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2007(2) JLJ 78
A.K. Gohil and P.K. Jaiswal, JJ.
Anshu Dubey (Dr.) v. State of M.R and others
Writ Appeal No.241 of 2006 (Gwalior): against the order of
Single Bench passed in Writ Petition No.3243 of 2005;
Decided on 23.2.2007.
Held: Here in the present case the admission was granted to Dr. Harsh Sukhwani and other persons without considering their cases on merit as well as the principle laid down by this Court in the case of Dr. Sandeep Singh case (supra) It is not the stand of the respondents No.1 and 2 that admissions were illegally granted to the candidates nor it is the case of the State Government that order passed by this Court in number of petitions is contrary to the law laid down by the apex Court in the case of Mridul Dhar (supra), nor the said order was challenged by the respondents No.1 and 2 before the Division Bench of this Court on before the apex Court, and therefore, the arguments that the principle of negative equality will be applicable and on the basis of earlier order passed by this Court from time to time no benefit can be given to the appellant, cannot be accepted at this stage. In view of the exceptional circumstances arrived in this case and the exceptional situation was that the respondents No.1 and 2 made a wrong statement that no admission was granted to the candidate who were less meritorious than the appellant and admissions were granted to the candidates up to 761 who were in the waiting list, and since the name of the appellant was at S.No.928 and therefore no admission can be given. Considering the above statement made on oath by the respondents No.1 and 2 the petition filed by the appellant was dismissed by the learned Single Judge. From the record we found that the said statement is incorrect and in reply to the writ appeal the respondents No.1 and 2 admitted that the candidate who were, less meritorious than the appellant were granted admission. Thus, the appellant is also entitled for the same treatment and this appeal cannot be dismissed on the ground that the time schedule is over fixed by the respondent No.3. In the circumstances we are not of the view that the objection raised by the State has any force.
In view of the above facts and circumstances of the case the impugned order dated 11.7.2006 is not sustainable and accordingly the same is set aside. The respondents No.1 and 2 are directed to consider the case of the appellant for grant of admission in DGO course on vacant seat in GR Medical College, Gwalior within a period of two weeks from the date of filing of certified copy of this order. (2005)2 SCC 65, (2002)7 SCC 258, AIR 1995 SC 705 and (2006)3 SCC 330 distinguished. Writ Petition No.3940/05 and 2006(4) MPHT 426 relied on. 2004(7) Supreme 297 and 2006 SCC (L&S) 1893 followed. [Paras 21 & 22
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Jaiswal, J. -- 1. This writ appeal has been preferred by the appellant under section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 against the order dated 11.7.2006 passed by the learned Single Judge in Writ Petition No.3242/05, whereby the claim of the appellant for grant of admission in DGG Course on a vacant seat of 2005. Batch in G.R. Medical College, Gwalior has been rejected holding that no candidate less meritorious than the appellant in the unreserved category (general category) has been granted admission. It has been further held that once the session has commenced after admission in the academic session 2005-06 in the light of law laid down by the apex Court it is not proper to issue any direction for granting admission to the appellant.
2. Brief facts of the case are that the appellant had passed MBBS examination in the year March, 2004, thereafter she completed 12 months compulsory rotatory internship from G.R. Medical College, Gwalior in the month of May, 2005 and is a registered practitioner. She had appeared in the Pre-PG Examination 2005 conducted by the M.P. Professional Examination Board. She was a candidate belonging to unreserved category (general category) and her result was declared and she had received 101.51 marks out of total 200 in unreserved category and she was kept in serial No.928 in the waiting list of unreserved category candidates. In the first' counseling which was held in May, 2005 candidates in the unreserved category upto waiting list 269 had participated. Since the appellant name appeared at S.No.928 and therefore, she was not permitted to participate in the first counseling. Thereafter, vide notification dated 22.5.2005 respondent No.2 again took steps for filling up the seats in the unreserved category vacant and available after surrender from all other category candidates. This counseling was notified and was to be held as per the provisions of clause 10 and 11 of the Madhya Pradesh Medical and Dental Post Graduation Entrance Examination Rules, 2005. The candidates of general category in merit waiting list from 270 to 500 were called for counselling on 28.2.2005. But, the State Government cancelled the counselling on 28.5.2005 and it was decided to hold the same on 30.5.2005, and 31.5.2005 permitting each and every candidate even those who had appeared in the earlier counselling and had been allotted their respective seats. The appellant challenged the said notification. Annexure P-3 and filed a writ petition on 16.8.2005 and prayed for the following relief:
(i) To issue a writ in the nature of certiorari quashing the order dated 29.5.2005 (Annexure P-3) issued by the respondent No.2 for reconciling for Pre-PG Admission for filling up surrendered vacant seats became available after first counselling.
(ii) To issue a writ in the nature of mandamus directing the respondents to adhere the admission rules and to hold the subsequent counselling as per Annexure P-2 (notification dated 22.5.2005) exclusively for waiting merit list candidates of unreserved category starting from S.No.270 onwards.
(iii) The result/provisional admissions of recounselling dated 30/31.5.2005 may kindly be quashed.
(iv) To issue a command for production of entire record for kind perusal of the Hon'ble High Court.
(v) The admission granted to Scheduled Tribes candidates in Degree/Diploma Courses in MS (Obest. & Gyanae) in second counselling dated 30/31.5.2005 may kindly be quashed and appellant may kindly be directed to be admitted in Degree/Diploma Courses on these vacant seats.
(vi) To grant any other relief deemed fit in the facts and circumstances of the case.
3. Some of the seats which were reserved for general category were converted to the reserved category and they were allotted to the candidates of reserve category. Therefore, on 24.8.2005 when the writ petition was listed for admission, the learned Single Judge directed the respondent No.2 to indicate the name of th
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