Sooraj Vinayakumar v Union of India and others

**“CR”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 30TH DAY OF MAY 2019 / 9TH JYAISHTA, 1941** ## **WP(C).No. 13793 of 2019** ## **PETITIONER/S:** **SOORAJ VINAYAKUMAR, AGED 27 YEARS S/O.K.R.VINMAYAKUMAR, KATOOR HOUSE, ARRA NO.14, AVITTOM ROAD COLONY, THIRUVANANTHAPURAM DISTRICT, PIN-695011.** ||**BY ADVS.**| |---|---| ||**SRI.C.A.CHACKO**| ||**SMT.C.M.CHARISMA**| ||**SMT.MEGHA K.XAVIER**| |**RESPONDENT/S**<br>**:**|| |**1**|**UNION OF INDIA**| ||**REPRESENTED BY SECRETARY TO GOVERNMENT,**| ||**MINISTRY OF HEALTH AND FAMILY WELFARE**| ||**DEPARTMENT, NIRMAN BHAWAN, NEW DELHI-110011.**| |**2**|**THE ADDITIONAL DIRECTOR GENERAL(ME),**| ||**DIRECTORATE GENERAL OF HEALTH SERVICES,**| ||**NIRMAN BHAVAN, NEW DELHI-110018.**| |**3**|**MEDICAL COUNSELING COMMITTEE(MCC),**| ||**REPRESENTED BY ITS CHAIRMAN, DIRECTORATE**| ||**GENERAL OF HEALTH SERVICES, MINISTRY OF HEALTH**| ||**AND FAMILY WELFARE, GOVERNMENT OF INDIA,NEW**| ||**DELHI-110108.**| |**4**|**THE PRINCIPAL,**| ||**AMRITA INSTITUTE OF MEDICAL SCIENCES AND**| ||**RESEARCH CENTRE, PONEKKARA, KOCHI-682041.**| ||**BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA**| |**THIS WRIT**|**PETITION (CIVIL) HAVING COME UP FOR ADMISSION**| |**ON 30.05.2019, THE COURT ON THE SAME DAY DELIVERED THE**|| |**FOLLOWING:**|| WP(C).No. 13793 of 2019 -2- **“CR”** ## **JUDGMENT** ## V.G.ARUN, J. The petitioner, after successfully completing MBBS, attended the National Eligibility -cum-Entrance Test- Post Graduate (NEET-PG) 2019, aspiring to obtain admission for a Post Graduate Course in Modern Medicine. The petitioner obtained rank No.50294 in the NEET PG and participated in the allotment process by exercising his options online, as evident from Ext.P2. After the first round counselling, petitioner was allotted to and got admission at the Yenepoya Medical College, Mangalore for MD (Preventive and Social Medicine/Community Medicine), which was his 10[th] option. The petitioner joined at the Yenepoya Medical College and thereafter submitted option for upgradation to MD (Physical WP(C).No. 13793 of 2019 -3- Medicine and Rehabilitation), an identical P.G. course at the Amrita Institute of Medical Sciences, Ernakulam [hereinafter called 'AIMS'], which was his third option, the denial of admission to which, is the cause of action for this writ petition. The petitioner did not get allotment in the second round in accordance with the higher option exercised by him. 2. After the second round of admissions, the Mop Up (third) round commenced for filling up the remaining vacancies under All India Quota/Deemed/Central Universities. From the list of vacancies published at Ext.P5, the petitioner came to know that there was a vacancy at AIMS in MD (Physical Medicine and Rehabilitation); which obviously remained vacant even after the second allotment. Even though the petitioner was desirous of joining at the AIMS for MD, he was restrained from participating in the WP(C).No. 13793 of 2019 -4- Mop Up round, since, going by the guidelines for admission, candidates who have already joined and taken admission in round two of All India Quota/Deemed/Central Universities are not eligible to participate in the Mop Up round. The writ petition is hence filed with a prayer to declare as illegal and arbitrary the condition that “the candidates who have already joined and taken admission in round two of All India Quota/Deemed/Central Universities will not be eligible to participate in the Mop Up round”. The further prayer is for the issue of a writ of mandamus directing the respondents to permit the petitioner to participate in the Mop Up round for filling up the remaining vacancies in PG Medical Courses under Deemed Universities. 3. We heard the learned counsel for the petitioner, the learned Central Government Counsel and the learned counsel appearing for the fourth respondent. WP(C).No. 13793 of 2019 -5- 4. Adv.C.M.Charisma, the learned counsel for the petitioner, submitted that the petitioner has already remitted Rs.2,07,000/- towards registration fee for getting admission to Deemed Universities. The counsel pointed out that in the second round of counselling, a candidate with lesser rank (55523) than the petitioner got allotment to the AIMS for MD (Physical Medicine and Rehabilitation), but that student did not join the college and hence, the seat is still vacant. It is submitted that, the Mop-up round commenced on 13[th] of May and continued upto 26[th] . While the matter was pending here the Mop-up admissions concluded and it is revealed that the seat in AIMS still remains vacant. There is yet another round, as permitted by the Hon'ble Supreme Court to fill up the stray vacancies which is scheduled between 27[th] to 31[st] of this month. The argument raised is that there would be none desirous of the seat, having a WP(C).No. 13793 of 2019 -6- higher rank than the petitioner and it is only just and equitable that he be allotted the seat. The petitioner if not allotted to that seat, a candidate with much lesser rank than the petitioner would be allotted. 