Judgment:
(Prayer: Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue appropriate Writ, Order or direction, more particularly one in the nature of Writ of Mandamus declaring the action of Respondent Nos. 4 to 6 in not accepting the Petitioner’s Community, Nativity and Date of Birth Certificate No.D/620/2011 dated 02.05.2011 issued by the Tahsildar, Ramachandrapuram Mandal, Medak District and not admitting the Petitioner into the post graduate medical course for the year 2012-13 under BC-E category quota and in further, demanding from the Petitioner a caste confirmation certificate issued by the District Collector, Medak, the 3rd Respondent herein and the further action of Respondents Nos.4 to 6 in not admitting the Petitioner into post graduate Medical Course in spite of the Report submitted by the 3rd Respondent vide Lr.No.C2/CV/2494/2012 dated 30.06.2012 certifying the genuineness of the Petitioner’s caste certificate, as arbitrary, illegal, unjust, discriminatory and violative of fundamental rights guaranteed under the Constitution of India, contrary to the provisions of Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificates Act, 1993 and Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Nativity and Date of Birth Certificates Rules, 1997, and for issuance of a consequential direction to the Respondent Nos.5 and 6 to forthwith admit the Petitioner into post graduate medical course for the year 2012-13 against any one of the seats lying vacant in Gandhi Medical College, Secunderabad and Osmania Medical College, Hyderabad.)
A total disregard for the procedure prescribed for verification of the community certificate of the petitioner by respondent No.4 to 6 has driven the former to filing this Writ Petition. The brief facts leading to the petitioner approaching this court are stated hereunder:
The petitioner belongs to the Muslim community (“Shaik” caste). He has completed his M.B.B.S. course and obtained Degree therein from Dr. N.T.R. University of Health Sciences, Vijayawada-respondent No.6, in the year 2009. The petitioner also registered himself as a Medical Practitioner with the A.P. Medical Council. The petitioner has secured Community, Nativity and Date of Birth certificate, bearing No.D/620/2011, dated 2-5-2011 (for short “the community certificate”), from the Tahsildar, Ramachandrapuram Mandal, Medak District, under the provisions of the A.P. (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificates Act, 1993 (for short "the Act") and the A.P. Scheduled Castes, Scheduled Tribes and Backward Classes – Issue of Community, Nativity and Date of Birth Certificates Rules, 1997 (for short “the Rules”).
The petitioner appeared for PGMET-2012 conducted by respondent No.6-University in March 2012. He secured the rank of 2777 in the said entrance test and appeared for Counselling conducted by respondent No.6. The petitioner was offered Post-Graduate (PG) seat in Psychiatry. Respondent No.4 took objection to the community certificate produced by the petitioner while granting provisional clearance, subject to the petitioner producing a community confirmation certificate by respondent No.3. The petitioner has immediately made a representation on 21-4-2012 to the Director of Backward Classes Welfare, Backward Classes Welfare Department, Hyderabad-respondent No.2, with a request to him to issue necessary clarifications to respondent Nos.4 to 6. Respondent No.2, vide his letter Rc.No.E/1261/2012 dated 21-4-2012, informed respondent No.6 that the competent authority issued the community certificate to the petitioner after thorough verification under the Act and the Rules and that the latter may either accept the community certificate furnished by the petitioner, or in the alternative, order an enquiry through respondent No.3 for re-verification and re-confirmation of the petitioner’s social status.
As the petitioner was not interested in pursuing the Psychiatry subject, he has appeared in the second round of Counselling held by respondent No.6-University in May 2012 wherein he was offered admission into P.G. Medical Course in E.N.T. Notwithstanding the letter dated 21-4-2012, respondent No.4 has given provisional clearance, purportedly in pursuance of the said letter dated 21-4-2012 of respondent No.2, subject to condition of the petitioner producing the community confirmation certificate from respondent No.3. Eventually, the petitioner was not given admission into P.G. Medical Course in E.N.T. on the ground that he did not get his community certificate re-confirmed by respondent No.3.
