ORDER
G.L. Gupta, J.
1. This petition under Article 226 of the Constitution of India has been directed for the issue of writ or direction to the respondents to interview the petitioner and grant him admission to M.B.B.S. Course.
2. The case for the petitioner is that he appeared in Pre-Medical Test for admission in the M.B.B.S. Course in June, 1997. He secured 859 marks and was placed in the reserve list. He was not called for interview. However, he came to know through his friends, who had secured less marks than the petitioner, that they had been interviewed on 4-11-1997. He therefore rushed to Jaipur and contacted the Principal. S.M.S. Medical College, Jaipur on 5-11-1997. He was told that as he did not appear in the interview on 4-11-1997 he could not be admitted to the course, it was further informed to him that a notice was published in the Rajasthan Patrika on 25-10-1997 to the effect that the candidates securing marks between 854 to 861 were to appear for interview on 4-11-1997. It is averred that the petitioner did not come across the notice published in the Rajasthan Patrika dated 25-10-1997 or any other date and he waited for the call letter in view of the instructions published in the Pre-Medical Test, 1997 Information Booklet but he was not called for interview. It is further averred that the candidates are called for interview only to check their original documents and no marks are given in the interview and therefore even on 5-11-1997 when the petitioner appeared he could be
interviewed. According to the petitioner it is a case of hostile discrimination practised against the petitioner and the action of the respondents is arbitrary, discriminatory, unfair and unreasonable.
3. In the return it is averred that interview letters were sent to all the candidates including the petitioner and also notices for calling the candidates, who had secured the marks between 834 to 861, to appear for interview on 4-11 -1997, were published in the daily newspaper Rajasthan Patrika dated 24th, 25th and 26th October, 1997, but the petitioner did not appear for interview and therefore he has lost his right of admission. It is further averred that the seats have been filled and no seat is lying vacant as to consider the case of petitioner.
4. In the rejoinder, it is averred that the rule does not provide for notice to be published in the newspaper and so the candidates are not expected to remain in constant touch of the various newspapers to find whether notice has been published or not. It is also averred that Postal Department is not the agent of the petitioner and if the petitioner did not get the intimation letter for the interview, it was not his fault. It is further averred that the interview was not fixed within three weeks after the P.M.T. result was declared.
5. The contention of Mr. Mridul, learned Senior Advocate was that petitioner did not receive the intimation of interview through post and he was also not supposed to go through the various newspapers and therefore when he did not appear for the interview on 4-11 -1997 it was not his fault. Placing reliance on the cases of Shiv Kumar v. State of Haryana, 1994 SCC (Lab) 904 : (1994 AIR SCW 2599), Indraj Meena v. State of Rajasthan. (1993) 1 WLC 733 and Ashok Pareek v. Raj. Public Service Commission. (1989) I Raj LR 886, he submitted that the respondents be directed to admit the petitioner in the M.B.B.S. Course. He pointed out that the interviews were not held within three weeks as provided in Para (E) of Instructions 4 of the Booklet and that the respondents have not filed any proof of sending the intimation to the petitioner for interview on 4-11-1997.
6. On the other hand. Mr. Gupla contended that the petitioner was sent intimation by ordinary post on the intimation card filled in by the
petitioner himself and in the ordinary course, the letter ought to have reached the petitioner in time. He urged that the notice calling upon the petitioner and other candidates was pasted on the notice board on 24-10-1997 and if the petitioner did not care to sec the notices published in the newspaper for three days and the notice affixed on the notice board in the office of the S.M.S. Medical College, Jaipur he himself is at fault and is not entitled to get relief in this writ petition.
7. Para (E) of the Instruction 4 of the Booklet does not indicate a particular mode by which intimation shall be sent to the candidate for interview. However, the instruction requires that the personal interview will be taken within three weeks after the P.M.T. result is declared and that the list of candidaies will be put on the notice board of the S.M.S. Medical College, Jaipur before three days of the interview. The result of the examination, was declared some times, in August, 1997. Admittedly the interviews were fixed on 4-11-1997. Obviously the interviews were not fixed within three weeks of the declaration of the result as required in the instructions. It may be due to the fact the name of the petitioner was not in the original list and his name was in the reserve list but there is no separate provision in the Book-let for holding of the interview of the candidates whose names appear in the reserve list. It is obvious that the interview of the petitioner was not fixed within three weeks after the result of the P.M.T. Examination was declared.
