We had allowed the Letters Patent Appeal vide order dated 13.01.2014, concluding that the appellant would not be denied the MBBS seat, once the provision prohibiting her had been quashed by the learned Single Judge and that judgement had been accepted by the administration.
The learned Single Judge had denied the benefit to the appellant on the allegation of delay but we did not find the heightous period of such a nature as would be capable of denying relief to the appellant. We were, however, in a quandary qua nature of relief as respondent No. 3, in the meantime, was stated to have not taken admission elsewhere and her displacement would amount to making her lose a year for no fault of hers. In order to do substantial justice, we thus, deemed it appropriate to direct that the appellant would be entitled to admission in MBBS Course without displacing respondent No. 3 even if it requires creation of an additional seat.
The U.T Chandigarh, thereafter, apparently addressed a communication dated 25.01.2014 to the Medical Council of India, for creation of an additional seat, as it could not be created without their permission. There was, however, no response to the communication and in the meantime, the appellant filed a contempt petition. This necessitated respondents No. 1 and 2 to file a review application along with an application for interim relief.
Respondents No. 1 and 2 relied upon the judgement of Hon'ble the Supreme Court in the case of Medical Council of India v. Naina Verma 2005 (12) SCC 626. We considered it appropriate to issue notice to Medical Council of India, which was not impleaded as a party at the inception.
Learned counsel for the appellant, while accepting notice in the review application, submitted that our view expressed aforesaid qua the deadline for medical admissions had, to some extent, been diluted by the judgement in the case of Asha v. Pt.B.D Sharma University of Health Sciences 2012 (7) SCC 389. The submission was that there was no absolute bar in view of the observations made in this judgement in para Nos. 29 to 37. Our attention was specifically invited to para No. 38.2, which reads as under:
38.2 Question (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 judgement are found to be unexceptionally satisfied and the reasons therefor are recorded by the court of competent jurisdiction.
His additional submission was that since the second counselling got over only in September 2013 and the classes started on 13.09.2013, the period of loss of study should be counted only from that date. In this context, he submitted that the appellant was already enrolled with the BDS Course and there was parity in the teaching of MBBS and BDS Courses in the initial period of six months as reflected in para No. 37 of the said judgement.
Learned counsel for Medical Council of India-respondent No. 4, who appeared before us, submits that it is not possible to increase the number of seats even by one on account of there being settled norms of teacher-student ratio.
It has also been pointed out to us that there has been some delay on the part of the appellant approaching this Court after the judgement was pronounced by the learned Single Judge. This is so as the judgement of the learned Single Judge is dated 27.09.2013 and certified copy was applied on the same date, which was ready on 19.10.2013 However, certified copy was collected only on 13.11.2013 The appeal was filed on 15.11.2013, which came under objections and was re-filed only on 06.12.2013 and thus came up before this Court, for the first time on 09.12.2013
The aforesaid aspect become important once we seek to balance the hardship of the appellant as against respondent No. 3 and the choice has to be made for one. In this situation, we cannot displace respondent No. 3.
The question which now arises is whether the appellant can get the benefit of para No. 38.2 of the judgement in Asha's case (supra).
Learned Senior counsel for the Medical Council of India, submits that though the judgement in the case of Priya Gupta v. State of Chhattisgarh 2012 (7) SCC 433, created a bar, undoubtedly in very rare and exceptional circumstances of unequivocal discrimination or arbitrariness or pressing emergency, admission has been held permissible by such power exercised by courts alone. He submits that the reference in this context is only to the Hon'ble Supreme Court while exercising jurisdiction under Article 142 of the Constitution of India.
We are unable to accept the plea for the reason that the expression used is “courts”, it is not the “Supreme Court”. It would be trite to say that the powers of the High Court under Article 226 of the Constitution of India are quite wide. No doubt, the observations in Priya Gupta's case (supra) are fetters on exercise of that power in matters of medical admissions, but at the same time the observations aforesaid have given lee way to the Court. In our view, what can be more arbitrary or pressing than the fact that the provision which prevented admission of the appellant, itself been struck down by this Court and clearly the appellant been inappropriately prevented from seeking admission for the MBBS Course.
As to what is the solution is apparently available from the observations made in para No. 37 of the judgement, which reads as under:
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 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.
Learned counsel for the appellant submits that this course of action is acceptable to him and the appellant be thus accommodated in the academic session 2014-15 instead of 2013-14 with the condition that she will pursue her MBBS Course right from the beginning without any advantage of her course in the BDS.
We may note that as per learned Senior Counsel for the Medical Council of India-respondent No. 4, this would amount to telescoping which is not permissible as observed by the Hon'ble Supreme Court in the case of Medical Council of India v. Madhu Singh 2002 (7) SCC 258. However, it is not as if this judgement was not before the Hon'ble Supreme Court while passing the judgement in Asha's case (supra) and in fact has been specifically noticed in para No. 29 of the said judgement.
In fact, learned counsel for the appellant submits that there can be really no ambiguity since author of the opinion in Priya Gupta's case (supra) and Asha's case (supra) was the same Hon'ble Judge.
We are thus of the view that the aforesaid course of action would be appropriate and thus the appellant be accommodated in the academic session 2014-15 without being given any advantage of pursuing her course in the BDS. This would naturally entail reduction of one seat under the NRI Category for that academic session.
The application is accordingly disposed of.