National Medical Commission vs Mothukuru Sriyah Koumundi

1 | Page Respondent No. 1 in MS (General Surgery) course. The

judgment of the High Court is challenged in the above

Appeal.

2. The Respondent No.1 passed the final year MBBS

Examination in January, 2019. She completed the one-

year Compulsory Rotary Internship as a Resident Intern

from 28.03.2019 to 27.03.2020 at Malla Reddy Narayana

Multispecialty Hospital. Thereafter, she was awarded

Bachelor of Medicine and Bachelor of Surgery Degree on

11.06.2020. In the meanwhile, she appeared in the All-

India National Eligibility-cum-Entrance Test (NEET)

Medical PG Entrance examination, 2020 on 05.01.2020.

She secured All India Rank-93563 with 327 marks in the

NEET examination for admission into Post Graduation

Medical Course. The Respondent No.1 was called for

counselling and was given provisional admission to the

MS (General Surgery) course in the Mop-up Phase (MQ)-

P3 on 28.07.2020 and was allotted to the Respondent

No.2- College under Management Quota. According to

the provisional allotment order, Respondent No.1 was

required to report before the Principal of Respondent

No.2-College by 04:00 PM on 30.07.2020. In case of 2 | Page failure to report before Respondent No.2-College within

the prescribed time, the provisional selection of

Respondent No. 1 shall be automatically cancelled.

According to Respondent No.1, she approached

Respondent No.2-College along with her father on

29.07.2020 and 30.07.2020 for submission of certificates

and payment of tuition fees as well as college fees. In

spite of her presence in Respondent No. 2-College, the

admission of Respondent No.1 was not completed. On

30.07.2020, the last date for admission into PG Medical

Courses was extended till 30.08.2020 pursuant to the

directions issued by this Court. Respondent No.1 made

an attempt to meet the Chairman of Respondent No.2-

College on 07.08.2020. However, she was not permitted

to meet the Chairman.

3. Having left with no other alternative, Respondent

No.1 filed a Writ Petition for seeking a declaration that

denial of admission to her in the PG Medical Course for

the academic year 2020-2021 as illegal. Respondent No.

1 also sought a direction to Respondent No.2-College to

grant admission in MS (General Surgery). Respondent

No.2-College filed a counter in the Writ Petition in which 3 | Page it was stated that the University constituted a

Committee for verification of original certificates and

students who were allotted provisional admission by the

University were directed to approach the said Committee

for the purpose of verification of original certificates.

Respondent No.2-College denied that Respondent No.1

approached the College for admission on 29.07.2020 or

30.07.2020. In the next sentence the Respondent No.2-

College averred that Respondent No.1 and her father

visited the College on 29.07.2020 only for the purpose of

enquiring about the admission procedure and the

requisite fee. As Respondent No.1 did not avail the

opportunity of admission, Respondent No.1-College

contended that Respondent No.5 was given admission

on 11.08.2020.

4. By its judgment dated 18.09.2020, a Division Bench

of the High Court allowed the Writ Petition and directed

the Appellant to create a seat in MS (General Surgery)

and to grant admission to Respondent No.1. The High

Court disbelieved the statement of Respondent No.2-

College that Respondent No.1 did not approach the

4 | Page College either on 29.07.2020 or 30.07.2020. The

admission granted to Respondent No.5 who is 2000

ranks below Respondent No.1 on 11.08.2020 was found

fault with by the High Court. As Respondent No.1 was

illegally denied admission by Respondent No.2-College,

the High Court directed creation of a seat and to grant

admission in MS (General Surgery) to her. Admission

that was granted to Respondent No.5 was not interfered

with as he might have been an innocent party unaware

of the circumstances in which seat was denied to

Respondent No.1 by Respondent No.2-College. The

Appellant is mainly aggrieved by the direction given by

the High Court to create or sanction an additional seat in

Post-Graduate Medical Specialty course of MS (General

Surgery) for the academic year 2020-2021.

