Aabhas Harwani v. State Of Chhattisgarh

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR WPC No.38 of 2021 Aabhas Harwani S/o Shri Harish Harwani Aged About 17 Years Minor, Through Mother And Natural Guardian Smt. Neha Harwani W/o Shri Harish Harwani , 48 Years, R/o Hig 39, Padmanabpur, Durg , District Durg Chhattisgarh., District : Durg, Chhattisgarh ---- Petitioner

Versus

1. State Of Chhattisgarh Through The Secretary, Health And Medical Education Department Mantralaya , Mahanadi Bhawan, Atal Nagar , Raipur , District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

2. The Director Directorate Of Medical Education , Old Nurses Hostel, Dks Bhawan Premises, Raipur Chhattisgarh., District : Raipur, Chhattisgarh

3. The Principal Bharat Ratna Late Shri Atal Bihari Vajpayee Memorial Medical College, Rajnandgaon, District Rajnandgaon Chhattisgarh., District : Rajnandgaon, Chhattisgarh ---- Respondents Present:- Shri Prafull Bharat with Shri Akash Pandey and Shri Mayank Chandrakar, counsel for petitioner.

Shri Vikram Sharma, Dy.GA for State.

Division Bench: Hon'ble Shri Justice Manindra Mohan Shrivastava & Hon'ble Smt. Justice Vimla Singh Kapoor Order On Board 13/01/2021 1.

This petition has been filed by the petitioner aggrieved by denial of admission by respondent No.3 on the ground that the petitioner had submitted certificate of disability from State Medical Board, which has been issued on 21-11-2020, whereas according to Rule 7 (Clause iii) of the Rules, the document has been issued after the last date of registration. On this ground, disability certificate has been treated as invalid and admission denied. 2.

Factual matrix of the present case, necessary for adjudication of

controversy involved in the present writ petition, shorn of unnecessary details, are stated infra.

3.

The petitioner appeared in the National Eligibility cum Entrance Test (In short "NEET") examination conducted by the National Testing Agency to select the candidate on National level for admission to various medical colleges in the country. Overall ranking of the petitioner in the NEET examination was 691707. The petitioner also claimed to be a candidate belonging to Physically challenged category. On the basis of his merit and various credentials submitted by him, which included credential with regard to disability, the petitioner was allowed to participate in the counselling against the reserved seat earmarked for Disabled Category candidates. The counselling resulted in offer of provisional admission to the petitioner vide letter-Annexure P-6 issued by the Directorate of Medical Education, Chhattisgarh. The petitioner, thereafter, approached the concerned college, where he had to take admission, i.e. earmarked college of respondent No.3.

4.

It is also relevant to mention here that initially, the petitioner had submitted a certificate of disability issued in his favour by the Medical Officer of the District Level (Annexure P-7). However, it appears that, later on, the petitioner realized that a mistake was committed in not submitting disability certificate strictly in terms of the provision contained under the Chhattisgarh Medical, Dentistry and Physical Therapy (Physiotherapy) Graduate Entrance Rules, 2018 (hereinafter referred to as "the Rules of 2018"), which required submission of disability certificate issued from the State Medical Board. The petitioner then applied before the State Medical Board and certificate of disability was issued in his favour by the State Medical Board also, but only on 21-11-2020. The respondent No.3 made this a basis to deny admission to the petitioner, because according to Rule-7(Clause-iii) of the Rules of 2018"), it was declared that the certificates/documents, which have been issued after the last

date of registration would not be accepted as valid. In the present case, as the last date of registration was 15-11-2020, the disability certificate issued in favour of the petitioner by the State Medical Board on 21-11-2020 was treated as invalid, which resulted in refusal of admission of petitioner and gave rise to instant petition.

5.

Learned counsel for the petitioner argued in extenso to submit that though, in the present case, certificate by the State Medical Board was issued after the cut off date of registration, since it did not relate to the eligibility part, but only a matter relating to reservation under a disabled class, the rule has to be treated as directory and not as a mandatory. In his submission, though, certificate was issued subsequently after the last date of registration for counseling, nevertheless, the certificate was issued much prior to the last date of admission. He would submit that the last date for admission to medical courses has been fixed as 15-01-2021. Next submission is that in any case, the petitioner's status under disabled category has not been doubted.

