Dr. Nithya Nair v. Union of India

9. In the instant case, all the petitioners are sponsored by Government of India organisations. The candidates were also required to have a sponsorship certificate mentioning the subjects for sponsorship, duly counter-signed by the sponsoring authority in the respective Ministry of Government of India in which the individual is employed.

10. The learned counsel for the petitioners, therefore, submits that as per Clause 20(f)(xiv) of the Information Bulletin, sponsorship certificates are required to be submitted as per the format placed at Appendix ‘A’. He submits that the sponsorship certificates with respect to all the petitioners were duly submitted as per Appendix ‘A’, - 5 however, to the utter surprise of the petitioners, their names were not included in the merit list which was published on 10.08.2023.

11. Learned counsel appearing on behalf of the petitioners pointed out that the private respondents, who have been arrayed as parties in the instant writ petition are less meritorious than the petitioners and the candidature of the petitioners has been rejected solely on the ground that the sponsorship certificate submitted by some of the petitioners did not contain an office seal. He, therefore, submits that the sponsorship certificates are as per Appendix ‘A’ which is the prescribed format and putting of the office seal is not in the hands of the petitioners.

12. Learned counsel submits that all the petitioners have been given the sponsorship certificate by their respective employers. The employers in case of all the petitioners are Government Departments and if the office seal is not affixed, no fault lies on the part of the petitioners, therefore, they should not suffer because of the lapse on the part of the sponsoring department. Furthermore, the putting of an office seal is not so sacrosanct consideration so as to supersede the merit of the candidates. Once the petitioners are meritorious and are entitled to allotment of a seat under the respective categories, they should not be ousted only on technical grounds.

13. While pointing out past practices of the respondents, learned counsel appearing on behalf of the petitioners submits that sufficient time was given to the respective candidates whose sponsorship certificates were not available or were defective. But in the instant case, no such opportunity was given and decision was taken hastily. The decision of exclusion of the petitioners is arbitrary and illegal. He also pointed out from the relevant clauses of the Information Bulletin - 6 i.e. Clauses 5, 6, 7, 8, 12, 16 and 20(f) that the sponsorship certificate is required at the stage of counselling. However, in the instant case, the doors for the petitioners have been shut at the stage of the preparation of the merit list itself.

14. Learned counsel appearing on behalf of the petitioners further submitted that the preparation of the merit list has to be done strictly based on merit and the verification of documents is an activity which takes place at the stage of counselling. He then contended that even otherwise, sufficient time should have been provided to them to allow the petitioners to seek rectification of the deficiency from their respective Government ministry and submit the sponsorship certificate.

15. While specifically pointing out the case of one of the candidates i.e., petitioner no.4, he submitted that the reason for rejection is the absence of signatures of the sponsoring authority. However, the petitioner no.4 had submitted two sponsorship certificates through email within the time slot available for furnishing of the said certificate. The first certificate which he had sent by an email was unsigned. However, immediately a second certificate was sent which was duly signed by the sponsoring authority.

16. Learned counsel appearing on behalf of the petitioners has taken a categorical stand that with respect to at least three candidates i.e., petitioner no.10, namely Dr Vidya Sagar, petitioner no.13, namely Dr. K Hemanth Kumar and petitioner no.15, namely Dr. Venkatesh G, the sponsorship certificates of all three petitioners were duly signed and the office seal was also affixed by the concerned office. It is, therefore, contended that the action of respondent no.2 is without - 7 application of mind and the same is arbitrary and illegal and deserves to be set aside.

17. He has placed reliance on a decision of the Hon’ble Supreme Court in the case of ‘Board of Governors in Supersession of Medical Council of India vs Dr. Priyambada Sharma & Ors’1 and the decision of this court in the cases of ‘Dr. Shidore Shital Mhatardeo vs National Board of Examination’2 and ‘Dr. Deepika Veerwal vs Union of India & Ors’3.

18. Learned counsel appearing on behalf of the petitioners further submitted that since the Hon’ble Supreme Court has extended the deadline for concluding the Post Graduate medical courses admission for the Academic Session 2023-24 up till 10.10.2023, therefore, there is no obstacle in directing the re-counselling. He also submitted that in any case, the admissions have been directed by this court to remain subject to the outcome of the instant writ petition.