8. It is also not borne out from the reply and also from the documents shown during arguments that the list of candidates called for interview was put on the notice hoard three days before the date of interview. My attention was drawn to the order dated 24-10-1997 of the Principal. S.M.S. Medical College, Jaipur in which the name of the petitioner finds placed at S. No. 473. The notice indicates that a copy of the order was forwarded for the Notice Board. However, there is no endorsement on this notice that it was affixed on the notice board.
9. In the instructions contained in the Information Booklet it is nowhere stated that the mode of intimation for the interview shall be the publication of the notice in the particular newspaper. Therefore, the petitioner was not expected to remain in touch with the various
newspapers on the relevant dates. The petitioner has filed affidavit that he did not come across notice published in the newspaper. The respondents therefore cannot rely on the publication of the notice in the newspaper. This Court in the case of Indraj Meena v. State of Rajasthan (1993 (1) WLC 733) (supra) observed that where there was no indication in the syllabus of the examination of the mark-sheet or the result-sheet that intimation would be published in some newspaper the petitioner was not expected to read that newspaper.
10. Regarding the letter sent by post to the petitioner there is no proof furnished by the respondents. It was admitted during arguments that the letter of intimation was not sent by putting despatch number thereon and no entry of despatch was made in any register. My attention was drawn to a specimen intimation printed letter, the entries of which were supposed to be filled by the candidates himself and even the postage was also to be fixed by him. The question is whether such letter of intimation was at all despatched to the petitioner, that too. in time. As already stated, no documentary evidence is forthcoming from the respondents showing that the letter was despatched to him. The reply of the respondents is vague when it has been stated that the letter was sent to the petitioner as the letters were sent to the other candidates. In the affidavit Shri Deshora, Officer Incharge has slated that he had recorded the facts in the reply based on official records. Since no official record has been produced and even it has been admitted that no official record was maintained of sending the intimation letter to the petitioner, it cannot be found proved that the letter of intimation was despatched. There may not he substance in this contention of counsel for the petitioner that some functionary of the lower level of college might have deliberately not sent the letter of intimation to the petitioner in order to help other candidate but this possibility cannot be ruled out that the letter might not have been despatched due to lapse on the part of the concerned functionary. In any case, when the petitioner says that he did not receive the intimation letter and there is no proof of sending the letter lo him from the side of the respondents, it will have to be held that the petitioner did not receive the letter of intimation. It may also be staled that the postal department was not the
agent of the petitioner and hence even on assuming that the letter was posted in the letter box, its delivery to the petitioner cannot be presumed.
11. There could not be any reason for the petitioner not to appear for interview on 4-11-1997 had he received the intimation. This fact is not denied that the petitioner had approached the Principal, Medical College on the very next day i.e. on 5-11-1997 raising his grievance that he was not called for interview and the candidates who have received less marks had been interviewed. This indicates that he was very much interested in his admission to M.B.B.S. Course.
12. It is also significant to point out that this assertion of the petitioner has not been denied that marks are not given in the interview and only original documents are seen in the interview and the suitability is adjudged. Therefore, the petitioner has got all the more good ground to succeed in this writ petition.
13. In view of what has been discussed above, it cannot be said that the petitioner was to blame for not appearing in the interview on 4-11-1997. The petitioner cannot be denied admission on the ground that no seat is lying vacant. When the candidates securing less marks than the petitioner have been given admission, it is the right of the petitioner to get himself interviewed and if found suitable to get admission.
14. Consequently, this writ petition succeeds. The respondents are directed to arrange for the interview of the petitioner in as short time as possible and to admit him to the M.B.B.S. Course, if he is found suitable.