5. Mr. Gaurav Sharma, learned counsel appearing for

the Appellant- National Medical Commission submitted

that Respondent No.1 did not pursue available remedies

immediately after 30.08.2020. She should have

approached the concerned authorities without delay to

voice her grievance about the illegal action of

Respondent No.2-College in not granting admission to 5 | Page her. As the last date of admission was 30.08.2020, Mr.

Sharma contended that no direction could have been

granted by the High Court for admission to Respondent

No.1 on 18.09.2020. He argued that the direction given

for creation of a seat is contrary to the law laid down by

this Court.

6. Mr. K. Parameshwar, learned counsel appearing for

Respondent No.1 submitted that the denial of admission

by Respondent No.2-College to Respondent No.1 in GS-

MS (General Surgery) in spite of her being more

meritorious than Respondent No.5 who was granted

admission on 11.08.2020 has resulted in irreparable loss

to Respondent No.1. He contended that the High Court

was right in directing the creation of a seat in MS

(General Surgery) in Respondent No.2-College and

granting admission to Respondent No.1. Mr.

Parameshwar submitted that the judgment of this Court

in S. Krishna Sradha v. The State of Andhra

Pradesh & Ors.1 is applicable on all fours to Post

Graduate Courses as well. Mr. Siddhant Buxy, learned

counsel appearing for Respondent No.2-College argued 1 (2019) SCC OnLine SC 1609.

6 | Page that the procedure prescribed under the Regulations of

the Medical Council of India for admission to PG Medical

Courses was scrupulously followed by the College.

Having not approached the College before the last date

of admission, Respondent No.1 cannot complain that she

was denied admission. According to Mr. Buxy,

Respondent No.5 was rightly given admission on

11.08.2020 and that Respondent No.2-College did not

have any objection to the direction issued by the High

Court for creation of a seat in favour of Respondent No.1.

Mr. P. Venkat Reddy, learned counsel appearing for

Respondent No. 3-the Kaloji Narayana Rao University of

Health Sciences and Mr. A. Venayagam Balan, learned

counsel appearing for Respondent No.5 have submitted

that they have no objection to the judgment of the High

Court. Mr. Balan submitted that Respondent No.5 joined

MS (General Surgery) on 11.08.2020 when he was

offered admission and he was not aware of the instant

events which gave rise to this dispute.

7. There is no dispute that Respondent No.1 was

provisionally granted admission to MS (General Surgery)

Course in Respondent No.2- College on the basis of her 7 | Page merit in the NEET PG Examination. The dispute before

the High Court was whether Respondent No.1

approached Respondent No.2-College before the last

date prescribed for admission i.e. 30.07.2020.

Respondent No.1 asserted that she visited Respondent

No. 2-College with her father on 29.07.2020 and

30.07.2020 but her admission process was not

completed. On the contrary, Respondent No. 2-College

insisted before the High Court that Respondent No.1 did

not turn up for the admission before the last date. The

High Court recorded a finding that it is clear from the

counter affidavit filed by Respondent No.2-College that

Respondent No.1 visited the College on 29.07.2020. The

High Court also took note of the fact that Respondent

No.1 paid the University Fee of Rs.49,600/- on

29.07.2020, and she was given a check list and also a PG

Student Personnel Data Form by Respondent No.2-

College. After taking into account the material on record

and considering the submissions made on behalf of the

parties, the High Court arrived at a conclusion that

Respondent No.2-College had intentionally and illegally

8 | Page denied admission to GS-MS (General Surgery) seat to

Respondent No.1 for the academic year 2020-2021.

