JUDGMENT Janardan Sahai, J.
1. It is hard to get an admission in a State Medical College but to lose it when it had virtually been granted would be a pity. The petitioner was selected in the Combined Pre Medical Test 2004 in the SC/ST Physically Handicapped Category. His general rank was 4113 self-rank 29 and rank 1 in SC category physically handicapped. All that he required to get an admission was to produce a medical certificate from a Special Medical Board certifying what in lay language means that he was physically handicapped but the degree of his disability was not such as would hinder his performance. On 16.7.2004 the day fixed he appeared for counseling. He also had with him a medical certificate of the Chief Medical Officer in proof of his eligibility in the category in which he was selected but he was sent away without admission, as the certificate which he possessed did not have the status of a certificate of the special medical board. In that fateful round of counseling candidates lower down in the merit list were admitted bagging away all the four seats that were reserved for the quota of the scheduled caste physically handicapped category to which the petitioner belongs.
2. The petitioner then filed the present writ petition for a mandamus commanding the respondents to admit him. On 20.8.2004 while the petition was pending he obtained a medical certificate from the Special Medical Board certifying his disability. By now there appeared a silver lining in the dark clouds, A second round of counseling had begun and the petitioner pinned his hopes to get an admission in this round. On 26.8.2004 he was successful in obtaining an interim order in this petition - a direction permitting him to appear in the second counseling on the basis of the certificate of the Special Medical Board with which he was now armed. The respondents as their case in the counter affidavit is considered him according to the rules printed in the brochure of the C.P.M.T. 2004 which provide in effect that if a candidate does not appear withthe relevant papers in the round of counseling he according to his merit is called can be considered in the next counseling but only against the seats that remain. All the four seats in the quota against which the petitioner was selected had as we have seen already been filled up in the first round of counseling. The petitioner had therefore to return empty handed once again.
3. In the counter affidavit reliance has been placed upon the rules for admission printed in the Information brochure and Sri Mahendra Pratap the respondent's counsel heavily relied upon them to justify the stand of the respondents. It is therefore necessary to refer briefly to these rules. Paragraph 5.4 (ka) of the brochure provides that the applicant shall appear personally in the counseling withthe Admit Card and relevant documents at the fixed time and place, Paragraph 5.4 (gha) provides that the candidates shall be called for counseling according to their place in the merit list and will be considered against the available seats according to merit. Paragraph 5.4 (chha) provides that in case it is not possible for the candidate to appear in person he can authorize a person in his place who may appear withthe relevant documents. Paragraph 5.4 (ja) provides that if the candidate does not appear on the fixed date and time in the counselling he would not be given allotment of a seat in the said counseling though he would be eligible to participate in the next counseling but against the remaining seats only. The petitioner's explanation for being unable to obtain and produce the required medical certificate in the first round of counseling is that he had fallen ill and was admitted in hospital between 2.7.2004 to 13.7.2004 and therefore could not get himself examined by the Special Medical Board. In proof of illness the petitioner has filed a medical certificate of the Community Medical Center, Sujanganj, Jaunpur.
4. Before we proceed to consider the effect of the non-production of the certificate of the Special Medical Board by the petitioner, upon his claim, a few undisputed facts about the availability of the Special Medical Board may be taken note of. In sub paragraph M of the paragraph 3 bearing the heading vkj{[email protected]{kr LFkku on page 6 of the brochure it is stated that an ad hoc Special medical Board will be constituted after the declaration of result of the written examination and before the counselling. A Special Medical Board is not a permanent body to which a candidate may have access whenever he wants but is constituted by the respondents on certain dates. It is not in dispute that the date and place where the Special Medical Board would be constituted has not been disclosed in the brochure. Its availability therefore had to be announced subsequently. Sri Mahendra Pratap has produced the relevant records concerning the dates on which the candidates were required to appear before the Special Medical Board and for counselling. The record shows that the Special Medical Boar4 is constituted for about two days at different medical colleges a few days in advance of the counseling. The programme for the first counseling was published in the newspaper "Dainik Jagaran, Allahabad and other papers on 2.7.2004. The dates for counselling have been fixed regularly from 7.7.2004 upto 15.7.2004 in this programme. The date for registration for the counseling has been fixed one day before each date of counselling. The dates on which the Special Medical Board would sit have been specified in this publication as 5th and 6th July 2004. It is not in dispute that no counselling was done as per this counselling programme in view of certain orders passed by the High Court in another case.
