{"id":237452,"date":"1999-03-09T00:00:00","date_gmt":"1999-03-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/g-senthil-kumar-dr-vs-all-india-institute-of-medical-on-9-march-1999"},"modified":"2016-10-10T18:13:40","modified_gmt":"2016-10-10T12:43:40","slug":"g-senthil-kumar-dr-vs-all-india-institute-of-medical-on-9-march-1999","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/g-senthil-kumar-dr-vs-all-india-institute-of-medical-on-9-march-1999","title":{"rendered":"G. Senthil Kumar (Dr.) vs All India Institute Of Medical … on 9 March, 1999"},"content":{"rendered":"
Delhi High Court<\/div>\n
G. Senthil Kumar (Dr.) vs All India Institute Of Medical … on 9 March, 1999<\/div>\n
Equivalent citations: 1999 IIAD Delhi 850<\/div>\n
Author: C Joseph<\/div>\n
Bench: C Joseph<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
Cyriac Joseph, J.<\/p>\n
1. The petitioner applied for admission to the Post Graduate Course in  the All India Institute of Medical Sciences for the Session January 1999.  He appeared in the written examination held on 6.12.98 and got rank No. 24  in the merit list. The petitioner participated in the First Counselling on  28th December, 1998 for allocation of disciplines. Though the petitioner  wanted a seat in M.D. (General Medicine), no seat was available in the said  discipline at his rank. Hence the petitioner provisionally took a seat in  M.D. (Psychiatry), thinking that a seat in M.D. (General Medicine) might  become available in the Second Counselling or thereafter. But during the  Second Counselling also no seat was available in M.D. (General Medicine) at  his rank. However, he did not confirm the seat in M.D. (Psychiatry) which  he had taken provisionally during the First Counselling. As per the Prospectus the last date for admission was 31st January, 1999. On 16.1.99, the  respondent advertised a notice in the Indian Express announcing that some  seats in certain disciplines (other than General Medicine) remained vacant  after the Second Counselling and that the selection for filling up those  seats would be held on 25th January, 1999. It was also stated in the said  notice that all those candidates who had appeared in the Entrance Examination on 6th December, 1998 irrespective or their rank in the Entrance  Examination and who were interested in those discipline should report to  the Academic Section on 25th January, 1999 along with the original certificates. It was further stated that allocation of seats would be made strictly as per the rank\/merit in the Entrance Examination on the terms and  conditions as mentioned in the Prospectus for January 1999 Session. In the  meanwhile, the petitioner came to know that two seats in M.D. (General  Medicine) and one seat in M.S. (Orthopaedics) had fallen vacant and were  available. One Dr. Girish who had been admitted to M.D. (General Medicine)  resigned and surrendered the seat on or about 23.1.99. The other seat in  M.D. (General Medicine) had fallen vacant as one Dr. Manju Singar did not  join the course. Hence on 25.1.99, the petitioner submitted a representation to the respondent requesting for allotment of the seats of M.D.  (General Medicine) which had fallen vacant. However, the respondent did not  include the seats in M.D. (General Medicine) among the seats to be filled  up on 25.1.99. No action was taken by the respondent to fill up the said  seats thereafter also. The petitioner submitted a further representation  dated 29.1.99 requesting the respondents to give him an opportunity to opt  for the available seat in M.D. (General Medicine). Since there was no  favourable response from the respondent the petitioner has filed this writ  petition praying for a direction to the respondent to allot the vacant seat  in M.D. (General Medicine) to the petitioner forthwith.\n<\/p>\n
2. The respondent has filed a reply opposing the prayer in the writ  petition. The respondent has admitted that one Dr. Girish who was at rank  No.12 had opted for the seat of M.D. (General Medicine) in the First Counselling but he left the seat after the Second Counselling. According to the  respondent. The said seat became vacant only after the resignation of Dr.  Girish was accepted on 23.1.99. The respondent has denied the existence of  any vacant seat in M.S. (Orthopaedics). According to the respondent, on the  date of filing the reply there was only one vacant seat of M.D. (General  Medicine) and it was vacated by Dr. Girish. The respondent has admitted the  filling up of certain vacant seats in other disciplines pursuant to the  notice dated 16.1.99 published in the Indian Express. However it is clarified in the reply affidavit that in the said advertisement only those seats  which were available all through to all the candidates (including the  petitioner but) were not opted by anybody, were sought to be filled up.  According to the respondent there was no Third Counselling and a Third  Counselling was also not contemplated in the Prospectus. It is further  stated in the reply affidavit that when the decision to hold the selection  for the left over seats was taken, the seat in M.D. (General Medicine) had  not fallen vacant and hence it could not have been included in the selection which took place on 25.1.99. The representation dated 25.1.99 and  29.1.99 of the petitioner were considered by the respondent and a reply  dated 2.2.99 was sent to the petitioner. A copy of the said letter dated  2.2.99 has been produced as Annexure I to the reply affidavit. Through the  said letter date 2.2.99 the petitioner was informed that the above mentioned vacant seat of M.D. (General Medicine) would be advertised for the  July 1999 Session. It is contended in the reply affidavit that in view of  the judgment of the Hon’ble Supreme Court on the subject, the respondent is  required to place the available seat in the slot for everyone and hence the  said seat has to be renotified afresh and therefore it has been carried  forward to the next academic session.\n<\/p>\n