19. Learned counsel appearing on behalf of respondent no.1 has filed the counter affidavit on behalf of the said respondent. According to him, it is a mandatory requirement to submit the sponsorship certificate mentioning the subjects for sponsorship, duly countersigned by the sponsoring authority in the respective Ministry of the Government of India in which the individual is employed. The mandatory requirement including the format of the sponsorship certificate includes inter alia the requirement of a rubber stamp of the sponsoring authority as well as an office seal which is apparently mentioned in the prescribed format.

- 8 -

20. It is also submitted on behalf of respondent no.1 that 75 applications were received within the stipulated time and the same were scrutinized for correctness and that out of those 75 applications, 42 applications for Priority-III were found to be correct and 33 candidates were found to be ineligible. It is the contention of the respondent no.1 that the counselling for eligible Priority-III candidates was carried out on 11.08.2023 and 38 seats as per the choice and inter se merit of the candidates were allotted to them.

21. After the conclusion of Priority-III counselling, the counselling for Priority-IV candidates i.e., Ex-Short Service Commissioned AFMS Officers released from service after completion of the contractual period, was carried out on 11.08.2023 and a total of 65 seats were allotted to Priority-IV candidates as per their inter-se merit.

22. With respect to Priority-V candidates, the counselling for the same has been kept in abeyance awaiting the outcome of the instant writ petition.

23. Learned counsel appearing on behalf of respondent no.1, therefore, submits that the decision of rejection of the candidature of the petitioners, at the threshold, is strictly in accordance with the scheme of the Information Bulletin. He explained that the veracity of the sponsorship certificates is to be examined at the stage of the preparation of the merit list, so as to restrict the counselling for the candidates who are eligible for the allotment of a seat. He has also submitted that once a procedure has been laid down and a format is prescribed, any candidature opposed to format, cannot be considered by the respondents as the same would amount to an arbitrary exercise at their hand. - 9 -

24. Reliance has been placed by the learned counsel on behalf of respondent no.1 on a decision of the Hon’ble Supreme Court in the case of ‘Karnataka State Seeds Development Corporation Limited and Anr. vs H.L. Kaveri and Ors.’4 to substantiate his argument that the conditions stipulated in the advertisement are mandatory and will have to be adhered to by the employer.

25. Reliance has also been placed on behalf of respondent no.1 on a decision of the High Court of Punjab & Haryana in the case of ‘Amardeep Singh Sahota vs State of Punjab’5, to submit that the prospectus issued by the Department is binding on all concerned and any direction contrary to the prospectus would not be sustainable in the eyes of law.

26. Respondent nos.[3] to 106 have also filed their common counter affidavit opposing the submissions made on behalf of the petitioners.

27. The private respondents, largely, have reiterated in their counter affidavit the averments made by respondent no.2 and additionally, reliance is placed upon the State Emblem of India (Prohibition of Improper Use) Act, 2005 (hereinafter referred to as „Act of 2005‟) to indicate that a seal was not found as per the Act of 2005 and the Regulations made thereunder; and therefore, the official respondents have rightly rejected the cases of those candidates who had the sponsorship certificate with improper seal.

28. Reliance has been placed on behalf of the private respondents on a decision of the Hon’ble Supreme Court in the case of „Maharshi Dayanand University vs Surjeet Kaur’6, to contend that neither the courts nor any Tribunal has the competence to issue any direction

- 10 contrary to the law and to act in contravention of the statutory provisions. The High Courts under Article 226 of the Constitution of India are required to enforce the rule of law and not to pass orders or directions contrary to what has been injuncted by law.

29. Reliance has also been placed on behalf of the private respondents on a decision of the Hon’ble Supreme Court in the case of „Alapati Jyotsana and Ors. vs Union of India and Ors.’7, to submit that when the counselling is over, the Hon’ble Supreme Court had refused to pass any direction for re-conducting the counselling.