5. It is contended that the condition by which candidates who have already joined and taken admission in round two are prevented from participating in the Mop Up round is arbitrary and illegal, inasmuch as the said condition curtails the chances of meritorious candidates like the petitioner. Alternatively, it is submitted that the condition is applicable only for candidates who have joined and taken admission in round two and that the petitioner being a candidate who had joined and taken admission in round one, has to be permitted to participate in the Mop Up round. 6. At the outset we have to observe that the learned CGC, on instructions, submitted that the petitioner is entitled WP(C).No. 13793 of 2019 -7- to get refund of the amount remitted by him towards registration fee of Deemed Universities, if no admission to such an University is obtained. The remittance of additional fee does not create any better right on the petitioner to claim admission to a Deemed University and that is merely a prerequisite for consideration for allotment. The challenge against the condition restraining candidates who have secured admission in the first and second rounds from participating in the Mop Up round, cannot be entertained for the reason that the petitioner had participated in the allotment process and had secured admission in the first round of counselling, being fully aware of the aforementioned condition. The challenge against the condition has been raised only when the petitioner came to know about the possibility of his securing an admission at the AIMS for MD (Physical Medicine and Rehabilitation), if WP(C).No. 13793 of 2019 -8- he participates in the Mop Up round of counselling. It is settled law that after participating in a selection/admission process, a candidate cannot challenge a particular clause in the notification/prospectus, based on which the selection/admission process was conducted. The fact that the petitioner has remitted the registration fee for getting admission to Deemed Universities will not improve his case in any manner. The petitioner had with open eyes, taken admission in the first allotment. He was quite aware of the prohibition to candidates who had taken admissions earlier, insofar as participating in admissions after the second allotment. The petitioner, on being not allotted to the higher option in the second allotment also remitted the entire fees for securing firm admission in his first allotment. He cannot now seek to be admitted in a remaining vacancy, on the grounds of equity, clearly against the stipulations of the WP(C).No. 13793 of 2019 -9- scheme of allotment. 7. The NEET PG Exam is conducted every year by the National Board of Examinations with the objective of improving the quality of Medical Education by establishing high and uniform standards of Post Graduate Examinations in Modern Medicine on All India Basis and utilising existing health care infrastructure for capacity building. NEET PG is the eligibility-cum-ranking examination prescribed as the single entrance examination for admission to various MD/MS and PG Diploma Courses. No other entrance examination, either at State or Institution level, shall be valid for entry to MD/MS/PG Diploma Courses. The fact that NEET PG is the only entrance examination for the whole of India, for admission to various MD/MS and PG Diploma Courses, by itself indicates the magnitude of the process involved. As contended by the learned counsel for the petitioner, there WP(C).No. 13793 of 2019 -10- may be a possibility of a candidate with a lesser rank than the petitioner securing admission at the AIMS for MD (Physical Medicine and Rehabilitation). But, that, by itself, is no reason for this Court to interfere with the process of admission and allotment. The candidates are fully aware about the element of chance involved in the process of admission and they take their chance by exercising option and securing admission during the process of counselling. 8. The process of counselling is governed by the Post Graduate Medical Education Regulations, 2000, notified by the Medical Council of India with prior approval of the Government of India. The Regulations were amended as per Post Graduate Medical Education (Amendment) Regulations, 2018. The amendment was notified on 5.4.2018. One of the amendments brought about to the Regulations was addition of Clause 9 A (4), which reads as follows:- WP(C).No. 13793 of 2019 -11- “In order to prevent seat blocking in common counselling for admission to Post Graduate Courses and permissibility to exercise fresh choice during counselling, forfeiture of fee shall be in accordance with the matrix contained in appendix III.” 9. Pursuant to the amendment, the Medical Counselling Committee issued a notice dated 9.4.2018 clarifying that a candidate who had participated in the first round of Counselling and was allotted a seat, but did not report can participate for the second round of counselling as per their earlier registered details. It was also mentioned in the notice that the candidates who reported after the first round of counselling, but resigned from the allotted institutions were also eligible to participate in the second round of without fresh counselling any registration/payment. It was further mentioned that candidates who had joined the allotted seats after the first WP(C).No. 13793 