3. In the light of the abovementioned rival contentions of the parties  the question to be considered is whether the petitioner has got a right for  admission to the seat of M.D. (General Medicine) which fall vacant after  the Second Counselling. The rules relating to admission and the method of  selection and counselling were published in Annexure P1 Prospectus issued  by the respondent. The petitioner has no case that admissions to the various courses were made in violation of the provisions contained in the  Prospectus. As per the Prospectus there were only two Counsellings. Admittedly the petitioner participated both in the First Counselling and in the  Second Counselling but no seat of M.D. (General Medicine) was available at  his rank. The petitioner also has no grievance about the allotment of seats  made during the First and the Second Counsellings. A Third Counselling was  not contemplated in the Prospectus. The Prospectus also did not say anything about filling up of the seats which might fall vacant subsequent to  the Second Counselling due to reasons like the resignation of candidates  after taking admission. A copy of the guide-lines issued by the respondent  for allotment of seats by personal appearance and counselling has been  produced as Annexure P4 to the writ petition. As per the said guide-lines  if any candidate who joined the MD\/MS\/MDS course leaves the said course  before the expiry of one year of joining he shall be liable to pay a sum of  Rs.50,000\/- and if any candidate who joined the course leaves after one  year of joining he shall be liable to pay a sum of Rs. 1 lakh by way of  compensation\/losses incurred by the AIIMS due to such midstream departure.  However, nothing is mentioned about the filling up of seats which fall  vacant due to such mid stream departure. Therefore, as per the Prospectus  or the guide-lines for allotment of seats by personal appearance and counselling, the respondent was not bound to fill up a seat which fell vacant  after the Second Counselling due to the resignation of a candidate who had  taken admission during the First or the Second Counselling. Hence respondent was not liable to fill up the seat of MD (General Medicine) which fell  vacant due to the resignation of Dr. Girish.\n<\/p>\n
4. Learned counsel for the petitioner contended that the last date for  admission was only 31.1.1999 and hence the seat of MD (General Medicine)  which fell vacant on 23.1.1999 could have been filled up by the respondent  without carrying forward the seat to the July 1999 session. However, the  learned counsel for the respondent pointed out the difficulty in filling up  the seat. During the first and the second counselling candidates who were  placed above the petitioner in the merit list had opted for allotment of  seats in different disciplines and had accepted the seats available then.  As per the prospectus and the guide-lines for allotment they were bound to  take a confirmed seat at least during the second counselling. Having taken  a confirmed seat in a discipline they are not given any further chance to  opt for a seat which may fall vacant a subsequent to the second counselling. If a seat falling vacant subsequently due to the resignation of a  candidate who had joined the course has to be filled up, the said seat has  to be offered to all the candidates in the merit list according to the rank  in the merit list. It will imply that allotment already made will have to  be disturbed and fresh allotments will have to be made. It is to avoid such  continuous and unending process of exercising options and making allotment  that the respondent decided to stop with the second counselling and to  provide that all the seats allotted during the second counselling will be  only confirmed seats. The said procedure followed by the respondent is to  ensure that the seats are allotted according to merit and a fair opportunity is given to the candidates to make their options. The decision of the  respondent not to have a third counselling for filling up the seats which  might fall vacant due to resignation of candidates who had taken confirmed  seats during the first or the second counselling cannot be said to be  illegal or arbitrary or unfair. It may be observed that if seats falling  vacant subsequently are to be filled up by remaining candidates in the  merit list who had not taken any confirmed seat during the first or the  second counselling, such candidates will get an undeserved advantage in the  matter of allotment of seats. A candidate above them in the rank list might  have opted for a seat in discipline A because at that time no seat was  available at his rank in discipline B which was his preference. The seat in  discipline B falling vacant subsequently will not be offered to him since  he has already taken a confirmed seat whereas the said seat will become  available to candidates below him in the rank list. For example, in this  case when candidates who were placed above the petitioner in the merit list  took the confirmed seats in other disciplines the present vacant seat in  M.D.(General Medicine) was not available and hence even if they had preferred a seat in M.D. (General Medicine) they could not get one. At the  same time they are not eligible to make any further option as they have  taken confirmed seats. If the present vacant seat of M.D. (General Medicine) is offered to the petitioner only on the ground that he had not taken  any confirmed seat during the first or the second counselling he is getting  an undeserved advantage over such persons who were ranked above him in the  merit list and had preferred a seat in M.D. (General Medicine). That will  be unjust and unfair to the candidates ranked higher in the merit list.  Hence in my view there is some purpose and logic behind the decision of the  respondent not to fill up the seats which fall vacant subsequent to the  second counselling and to carry forward such seats to the next session of  July 1999.\n<\/p>\n