The petitioner was already possessed of disability certificate issued by the District Level Authority of the State and not that, he was not possessed of any such certificate whatsoever and for the first time, status of disabled category was declared by the State authorities. According to him, the mistake committed by the petitioner was required to be relaxed by allowing him admission on the basis of disability certificate issued by the State Medical Board, which has not been doubted. Learned counsel for the petitioner further submits that the present is not a case where, as a result of outcome of petition, any other meritorious candidates having such certificate, would not be entitled to get admission, therefore, the petitioner ought to be granted admission.

In support of his contentions, learned counsel for the petitioner has placed reliance upon the decisions in the case of Dolly Chandra vs. Chairman, JEE and others1, Ram Kumar Gijroya vs.

Delhi Subordinate Services Selection Board and another2, Princy Meshram vs. State of Chhattisgarh and another, {Order passed by the Coordinate Bench of this Court on 22-08-2017 in WPC No.2182 of 2017}, Seema Kumari Sharma (MRS) vs. State of H.P. and another3, Rajeev Kumar Gupta and others vs. Union of India and others4 6.

On the other hand, learned State counsel would submit that the Rules of admission laid down procedure to regulate the entire selection process up to admission of the candidates and for that purpose, various timeline has been provided under the rules. Cut off dates have been provided for submission of certificates, documents and credential, so that before initiating exercise of counselling and admission against the available seats in the State, the authority is able to draw select list based on merit or rankings of the candidates as also to ascertain claim of the candidates for admission against reserved category seats.

He would submit that the Rule-7 (Clause-iii) of the Rules of 2018 clearly provide that all documents, credentials will be required to be uploaded on or before the last date of registration and if any document has been issued subsequent to that, would be invalid. Next submission of learned State counsel is that the respondent authorities acted strictly in accordance with the provisions of rules. It is further submitted that according to rules, the disability certificate issued by the District level authority cannot be accepted, because as per Schedule-4 appended to the Rules of 2018, disability certificate has to be obtained from the State Medical Board.

Admittedly, in the present case, the petitioner was not possessed of such disability certificate issued by the State Medical Board, but only a certificate issued by the District Level Authorities.

each and every requirement of rule as to what kind of document/certificate/credentials are required to be obtained and submitted before the competent authority and it was well within the knowledge of the petitioner that credentials are to be submitted before the competent authority on or before the last date of registration i.e. 15-11-2020. The petitioner had enough time of almost one year not only to apply for certificate, but also to procure certificate from the State Medical Board. The petitioner, however, remained negligent and indolent and he neither applied for nor procured certificate of disability issued by the State Medical Board on or before 15-11-2020.

As the petitioner woke up from slumber only when he realized after enquiry that the certificate issued by the District Level Authority will not help him, but the requirement of rule is to obtain certification from the State Medical Board, then he rushed to the State authority and ultimately, certificate was issued, but after the last date of registration. Therefore, if the petitioner could not get admission in the medical courses, he himself is responsible for this fault. Learned State counsel would submit that reliance placed on various decisions before this Court by learned counsel for the petitioner are misplaced, because, in those cases, the benefit of relaxation was granted by the Court in different factual ground, which is completely distinguishable in the facts and circumstances of the case.

He would submit that the Supreme Court in the case of Chandigarh Administration vs. Jasmine Kaur5 has clearly held that the admissions have to be granted according to the procedure laid down and deviation is not permissible. He has also relied upon the decisions in the case of Ashok Kumar Sonkar vs. Union of India and others6 , U.P. Public Service Commission U.P., Allahabad and another vs. Alpana7, Pranjali Bhalchandra Shirsat vs. State of Maharashtra and others8 , Mohit Sharma vs.

Medical Sciences9 and Gaurav Sharma vs. State of U.P. Through Secy. And three others10.

7.

We have given our anxious consideration to the submissions made by learned counsel for the parties and various judgments cited at the bar in support of their contentions.

8.

