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CASE NO.:

Appeal (civil) 2649-2651 of 2000

PETITIONER:

ARVIND KUMAR KANKANE

Vs.

RESPONDENT:

STATE OF U.P. & ORS.

DATE OF JUDGMENT: 03/08/2001

BENCH:

S. Rajendra Babu & Doraiswamy Raju

JUDGMENT:

[With C.A.No.4752/2000 and SLP(C) No.5151/2000]

J U D G M E N T

RAJENDRA BABU, J. :

C.A.Nos.2649-2651/2000

In relation to admission to post-graduate medical courses, Rules

were framed under the Government order issued on March 30, 1994; it

was provided therein that the allotment of subject [speciality] and college

of study made on the basis of option exercised by a candidate is final and

no candidate can be permitted to change the subject or the college. A

candidate who does not exercise his option at the time of counselling will

be kept in the waiting list and if at any subsequent stage a seat falls

vacant the same shall be allotted on the basis of the option exercised by

those who are in the waiting list. Writ petitions were filed in the High

Court challenging the validity of these Rules.

A learned Single Judge of the High Court interpreting the rules

directed that when after the first counselling any subsequent counselling

is decided to be held for allocation of remaining seats including those

which have fallen vacant subsequent to the first counselling, the same

shall be notified to the public and the first date of each subsequent

counselling will be reserved for the candidates who were allotted seats at

the earlier counselling and who wish to change their seats and out of the

candidates, who were allotted seats at the first counselling, who turn up

for subsequent counselling on the first date which is served for such

students, distribution of seats which have fallen vacant subsequent to

the first or earlier counselling will be done according to merit. The

change of seat to these students who have been allotted seats during the

first and earlier counselling will be permitted only in respect of seats

which have fallen vacant after the first counselling and not of the left

over seats.

Aggrieved by these directions, an appeal was preferred by the

Director General of Medical Education and Training. The Division

Bench, after considering the scheme of admission and conditions

imposed therein and the decisions of the Full Bench of Delhi High Court

in Dr.Veena Gupta vs. University of Delhi AIR 1994 Delhi 108 (FB) and

of High Court of Punjab & Haryana in Anil Jain vs. The Controller of

Examinations, 1998 (3) E.S.C.Cases 2016, held that any seat which is

available and which has not been included in any of the three

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counselling by mistake should be filled in, in order of merit amongst the

wait listed candidates. Normally, when a seat is available, the same

should be included in the initial counselling. If by mistake a seat is not

included in the initial counselling then the effect is that nobody opts for

the same. If now the said seat is sought to be offered to all the

candidates for counselling, the result would be that all the candidates

who took part in the first counselling should be given a chance, in order

of merit, to opt for the same seat. This will start a chain reaction and

ultimately there will be one seat more, which would become available for

the second counselling. There again a chain reaction will start leading to

the third counselling. The effect of putting the seat back for counselling

for all candidates would, therefore, be to upset the entire counselling

which had already taken place. Prima facie though it appears to be

somewhat unfair, there is no alternative, apart from leaving the seat

unfilled, but to offer the said seat to the wait listed candidates. It was

also noticed that once the academic course commences the same will

have to be completed within a period of three years and if the counselling

goes on continuously for a long period then it may not be possible to

fulfill that condition and thereby upset the course of study itself. On this

basis, the Division Bench set aside the order made by the learned Single

Judge and allowed the appeal. It is against this order and connected

matters that the present appeals are filed by special leave.

We have carefully examined the contentions put forth before the

High Court and before us and we are of the view that the finding

recorded by the Division Bench and Delhi High Court in Dr.Veena

Guptas case [supra] and the High Court of Punjab & Haryana in Anil

Jains case [supra] is in accordance with the reason and stands the test

of rationality. It is clear that once an option is exercised by a candidate

on the basis of which he is allotted the subject and thereafter that

candidate is allowed to participate in subsequent counselling and his

seat becomes vacant, the process of counselling will be endless and, as

apprehended by the High Court, it may not be possible to complete the

academic course within the stipulated period.

The grievance made is that if a choice subject like surgery and

medicine is given up by a candidate and that seat becomes vacant it may

go to a candidate who is lower in rank in the merit list. This is only a

fortuitous circumstance dependent on so many contingencies like the

student, who has been allotted a seat in medicine, giving up the said seat

and that seat falling vacant and thereafter the same is allotted to a

candidate who is lower in rank in the merit list. Such freak

circumstances cannot be the test of reasonableness of the rule.

In that view of the matter, we find absolutely no merit in the

appeals and the same stand dismissed. No costs.

C.A.No.4752/2000 & SLP(C) No.5151/2000]

For the reasons given in C.A.Nos.2649-2651/2000, this appeal and

SLP also are dismissed. No costs.

J.

[ S. RAJENDRA BABU ]

...J.

[ DORAISWAMY RAJU ]

AUGUST 03, 2001

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