On 6-6-2012, the petitioner made a representation to respondent No.2 who issued proceedings Rc.No.A1/1612/2012 on the same day, wherein the latter has taken a serious note of the manner in which respondent No.4 has acted by not accepting the petitioner’s community certificate despite the letter dated 21-4-2012 addressed by him. Respondent No.2 has mentioned in the said proceeding that respondent No.4 unnecessarily insisted on clarification on the petitioner’s community certificate ignoring the clarification issued by him resulting in denial of P.G. admission to the petitioner in the E.N.T. subject. Respondent No.2 has further observed that if there was a doubt regarding the veracity of any community certificate, it is the District Collector who has to enquire into the caste status of such person and that till then the candidate shall be allowed for Counselling on the strength of the certificate produced by him. Respondent No.2 has lamented that on account of the action of respondent No.4 in needlessly insisting on further confirmation of the community certificate, the petitioner has lost the opportunity of getting admitted into the P.G. Medical course, which constitutes negligence and defiance of the instructions of the Head of the Department on the part of respondent No.4. Accordingly, while contemplating disciplinary proceedings, respondent No.2 has placed respondent No.4 under suspension.
The petitioner averred that while addressing the letter dated 21-4-2012 to respondent No.6-University, respondent No.2 simultaneously referred the issue of the genuineness of the petitioner’s community certificate to respondent No.3 and that after getting the petitioner’s social status re-confirmed as B.C. (E) through the Revenue Divisional Officer and the Tahsildar, Ramachandrapuram Mandal, respondent No.3 sent his report vide letter No.C2/CV/2494/2012, dated 30-6-2012, to respondent Nos.2, 4, 5 and 6. However, despite the said letter, the petitioner was not admitted into the P.G. Medical course.
The petitioner averred in his affidavit that the Act and the Rules do not place any obligation on a person who obtained the community certificate from the competent authority i.e., the Tahsildar, to get re-verification of the certificate by the District Collector and that as clarified by respondent No.2, if any doubt arises with respect to the community certificate produced by any person, it is only respondent No.6 that has to seek re-verification of such certificate from respondent No.3. The petitioner has therefore squarely blamed respondent Nos.4 to 6 for denial of seat to him in the P.G. Medical course due to non-adherence to the prescribed procedure by the latter. The petitioner further averred that one N. Vamsi Krishna, who secured 34th rank in the entrance test was admitted by respondent No.6 into the P.G. Medical course in General Medicine in the Gandhi Medical College; that as the said candidate has secured a seat in the Nizam’s Institute of Medical Sciences (NIMS), he discontinued his course in the Gandhi Medical College on 12-6-2012; that presently there are two seats lying vacant in the Gandhi Medical College in General Medicine and two seats in Radiology in the Osmania Medical College and that the petitioner may be accommodated in any one of those vacant seats.
No counter-affidavits have been filed by any of the respondents. However, I have heard the learned Government Pleader for Social Welfare representing respondent Nos.1 to 4 and Sri D.V. Nagarjuna Babu, learned Standing Counsel for Dr. N.T.R. University of Health Sciences-respondent Nos.5 and 6.
At the hearing, Sri S. Srinivas Reddy, learned counsel for the petitioner, submitted that the petitioner was denied a seat in the P.G. Medical course solely due to the patently illegal action of respondent Nos.4 to 6 in unjustly refusing to accept the former’s community certificate issued by the competent authority under the Act and the Rules. He submitted that insistence on the petitioner to get his community certificate re-verified by respondent No.3, is alien to the procedure prescribed under the Act and the Rules. The learned counsel placed reliance on the provisions of the Act and the Rules apart from letters dated 21-4-2012 and proceeding dated 6-6-2012 of respondent No.2 in support of his submissions. He further contended that even though the cut-off date for admission into the P.G. Medical courses i.e., 31-5-2012, has expired, as the petitioner’s case falls in the category of exceptional and rarest of the rare cases, and in view of availability of the vacant seats, his client is entitled to be admitted in one of those vacant seats. In support of his submission, the learned counsel placed reliance on the Judgment of the Supreme Court in AshaVs. Pt.B.D. Sharma University of Health Sciences (C.A.No.5055/2012, dated 10-7-2012 (arising out of S.L.P.(C)
No.7440 of 2012). The learned counsel also relied upon Regulation Nos.10.4 and 10.5 in support of his submission that since the Classes were commenced and the petitioner will not be able to put in the minimum attendance of 80%, the absence period may be treated as leave and his study period may be extended.