Admission to the M.B.B.S., B.D.S. and other medical courses of the State are governed by the Rules of 2018. It is well known that admissions are granted on the basis of merit and claim for reservation in various categories. As far as merit part is concerned, the candidates appeared in the NEET Examination conducted by the National Testing Agency and after publication of the merit list, the candidate took their option to apply for seat against Central and State quota. In so far as admission procedure is concerned, in the State of Chhattisgarh, the admission is governed by the Rules of 2018. For the purpose of the present petition, reference of Rule 7 (Clause-iii) is necessary. This provision declares that a candidate will not be eligible for counseling, if he fails to upload the original documents as required under the Rules, prior to the last date of registration. It further declares that the original documents/credentials which have been issued after the last date of registration will not be treated as valid. 9.

It is also not in dispute that in order to claim reservation against seats reserved for disabled candidates, a certificate of disability is required to be obtained from the State Medical Board in the proforma of Schedule-4 appended to the Rules. The rule, therefore, on this part, shows that the certificate has to be issued by the State Medical Board for being submitted before the authority. 10.

As far as the present case is concerned, it is not factually disputed that the petitioner was not possessed of certificate issued by the State Medical Board on or before the last date of registration for counseling. Undisputedly, 15-11-2020 was the last date of registration. The petitioner, till that date, had not AIR Online 2019 Del 1402 10 2017 SCC Online All 1286

been issued certificate by the State Medical Board, though, he was having a disability certificate issued by the District Level Authority of the State. 11.

It appears that when the petitioner was offered admission, the petitioner gathered knowledge or realized, whatever it may be, that he may not be able to get admission, unless he is issued a certificate of disability in terms of the provision contained in the Rules of 2018. He then approached the State Medical Board and it is not disputed that the State Medical Board issued disability certificate in favour of the petitioner on 21-11-2020. The respondent authority has not accepted the same, in view of the provision contained under Rule 7 (Clause iii) of the Rules of 2018, that is how, the petitioner is before this Court. 12.

The issue, which arises for determination in the instant writ petition is, whether denial of admission to the petitioner on the ground of late submission of disability certificate is illegal and arbitrary and whether the petitioner can be granted any relief.

13.

As far as disability certificate is concerned, this essentially is proof of fact regarding disability of the candidate. Issuance of disability certificate is only a proof of existing disability of the candidate. This certificate is not the eligibility to get admission in the medical courses, but it is relevant for consideration of candidature to get admission against the seat reserved for particular category of disabled candidates. Whether any relaxation would be permissible? 14.

This aspect was dealt with by the Supreme Court in the case of Dolly Chandra (supra). The petitioner, in that case, was desirous of joining medical courses. Certain percentage of seats were reserved for children/widows of personnel of armed/paramilitary forces of Orissa, killed/disabled in action during war or peacetime operation. When that candidate was called for scrutiny at the stage of counseling, certificate was found to be defective. Because of that defect, the authorities were not satisfied regarding requirement of the reserved category and candidature was rejected. The candidates were allowed admission

in accordance with merit. In the meantime, though, the petitioner had again approached to the competent authority and obtained certificate and again applied for admission in the next stage of counseling, it was rejected. Being aggrieved, petition was filed and the matter travelled up to the Supreme Court. The Court was faced with the situation that initially, defective certificate was the reason for rejection of candidature, but, later on, certificate removing defects was issued, though resulting in delayed submission. In this factual background, Their Lordship in the Supreme Court examined the legal position, as below:-

7. "The general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in application form, as the case may be, unless there is an express provision to the contrary. There can be no relaxation in this regard i.e. in the matter of holding the requisite eligibility qualification by the date fixed. This has to be established by producing the necessary certificates, degrees or marksheets. Similarly, in order to avail of the benefit of reservation or weightage etc. necessary certificates have to be produced. These are documents in the nature of proof of holding of particular qualification or percentage of marks secured or entitlement for benefit of reservation.