30. Respondent nos.[3] to 106 have also placed reliance on a decision of the Division Bench of this court in the case of „Varun Kumar Agarwal vs Union of India & Ors.’8 to substantiate his contention that the prospectus has certain sanctity to be adhered to. Reliance has also been placed on behalf of the said respondents on the decision in the case of ‘Priyanka Chaudhary and Ors. vs National Board of Examination’9, to substantiate his submission, wherein, this court has placed reliance on a decision of the Hon’ble Supreme Court in the case of ‘Arvind Kumar Kankane vs State of U.P. and Ors.’10.

31. In addition, reliance has also been placed on behalf of the said respondents on a decision of the High Court of Madras in the case of ‘Dr.Sandeep P.S. vs Government of India, Rep. By its Secretary to Government and Others’11, to indicate that the prospectus is a vital document which governs the admission procedure.

32. In rejoinder submissions, the learned counsel appearing on behalf of the petitioners pointed out that there is no nexus between the

- 11 reason of rejection and the sanctity of the counselling process and the official respondents have miserably failed to justify their action of allowing the candidates to submit a No Objection Certificate (NOC) after the declaration of the merit list with respect to Priority-IV. He then contended that if a candidate with respect to Priority-IV is allowed to submit the NOC once the merit list is prepared, there remains no reason to deny the same benefit to the petitioners.

33. He also submitted that the action of the official respondents of rejection of the candidature, at the threshold, is contrary to the past practices. He has pointed out from Annexures P-10 and P-11 that in the year 2022, the candidates were allowed to furnish proper sponsorship certificates even after the counselling was conducted. He specifically referred to candidates, namely Md. Hussain D Page, Anil Kumar and Shaligram Choudhary, who had not submitted the sponsorship certificates, however, their names were included in the counselling in the year 2022.

34. I have heard the learned counsel appearing on behalf of the parties and perused the record.

35. It is discernible from the Information Bulletin issued in the month of July, 2023 that AFMS conducts Post Graduate training, primarily for the doctors of the AFMS in order to fulfil the specialist requirements. Surplus seats, if any, are offered to sponsored candidates of Friendly Foreign Countries, Para-Military/ other Government of India organisations, ex-servicemen (Ex-SSC AMC Officers) and civilian doctors.

36. The petitioners herein belong to the category of other Government of India organisations. As per Clause 16(c) of the Information Bulletin, the candidates applying under the said category, - 12 are required to furnish the sponsorship certificate mentioning the subjects for sponsorship, duly countersigned by the sponsoring authority in the respective Ministry of Government of India in which the individual is employed.

37. For the sake of clarity, Clause 16(c) of the Information Bulletin reads as under:-

38. The sponsorship certificate is a mandatory requirement for a candidate to be considered for counselling.

39. A perusal of Clause 20 of the Information Bulletin which provides the methodology for applying would indicate that the list of certificates to be submitted in original by the selected candidates at the college on the day of admission includes inter alia the sponsorship certificate (as per format placed at Appendix 'A'). For the sake of clarity Clause 20(f)(xiv) is reproduced as under:-

40. Appendix ‘A’, which is the prescribed format for the sponsorship certificate, requires inter alia signatures of the sponsoring authority, name, designation, rubber stamp of sponsoring authority and also office seal. For the sake of clarity, Appendix ‘A’ is reproduced as under:- “Appx 'A' (Refer para 21 (f)(xiv) of Info Bulletin)

FORMAT OF SPONSORSHIP CERTIFICATE TO BE SUBMITTED BY PARAMILITARY/GOVT OF INDIA SPONSORED CANDIDATES (PRIORITY-III)

1. I certify that Dr. ______________ (Rull name) is being sponsored by the Department of _________________, Ministry of ________________ for training at AFMS PG Institutions, leading to the award of MD/MS (as applicable) for the academic year 2023-2026 in the following subjects as required by the sponsoring organization:- (a) _________________ (b) _________________ (c) _________________ (d) _________________ (e) _________________ (f) __________________

2. That Dr. ______________is a bonafide permanent employee of _________ (name of the Paramilitary Organization/Department of Golf Ministry etc.). His/Her personal number as per records is __________ and his/ her address as per records is _______________