JUDGMENT V.M. Sahai, J.
1. The petitioner appeared in C.P.M.T. Examination, 2001 under physically handicapped category. In the result the petitioner's over-all rank was 2126 and his rank in physically handicapped category was 18. He was required to produce a certificate at the time of counselling from the special medical board (in brief Board) constituted by the respondents in accordance with Clause 3 (chha) of the brochure that he was medically suitable to pursue medical studies. The first counselling was scheduled to be held on 25.9.2001. In paragraph 5.3 of the brochure, the dates of counselling were mentioned. It is not disputed by the respondents that the petitioner appeared before the board on 15.9.2001 whereas counselling was scheduled to commence from 25.9.2001. The board did not Issue medical certificate to the petitioner. It further did not Issue any rejection certificate to him that he was medically unfit to pursue medical education. The petitioner was running before the board for Issuance of medical certificate, but for the reasons best known to the board, he was neither issued any medical certificate nor rejection order. However, the petitioner appeared in the first counselling on 25.9.2001 along with medical certificate issued by the Chief Medical Officer. Ghaziabad, but his candidature was not accepted by the respondents on the ground that the medical certificate of the board was not available.
2. The petitioner had filed this petition on the ground that out of 18 candidates under physically handicapped category the petitioner was at serial number 5 of the merit list, as other candidates did not appear for counselling. He was entitled for M.B.B.S. seat but due to arbitrary action of the board in not issuing him medical certificate, he has been deprived of admission to M.B.B.S. course. This fact is not denied by the respondents in the counter-affidavit that the petitioner was at serial number 5 in the merit list and was entitled for admission. This Court passed an interim order on 27.9.2001 directing respondents to keep one seat reserved for the petitioner under physically handicapped category.
3. While the writ petition was pending, second counselling was to be held on 8.1.2002. The petitioner appeared before the board on 22.12.2001. The board issued a medical certificate to the petitioner that he was a physically handicapped candidate and his disability was not such that he was unfit to receive medical education. The petitioner had filed the medical certificate before this Court by means of a supplementary-affidavit and since one seat was already reserved as per interim order of this Court, the petitioner did not appear in the second counselling. He claims admission on M.B.B.S. seat as per his standing in the merit list.
4. Sri Swapnil Kumar, the learned counsel for the petitioner has urged that due to fault of the board in not Issuing medical certificate to the petitioner, he has been deprived of his admission on M.B.B.S. seat. However, subsequently the board had issued medical certificate to him, therefore, as per interim order of this Court, he is entitled for admission to M.B.B.S. course.
5. Sri Ashutosh Srivastava, the learned counsel for the respondents has vehemently urged that the petitioner was rejected by the first board and no rejection certificate or order is required to be issued. Since one seat was directed to be reserved by this Court, the respondents have reserved one seat in B.D.S. course, therefore, the petitioner cannot be given M.B.B.S. seat.
6. It is not disputed that the petitioner is a physically handicapped candidate and his rank in physically handicapped category was 18 and when he appeared in first counselling, his rank was at serial number 5 as other candidates did not appear. Therefore, he was entitled for M.B.B.S. seat in the first counselling. But the seat was not allotted to the petitioner nor he was granted admission, on the ground that the board constituted by the respondents had not issued any medical certificate to him. Subsequently, in December, 2001 the board issued medical certificate to the petitioner.
7. In paragraph 19 of the counter-affidavit filed by the Director General, Medical Education and Training, U. P., It is stated "........The petitioner failed to submit such a certificate at the time of counselling held on 25.9.2001. Consequently, no allotment of seat under (07) category could be made in his favour. It is further submitted that the Special Medical Board is required to issue a certificate only when it is satisfied that a candidate is physically handicapped upto a certain percentage and can pursue Medical Education. It does not issue a certificate otherwise......."