The learned Government Pleader and the learned Standing Counsel appearing for respondent Nos.4, 5 and 6, respectively, have not disputed the fact that the rejection of the petitioner’s community certificate is in violation of the procedure prescribed under the Act and the Rules. However, the learned Standing Counsel submitted that respondent No.6-University has no say on the aspect of acceptance of the community certificate of a candidate and that it has to abide by the decision of the Verification Officer who has been deputed to the University for this specific purpose in terms of G.O.Ms.No.44, Health, Medical and Family Welfare (E2) Department, dated 25-2-2005. While contending that due to non-acceptance of the petitioner’s community certificate by respondent No.4, the petitioner could not be admitted into the P.G. Medical course (ENT), the learned Standing Counsel submitted that as the Classes have been commenced from 2-5-2012 and every candidate has to put in the minimum of 80% of attendance, it is not possible to admit the petitioner at this stage. He emphasized on the need for the students to attend the training to maintain high standards of learning and submitted that the academic standards cannot be allowed to be compromised by admitting the petitioner into the P.G. Medical course after the expiry of more than three months of commencement of the Classes. The learned Standing Counsel further submitted that the petitioner who secured the rank of 2777 would not have been admitted in either of the subjects i.e., General Medicine or Radiology, even if his case was considered, and that by mere providence of availability of seats for various reasons, the petitioner cannot be admitted into the P.G. Medical course in the vacant seat in the subjects which would have been available only for the candidates of higher merit.
I have given my earnest thought to the submissions of the learned counsel for the parties. In the light of the respective contentions of the learned Counsel, two issues arise for consideration before this Court. They are :
1.Whether refusal of admission to the petitioner in the P.G. Medical course on the strength of the community certificate produced by him is legal, proper and valid ?
2.If the answer to Issue No.1 is in the negative, to what relief the petitioner is entitled ?
Re-Issue No.1:The Act and the Rules govern the issue of Community, Nativity and Date of Birth certificates in respect of persons belonging to the Scheduled Castes, Scheduled Tribes and the Backward Classes. Under Section 3 of the Act, a person seeking issuance of community certificate shall make an application to the competent authority, who is an officer authorized by the Government. On the competent authority being satisfied about the genuineness of the claim, he will issue the community certificate. The said provision ordains that a certificate in regard to the community, issued by any person, officer or authority, other than the competent authority, shall be invalid. Under Section 5 of the Act, if a false community certificate is obtained by any person not belonging to the Scheduled Castes, the Scheduled Tribes or the Backward Classes, the District Collector may either suomotu, or on a written complaint of any person, shall cancel the certificate after holding an enquiry into the genuineness of the community certificate.
