JUDGMENT B.S. Chauhan and Arun Tandon, JJ.
1. Banaras Hindu University, Varanasi through its Registrar has filed this Special Appeal against the judgement and order of the Hon'ble Single Judge dated 20th December, 2007 passed in Writ Petition No. 30006 of 2007
2. The facts giving rise to the present special appeal are as follows:
The petitioner-respondent, Atiharsh Mohan was an applicant for admission to M.D./M.S. Course offered by the Institute of Medical Sciences, Banaras Hindus University, Varanas, in response to the advertisement published for the purpose. He appeared in the admission test under general category and secured a position in the waiting list. Having regard to the merits so secured by the petitioner, he was issued a letter dated 17th April, 2007 for participation in counselling fixed for 14th May, 2007. The bifurcation of seats available with reference to the subjects was also provided. In the chart so made available to the petitioner, only two seats in Anaesthesiology Department for the general category was shown to be available. Before the turn of the petitioner could be reached in the counselling, the aforesaid two seats, as were shown in the chart, were opted for by the candidates higher in merit than the petitioner. Therefore, at the time the petitioner appeared for counselling, he was informed that no seat in the said subject of Anaesthesiology was available within the category concerned. Since the petitioner was nut interested to take admission in other subject, he gave in writing that he was not interested after signing the attendance sheet.
3. Subsequently, the petitioner was informed that two additional seats in the subject Anaesthesiology had become available in the said institute of Medical Sciences, Banaras Hindu University, Varanasi. Second Counselling whereof had been scheduled for 12th June, 2007. The petitioner, therefore, made an application to the Director of Institute of Medical Sciences on 11th June, 2007 itself requesting therein that he may be permitted to participate in the counselling, which was scheduled to take place on 12th June, 2007. The petitioner specifically stated in his application that he had refused to take admission in any other subject, as he was interested in a post graduate degree in Anaesthesiology only.
4. Despite the aforesaid application of the petitioner, which was received by the office of the University on 11-06-07 itself, he was not invited for participation in the counselling, which took place on 12th June, 2007. As a matter of fact, one Dr. Rama Kant and Dr. Abhishek Srivastava whose ranks were between 100 to 105 in the waiting list. were offered admission for M.D. Course in the subject of Anaesthesiology. The petitioner, therefore, approached this Court for writ of mandamus commanding the respondents to permit his participation in the counselling and to offer admission in one of the seats, which has subsequently become available in the subject of Anaesthesiology.
5. Counter affidavit was filed on behalf of the University and it was stated that two additional seats become available with the institute in the subject Anaesthesiology because of the surrender of the same from All India Quota. These new seats, which became available, were offered to the candidates called for the second counselling only. Since the petitioner had foregone his claim for admission in first counselling he was not invited to participate in the second counselling.
6. It was contended on behalf of the University that once the petitioner was invited for counselling and he had refused to admission in the subject, which was available, it is not open to him to turn around and claim for participation in the second round of counselling against two new posts which became available in the department. On behalf of the appellant-University, reliance upon the judgements of Hon'ble Supreme Court in the cases of Medical Counsel of India v. Madhu Singh and Ors. , Arvind Mumar Kankane v. State of U.P. and Ors. , Supreet Batra and Ors. v. Union of India and Ors. , Paramjeet Gambhir and Anr. v. State of M.P. and Ors. (2003) 4 SCC 276 and Anand S. Biji v. State of Kerala and Ors. was placed. The Hon'ble Single Judge after hearing the counsel for the parties and after examining the pleadings and the judgements relied upon by the respective parties recorded as follows:
In the case of Arvind Kumar Kankane v. State of U.P. and Ors. (Supra) the decision is based on the rules framed under the Government Order issued on 30.3.1994 in relation to the admission to the postgraduate medical courses. In the said case one seat was not included in the initial counselling by mistake but We said was available at the time of counselling. It was not the case where after the counselling fresh scats have been made available. Thus, the decision of the Apex Court is distinguishable on the fact.
With reference to judgments in the case of Supreet Batra and Ors. (supra) and Paramjeet Gambhir and Anr. (Supra) held:
The decision of Supreet Batra and Ors. v. Union of India and Ors. (Supra) is distinguishable on the facts of the case. The issue involved in the present case was not involved in the said case.
The decision in the case Paramjeet Gambhir and Anr. v. State of M.P. and Ors. (Supra) supports the case of the petitioner. In the said case certain seats which were surrendered from all-India quota had not been included in the first counselling. In the said case the petitioner did not opt for any seat in the first round of the counselling, as certain seats in the prized disciplines of Radio-diagnosis, Orthopaedics and Paediatrics had been surrendered from all-India quota had not been included in the aforesaid counselling....
7. On behalf of the appellant, before us reliance was again placed upon the judgement of the Hon'ble Supreme Court in the case of Arvind Kumar Kankane (supra) and it was contended that a candidate, who had already participated in the first round of counselling is not to be invited to appear in the second round of counselling against the posts, which may become available subsequent to the first counselling, otherwise such a course shall initiate a chain reaction and may ultimately lead to the invitation being extended for fresh participation to all the candidates, who had exercised their option in the first round of counselling.
8. Learned Counsel for the appellant, therefore, submitted that the judgement of Hon'ble Single Judge is liable to be set aside. We have heard learned Counsel for the parties and have gone through the records of the present special appeal. It is no doubt true that Hon'ble Supreme Court in Arvind Kumar Kankane (supra) held that second invitation to the candidates, who had already participated in first round of counselling may result in a chain re-action and therefore even if some injustice has been caused, it would not be proper to invite such candidates for participation in the second round of counselling. However, facts of this case are more akin to the facts in the case of Paramjeet Gambhir and Anr. (Supra) wherein it has been held that if certain new seats from all-India Quota become available after surrender, the candidates higher in merit should be given an option to opt for the seats which so became available as these seats were not included in the first round of counselling. merit should be given an option to opt for the seats which so became available as these seats were not included in the first round of counselling.
9. In view of the aforesaid, the Hon'ble Judge has proceeded to direct the concerned institute to consider the candidature of the petitioner for admission in the subject of Anaesthesiology (M.D. Course) after taking into consideration rank and choice in the subject. After hearing the counsel for the parties, we find that the Hon'ble Single Judge has rightly applied the law as laid down by the Hon'ble Supreme Court in the case of Paramjeet Gambhir and Anr. (Supra) and is justified in directing the new seats, which become available in the subject subsequent to surrender from All India Quota should must be made available to the candidates in accordance with their rank and choice in subject irrespective of their participation in the first counselling when the aforesaid seats were not available nor included in the total number of seats at the time of first counselling.
10. We may record that during the pendency of the present writ petition admission was offered to the candidates in the said subject of Anaesthesiology, and in the admission letter so issued it was specifically mentioned that their admission is subject to the final outcome of the present writ petition. The aforesaid two students have not chosen to challenge the order passed by the Single Judge, although they were party to the writ petition. In view of the above, we see no error in the judgement and order of the learned Single Judge so as to warrant any interference in exercise of powers under Chapter VIII Rule 5 of the Allahabad High Court Rules. The Special Appeal is accordingly dismissed.