5. Another programme for the first counselling was published in various newspapers including "Amar Ujala" Allahabad dated 9.7.2004, copy of which was produced by Shri Mahendra Pratap. The counselling dates were fixed between 11.7.2004 to 17.7.2004 and the date of registration was fixed one day before each date of counselling. It was in pursuance to this advertisement that the petitioner was required to appear on 15.7.2004 for registration and on 16.7.2004 for counselling. Note-2 of this publication specifies that the Special Medical Board shall be constituted at Medical Colleges, Lucknow, Kanpur, Agra, Allahabad, Jhansi, Gorakhpur and Meerut on 9.7.2004 and candidates were called upon to report before the principal of any of these medical colleges by 10 A.M. on 9.7.2004 unless they had already been examined by the Special Medical Board on the earlier dates i. e. 5/6.7.2004. It is not comprehensible as to how a candidate could appear on 9.7.2004 at 10 A.M. before the specially constituted medical board on the basis of the information published on the same date.
6. Sri Mahendra Pratap submitted that to maintain the standard of medical education the academic session has to begin on time so that the number of teaching days does not fall short and a tight time schedule has been fixed regarding the dates of entrance examination - registration, counselling admission and commencement of classes. A delay at any stage of the process would upset the whole schedule and therefore if a candidate does not appear in the counselling withthe required papers he risks his seat. It is submitted that in the circumstances the notice given to the candidates through the newspaper "Dainik Jagaran" of 2.7.2004 and in the newspaper "Amar Ujala" of 9.7.2004 was sufficient and the failure of the petitioner to appear before the Board in time was fatal. I am not inclined to accept the submission. The Medical Board before which the candidates were required to appear is an ad hoc especially constituted medical board for the purpose. It is constituted only on dates which are notified. To obviate the chance of the candidates not being informed of the date on which the medical board would sit the respondents were required to give sufficient advance notice in the newspaper or alternatively to declare in the brochure itself the dates on which the Medical Board would be available. It is not in dispute that no counselling was held in pursuance of the programme published on 2nd July. The respondents themselves had constituted another medical board on 9th July for the revised programme of the first counselling. That notice which was published on 9th July itself was too short and no outstation candidate could possibly have appeared before the medical board in pursuance thereof. The petitioner is a resident of a village in Jaunpur and the nearest medical board was to sit at Allahabad. It was not possible for the petitioner to have made it to the medical board that day and no medical board was therefore constituted on any date until the date of the petitioner's counselling 16.7.2004 was over. If the medical board is constituted before each counselling programme begins as appears the notice published on 9.7.2004 was too short. If the board is to be constituted only once which does not appear to be the case it must be made clear that the Board would not sit again.. Candidates can not be left guessing whether the board would sit again. In the circumstances that the first counselling programme published on 2nd July was deferred and the respondents published a revised counselling programme they were required to give another opportunity to the candidates to appear before the medical board. Apparently the respondents themselves felt the need for that but the opportunity they gave was illusory.
7. The whole defence of the respondents is as if a time table for a computer operated train which runs withclock work precision. If a candidate has to catch the train he has to be there on time and if he is late the train does not wait for him. Other passengers will be allotted the seat reserved for him. The computer has no compassion for the late comer. The reason for the default is immaterial.
