five (05) days of the declaration of the result of the Entrance Examination, submit the proof of having passed the qualifying examination of B.Sc., he being first on the merit list ought to have been admitted.

9. Per contra, it is the contention of Ms. Varsha, petitioner in W.P.(C) No.7880/2015, that she has done her B.Sc. from Indira Gandhi National Open University (IGNOU) which has declared the result of the B.Sc. Examination only on 7th August, 2015 and which she has passed and that since her inability to produce the proof of having passed the qualifying examination within the prescribed time was entirely beyond her control, she should not be denied admission. She claims to have deposited the proof of having passed the qualifying examination with the respondent AIIMS on 12th August, 2015.

10. Mr. Kartik Saroha, the sole petitioner in W.P.(C) No.7793/2015 belongs to OBC category for whom two (02) of the six (06) seats are reserved and as per the merit list of the result declared of the Entrance Examination is entitled for admission. He has also done his B.Sc. from IGNOU which declared the result thereof on 14th August, 2015. He also contends that he should not be denied admission.

11. The grievance of the four petitioners in W.P.(C) No.7828/2015 and who had earlier filed W.P.(C) No.7275/2015 supra and of whom petitioner no.1 Dhirendra Jaiswal belongs to the OBC category, petitioner no.2 Ms. Bhawna Singh belongs to the General Category and petitioner no.3 Mukesh Kumar and petitioner no.4 Rahul Singh belong to the OBC category and who have done their B.Sc. from the respondent AIIMS itself and whose result was declared on 30th July, 2015, is that:-

(i) notwithstanding being entitled to admission they are not being admitted;

(ii) of the said petitioners, petitioner no.1 Dhirendra Jaiswal (OBC), as per the merit list prepared of the Entrance Examination is entitled to admission in the OBC category;

(iii) petitioner no.2 Ms. Bhawna Singh (General Category), as per the merit list prepared of the Entrance Examination is entitled to admission;

(iv) petitioner no.3 Mukesh Kumar, though an OBC, as per the merit list prepared of the Entrance Examination is entitled to admission on merits and not in the OBC category;

(v) petitioner no.4 Rahul Singh is first on the waiting list for admission to the OBC category;

(vi) that the petitioners no.1,2&3 should be admitted as per their merit and the petitioner no.4 Rahul Singh (OBC) though in the waiting list of OBC should be admitted instead of Kartik Saroha (OBC) petitioner in W.P.(C) No.7793/2015, because while the petitioner no.4 Rahul Singh was able to submit proof of passing the qualifying examination on 30th July, 2015 i.e. before the commencement of the academic session on 1st August, 2015, Kartik Saroha could submit proof of having passed the qualifying examination only on 14th August, 2015 i.e. after the commencement of the academic session; and,

(vii) reliance was placed on, (i) Punjab Engineering College,

Chandigarh Vs. Sanjay Gulati (1983) 3 SCC 517; (ii) Varun Kumar Agarwal Vs. Union of India 2011 (179) DLT 24; and,

(iii) Pooja Mohan Vs. Hamdard Institute of Medical Sciences and Research Jamia Hamdard 2012 SCC Online Del 4853 – to contend that the terms of the Prospectus are binding, including on the respondent AIIMS.

12. Per contra, the counsel for the respondent AIIMS under instructions from Dr. Sanjiv Lalwani, Registrar (Academics) of the respondent AIIMS stated that if the Clause in the Prospectus requiring the proof of having passed the qualifying examination within five (05) days of declaration of the result of the Entrance Examination was to be insisted upon, merit would suffer and thus a decision was taken to ask the Examination Branch to send the result of the qualifying examination (B.Sc.) and that this is in consonance with the past practice when also, inspite of a similar Clause in the Prospectus, time to submit the proof of having passed the qualifying examination was extended. It is stated that in the previous years, none had raised a dispute in this regard. It is further stated that the same was deemed permissible since, though the date for commencement of academic session is 1st August, 2015, but the last date for the admitted candidates to join is 30th September, 2015. However on enquiry whether there is any Clause in the Prospectus or elsewhere in the Rules & Regulations empowering the respondent AIIMS to so extend the date, none could be shown. It is yet further contended that respondent AIIMS interpreted the orders passed in W.P.(C) No.7275/2015 supra also as permitting so. It was yet further informed that till then, only letters of offer have been sent to some of the candidates in the merit list and no admissions been made.