Rule 5 of the Rules envisaged procedure for verification by the competent authority regarding the community of the person who applied for the certificate. A State Level Scrutiny and Review Committee is prescribed by Rule 7 and a District Level Scrutiny Committee is prescribed by Rule 8 of the Rules. Under Rule 9, where the District Collector receives a written complaint from any person or has otherwise reason to believe that a person not belonging to the Scheduled Caste or the Scheduled Tribe or the Backward Class, has obtained a false Community, Nativity and Date of Birth certificate, he shall refer the case to the Chairman, District Level Scrutiny Committee and call for a report from him. The Scrutiny Committee, after enquiry, will submit a report, based on which the District Collector will take a decision as to whether the certificate obtained by the person concerned is genuine or fraudulent. In case the Collector finds that the certificate is fraudulent, he will cancel the same. Rule 9, which is very relevant for the present purpose, reads as under:
Fraudulent claims:
1Where the District Collector or Collector receives a written complaint from any person or has otherwise reason to believe that a person not belonging to Scheduled Caste or Scheduled Tribe or Backward Class has obtained a false Community, Nativity and Date of Birth Certificate to the effect that either himself/herself or his/her children belong to such a Scheduled Caste/Scheduled Tribe/Backward Class, the District Collector shall refer the case to the Chairman, Scrutiny Committee i.e., the Joint Collector of the District (formed under Rule 8, to enquire into such cases and send its findings to the District Collector).
2. The Scrutiny Committee on receipt of such cases referred to it by the District Collector, shall follow the procedure as listed in Rule 8(d),(1) to (7) except that it shall serve the notice in Form VI on the person involved in the case.
3. The Scrutiny Committee shall in such cases cause enquiry by the protection of Civil Rights/Vigilance Cell also i.e., through the officer representing the Protection of Civil Rights/Vigilance Cell as the member of the committee. The protection of Civil Rights/Vigilance Cell should investigate the social status claimed by the person by sending the Inspector of Police to the local place of residence of that person and where he/she usually resides or in case of migration, to the town or city from which he/she originally hailed from. The Inspector should personally verify and collect all the facts, about the community claim of the person or the guardian or the parent, as the case may be.
4. Where the person on whom a notice served in Form-VI fails to respond to the notice within the period specified in the notice, the Scrutiny Committee may finalise its findings based on the material made available by the District Collector i.e., the enquiry report of the Revenue Department, enquiry report of the Protection of Civil Rights/Vigilance Cell and the reports of the expert/Officer of the Research Organisation of the Commissionerate of Social Welfare/Tribal Welfare.
5. The Scrutiny Committee shall compare the enquiry reports of the Revenue Department furnished by the District Collector, the reports of the Protection of Civil Rights/Vigilance Cell and the reports of the Expert or Officer of the Research Organisation of the Commissionerate of Social Welfare/Tribal Welfare and then finalise its findings whether the Community, Nativity and Date of Birth certificate given to the person or his/her children is genuine or otherwise.
6. The Scrutiny Committee shall furnish its findings to the District Collector within 60 days from the date of the receipt of other reference from the District Collector.
7. The District Collector shall then decide whether the certificate holder is genuine or fraudulent and in case of his having obtained a Community, Nativity and Date of Birth Certificate fraudulently, the District Collector shall pass an order cancelling the certificate issued, within one month from the date of receipt of the findings of the Scrutiny Committee and shall issue notification to that effect, to be published in the District Gazette. The District Collector shall also take necessary steps to initiate action against the Competent Authority who issued the Community, Nativity and Date of Birth Certificate to the wrong person, besides taking other specified in Rule 15. He shall communicate the cancellation of certificate to the specified in Rule 15. He shall communicate the cancellation of the certificate to the educational institution/employer/appointing authority as the case may be forthwith.
8. In respect of the Bariki SC Community, such written complaints if received by the Collector shall be referred by him to Government, for necessary enquiry and final action to cancel the certificate, since the District Collector is the Competent Authority to issue the Community, Nativity and Date of Birth Certificate for this community.
9. The Collector or Government, either suo motu, or on a written complaint by any person, or on request by an employer/educational, institution/appointing authority, shall enquire into the correctness of any Community, Nativity and Date of Birth Certificate already issued and if it is found that the certificate is obtained fraudulently, then the District Collector or the Government, as the case may be, shall cancel the certificate as per Section 5 of the Act.