8. But if the time table is the respondent's bible by which they swear it had to be notified well in advance. Those who resist an honest claim on the ground that the claimant was not vigilant must be vigilant themselves. It is here that the respondents have defaulted. They were not vigilant in giving due notice of the date of the constitution of the medical board fixed before the revised counselling programme. The notice published on 9th July was no notice at least for outstation candidates to appear on the same day. Keeping in mind that a large number of candidates like the petitioner hail from the village where newspapers reach late even the 2-3 days clear notice which the respondents gave in the publication of 2nd July was barely if at all sufficient considering the fact that the availability of the medical board is scarce. In these circumstances if the petitioner is to lose his seat the loss would be attributable not only to his illness which was an accident but also to insufficient notice of the dates of availability of the medical board which was a lapse on the respondents' part. If notice of the constitution of the medical board before the revised programme had been sufficient the petitioner perhaps despite his illness could avail the opportunity. In these circumstances coupled withthe fact that there was a direction of the court to consider him in the second counselling the question that arises is whether any relief can be granted to the petitioner. Sri Mahendra Pratap submits that the seats being limited and having been filled up and the admissions having closed long back no relief can be granted to the petitioner even on the finding that the petitioner was not to blame. He relied upon the decision of the Apex Court in Medical Council of India v. Madhu Singh and Ors. (2002) 7 SCC 258 in which the law of admission in medical colleges was thus summarized;
"23. There is, however, a necessity for specifically providing the time schedule for the course and fixing the period during which admissions can be take place, making it clear that no admission can be granted after the scheduled date, which essentially should be the date for commencement of the course.
In conclusion
(i) there is no scope for admitting students midstream as that would be against the very spirit of statutes governing medical education;
(ii) even if seats are unfilled that can not be a ground for making mid-session admissions;
(iii) there can not be telescoping of unfilled seats of one year with permitted seats of the subsequent year;
(iv) MCI shall ensure that the examining bodies fix a time schedule specifying the duration of this course, the date of commencement of the course and the last date for admission;
(v) different modalities for admission can be worked out and necessary steps like holding of examination if prescribed, counselling and the like have to be completed within the specified time;
(vi) no variation of the schedule so far as admissions are concerned shall be allowed;
(vii) in case of any deviation by the institution concerned, action as prescribed shall be taken by MCI."
9. It is submitted that in view of the schedule fixed for counselling and the manner in which the admissions were to be made there was no scope of taking the petitioner in the second round of counselling, in this case as the seats had already been filled up. The seats it is submitted can neither be increased nor can admissions be made in mid session in view of Madhu Singh's case. These hurdles it is said are insurmountable. It is to be noted that Madhu Singh's case does not deal with the question of remedy where an admission is wrongly refused. The decision is therefore distinguishable.
10. In Dolly Chandra v. Chairman Jee and Ors., 2004 (23) A.I.C. 96 SC the Apex court came to the rescue of a candidate in almost similar circumstances. There being some error in the disability certificate furnished by the Army Authorities the candidate was refused admission when she appeared with that certificate in the counselling and candidates of lower merit than her were admitted. By the time the candidate could get the certificate corrected the seats had already been filled up. The Apex Court drew a distinction between the eligibility of the candidate on the cut of date and its proof. While no relaxation it was held could be granted to a candidate not possessing the requisite eligibility on the cut of date, relaxation could be granted in the date for furnishing proof of the eligibility. Reliance was placed by the learned Judges of the Apex Court - upon the observations in an earlier case Charles v. Dr. C. Mathew and the court held that the respondents were not justified in taking a highly technical rigid attitude. The humane factor can not altogether be eliminated even in a mechanical administrative process. The Court directed the admission of the candidate in any one of the State medical colleges and in the event that State seats had already been filled up the creation of an extra seat. Sri Mahendra Pratap has drawn attention to the circular of the Medical Council of India dated 15.9.2004 in which the last date for admission has been fixed as 30.9.2004. That period undoubtedly has long since expired and the academic session has also well advanced and it is not appropriate in these circumstances to direct the respondents to admit the petitioner this year more so when the petitioner would not be able to attend the classes and complete the requisite minimum attendance so necessary for a medical degree. What then is the remedy ? In this country where jobs are difficult to find and admission to professional courses equally difficult to obtain, damages would be an inadequate remedy. Even otherwise the measure of damages would be difficult to assess. A paid seat in a self-financed medical college half as coveted as a seat in a State medical college would cost not less than Rs. 15 lakhs capitation fee. To think of damages measured in such terms would cost the exchequer dear. The only alternative left is to give a seat to the petitioner in the coming year. The writ petition is therefore allowed. The petitioner shall be adjusted against any seat in any one of the State medical colleges of U.P. in the next year.