of 2019 -12- round of counselling, but could not get up-gradation in the second round of counselling shall be allowed to resign from the first round seat within two days from the publication of the second round results of the All India Quota with forfeiture of fees. This amendment brought about by the Post Graduate Medical Education (Amendment) Regulations, 2018 was subjected to challenge before the Honourable Supreme Court by the candidates who had applied for admission under the NEET PG 2018. The challenge was on the ground that by the notification, the condition regarding participation in the second round of counselling was relaxed and thereby, the competition for the second round of counselling would increase since, earlier those candidates who had joined after the first round and those who had failed to join in spite of being allotted in the first round, were ineligible to participate in the second round of counselling. WP(C).No. 13793 of 2019 -13- The challenge was set at naught by the Apex Court finding that there was material on record to suggest that devious methods were adopted by certain candidates to block the seats in the All India Quota and resign from those seats later, which resulted in reversion of the All India Quota seats to the State Quota. It was therefore held that change in the method of counselling being due to the aforesaid circumstances, there was no reason to interfere and further that the reduction of chances of admission does not entail violation of any right (Rachit Sinha and others v. Union of India - order dated 3.5.2018 in W.P.(C) No.357 of 2018 and connected cases). 10. In connection with admissions pursuant to NEET PG 2019 also, the second respondent has published notice dated 12.4.2019, specifying that candidates who had joined the allotted seat of round 1 and have given willingness for WP(C).No. 13793 of 2019 -14- up-gradation in round 2 at the reporting institute and have not been upgraded in round 2, can resign from their seat in round 1 without forfeiture of refundable tuition fee, failing which their seat will be presumed to be part of round 2 and round 2 will apply. As the petitioner did not exercise his option to resign within the prescribed time, he cannot participate in the Mop Up round nor in the round to fill up stray vacancies. 11. The learned counsel for the petitioner places reliance on the Flow Chart published by the Medical Counselling Committee in support of her contention that the petitioner is entitled to participate in the Mop Up round. The purpose of publishing a Flow Chart is to make the process of registration, submission of choices, allotment and admission upto the Mop Up round more discernible for the candidates. From the Flow Chart it is clear that after having WP(C).No. 13793 of 2019 -15- secured admission and joined a College in the first round of allotment, a candidate cannot participate in the Mop Up round. The fact that in the condition under challenge, restriction from participating in the Mop Up round is only with respect to the candidates who had secured admission and joined in the second round of admission does not confer any right on a candidate who had secured admission and had joined a College in the first round of counselling itself. From the very fact that the petitioner has challenged this condition, it is evident that the petitioner is fully aware that the condition makes him ineligible to participate in the Mop Up round. Further as already noticed by us when the petitioner did not receive a higher option at the second round, he paid up the entire fees in the College in which he was allotted the first option and secured a firm seat there. Now if he is permitted to vacate that seat, it could raise other WP(C).No. 13793 of 2019 -16- claims and it could lead to an unending process of undoing; which would put the entire process in jeopardy. 12. Of course, there may be cases of heart burn, in an admission process of this magnitude. But, this Court, in exercise of the power under Article 226 of the Constitution of India cannot provide panacea for all such heart burns, especially, in view of the fact that any interference with the process of admission at this stage would have a cascading effect. For the aforesaid reasons, we dismiss the writ petition. No order as to costs. **Sd/-** **K.VINOD CHANDRAN JUDGE Sd/V.G.ARUN JUDGE** Scl/31.5 WP(C).No. 13793 of 2019 -17- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF NEET PG-2019 SCORE CARD OF PETITIONER** **EXHIBIT P2 TRUE COPY OF ON-LINE OPTION FOR POST GRADUATE MEDICAL COUNSELING 2019 MADE BEFORE 3RD RESPONDENT** **EXHIBIT P3 TRUE COPY OF THE SCHEDULE FOR ONLINE COUNSELING (ALLOTMENT PROCESS)FOR NEET 50 % AIQ/DEEMED/CENTRAL UNIVERSITIES SEATS-2019** **EXHIBIT P4 TRUE COPY 0F ADMISSION LETTER ISSUED TO THE PETITIONER FOR JOINING YENEPOYA MEDICAL COLLEGE,MANGALORE.** **EXHIBIT P5 TRUE COPY OF LIST OF INSTITUTIONS AND BRANCH WISE VACANCIES** **EXHIBIT P6 TRUE COPY OF RELEVANT PAGES OF THE SCHEME OF ALL INDIA QUOTA/DEMAND/CENTRAL UNIVERSITIES POST GRADUATE MEDICAL COURSES EXPLAINED IN THE FORM OF FREQUENTLY ASKED QUESTIONS(FAQ).** **EXHIBIT P7 TRUE COPY OF RELEVANT PAGES OF LIST OF PROVISIONAL POST GRADUATE MEDICAL SEATS ALLOTMENT -2**