{"id":60369,"date":"2011-08-26T00:00:00","date_gmt":"2011-08-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-board-of-governorindira-vs-kumar-ksitiz-abhinav-ors-on-26-august-2011"},"modified":"2015-09-12T18:33:44","modified_gmt":"2015-09-12T13:03:44","slug":"the-board-of-governorindira-vs-kumar-ksitiz-abhinav-ors-on-26-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-board-of-governorindira-vs-kumar-ksitiz-abhinav-ors-on-26-august-2011","title":{"rendered":"The Board Of Governor,Indira … vs Kumar Ksitiz Abhinav & Ors on 26 August, 2011"},"content":{"rendered":"
Patna High Court – Orders<\/div>\n
The Board Of Governor,Indira … vs Kumar Ksitiz Abhinav & Ors on 26 August, 2011<\/div>\n
   IN THE HIGH COURT OF JUDICATURE AT PATNA\n               Letters Patent Appeal No.1207 of 2011\n                                  In\n            Interlocutory Application No. 5723 of 2011\n                                  In\n           Civil Writ Jurisdiction Case No. 13522 of 2011\n======================================================\n1. The Board of Governor, Indira Gandhi Institute of Medical Science,\n   Sheikhpura, Patna through its Director.\n2. The Director, Indira Gandhi Institute of Medical Science, Sheikhpura,\n   Patna.\n                                           ............. Respondents\/Appellants.\n\n                              Versus\n1. Kumar Ksitiz Abhinav, S\/o Uma Shankar Singh, R\/o A\/22, Professor\u201fs\n   Colony near Mohanpur, Punaichak, Shivpuri, Patna-23, Bihar.\n                                       ............Writ Petitioner\/Respondent\n2. The State of Bihar through Principal Secretary, Department of Health &\n   Medical Education, Government of Bihar, New Secretariat, Patna.\n3. The Controller of Examination, Bihar Combined Entrance Competitive\n   Examination, 2011, IAS Association Building, Near Patna Airport, PO-\n   Veterinary College, Patna-14.\n                                              ......... Respondents\/Respondents\n                                    With\n\n                 Letters Patent Appeal No. 1206 of 2011\n                                    In\n               Interlocutory Application No. 5723 of 2011\n                                    In\n             Civil Writ Jurisdiction Case No. 13522 of 2011\n\n\nThe State of Bihar through Principal Secretary, Department of Health &\nMedical Education, Government of Bihar, New Secretariat, Patna\n                                             ............... Respondent\/Appellant.\n\n                              Versus\n1. Kumar Ksitiz Abhinav, S\/o Uma Shankar Singh, R\/o A\/22, Professor\u201fs\n   Colony near Mohanpur, Punaichak, Shivpuri, Patna-23, Bihar.\n                                  ............Writ Petitioner\/Respondent\n2. The Board of Governor, Indira Gandhi Institute of Medical Science,\n   Sheikhpura, Patna through its Director.\n3. The Director, Indira Gandhi Institute of Medical Science, Sheikhpura,\n   Patna\n 2        Patna High Court LPA No.1207 of 2011 (2) dt.26-08-2011\n\n\n                                               2\/8\n\n\n                 4. The Controller of Examination, Bihar Combined Entrance Competitive\n                     Examination, 2011, IAS Association Building, Near Patna Airport, PO-\n                     Veterinary College, Patna-14.\n                                                ......... Respondents\/Respondents\n                 =======================================================\n\n                 Appearance:\n                 (In LPA No.1207\/2011)\n                 For the Appellant\/s   :             Mr. Lalit Kishore, AAG-1\n                                                     Mr. Sunil Kumar Singh, Advocate\n\n                 For the BCECE Board:                Mr. Vikas Kumar, Advocate.\n                 For the Respondents  :              Mr. Ashok Kumar Jha\n                                                     Mr. Ajay Kumar Jha, Advocates.\n                 (In LPA No.1206\/2011)\n                 For the Appellant\/s   :           Mr. Ashok Kumar Keshri, AAG-11\n\n                 For the BCECE Board:  Mr. Vikas Kumar, Advocate.\n                 For the Respondents  :Mr. Ashok Kumar Jha\n                                       Mr. Ajay Kumar Jha, Advocates\n                 For the IGIMS :       Mr. Lalit Kishore, AAG-1\n                                       Mr. Sunil Kumar Singh, Advocate\n                 =======================================================\n                 CORAM: HONOURABLE THE CHIEF JUSTICE\n                        and\n                        HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA\n\n                 ORAL ORDER<\/pre>\n
                 (Per: HONOURABLE THE CHIEF JUSTICE)<\/p>\n
2   26-08-2011            These Appeals preferred under Clause 10 of the Letters
\n                  Patent arise from the order dated 19th August 2011 made by the
\n                  learned single Judge pending the above CWJC No. 13522 of 2011.
