Tuesday, December 6, 2022

Allahabad HC dismisses petition of NEET aspirants

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The Allahabad High Court has dismissed a petition saying it is tragic that super-specialty seats in medical courses are being wasted due to the lack of empathy of state machinery, especially when there is a dearth of trained specialist doctors in the country.

The Division Bench of Justice Attau Rahman Masoodi and Justice Om Prakash Shukla passed this order while hearing a petition filed by Dr Anand Kumar Singh and Others.

The Court observed that the stream of allopathic medical education in India at the level of post-graduate courses is broadly academic or experience oriented. Diplomate of National Board (DNB) at the post-graduate level lays more emphasis on experience, therefore, the allocation of selected candidates is preferred in the hospitals and now in the medical colleges as well. The experience oriented course recognised as DNB PG Diploma course is treated at par with PG medical courses recognised by the Medical Commission of India.

The facts of the case are that the petitioners appeared in NEET-2021-22 (PG) while being members of State Medical Services, UP. All of them have qualified in NEET-21 (PG) whereafter they were to appear for counselling to be allotted respective hospitals or State medical colleges. All the petitioners have opted for DNB PG Course, the allotment whereof was based on counselling to be held by UP Medical Education department as per schedule.

In the counter-affidavit placed on record, the scheduled date of counselling started from January and ended on 28.4.2022.

The first round of counselling was held in January 2022; round two was held in February 2022 and mop-up round was held on 28.4.2022 insofar as State quota seats of which the figure corresponds to 44 and 25 in the respective courses of DNB Diploma and Primary DNB respectively are concerned.

The petitioners, who had duly participated in the mop-up round of counselling on 28.4.2022, despite having presented themselves for allotment of State medical colleges, were not allotted the same for want of a NOC from the Department of Medical Health. It is for this reason that the colleges were not allotted to the petitioners, hence they could not report to the colleges for admission and deposit fee to pursue their course.

The counsel for the petitioners submitted that once the petitioners had duly qualified NEET-2021 (PG) and had participated in the mop-up round of counselling held on 28.4.2022, there was no reason for the department of Medical Education and Training to have withheld the allotment of respective medical colleges merely on account of non-issuance of NOC by the Department of Medical Health, UP.

The allotment of colleges being within the sole prerogative of the Department of Medical Education, who, according to the petitioners, was vested with such a power ought not to have kept the candidature of the petitioners hanging on that count particularly when the other candidates similarly situated were allotted the courses based on the same selection result of NEET-21 (PG).

The petitioners who were not communicated any reason except orally that the colleges cannot be allotted unless NOC is granted by the Department of Medical Health, approached this Court at the earliest objecting to the discriminatory treatment which they were meted with.

On the aspect of NOC, the Department of Medical Health, UP had placed reliance upon a government order dated 10.2.2022 where under only 10 NOCs were permitted to be granted to the successful candidates for allotment of seats in medical colleges but the government order having come to be challenged before the Court vide judgement dated 4.4.2022, was held to be prospective and inapplicable to the NEET-2021 (PG) held much prior to the issuance of such government order.

Likewise an order was also passed in favour of Dr Akansha Verma on 3.6.2022 in writ petition for grant of NOC which was acted upon vide letter dated 18 फ/56/2016 dated 14.9.2022.

The counsel for the petitioners further submitted that the bar of 10 seats as provided under the government order dated 10.2.2022 has also come to be lifted with the issuance of a subsequent government order dated 9.9.2022 in view of the orders passed by the Court.

It is rather an admitted position before the Court at this stage that the Director General of Medical Health, UP has already granted permission for NOCs vide letter dated in favour of the petitioners on 16.9.2022, therefore, the grievance that survives is as regards the allotment of the petitioners to the respective colleges against DNB-PG Diploma course for which the options exercised by the petitioners have to be acted upon like other similarly situated candidates.

The counsel appearing for the Director General, Medical Education vehemently argued that since the academic session has already begun, therefore, the petitioners cannot be accommodated against the vacant seats and there is no mechanism of redressal that can be invoked at this belated stage.