8. We are in agreement with the said finding of the

High Court. A perusal of the counter affidavit filed by

Respondent No.2-College in the High Court would show

that there is a contradiction in the pleadings by

Respondent No.2-College. On one hand, it is stated that

Respondent No.1 and her father did not approach

Respondent No. 2-College either on 29.07.2020 or

30.07.2020 for the purpose of admission. Having said

so, Respondent No.2-College in its counter also stated

Respondent No.1 had approached the College on

29.07.2020 to enquire about the admission procedure

and the requisite fee. There is no reason to believe that

Respondent No.1 did not approach Respondent No. 2-

College for admission, especially after paying the

University Fee on 29.07.2020. The last date for

admission to the PG Medical Courses for the academic

year 2020-2021 was extended from 30.07.2020 to

30.08.2020. Respondent No.5 was granted admission on

11.08.2020 to the seat which was provisionally allotted

to Respondent No.1. He is 2000 ranks below Respondent 9 | Page No.1. There is nothing on record to show that

Respondent No. 2-College followed the procedure

prescribed by the Regulations for filling up the seat due

to non-joining. As the last date for admission has been

extended beyond 30.07.2020, there was sufficient time

for Respondent No.2-College to have intimated

Respondent No.1 to come and join in the seat that was

allotted to her provisionally. In case of refusal by

Respondent No.1 to join, it was incumbent upon

Respondent No.2-College to have followed the merit list

and offered the seat to doctors who were immediately

ranked below Respondent No.1. The manner in which

Respondent No.2-College acted in depriving admission to

Respondent No.1 and giving admission to Respondent

No.5 on 11.08.2020 is deplorable. The Managements of

the Medical Colleges are not expected to indulge in such

illegalities in making admissions to Medical Courses.

9. The question that arises for our consideration is

whether the High Court was right in directing creation of

a seat for this academic year for granting admission to

Respondent No.1. It has been repeatedly held by this

10 | P a g e Court that directions cannot be issued for increasing

annual intake capacity and to create seats. The annual

intake capacity is fixed by the Medical Council of India

(now National Medical Commission) which has to be

strictly adhered. Admissions to Medical Colleges cannot

be permitted to be made beyond the sanctioned annual

intake capacity of a medical college as has been

repeatedly held by this Court.

10. The next point that arises for our consideration is

whether Respondent No.1 can be left high and dry in

spite of having suffered due to the illegal action of

Respondent No.2-College in denying admission to her.

This Court in S. Krishna Sradha (supra) had occasion

to consider the nature of relief to be granted to a student

after the last date of admissions in case it is found that

he or she was denied admission illegally. The conflicting

in the judgments of this Court in Asha v. Pt. D.B.

Sharma University of Health Sciences & Ors. 2 and

Chandigarh Administration & Anr. v. Jasmine Kaur

& Ors.3 was resolved by this Court in the judgment of S.

2 (2012) 7 SCC 389 3 (2014) 10 SCC 521 11 | P a g e Krishna Sradha (supra). In the case of Asha (supra), it

was held by this Court that the rule of merit for

preference of medical courses and colleges admits no

exception and that the said rule has to be followed

strictly and without demur. The last date for admissions

has to be strictly followed except in very rare and

exceptional cases of unequivocal discrimination or

arbitrariness or pressing emergency. In such cases,

admission can be granted by courts even after the last

date. A contrary view was taken in Jasmine Kaur case

(supra) wherein this Court was of the opinion that a

student is only entitled to a compensation in cases of

illegal denial of admission and no admission can be

directed after the last date. In S. Krishna Sradha case

(supra), this Court held as follows:

“33. In light of the discussion/observations made hereinabove, a meritorious candidate/student who has been denied an admission in MBBS Course illegally or irrationally by the authorities for no fault of his/her and who has approached the Court in time and so as to see that such a meritorious candidate may not have to suffer for no fault of his/her, we answer the reference as under:

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(i) That in a case where candidate/student has approached the court at the earliest and without any delay and that the question is with respect to the admission in medical course all the efforts shall be made by the concerned court to dispose of the proceedings by giving priority and at the earliest.