5. It is to be noted that even if the respondent decided to fill up the  seat which fell vacant due to the resignation of Dr. Girish the respondent  had to offer the seat to all the candidates in the merit list according to  their rank irrespective of their taking a confirmed seat in another discipline. That would have unsettled the admission already made and the admission process could not have been completed before the last date of admission. It is also to be noted that any candidate ranked below the petitioner  in the merit list has not been given a seat or M.D. (Genera Medicine) and  hence the petitioner cannot have any legitimate grievance.\n<\/p>\n
6. Learned counsel for the petitioner pointed out that even if a third  counselling was not contemplated in the prospectus the vacancies arising  before the last date of admission should have been filled up by the respondent. He also pointed out that as per Annexure P5 advertisement dated  16.1.1999 the respondent sought to fill up vacancies which remained vacant  after the second counselling. According to the learned counsel, if those  vacancies could be filled up the vacancy caused by the resignation of Dr.  Girish also could have been filled up. However, the learned counsel lost  sight of a significant difference in the nature of the vacancies in question. The vacancies mentioned in Annexure P5 notice dated 16.1.1999 were  the vacancies which were available for allotment during the first counselling and also the second counselling but were not taken by anyone. All the  candidates had the opportunity to opt for those seats. The said seats  remained vacant only because there was none to take those seats during the  first and the second counselling. Hence those who were ranked above in the  merit list and who had taken confirmed seats in other disciplines could not  complain that they had not got an opportunity to take those seats. On the  other hand, the seat which fell vacant due to the resignation of Dr. Girish  was not available for allotment to other candidates above the petitioner as  it had been taken by Dr. Girish. As already pointed out the seat fell  vacant only on 23.1.1999. Hence it is possible for other candidates who are  ranked above the petitioner in the merit list to complain that they also  should get an opportunity to opt for the said seat even if they have already taken a confirmed seat in another discipline. It is clear from Annexure P5 notice as well as from the reply affidavit filed by the respondent  that the seats mentioned in Annexure P5 notice dated 16.1.1999 were remaining vacant after the second counselling as nobody had opted for those  seats. The filling up of the seats mentioned in Annexure P5 will not in any  way violate the principle of merit followed in the matter of selection and  admission. A seat subsequently falling vacant due to the resignation of a  candidate who had taken a confirmed seat and had joined the course cannot  be equated with seats which remained vacant as there was nobody to opt for  those seats during the first and the second counselling. Hence merely  because the respondent chose to fill up the seats mentioned in Annexure P5  notice, it cannot be said that the respondent was bound to fill up the seat  which fell vacant due to the resignation Dr. Girish. It may also be mentioned that the seat in question is not going to be wasted and that it is  being carried forward to the July 1999 session.\n<\/p>\n
7. Learned counsel for the petitioner contended that Dr. Girish was rank  No. 20 in the merit list and that persons ranked between the petitioner and  Dr. Girish would not be interested in the seat of M.D. (General Medicine)  now available. It cannot be assumed or presumed by this court that rank  numbers 21 to 23 would not be interested in the seat. Whether they were  interested or not, if the seat had to be filled up they also had to be  given a chance to make their options according to their relative merit. The  respondent had objection to such a course of action because such a course  of action was not contemplated in the prospectus. Moreover it was practically difficult to carry out such an exercise before the last date of  admission.\n<\/p>\n
8. By deciding not to fill up the seat which fell vacant due to the  resignation of Dr. Girish, the respondent has not violated any of the  provisions contained in the prospectus relating to selection and admission  of candidates and the respondent has not committed any illegality in the  matter. The impugned action of the respondent is neither arbitrary nor  unjust. There is neither violation of any fundamental right nor denial of  any vested right of the petitioner. I do not find any sufficient justification for invoking the extraordinary jurisdiction of this court to direct  the respondent to admit the petitioner to the M.D. (General Medicine)  course. Hence the writ petition is dismissed. No order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court G. Senthil Kumar (Dr.) vs All India Institute Of Medical … on 9 March, 1999 Equivalent citations: 1999 IIAD Delhi 850 Author: C Joseph Bench: C Joseph ORDER Cyriac Joseph, J. 1. The petitioner applied for admission to the Post Graduate Course in the All India Institute of Medical Sciences for the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-237452","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nG. 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