\n                  Letters Patent Appeal No. 1207 of 2011 is preferred by the Indira
\n                  Gandhi Institute of Medical Sciences through its Board of
\n                  Governor and the Director. Letters Patent Appeal No. 1206 of
\n                  2011 is preferred by the State of Bihar.\n<\/p>\n
                          The Appeals are permitted to be circulated today for urgent
\n                  hearing. Learned Advocate Mr. Ashok Kumar Jha appearing for
\n                  the writ petitioner in above CWJC No. 13522 of 2011, has been
\n                  informed. He is present before us and has been heard.\n<\/p>\n
                          The matter at dispute relates to filling up of 85 seats in the
\n                  first year MBBS Course offered by the Indira Gandhi Institute of
\n 3   Patna High Court LPA No.1207 of 2011 (2) dt.26-08-2011<\/span><\/p>\n
                                          3\/8<\/span><\/p>\n
             Medical Sciences, Sheikhpura, Patna from              amongst the
\n             successful candidates of the Combined Entrance Competitive
\n             Examination held by the Bihar Combined Entrance Competitive
\n             Examination Board (hereinafter referred to as \u201ethe Board\u201f)
\n             constituted under the Bihar Combined Entrance Competitive
\n             Examination Act, 1995 (hereinafter referred to as \u201ethe Act of
\n             1995\u201f)
\n                     Indira Gandhi Institute of Medical Sciences (hereinafter
\n             referred to as \u201ethe IGIMS\u201f) is a medical college. The IGIMS is
\n             permitted to commence degree course in medical science for the
\n             first time from the Academic Year 2011-12. The permission for
\n             the first year MBBS course for 100 seats granted by the Medical
\n             Council of India was received on 30th June 2011 under
\n             communication dated 29th June 2011. Out of 100 seats permitted,
\n             15 seats have to be filled up from the Central Pool. In the wake of
\n             permission received on 30th June 2011, to fill in the remaining 85
\n             seats, the IGIMS advertised a public notice on 18th July 2011
\n             calling upon the eligible candidates to apply for admission to the
\n             first year MBBS course in the IGIMS with a detailed time frame
\n             for receiving application, for holding competitive examination,
\n             declaring the result and the date of admission being 31 st August
\n             2011. However, later the Governing Body of the               IGIMS
\n             reviewed its decision and took a decision to do away with the
\n             entrance examination advertised on 18th July 2011 and instead to
\n             draw the students from the merit list prepared by the Board for
\n             admission to the first year MBBS courses for the academic year
\n             2011-12.\n<\/p>\n
                     It is the aforesaid decision which led to filing of the writ
\n             petitions under Article 226 of the Constitution. A few of the
\n             applicants have challenged the decision of the IGIMS to take
\n             students from the merit list prepared by the Board.\n<\/p>\n
                     Pending the said challenge in the writ petition, the learned
\n 4   Patna High Court LPA No.1207 of 2011 (2) dt.26-08-2011<\/span><\/p>\n
                                           4\/8<\/span><\/p>\n
             single Judge has, by the impugned order dated 19th August 2011,
\n             issued an ad interim injunction restraining the IGIMS from taking
\n             any kind of admission in the MBBS course.\n<\/p>\n
                     Feeling      aggrieved,        the      IGIMS   filed   Interlocutory
\n             Application No. 5720 of 2011 and the State Government filed
\n             Interlocutory application No. 5723 of 2011 for vacation of the
\n             above referred order dated 19th August 2011. We are informed that
\n             the said applications have been rejected yesterday the 25 th August
\n             2011. Therefore, the present Appeals.\n<\/p>\n
                     Learned Additional Advocate General Mr. Lalit Kishore has
\n             appeared for the appellant. Mr. Lalit Kishore has submitted that
\n             the matter is very urgent as under the judicial direction issued by
\n             the Hon\u201fble Supreme Court in the Matter of Mridul Dhar (minor)
\n             & Another Vs. Union of India and Others [(2005)2 SCC 65], the
\n             last date for admission in first year medical course is 3oth August
\n             2011 and the course has to commence on 31st August 2011. The
\n             IGIMS having realized that it would not be able to hold the
\n             examination and finalise the admission within the time specified ;
\n             reconsidered its decision to hold the entrance test and instead
\n             decided to draw the students from the merit list prepared by the
\n             Board      pursuant      to    the    Combined      Entrance    Competitive