13. Having given considerable thought to the rival contentions and to the situation as has arisen, I am of the view that now that the result of the qualifying examination of all the candidates have been declared, the respondent AIIMS should make admissions as per the merit list. The reasons which prevail with me for holding so are as under:-

I. All the petitioners, save the petitioner in W.P.(C) No.7769/2015

(Akash Kumar), are in the same boat, identically placed. In my opinion, once the requirement of the Prospectus was that the proof of passing the qualifying examination has to be submitted within five (05) days of declaration of the result of the Entrance Examination, failing which the performance at the Entrance Examination was not to be considered, no distinction can be carved out between those who had submitted the proof of passing the qualifying examination before 1st August, 2015 being the date of commencement of the academic session and those who submitted the proof of passing the qualifying examination after the date of commencement of the academic session. Once, as per the Clause in the Prospectus the right to be considered was forfeited, the right of all who so failed to submit the proof of passing the qualifying examination within the prescribed time stood and once the right is so forfeited, it matters not whether the proof of passing the qualifying examination was submitted before or after the date of commencement of the academic session. The date of commencement of academic session has no bearing once the right to be considered for admission was forfeited. Supreme Court in Dakshin Haryana Bijli Vitran Nigam Vs. Bachan Singh (2009) 14 SCC 793 held that principle underlying the guarantee of Article 14 is that all persons similarly placed shall be treated alike, both in privileges conferred and liabilities imposed. Again in Rajendra Yadav Vs. State of Madhya Pradesh (2013) 3 SCC 73 it was held that the doctrine of equality applies even among persons who are found guilty – persons who have been found guilty can also claim equality of treatment, when all of them are involved in the same incident.

II. As far as the petitioner in W.P.(C) No.7769/2015 (Akash Kumar) is concerned, though a right had accrued in him, inspite of being in the waiting list, to be admitted owing to the candidate in the merit list having forfeited the right for consideration as aforesaid but he is not found to have asserted the said right. It is only on 10th August, 2015 i.e. after the date specified for commencement of the academic session that he for the first time wrote to the respondent AIIMS in this regard and filed this petition only on 13th August, 2015 which came up before this Court on 17th August, 2015, by which time the candidate in the merit list (Ms. Varsha) in whose place is seeking admission had already submitted the proof of having passed the qualifying examination. In my view, the said delay on his part disentitles him from being made an exception to the Rule of merit.

III. The principle behind the judgments laying down that the terms and conditions of the Prospectus are binding is that the Rules of the game cannot be changed after it has commenced and that the Prospectus should not be allowed to be changed so as to give advantage to some over others. However here, all except Akash Kumar, as aforesaid are similarly placed. Thus the said principle would have no application.

IV. The Prospectus, though not containing any specific Clause empowering the respondent AIIMS to extend the time prescribed for submission of proof of having passed the qualifying examination, nevertheless vide clauses re-produced hereinabove makes the decision of the Director of the respondent AIIMS final in the matter of selection of candidates for admission and generally provides that the Rules in the Prospectus were subject to change in accordance with the decision of the respondent AIIMS from time to time. The respondent AIIMS having decided in consonance with the practice followed in the previous years, not to enforce the time prescribed for submission of proof of having passed the qualifying examination and to follow the merit list and to which decision no motives or mala fides can be attributed or have been attributed, it is not deemed appropriate to in writ jurisdiction interfere therewith.

V. The Prospectus does not prescribe any date for counselling or for commencement of admissions and is quiet in that respect. The respondent AIIMS admittedly did not commence the admissions immediately after five (05) days of the declaration of the result of the Entrance Examination on 8th July, 2015. The first grievance with respect thereto was made only by filing of W.P.(C) No.7275/2015 which had come up before the Court on 31st July,

2015. Though the academic session is prescribed to be commencing on 1st August every year but the selected candidates are given the liberty to join the courses on or before 30th September. For this reason also, no error is found in the decision of the respondent AIIMS.