10. In respect of Tribals, the Commissioner of Tribal Welfare, Director of Tribal Welfare either suo motu or on a written complaint by any person or on request made by an employer/educational institution/appointing authority, shall enquire into the correctness of any community, nativity and date of birth certificate already issued and if it is found that the said certificate is obtained fraudulently, shall refer the case to concerned Collector or to the Government for its cancellation as per the procedure laid down in Section 5 of the Act. (Emphasis added)
From the scheme of the Act and the Rules, there can be no dispute that a community/caste certificate issued by the competent authority will remain valid till the same is cancelled by the District Collector concerned after getting a detailed enquiry held by the District Level Scrutiny Committee. If an employer/educational institution/appointing authority has any doubt with respect to the community certificate of a candidate, it has to make a request to the District Collector or the Government, as the case may be, for enquiry into the correctness of such certificate. It is only after holding of enquiry that the District Collector or the Government, as the case may be, shall cancel the certificate under Section 5 of the Act.
In the instant case, it is not in dispute that the community certificate produced by the petitioner in both the rounds of Counselling before respondent Nos.4 to 6 was issued by the Tahsildar, Ramachandrapuram Mandal, Medak District, who is the competent authority under the Act to issue such a certificate. If respondent Nos.4 to 6 had entertained any doubt about the genuineness of the community certificate of the petitioner, they should have made a request to respondent No.3 to hold an enquiry in respect thereof. But, there was absolutely no warrant for them to reject the certificate or make a provisional acceptance thereof and insist on the petitioner to get his community certificate re-verified by respondent No.3. It was no part of the obligation of the petitioner to get the community certificate obtained by him re-verified or re-confirmed by respondent No.3. This is precisely what respondent No.2 has opined in his letter dated 21-4-2012 addressed to respondent No.6, wherein he has categorically stated that the caste certificate produced by the petitioner may be accepted or an enquiry may be ordered through the District Collector concerned for re-verification or re-confirmation of the petitioner’s social status and that necessary action in the matter may be taken at the earliest so that the petitioner is not put to undue hardship. In all earnestness, respondent Nos.4 to 6 ought to have immediately requested respondent No.3 to get re-verification or re-confirmation of the petitioner’s community certificate done before closing of the admissions into the P.G. Medical courses. None of these respondents have followed this procedure and instead, they have thrown the ball into the petitioner’s court by asking him to get his community certificate re-verified by stating as under:
“Caste Verification: Provisional Clearance issued as per the Letter of DBCW, A.P., Hyderabad Rc.No.E/1261/2012, dated 21.04.2012, subject to condition production of caste confirmation certificate from the District Collector concerned as per the undertaking letter issued by the parent unless seat will be cancelled.
Sd/- on 18.05.2012
Signature of the Officer”
It is significant to note here that the above noted endorsement was made by respondent No.4 purportedly acting on the letter dated 21-4-2012 of respondent No.2. But, as noted above, respondent No.2 has never suggested to respondent No.6 to throw the responsibility on the petitioner to get the latter’s community certificate re-verified and re-confirmed by respondent No.3. On the contrary, he has asked the Registrar of respondent No.6-University, either to accept the community certificate or write to respondent No.3, to cause an enquiry made into the social status of the petitioner. By throwing the burden on the petitioner, respondent Nos.4 to 6 have clearly acted contrary to sub-rule (9) of Rule 9 of the Rules and also the letter dated 21-4-2012 addressed by respondent No.2 to respondent No.6-University. Had respondent No.6 referred the issue relating to the genuineness of the petitioner’s community certificate to respondent No.3 in the right earnest on receipt of the letter dated 21-4-2012 from respondent No.2, there would have been every possibility for getting the petitioner’s social status re-verified/re-confirmed from the latter before 31-5-2012, the last date for closing of the admissions into the P.G. Medical courses, as there was more than one month’s time left for such re-verification of the community certificate produced by the petitioner. Not only that respondent No.4 has shown scant regard for the community certificate produced by the petitioner issued by the competent authority under the Act and the Rules and unjustly refused to act on the same, but respondent No.6 has turned a blind eye to the mandatory procedure prescribed under Rule 9(9) of the Rules under which the burden squarely lies on it, being the educational institution, to seek re-verification of the community certificate produced by the petitioner by respondent No.3. By thrusting the responsibility on the petitioner, despite being apprised of the true and correct procedure by respondent No.2 and refusing admission to the petitioner banking on the unjust act of respondent No.4, respondent No.6 has acted in the most unreasonable and arbitrary manner.