Depending upon the facts of a case, there can be some relaxation in the matter of submission of proof and it will not be proper to apply any rigid principle as it pertains in the domain of procedure. Every infraction of the rule relating to submission of proof need not necessarily result in rejection of candidature." A distinction was drawn as to whether a person possessed eligibility qualification on the last date fixed for such purpose either in the admission brochure or in application form and situation where a candidate seeks to avail weighatge for admission and for that purpose, he is required to submit necessary certificates, degrees or marksheets.

brochure or in application form unless there is any express provision to the contrary and there can be no relaxation in this regard i.e. in the matter of holding the requisite eligibility qualification on the last date fixed. As far as requirement of submitting documents in support of entitlement to benefit of reservation is concerned, it was held that depending upon the facts of a case, there can be some relaxation in the matter of submission of proof and it will not be proper to apply any rigid principle as it pertains in the domain of procedure. Importantly, it was held that every infraction of the rule relating to submission of proof need not necessarily result in rejection of candidature. Earlier decision of the Supreme Court in the case of Charles k. Skaria vs. Dr. C. Mathew11, the principle laid down therein explaining the ratio, was also considered, as below:-

8. This principle was explained and applied in Charles K. Skaria and Ors. v. Dr. C. Mathew and Ors. (1980) 2 SCC 752. The controversy here related to admission to a post graduate course in medicine. The relevant rule provided for addition of 10% marks if a candidate possessed a diploma in the relevant subject or subspecialty and this benefit could be given only if the candidate's success in the diploma course was brought to the knowledge of the Selection Committee before completion of selection in an authentic or acceptable manner. The Prospectus provided that the attested copies of statement of marks and other documents should be attached with every application. Three such candidates were given admission who had not attached the certificate of having passed the diploma along with their applications.

Their admission to post graduate course was set aside by the High Court on the ground that their applications, wherein they claimed the benefit of diploma, were liable to be rejected as the requisite certificates had not been attached. This Court speaking through Krishna Iyer, J. reversed the judgment of the High Court and held that the admission to the candidates had rightly been given as they had in fact passed the diploma before the date fixed.

"20. There is nothing unreasonable or arbitrary in adding 10 marks for holders of a diploma. But to earn these extra 10 marks, the diploma must be obtained at least on or before the last date for application, not later. Proof of having obtained a diploma is different from the factum of having got it. Has the candidate, in fact, secured a diploma before the final date of application for admission to the degree course ? That is the primary question. It is prudent to produce evidence of the diploma along with the application, but that is secondary. Relaxation of the date on the first is illegal, not so on the 11 (1980) 2 SCC 752

second. Academic excellence, through a diploma for which extra mark is granted, cannot be denuded because proof is produced only later, yet before the date of actual selection. The emphasis is on the diploma; the proof thereof subserves the factum of possession of the diploma and is not an independent factor... Mode of proof is geared to the goal of the qualification in question. It is subversive of sound interpretation and realistic decoding of the prescription to telescope the two and make both mandatory in point of time. What is essential is the possession of a diploma before the given date; what is ancillary is the safe mode of proof of the qualification. To confuse between a fact and its proof is blurred perspicacity.

To make mandatory the date of acquiring the additional qualification before the last date for application makes sense. But if it is unshakeably shown that the qualification has been acquired before the relevant date, as is the case here, to invalidate this merit factor because proof, though indubitable, was adduced a few days later but before the selection or in a manner not mentioned in the prospectus, but still above-board, is to make procedure not the handmaid but the mistress and form not as subservient to substance but as superior to the essence.

24. It is notorious that this formalistic, ritualistic, approach is unrealistic and is unwittingly traumatic, unjust and subversive of the purpose of the exercise. This way of viewing problems dehumanizes the administrative, judicial and even legislative processes in the wider perspective of law for man and not man for law. Much of hardship and harassment in administration flows from over-emphasis on the external rather than the essential. We think the government and the selection committee rightly treated as directory (not mandatory) the mode of proving the holding of diplomas and as mandatory the actual possession of the diploma. In actual life, we know how exasperatingly dilatory it is to get copies of degrees, decrees and deeds, not to speak of other authenticated documents like mark-lists from universities, why, even bail orders from courts and government orders from public office."

(emphasis in original) 15.

Considering the aforesaid legal position, delayed submission was accepted by granting certain relaxation. Though, the petitioner has cited many other decisions, we are of the view that this decision of the Supreme Court in the case of Dolly Chandra (supra) lays down the principle of law for application in different circumstances. According to this judgment, every infraction of the rule relating to submission of proof need not necessarily result in rejection of candidature. In so far as submission of proof in support of claim for benefit of

reservation or weightage is required under the rules, in appropriate cases, some kind of relaxation can be granted, even though, there is infraction of rule. 16.