\n             Examination. Mr. Lalit Kishore has also relied upon the Act of
\n             1995. He has submitted that the Act of 1995 enfolds in its embrace
\n             all vocational courses including the medical science. Section 3 of
\n             the Act of 1995 makes it obligatory that admission to the first year
\n             of the vocational course including the medical science shall be
\n             made      on the       basis     of Combined        Entrance    Competitive
\n             Examination conducted by the Board. He has submitted that the
\n             learned single Judge has erred in making impugned order of
\n             injunction.\n<\/p>\n
                      The Appeal is contested by learned Advocate Mr. Ashok
\n             Kumar Jha appearing for the writ petitioner. Other Advocates have
\n 5   Patna High Court LPA No.1207 of 2011 (2) dt.26-08-2011<\/span><\/p>\n
                                          5\/8<\/span><\/p>\n
             also appeared and intervened.\n<\/p>\n
                     A preliminary objection has been raised against the present
\n             Appeals being heard today. It is submitted that the matters are
\n             scheduled for final hearing on 29th August 2011. No prejudice
\n             would be caused to the IGIMS. Besides, there is no restriction
\n             against the counseling; the IGIMS can continue counseling. In
\n             case the petitioners lose in the writ petitions, the admission can be
\n             granted on 30th August 2011. Mr. Jha has also submitted that 30th
\n             August 2011 is not the final date. Under given circumstances, it
\n             may be extended up to 30th September 2011. The right course of
\n             action for the appellants was to approach the Hon\u201fble Supreme
\n             Court for extension of time. He has also submitted that the
\n             decision of the IGIMS to do away with the entrance examination
\n             pursuant to the public notice dated 18th July 2011 and to draw
\n             students from the merit list prepared by the Board is vitiated by
\n             mala fide. He has submitted that the said decision has been taken
\n             pursuant to the misleading information given by the Health
\n             Secretary.\n<\/p>\n
                     We do not see any substance in the vague allegation of mala
\n             fide made against the Health Secretary or against the IGIMS. We
\n             do     appreciate the urgency voiced by Mr. Lalit Kishore. The
\n             IGIMS is under obligation to complete admission on 30th August
\n             2011. Unless the IGIMS commences the course as scheduled, the
\n             IGIMS will lose the entire MBBS course. It will be loss not only
\n             to the IGIMS, it will be a permanent loss to the students as well as
\n             to the people in general. In any view of the matter, now that the
\n             IGIMS is just four days away from the last date of admission, the
\n             matter is indeed urgent. We do not see any reason for not deciding
\n             the Appeals today.\n<\/p>\n
                     The Bihar Combined Entrance Competitive Examination
\n             Act, 1995 has been enacted by the State of Bihar especially for
\n             holding      combined        entrance      competitive   examinations   for
\n 6   Patna High Court LPA No.1207 of 2011 (2) dt.26-08-2011<\/span><\/p>\n
                                          6\/8<\/span><\/p>\n
             admission to the vocational courses. Section 2(c) of the said Act
\n             defines \u201evocational course\u201f and it includes the course in medical
\n             science. Section 2(d) thereof defines “University, college and
\n             institute” to mean \u201eany University, college and institute
\n             managed and maintained by the State Government”. Section
\n             2(i) thereof defines “Entrance” to mean “entrance in vocational
\n             course of the Universities, College and Institutions on the basis
\n             of merit -cum-option from the merit list”. The “Merit List” is
\n             defined in Section 2(h) to mean “a merit list prepared under the
\n             Act”. Section 3 thereof enjoins a university, college and institution
\n             to make admission to first year of a vocational course on the basis
\n             of the combined entrance competitive examination. Section 4 of
\n             the Act of 1995 provides for constitution of the Bihar Combined
\n             Entrance Competitive Examination Board. Section 6 of the said
\n             Act enjoins the Board, inter alia, to conduct the Bihar Combined
\n             Entrance Competitive Examination. Pursuant to the said obligation
\n             cast upon the Board, the Board published a Brochure in respect of
\n             2011-12 Bihar Combined Entrance Competitive Examination as
\n             early as in December 2010. The said Brochure carried the
\n             particulars of the seats available in different university\/college\/
\n             institutions in different vocational courses. With respect to medical