While it is true that the job of verification of a community certificate is assigned to respondent No.4 under G.O.Ms.No.44, dated 25-2-2005, in my opinion, respondent No.6-University cannot be a mute spectator to the arbitrary refusal by the Verification Officer to accept the community certificates produced by the candidates. Considering the fact that the Medical Courses are so precious for the aspirants, a high degree of responsibility is cast on respondent No.6-University to ensure that the Verification Officer deputed by the Government does not act in a whimsical and capricious manner. Respondent No.6-University cannot just shut its eyes to the illegal rejection of the community certificates of the candidates by the Verification Officer, shirking its responsibility under Rule 9(9) of the Rules. Even if it cannot veto the opinion of the Verification Officer, respondent No.6-University is under an obligation to immediately plunge into action under Rule 9(9) of the Rules by writing to the District Collector concerned and getting the re-verification of the community certificate of a candidate done. In the instant case, respondent No.6-University miserably failed to take such action in respect of the petitioner’s admission into the P.G. Medical course, even though respondent No.2, at the earliest, guided it to follow the procedure of seeking re-verification from respondent No.3. Therefore, I do not find any merit in the submission of the learned Standing Counsel that respondent Nos.5 and 6 cannot be held responsible for the denial of admission to the petitioner into the P.G. Medical course. In my opinion, respondent Nos.5 and 6 are as much responsible as respondent No.4, for the unjust denial of admission to the petitioner into the P.G. Medical course. Issue No.1 is accordingly answered.
Re-Issue No.2:From the discussion undertaken under Issue No.1, it is clearly evident that the petitioner who was entitled to be admitted into M.S. (E.N.T.) Course was unjustly denied admission. In ordinary course, the petitioner would have been entitled to a direction from this Court to respondent Nos.5 and 6 to admit him in the said course if a seat is available or in any other subject which he would have been entitled to admission on the basis of his rank and as a candidate belonging to B.C. (E). But. this Court is faced with an almost insurmountable legal hurdle for granting such relief. In Medical Council of India Vs. Madhu Singh and others (2002) 7 SCC 258), the Supreme Court, taking judicial notice of the abnormal delays in commencement of academic course and utter lack of uniformity in various Universities in the country in this regard, directed the Medical Council of India (MCI) to ensure that the examining bodies fix a time schedule specifying the duration of the course, the date of its commencement and the last date for admission. It has further directed that specific time schedule be fixed for taking necessary steps such as holding of examinations, counselling and the like and that no variation of the schedule with regard to admissions shall be allowed. Following the said directions, the Ministry of Health and Family Welfare, Government of India, issued directive dated 14-5-2003 to the Secretaries of Health/Medical Education in all the States and Union Territories and to all the Universities awarding medical/dental degrees, laying down policy guidelines on admission of students and other allied matters. The said order directed that neither any student shall be admitted in any course of medicine or dentistry after expiry of the last date prescribed after closure of admission in that course nor any University shall register any such admission sought to be made, with the further direction to the State Governments to take all necessary steps to prevent deviation from the prescribed schedule. The Ministry has fixed separate time schedules for the MBBS/BDS course, P.G. Courses and Super-Specialty courses. With regard to the P.G. courses, 2nd of May of every year has been fixed as the date of commencement of academic session and 31st of May of the year as the last date upto which students can be admitted in the vacancies arising due to any reason.