VI. This Court in exercise of jurisdiction under Article 226 of the

Constitution of India and which is an equitable jurisdiction would even otherwise be loath to interfere with the decision of the respondent AIIMS as an Academic Institution of Excellence to follow the principle of meritocracy. The meritorious candidates should not be denied their due owing to technicalities and especially when the said technicalities are beyond their control. I have in Association of National Board Accredited Institutions Vs. UOI 178(2011) DLT 322 noticed a plethora of judgments holding that merit based admission/selection to be in national interest and to be in conformity with Article 14 of the Constitution of India and yet further, that right of a meritorious student to get admission in a Post Graduate Course is a fundamental and human right required to be protected by the Courts. Mention, in addition may be made of J&K BOPEE Vs. Sunandani Sharma AIR 2014 J&K 44 (DB), Rajan Purohit Vs. Rajasthan University of Health Science (2012) 10 SCC 770, Asha Vs. Pt. B.D. Sharma University of Health Sciences (2012) 7 SCC 389, Manoj Kumar Dhaka Vs. UOI MANU/DE/5927/2012 (DB).

VII. The declaration of the result of the qualifying examination is not in the hands of examinees and there is no reason to deny a meritorious candidate admission for the said delay in declaration of the result, especially when the result has been declared well before the date prescribed for joining the course. I have noticed the case law in this regard in Utkarsh Sharma Vs. UOI MANU/DE/3169/2010. The Supreme Court in Asha supra held that where the candidate is not at fault and has expeditiously pursued remedies, the cut off date cannot be used as a technical instrument or tool to deny admission to a meritorious candidate. Following the same a Division Bench of Madhya Pradesh High Court in Shubh Deep Ayurved Medical College Vs. UOI MANU/MP/0654/2013 issued direction for extension of cut off date. An interesting discussion in this respect is also to be found in Sunita Devi Vs. State of Punjab MANU/PH/0254/2014. Rather, the respondent AIIMS is found to be at fault for prescribing the time for submission of the proof of passing the qualifying examination and by which time, as per its own admissions, even the result of the qualifying examination is not declared by most of the Universities, including itself, and which has forced the respondent AIIMS in the previous years also to extend the said time. The respondent AIIMS would be well advised to consider making the requisite changes in its Prospectus for the ensuing year.

VIII. Once it is found that admissions were not made and cannot be made in terms of the Prospectus, it is all the more necessary that in directing the admissions to be now made, the principle of merit should be strictly followed. This Court, in exercise of powers under Article 226, is to be substantial justice and this course of action is deemed just and proper in the facts and circumstances.

IX. There is no basis for the contention of the counsel for the petitioners in W.P.(C) No.7828/2015 that the maximum time to which the date for submitting proof of having passed the qualifying examination could be stretched is still 31st July, 2015. Once the candidates are required to join the course on or before 30th September, 2015, it matters not that the date for commencement of the academic session has been artificially / academically fixed as 1st August, 2015. If the said date of commencement of the academic session is to be strictly enforced, none would be entitled to admission.

14. The counsels for the petitioners have also stated that since the merit list prepared of the Entrance Examination shows that no AIIMS candidate (in – service) appeared in the Entrance Examination and the said seat is lying vacant, the same be added to the remaining six (06) seats.

15. The counsel for the respondent AIIMS stated that there is no provision therefor. However on further enquiry it was informed that the said seat would remain vacant and there is no provision for the same being added to the next academic session. The counsels for the petitioners stated that any admittees against the said seat would not claim any concession in fee etc. as may be applicable to the AIIMS Candidate (in service) and would be willing to be admitted to the said seat on the same terms as the other six (06) seats. I had during the hearing enquired that even if the admission against the said seat were to be permissible, whether the admission thereto should be from the candidates in the waiting list in the General Category or in the OBC Category or in the SC Category. Each pressed his own case.

16. No relief to the aforesaid effect has been claimed in any of the petitions and there are no pleadings with respect thereto. For the reasons stated above, the counter affidavit of the respondent AIIMS has also not been called for. Without knowing the full position vis-a-vis the said seat and in the absence of any pleading to the said effect, no direction as sought can be issued. All that can be done is to direct the respondent AIIMS to consider the said aspect.

17. The petitions are thus disposed of with the following directions to the respondent AIIMS

2015. B. To, in view of the above, consider the changes, if any, required to be made in the Prospectus for the next academic year.

RAJIV SAHAI ENDLAW, J. AUGUST 21, 2015/„pp‟..