ORDER
1. Petitioner after having passed the M.B.B.S. examination in 1988, did one year of internship and thereafter got himself registered with the Medical Council. Vide advertisement dated 19-1-1990, Post-Graduate Medical Board, Institute of Medical Science, Banaras Hindu University, respondent No. 2 invited applications from eligible candidates for admission test to fill up vacant seats of Post-Graduate Courses. Petitioner applied in pursuance of this advertisement and was qualified having secured 280 marks; but could not be admitted as his name was not included in the merit list. It appears that number of seats of the Post-Graduate Courses were not filled up by respondent No. 2 and are still lying vacant. Case of the petitioner is that after the admission was closed and when he came to know about these vacant seats, he applied for being admitted against these seats; but his application for admission against the existing vacant seats is not being considered. Petitioner as such, has filed this writ petition for a writ of mandamus commanding the respondents to admit the petitioner in the Post-Graduate Course against any of the available seats in Institute of Medical Science of Banaras Hindu University.
2. At the admission stage a counter-affidavit has been filed by Sri R. P. Khare, Section Officer (Academic). Institute of Medical Science, Banaras Hindu University, Varanasi and the petitioner in reply thereto has filed a rejoinder affidavit. I have heard learned counsel for the petitioner and the learned counsel for respondents and the writ petition is being disposed of in accordance with the Rules of the Court.
3. It is not disputed by the respondents that certain seats in Post-Graduate Courses are still lying vacant. The case of the respondents however, is that they want to fill up these vacant seats in the next session. It is further argued on behalf of the respondents that candidates having secured 292 marks have already been admitted and the petitioner having secured only 280 marks could not get admission in the regular course and it is not proper to admit him now against the vacant seats inasmuch as in the merit list there were certain candidates, who were given higher placing as they secured more than 280 marks. In this connection, learned counsel for the respondents has argued that admission has to be made on the basis of merit only for which he has placed reliance on Sushil Kumar v. Principal I.T.I. (1982 UPLB & EC 509): (AIR 1981 All 194); Achchey Lal v. Vice-Chancellor (AIR 1985 All 1) and Dr. J. C. Pandey v. State (1984 UPLB & EC 756).
4. Supreme Court in Dr. Jeevak Almast v. Union of India(AIR 1988 SC1812) has laid down that in view of paucity of qualified doctors in our country, every step should be taken to turn out maximum possible doctors. The relevant extract from this judgment is quoted below at page SC 1813; AIR 1988:
"It is well known that our country does not have sufficient number of qualified doctors and every step should, therefore, be taken to turn out as many doctors with Post-Graduate qualification as possible."
A Division Bench of this Court also in the case of Dr. Meera Vermav. Principal, B.R.D. Medical College, Gorakhpur (Writ Petition No. 19822 of 1988), decided on 4-1-1989 has, following the aforesaid decision of the Supreme Court, directed the Medical College concerned to fill the existing left over vacancies. Law being settled, it is not proper for the respondents to keep the seat vacant and it is their duly to see that all the seats are filled up. It is also not a case where session has come to an end. In this connection in paragraph 20 of the writ petition, petitioner has stated that Post-Graduate Courses generally commence from January; but as the admissions have been made during summar, session has become late. In paragraph 19 of the counter-affidavit, it is admitted that fresh session has commenced in July. It will take time before the session is over and it cannot be said there will be much delay, if the admission is made now. The plea of the respondents that vacant seats are to be filled up in the next session is not justified and cannot be accepted.
5. Regarding the second question, it cannot be disputed that admission has to be made on the basis of merit and for that purpose the respondents had conducted an examination and have admitted students on the basis of merit; but as some of the seats are still vacant, the question is on what basis these seats are to be filled up. If the examination is again to be conducted, it will take months before these seats could be filled up. All the candidates, who were given higher placing in the merit list are not seeking admission. It has not been disclosed by the respondents as to whether there are other candidates, who are seeking admission against the vacant seats. In such a situation admission strictly on the basis of merit may not be possible. A similar situation arose in a case before the Supreme Court in State of Orissa v. Dr. Asim Kumar Mohanty (AIR 1989 SC 1801). This was an appeal from the judgment of the High Court, whereby some of the candidates were directed to be admitted in the Medical Post-Graduate Course. One of the arguments before the Supreme Court was that a waiting list has been drawn up in the various specialities in which some candidates with better marks than the persons, who were admitted by the High Courts are there and as such the High Court was not justified to grant admission to less meritorious candidates. This argument was not accepted by Hon'ble the Supreme Court on the ground that admission in a particular session is over and none of the candidates placed in higher position in the waiting list had come forward to press their claim. Relevant passage from this judgment is extracted below at Page SC 1803; AIR 1989:
"According to appellant's counsel, a Waiting list had been drawn up in the various specialities and the candidates included in such list had secured higher marks than the two candidates before us. Therefore, they could not be preferred to the candidates in the waiting list. This contention appears not to have been placed before the High Court and has been raised for the first time in the presents forum at the time of argument. The time, for admission into the particular academic session is long over and none of the wait-listed candidates came forward to press his or her claim. Though ordinarily the more meritorious candidates, if there were any, would have been entitled to preference over the respondents, in the circumstances stated we are not of the view that the objection raised by the State has any force."
6. Cases relied upon by the learned counsel for the respondents, referred to hereinbefore do not deal with the controversy involved in the instant case. In the case of Sushil Kumar (supra), certain candidates whose names did not find place in the merit list were admitted but their names were later on struck out from the roll of the college. While dismissing the writ petition filed on behalf of candidates, whose admission was cancelled, this Court observed that admission has to be made on the basis of merit and striking out the names of less meritourious from the college cannot be said to be unjustified. Similar was the position in the case of Achchey Lal (supra). So far as the case of Dr. J. C. Pandey (supra) is concerned. This Court' has held those seats in the Medical College are not to be kept vacant and if seats reserved for internal candidates could not be filled up, same should be made available to general candidates. After holding so, this Court directed that the Admission Committee to verify the details about the number of available seats, the number of candidates available and the fulfilment of qualification of eligibility and thereafter a comparative evaluation of merit of the available candidates both internal and external be made for the purposes of admission. It cannot be doubted that out of the available candidates only those with better merit are to be admitted.
7 Although the merit has to be kept in view while filling up ihese vacant seats; but it cannot be insisted with that strictness which is followed at the time of regular admission. The respondents as such, have to fill up the vacant seats by available candidates who have qualified in the examination but could not be selected as their names could not be included in the merit list. In this connection candidates both internal and external, who were qualified admission and are still available may be considered for filling up these vacant seats in accordance with the merit of these available candidates.
8. The writ petition is accordingly allowed and the respondents are directed to consider the case, of the petitioner against the vacant seats in accordance with the observations, made in this judgment. It is open to the respondents to consider any other candidate, who may be available and otherwise found fit and eligible. Out of the available candidates those with better merits should be admitted. Respondents are further directed that they should fill up the vacant seats in accordance with the observations made in this judgment within three weeks from the date of receipt of a certified copy of this order. There shall be no Borders as to costs.
9. Petition allowed.