In MrudulDhar Vs. Union of India (2005) 2 SCC 65)the Supreme Court expressed its anguish at non-adherence to the time schedule fixed by the Universities conducting medical courses despite its various decisions. The Supreme Court has referred to the Regulations of 1999 framed by the MCI which prescribed time schedule of P.G. and Super-Specialty courses, according to which the academic course shall commence from 2nd of May of each year and the last date to which the students can be admitted against vacancies arising due to any reason is 31st of May of the year. While issuing as many as 16 directions to the respective State Governments and the Universities to keep up the time schedule for different courses, under direction No.12, the Supreme Court directed that the time schedule for grant of admission to the P.G. courses shall also be adhered to.
In Asha(1-supra), a two-Judge Bench of the Supreme Court, dealt with a case where a candidate who has secured higher rank was denied admission and many students who secured lower ranks were given admission in the MBBS course. One of the various questions framed by the Court for consideration was, “Whether the cut-off date of 30th September of the relevant academic year is the date which admits any exception?” While answering this question, the Bench, speaking through Swatanter Kumar.,J, held at para-31 as under:
“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 student. 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. Though there can be rarest of rear 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. (Emphasis supplied)
However, in paragraph 36(b), (c and d), the Supreme Court held as under:
“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 admission must close by holding of second counseling by 15th September of the relevant academic year (in terms of the decision of this Court in PriyaGupta (CA @ SLP (C) No.27089 of 2011, dated 8-5-2012). 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 rear 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 PriyaGupta (supra) and this judgment are found to be unexceptionally satisfied and the reasons therefor are recorded by the court of competent jurisdiction.
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.” (Emphasis added)
The Supreme Court declined to give a direction for admission of the petitioner therein for the relevant academic year on the ground that even though she was admitted in the B.D.S. course, her attendance varied between 29% and 42% and that as she fell short of the required attendance, it was not appropriate to direct her admission into the MBBS course for the year 2011-12. Instead, the Court has directed that the petitioner shall be given admission in the academic year 2012-13, subject to her pursuing the course from the beginning.
In the present case also, a more or less similar situation is prevailing where the academic session has commenced from 2-5-2012. More than 100 days have passed-by since then. Much argument was advanced on the aspect as to whether it would be appropriate for directing admission of the petitioner into the P.G. course during this year. The learned Standing Counsel has strenuously contended that any direction given for the petitioner’s admission at this length of time would seriously disturb the academic schedule and that would be contrary to Regulation No.10.4 of the Regulations framed by the MCI. The learned counsel for the petitioner however relied upon Regulation Nos.10.5.1 and 10.5.2. It is therefore necessary to consider these Regulations, which read as under:
10.4: Attendance: Candidates selected for the various courses should be the whole time students. Service candidates will have to apply for leave to prosecute their studies and are required to produce the leave sanction order from the competent authority not later than three months after joining the course. The candidate is required to put in a minimum of 80% attendance during each calendar year for being eligible to appear for the examination.
In a year all 365 days will be considered as working days and students should get 80% attendance each year separately to get eligibility for appearing for University exams. The remaining days of absence (including maternity leave) will be considered for extension.
10.5.1: Leave: Each year students will be permitted to avail 30 days leave. No Post Graduate is allowed to go on leave more than 8 days at a stretch. In case the absence of the candidate availing Medical Leave/Maternity Leave/Any other Leave or unauthorized absence is beyond 30 days in a year the study period of the candidate will be extended to the extent of such period. No other leave is permitted.
10.5.2: Maternity Leave: Women students can avail maternity leave upto 120 days only once in their P.G. course of study and the study period will be extended to the extent of Maternity leave availed. The candidates shall not be eligible to appear in the University examination till the completion of study period as per MCI Regulations (Duration of course).
Regulation No.10.4 is very stringent under which all the 365 days are treated as working days and the minimum attendance is prescribed at 80% in each year separately, to get eligibility for appearing in the University examination. Under Regulation No.10.5.1, the students will be permitted to avail 30 days leave and no P.G. student is allowed to go on leave for more than 8 days at a stretch. If a candidate avails medical leave/maternity leave or any other leave or absents unauthorisedly beyond 30 days in a year, the study period of such candidate will be extended to the extent of such period. Under Regulation No.10.5.2, maternity leave is made available to woman students upto 120 days only once in their P.G. course of study and they shall not be eligible to appear in the University examination till completion of the study period.