Learned State counsel relied upon the decision of the Supreme Court in the case of U.P. Public Service Commission U.P., Allahabad and another (supra). On facts, that was a case pertaining to eligibility condition and it was held that educational qualification should be attained before the last date of receipt of application by the Public Service Commission and subsequent attaining of qualification, though before commencement of written examination, would not entitle the candidate for appointment. That was not a case dealing with the requirement of submitting proof of candidate belonging to reserved category, though candidate fully eligible and qualified for admission in the educational institution.

17.

Other decision of the Supreme Court in the case of Ashok Kumar Sonkar (supra), relates to eligibility condition and therefore, clearly distinguishable. The decision of the Supreme Court in the case of Chandigarh Administration (supra), was dealing with entirely different situation, which is clear from the principles propounded in that case, as stated in para 30 of the said judgment. The issue arising in the present case was neither raised nor decided in the said decision.

18.

Other decisions, which have been cited by learned State counsel, are based on considerations distinguishing decision of the Supreme Court in the case of Ram Kumar Gijroya as also judgment in the case of Dolly Chandra (supra).

19.

In the present case, we have held that the principles laid down in the case of Dolly Chandra (supra) provided guideline as to whether in a given case, relaxation can be granted, the decisions cited at the bar by the learned State counsel do not help the case of the State.

The submission of the learned State counsel that the principle of

relaxation laid down in para 7 of the judgment in the case of Dolly Chandra (supra), would be restricted only to the case where a certificate has actually been submitted, but with some defect and not in other case of delayed submission, cannot be accepted. The principle of relaxation laid down in para 7 of the judgment in the case of Dolly Chandra (supra) is of universal application and there is nothing in the observation that seeks to restrict the principle only in a case of timely submission of defective documents, which is clear from the observation made in para 8 of the said judgment, wherein reliance has been placed on earlier judgment of the Supreme Court in the case of Charles k. Skaria (supra). In that case, candidates, who had obtained diploma certificates,, but certificates were not attached at the initial stage of selection.

In this factual backdrop, even aspect of delayed submission was taken into consideration by the Supreme Court by explaining that to make mandatory the date of acquiring the additional qualification before the last date for application, cannot be relaxed, but if it is unshakeably shown that the qualification has been acquired before the relevant date, invalidation would not be proper merely because, it was not submitted in a manner not mentioned in the prospectus, if the declaration/ certification is undubitable and undisputed. In the present case, we find that the petitioner belongs to the disabled category. It is not that he was not possessed of declaration of disability at all. In fact, he is holding the certificate of disability issued by the District Level authority of the State.

Secondly, when he appeared in the counseling, it was not objected to and he was permitted to participate in the counseling. Thirdly, the petitioner, in any case, obtained certificate from the State Medical Board, though belatedly. This certificate of disability has not been disputed by anyone. Lastly, it is not a case that any candidate, below in order of merit, fully eligible in terms of the rule, has been granted admission and granting any relaxation in favour of the petitioner will do injustice to another candidate for none of his fault.

20.

Learned State counsel stated that one candidate, Chandani Patel, placed below in order of merit, has also filed writ petition before this Court, because her candidature was rejected on the same ground as of the petitioner. That means, in support of the case of the petitioner, no other candidate have been granted admission otherwise also found meritorious and possessed of disability certificate in his favour on or before the last date of registration. The aforesaid contention on peculiar facts obtaining on the records of the present case convinced us that the present is a case for grant of relaxation in favour of the petitioner to allow admission despite that he had obtained disability certificate after the cut off date of registration. This is peculiar to the present case only. 21.

There is yet another weighty reason for us to hold in favour of the petitioner. Coordinate Bench of this Court in the case of Naaz vs. State of Chhattisgarh and others12, where a candidate desirous of admission in Economically Weaker Section had filed EWS certificate of previous year and not of the present year and as per the requirement of rule, desired certificate was submitted after the cut off date.