\n             science also it published the particulars of the medical colleges in
\n             the State of Bihar and the numbers of seats available for admission
\n             to first year MBBS course and the distribution of such seats
\n             amongst various categories such as scheduled castes, scheduled
\n             tribes, extremely backward class, backward class, girls. As the
\n             permission granted to the IGIMS was not received until 30 th June
\n             2011, the Board in its Brochure for the Academic Year 2011-12
\n             published in the month of December 2010 did not mention or
\n             include 85 seats of the IGIMS.\n<\/p>\n
                     It is not in dispute that the IGIMS is managed and
\n             maintained by the State Government. We must at first note that the
\n 7   Patna High Court LPA No.1207 of 2011 (2) dt.26-08-2011<\/span><\/p>\n
                                          7\/8<\/span><\/p>\n
             Act of 1995 obliges the IGIMS to grant admission to the first year
\n             MBBS course from amongst the candidates selected after
\n             competitive examination given by the Board. At least, that is the
\n             statutory provision. It is no wonder that the IGIMS or the seats
\n             allotted to the IGIMS were not included in the Brochure published
\n             by the Board in the month of December 2010. However, the said
\n             Brochure did indicate that “any change in institutions\/number of
\n             seats will be made known at the time of counseling\/interview”.
\n             The Board did visualize a situation where an Institution may be
\n             granted permission for a new course or for additional number of
\n             seats after the publication of Brochure. The aforesaid provision
\n             was made obviously to meet such a situation. We therefore, find
\n             no wrong in the decision of the IGIMS to admit the students from
\n             the merit list prepared by the Board pursuant to the Combined
\n             Entrance Competitive Examination conducted for the academic
\n             year 2011-12.\n<\/p>\n
                     Mr. Jha has also submitted that a right has accrued to the
\n             writ petitioners. Pursuant to the public advertisement, the
\n             petitioners and thousands            others have applied for the entrance
\n             examination. A right has thus accrued to the petitioners to take
\n             such entrance examination.\n<\/p>\n
                     We see no substance in this submission. Merely by making
\n             application pursuant to a pubic advertisement, no right of taking
\n             examination or to admission accrued to any of the applicants. We
\n             are also of the opinion that the decision to give entrance test and
\n             consequent public advertisement did not constitute estoppel
\n             against the IGIMS. The IGIMS was not estopped from revising its
\n             earlier decision and to join the bandwagon under the Act of 1995.
\n             Having regard to the importance of the admission to the MBBS
\n             course according to the time frame specified by the Hon\u201fble
\n             Supreme Court in the matter of Mridul Dhar (minor) & Another
\n             (supra), we consider it expedient that the IGIMS is not restrained
\n 8         Patna High Court LPA No.1207 of 2011 (2) dt.26-08-2011<\/span><\/p>\n
                                                8\/8<\/span><\/p>\n
                   from admitting students from the merit list prepared by the Board
\n                   pursuant to the combined entrance competitive examination for
\n                   2011-12 held by the Board.\n<\/p>\n
                           For the aforesaid reason, we allow these Appeals. The
\n                   impugned order dated 19th August 2011 is set aside.\n<\/p>\n
                           Parties will bear their own cost.<\/p>\n
\n\n                                                  (R.M. Doshit, CJ)\n\n\nSujit\/-                                   (Birendra Prasad Verma, J)\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Patna High Court – Orders The Board Of Governor,Indira … vs Kumar Ksitiz Abhinav & Ors on 26 August, 2011 IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1207 of 2011 In Interlocutory Application No. 5723 of 2011 In Civil Writ Jurisdiction Case No. 13522 of 2011 ====================================================== 1. The Board of […]<\/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":[8,27],"tags":[],"class_list":["post-60369","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court-orders"],"yoast_head":"\nThe Board Of Governor,Indira ... vs Kumar Ksitiz Abhinav & Ors on 26 August, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-board-of-governorindira-vs-kumar-ksitiz-abhinav-ors-on-26-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Board Of Governor,Indira ... vs Kumar Ksitiz Abhinav & Ors on 26 August, 2011 - 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