The learned counsel for the petitioner submitted that under Regulation No. 10.4, every student should attend the course for at least 292 days to put in 80% of the attendance and that he can be sanctioned leave upto the period of 73 days. He has also submitted that even though in the instant case, the petitioner’s absence would be for more than 100 days, he could be sanctioned leave on the analogy of maternity leave, as envisaged under Regulation No.10.5.2.
Having given my serious thought to this submission, I am unable to accept the same. The training for a P.G. student is very much essential for learning and acquiring the required skills in treating and handling patients. Each and every day of the course period is very precious. A P.G. student who misses more than 100 days of initial training period will be unable to catch up with the other students during the rest of his course, howsoever capable and intelligent he may be. More often, such students will suffer from lack of confidence leading to a feeling of inferiority amongst the peers, in understanding and comprehending complex situations during the course. Such a student cannot be equated with a student who goes on leave, including maternity leave, in the midst of the course period. Mere extension of the study period to a student falling in the former category may not be truly helpful to him in overcoming the deficiencies on account of his long absence in the beginning of the course. Even though the facts make this case fall in the rarest of rare category of cases, as pointed out by the Supreme Court in Asha(1-supra), for the above mentioned reasons, I am not inclined to accept the request of the learned counsel for the petitioner for grant of admission to the petitioner during the current academic year i.e., 2012-13.
The last question that remains is what relief the petitioner should be granted? It is not in dispute that had the community certificate produced by the petitioner been accepted, he would have been admitted in M.S. (ENT) course during the academic year 2012-13. The petitioner’s stand stood vindicated with the letter dated 30-6-2012 addressed by respondent No.3 to respondent Nos.2, 4, 5 and 6, whereby he confirmed the genuineness of the community certificate produced by the petitioner. As he was unjustly denied the said seat, the minimum that he would be entitled to, is a seat in the said course at least during the academic year 2013-14 on the basis of the rank he has already secured in the entrance test held for admission for the academic year 2012-13, without the need for him to again appear for the entrance examination to be held in 2013. For his rank i.e., 2777, he has obtained, if the petitioner has sufficient merit to choose a seat other than M.S. (ENT), he shall be allotted such a seat during the academic year 2013-14, treating him as a candidate belonging to B.C. (E).
The petitioner is made to lose one academic year for no fault on his part. As discussed hereinabove, the fault lay both with respondent No.4 as well as respondent Nos.5 and 6, in unjustly denying the admission to the petitioner. Loss of one valuable academic year in a student’s life causes serious prejudice to him in various respects. His whole future career will be retarded by one year, apart from his suffering various set-backs. Such a loss will have a devastating effect on the psyche of a student and causes unbearable trauma and mental agony to him. Any amount of money cannot compensate the student for such sufferance. This Court, however, feels that ends of justice would be met if the petitioner is awarded reasonable compensation. Respondent Nos.1 and 6 are therefore directed to pay Rs.2 lakhs each to the petitioner as compensation within one month from the date of receipt of this order, for denying him the admission into the P.G. Medical course during the academic year 2012-13 for no fault on his part. As disciplinary proceedings have been contemplated against respondent No.4, respondent No.1 shall also initiate action according to law against him for recovery of the said sum of Rs.2 lakhs. Respondent No.6 is also permitted to recover the compensation amount which is directed to be paid to the petitioner, from the officers who are responsible for not referring the community certificate of the petitioner to respondent No.3 under sub-rule (9) of Rule 9 of the Rules for its re-confirmation/re-verification. The Writ Petition is accordingly allowed to the extent indicated above.
As a sequel, WPMP No.25682 of 2012 is disposed of as infructuous.