8. It is thus not disputed that the petitioner was not allotted a seat because he could not produce Handicapped Certificate from the Board constituted on 15.9.2001. There was no other reason. Paragraph 3 (chha) of the brochure reads as under :
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ikB~;eksa esa [email protected] vkoaVu ds fy, vH;fFkZ;ksa dks viuh fpfdRlk ijh{kk esfMdy dkWyst eas rnFkZ xfBr fo'ks"k esfMdy cksMZ ls djkuh gksxh rFkk mDr cksMZ }kjk bl Js.kh dh vkjf{kr lhVksa ds le{k mlds vH;FkZu ds lEcU/k esa fn;k x;k fu.kZ; vfUre :i ls ekU; gksxk A mDr fo'ks"k cksMZ ds xBu ds lEcU/k esa vko';d funsZ'k egkfuns'kd] fpfdRlk f'k{kk }kjk vyx ls tkjh fd;s tk;ssaxs A esfMdy cksMZ fyf[kr ijh{kk dk ifj.kke ?kksf"kr gksus ds i'pkr~ dkmaflfyax ds igys cSBsxk A esfMdy cksMZ ds le{k dsoy mUgha vH;fFkZ;ksa dks mifLFkr gksuk gksxk ftUgksaus bl Js.kh gsrq vkosnu fd;k gks vkSj tks fyf[kr ijh{kk dh esfjV ds vk/kkj ij fodykax dh Js.kh esa dkmaflfyax gsrq vkeaf=r fd;s tk;saxs A dsoy egkfuns'k] fpfdRlk f'k{kk mRrj izns'k }kjk xfBr esfMdy cksMZ }kjk fn;k x;k izek.k&i= gh ekU; gksxk A ;fn cksMZ dh jk; esa fdlh vH;FkhZ dh fodykaxrk bl lhek rd gS fd og fpfdRlk f'k{kk xzg.k ugha dj ldrk gS rks ,sls vH;FkhZ izos'k gsrq vgZ ugha gkssaxs A**
9. It gives the procedure for constitution of the Board and the manner of exercise of its power. What is Important is that the decision of the Board on disability has been made final. It is further provided that if in the opinion of the Board, the disability of any candidate is to such extent that he cannot pursue medical education, then such a candidate would not be entitled for admission. The requirement of taking decision coupled with the expression. "If in the opinion of the Board" makes it obligatory for the Board to issue a certificate or an order. In absence of any order of rejection, the Board shall be deemed in law to have failed to perform the duty imposed on it. When any rule, order or provision provides for giving decision or makes the opinion final and such decision or opinion affects rights of a person, then the opinion and decision has to be recorded in writing and must be communicated. The stand in the counter-affidavit filed by the Director that the Board was not required to issue a certificate of rejection cannot be accepted. It is held that the Board whenever does not find any physically handicapped candidate unfit for pursuing medical education It will Issue an order refusing to Issue certificate expressing its opinion, otherwise it shall be deemed that the test as required has not been held.
10. Therefore, the appearance of petitioner before the Board in September, 2001, was of no consequence. The next Board was announced for 22.12.2001. Counselling is linked with seats available for allotment in M.B.B.S. The Board was constituted. The petitioner appeared before it. He was found eligible for pursuing medical education. A certificate was issued to him. The petitioner, therefore, satisfied all the requirements. And he was entitled for allotment of a seat in M.B.B.S.
11. Sri Ashutosh Srivastava argued that the petitioner having appeared before the Board on 22.12.2001 for which counselling was to take place on 8.1.2002 in which he did not appear therefore, he cannot be allotted any seat. The argument ignores that the petitioner had approached this Court against the rejection of his candidature in the counselling held on 25.9.2001 only because he was not issued a certificate by the Board. During pendency of the writ petition, the petitioner was found suitable and eligible for medical studies. A candidate who appeared in C.P.M.T. examination in disabled category was required to come in merit list, but his candidature was subject to his fitness declared by the Board. Once he was found fit by the Board and the earlier Board had not found him unfit, the procedural requirement was complete. And the respondents cannot be permitted to take advantage of their own omission of not issuing a certificate. Once the petitioner was found suitable, it was immaterial whether he was examined by the Board before or after the counselling. In any case, it was during pendency of the writ petition in the Court and it shall be deemed that it was the first medical test of the petitioner.
12. Sri Ashutosh Srivastava further argued that a seat has been reserved for the petitioner in B.D.S. course. It is not the case of respondents that there is no seat in M.B.B.S. course. Further the petitioner had filed this petition in September, 2001 and had sought quashing of the order dated 25.9.2001 and for a direction to respondents to keep one seat for him in M.B.B.S. This Court by interim order on 27.9.2001 directed respondents to reserve one seat for him in the category of physically handicapped. The respondents could not go behind this order which had to be understood in the context of the writ petition.
3. In the result, this petition succeeds and is allowed. The respondents are directed to admit the petitioner in M.B.B.S. course within three weeks from the date a certified copy of this order is produced before respondent No. 1.
14. The parties shall bear their own costs.