Dealing with the issue, the Coordinate Bench of this Court examining the scheme of the rule found that as far as scrutiny of the EWS certificate is concerned, that was within the domain of the authority of the Department of Medical Education, who permitted the candidate for counseling, but the college authority denied admission of that petitioner by rejecting her candidature, it was held that it was not within the domain/jurisdiction of the college authority to deny admission on that ground, once Director, Medical Education had accepted the certificate.

In the present case, situation is somehow similar in as much as the petitioner had submitted disability certificate issued by the District Level Authority, but later on, the disability certificate issued by the State Medical Board was submitted before the Department of Medical Education and the said authority allowed the petitioner to participate in the counseling and granted provisional admission, but, the College authority had 12 WPC No.

not accepted the certificate and rejected his candidature. The disability certificate as per Rule 7 of the Rules of 2018 was a matter of consideration by the Department of Medical Education and once the said authority had accepted the candidature, it was not within the domain of the college authority to reject the same. In this regard, the Coordinate Bench of this Court in the case of Naaz (supra), held as below:- 8.

"The learned counsel points out that documents mentioned under Rule7(xxi)(A) of the 2018 Rules are the documents required for counselling which is an exercise pursued by the DME, whereas the documents mentioned under 7(xxi)(B) are the relevant documents to be dealt with by the Institution. The Income Certificate, to declare the status in the EWS segment is a document to be considered by the DME as per the relevant Rules. The income status of the Petitioner was in fact verified in the light of the relevant documents and having found the Petitioner eligible, the 3rd Respondent/DME issued Annexure-P12 provisional allotment letter. The remaining exercise to be completed by the 2nd Respondent was only to verify the original documents and not to go beyond the allotment already given by the DME vide AnnexureP/12. 9.

In this context, it is relevant to note that Annexure-P1 rejection of the candidature has been issued by the 2nd Respondent with reference to Rule 7(iii) of the 2018 Rules; which is reproduced below :

"7- dkmaflfyax izfdz;k & XXX XXX XXX (iii) vkWuykbZu dkmaflfyax esas iath;u gsrq fu/kkZfjr vafre frfFk rd mijksDrkuqlkj mYysf[kr ewy nLrkost viyksM ugh afd;s tkus ij vH;FkhZ dkmaflfyax izfdz;k gsrq vik= gksxkA iath;u dh vafre frfFk ds i'pkr tkjh fd;s gq, ewy nLrkost ekU; ugha gksaxsA mDr frfFk rd izek.k i= izkIr dj viyksM fd;s tkus dk nkf;Ro iw.kZ :is.k vH;FkhZ dk gksxk A 10.

It is true that the relevant documents which are sought to be relied on have to be uploaded before the cut-off date. In the instant case, the Petitioner had uploaded Annexure-P/10 Income

Assessment Certificate dated 16.01.2020 before the cut-off date, in support of her claim, to be in EWS category. It is true that the said certificate was for the year2019-20, but no objection was ever raised by the DME in this regard,who was convinced of the EWS status of the Petitioner. The DME did require the Petitioner to produce any fresh certificate to ascertain the status as on date. It was the original of Annexure-P/10 certificate that was required to be verified by the College Authorities in the process of granting admission as required in Annexure-P/12. On pointing out the technical defect by the 2nd Respondent, the Petitioner rushed to the Competent Authority and obtained Annexure-P/13 certificate dated20.11.

2020, mentioning the validity as far 2020-21 and the same was produced before the 2nd Respondent, which however came to be rejected with reference to Rule 7(iii) as mentioned above. Annexure-P/13 is only an updated certificate of AnnexureP/10 and this was also admittedly produced before the 2nd Respondent on the same day i.e.20.11.2020. It cannot be treated as a 'fresh document' or new material to oust the candidature of the Petitioner, who has come out meritorious in the process of selection and was given provisional allotment by the3rd Respondent/DME as per Annexure-P/12."

22.

In view of above consideration, we are inclined to pass an order in favour of the petitioner directing respondents to grant admission to the petitioner against one seat which has been directed to kept vacant at Bharat Ratna late Shri Atal Bihari Vajpayee Memorial Medical College, Rajnandgaon. The authorities shall act in due compliance of the order upon production of the web copy of the order without insisting on production of certified copy of the order. SD/- SD/- (Manindra Mohan Shrivastava) (Vimla Singh Kapoor) Judge Judge Tumane