(ii) Under exceptional circumstances, if the court finds that there is no fault attributable to the candidate and the candidate has pursued his/her legal right expeditiously without any delay and there is fault only on the part of the authorities and/or there is apparent breach of rules and regulations as well as related principles in the process of grant of admission which would violate the right of equality and equal treatment to the competing candidates and if the time schedule prescribed - 30th September, is over, to do the complete justice, the Court under exceptional circumstances and in rarest of rare cases direct the admission in the same year by directing to increase the seats, however, it should not be more than one or two seats and such admissions can be ordered within reasonable time, i.e., within one month from 30th September, i.e., cut off date and under no circumstances, the Court shall order any Admission in the same year beyond 30th October. However, it is observed that such relief can be

13 | P a g e granted only in exceptional circumstances and in the rarest of rare cases. In case of such an eventuality, the Court may also pass an order cancelling the admission given to a candidate who is at the bottom of the merit list of the category who, if the admission would have been given to a more meritorious candidate who has been denied admission illegally, would not have got the admission, if the Court deems it fit and proper, however, after giving an opportunity of hearing to a student whose admission is sought to be cancelled.

(iii) In case the Court is of the opinion that no relief of admission can be granted to such a candidate in the very academic year and wherever it finds that the action of the authorities has been arbitrary and in breach of the rules and regulations or the prospectus affecting the rights of the students and that a candidate is found to be meritorious and such candidate/student has approached the court at the earliest and without any delay, the court can mould the relief and direct the admission to be granted to such a candidate in the next academic year by issuing appropriate directions by directing to increase in the number of seats as may be considered appropriate in the case and in case of such an eventuality and if it is found that the management

14 | P a g e was at fault and wrongly denied the admission to the meritorious candidate, in that case, the Court may direct to reduce the number of seats in the management quota of that year, meaning thereby the student/students who was/were denied admission illegally to be accommodated in the next academic year out of the seats allotted in the management quota.

(iv) Grant of the compensation could be an additional remedy but not a substitute for restitutional remedies. Therefore, in an appropriate case the Court may award the compensation to such a meritorious candidate who for no fault of his/her has to lose one full academic year and who could not be granted any relief of admission in the same academic year.

(v) It is clarified that the aforesaid directions pertain for Admission in MBBS Course only and we have not dealt with Post Graduate Medical Course.”

11. As the dispute in S. Krishna Sradha case (supra)

pertained to admission to the undergraduate MBBS

Course, this Court held that they have not dealt with the

Post Graduate Medical Courses. Mr. Parameshwar

argued that there is no reason why the logic behind the

15 | P a g e judgment in S. Krishna Sradha case (supra) should not

be made applicable to Post Graduate Courses. We find

force in the said argument of Mr. Parameshwar. This

Court was only dealing with the admission to the MBBS

Course for which reason directions given in the said

judgment were restricted to the MBBS Course. Directions issued in S. Krishna Sradha case (supra)

can be made applicable to admission to Post Graduate

Courses as well.

12. As the last date for admissions for the present

academic year is 30.08.2020, we are not inclined to

grant admission to Respondent No.1 for this academic

year. Even if the admission of Respondent No.5 is

cancelled as having not been in accordance with the

Regulations, it would not be of any use to Respondent

No.1 or to any other eligible candidate. Furthermore, the

High Court is right in holding that Respondent No.5

might not have known about the denial of admission to

Respondent No.1 illegally. Though we disapprove the

practice of Respondent No.2-College in picking up

students for granting admission without following the

16 | P a g e merit list, we do not seek to disturb the admission

granted to Respondent No.5. Respondent No.2-College

adopted unfair means to deprive Respondent No.1

admission to PG course. Respondent No.1 has lost one

precious academic year for no fault of hers for which she

has to be compensated by way of an amount of Rs.10

Lakhs to be paid by Respondent No.2- College within a

period of four weeks from today. Furthermore,

Respondent No.1 is entitled for admission to the MS

(General Surgery) course in the next academic year

2021-22 and shall be given admission in a seat allocated

to Respondent No.2-College. In other words, one seat in

MS (General Surgery) course from the Management

Quota of Respondent No.2-College for the next academic

year (2021-22) shall be granted to Respondent No.1.

13. The Appeal is disposed off with the above

directions.

...................................J. [L. NAGESWARA RAO]

..................................J. [HEMANT GUPTA]

New Delhi, December 07, 2020.

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