The Court observed that in the first round of counselling held in the month of January 2022, the start of session was mentioned to be w.e.f 1.2.2022. Admittedly, the second round of counselling proceeded thereafter in February/March and the candidates were allowed to join the respective courses as per the allotment of hospitals/colleges made.

Insofar as the seats belonging to State quota against DNB-PG Diploma courses are concerned, the last round of counselling i.e mop-up round was held on 28.4.2022 and except two candidates, Dr Akansha Verma and Dr Sanjay Singh, no other candidate was allotted a college.

Even the two candidates who were allotted the college could not join before 7.5.2022 which was fixed as the deadline for admissions against State quota. Interestingly all the candidates who were allowed to participate in the mop-up round of counselling on 28.4.2022, their commencement of admission as per the own circular of Director General, Medical Education issued on 22.4.2022, was fixed as ‘on spot’.

Having considered the entire gamut of facts & circumstances of the case, the Court held that the case of the petitioners is similarly placed with the case of those two candidates, who have been allowed to join the course in the second half of September, 2022. Thus, the court cannot be oblivious of the fact that an admission in a medical course is very important in the professional life of a candidate/student and payment of compensation to such candidate/student would not be a just and equitable relief. Further, a right to equal and fair treatment is imbibed as a component of Article 14 of the Constitution and any denial of fair treatment to the petitioner would not only violate his/her right under Article 14 of the Constitution but would also seriously jeopardize his/her right under Articles 19 & 21 of the Constitution.

Since, no fault is attributable to the petitioners, as they have pursued their rights and legal remedies expeditiously and without any delay and there is obvious fault on the part of the authorities and apparent breach of the rules & regulations, the Court is of the view that the petitioners can claim restitution of their rights and must be put back in the original position.

The Court noted that two candidates pursuant to the issuance of NOC by the Directorate of Medical Health, UP, have recently joined the PG course in the second half of September 2022, this court, during the course of hearing, enquired from the parties as to how these two candidates were allowed to join even after the cut-off dates, the explanation whatsoever offered, in our opinion, is contrary to the dictum of the apex court.

However, the Court being of the considered view that the cut-off dates are sacrosanct and the violation thereof cannot be compromised, therefore, negative parity of any sort does not persuade us to direct modification of the schedule in PG courses as it may adversely affect the PG admissions calendar and it is open for the authorities to take corrective steps as regards any concession that may have been granted contrary to law. The judgment cited by the Counsel of the petitioners has been passed by the Supreme Court in exercise of its plenary power under Article 142 of the constitution of India.

Although, the petitioners claiming parity have been successful in demonstrating before this court that they are entitled to be treated equally with candidates, who have been granted NOC by the state Government on 09.09.2022 & 14.09.2022 and have since then joined the PG course as late as in the second week of September 2022, however, the hands of this court are tied and we would not depart from the settled view of academic schedule in order to add further anomalies.

The Court said that it is tragic that the super-specialty seats in medical courses are being wasted due to the lack of empathy of the state machinery, especially when there is a dearth of trained specialist doctors in our country. While our sympathies are with the petitioners and others similarly placed, we are unable to grant any relief to them or approve of the distinction pointed out; unfortunately, sympathies cannot supplant the law.

The Court found that the petitioners were wronged and were unnecessarily compelled to approach this court. Since, there is no claim for compensation by the petitioners as they have sought for allotment of medical colleges to them, the court in the peculiar facts & circumstances grants liberty to the petitioners to pursue for compensation/damages against the erring respondents in a separate proceeding.

Accordingly, the Court dismissed the writ petition.

“In the peculiar facts of the case, the respondent state is additionally burdened with a cost of Rs 25,000 to be paid to each petitioner towards the litigation cost of the writ petition.

Let a copy of this judgment be forwarded to the Director General, Medical Education and Training, UP, for necessary compliance forthwith. Any apportionment of the financial liability between the two directorates shall be an internal matter of the State but the actual payment of cost to each petitioner shall be made by the Director General, Medical Education & Training, UP, within a month,” the order reads.

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