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Re: Article 32 of The Constitution of India [1994] INSC 33 (14 January 1994)

ACT:

HEAD NOTE:

ORDER

1. The petitioner filed this writ petition under Article 32 of the Constitution of India praying for direction for consideration of her admission to MBBS course against the 15% All India quota of 1992. She was originally allocated a seat in Medical College, Alleppey, Kerala. She prayed for transfer to Lucknow.

2. This writ petition along with similar other writ petitions were taken up for consideration by this Court.

Comprehensive directions were issued in relation to admissions. In obedience to this order of this Court, a notification dated May 28, 1993 was issued by the Director General of Health Services requiring the candidates to signify their willingness to be considered for admission under the scheme evolved by the court. By an order dated June 10, 1993 of this Court, inter alia the following directions were given :

"(i) The Director General of Health Services will first consider the cases of all those candidates who have applied for change of college and whose applications are pending before the Directorate on the date of this order including the petitioners in W.P. Nos. 370, 383, 447, 458 and 466 of 1993.

(vii) In case any candidate who has been allotted a seat against All India quota in pursuance of this order does not avail of the same and fails to report in the college to which he has been nominated by July 15, 1993, the seat allotted to the said candidate would stand surrendered to the State quota."

3. In spite of the matter being in selsin of this Court, the writ petitioner moved the High Court in Writ Petition No. 1508 of 1993 before the Lucknow Bench of Allahabad High Court and obtained certain directions. The High Court ordered that a seat be kept vacant in the King George Medical College, Lucknow. By our order dated July 27, 1993, we disapproved of the High Court entertaining the writ petition and a stay of the order was granted.

4. Petitioner was allocated a seat in S.N. Medical College, Jodhpur. She prays that she might be accommodated in Lucknow. She gives instances of following five persons who being lower in rank to her, have been accommodated in Lucknow.

(a) Km Neetika Pant (W.P. No. 563 of 1993) merit rank No. 1718 wait-listed candidate, resident of Allahabad has been reallocated seat at S.N. Medical College, Allahabad. 372

(b) Mr Vibhuti (W.P. No. 564 of 1993) merit rank No. 1460 also a resident of Allahabad has been reallocated seat at S.N. Medical College, Allahabad. Initially admitted at T.D. Medical College, Alleppey, Kerala.

(c) Mr Rajiv Kumar Goyal (W.P. No. 458 of 1993) merit rank No. 2118, wait-listed admitted candidate, resident of Bareilly has been reallocated seat at Meerut from Dibrugarh.

(d) Km Anshu Aggarwal on representation submitted to the respondent, merit rank No. 1958 wait-listed candidate admitted at Berhampur, State of Orissa, resident of Kanpur, has been reallocated seat at M.L.B. Medical College, Jhansi.

(e) Km Neelu Aggarwal (W.P. No. 544 of 1993) admitted at Thanjavur, State of Tamil Nadu, merit rank No. 1284, resident of Agra, has been reallocated a seat at Lucknow.

5. In his counter-affidavit, the Assistant Director General (Medical Education) states in paragraph 7 as under :

"With regard to the averments contained in paragraph 8 1 submit that the list submitted to the Court on June 10, 1993 included only those candidates who had applied after the last date of receiving applications for first of the allocation viz. December 28, 1992, the candidates who had applied up to December 28, 1992 were not included in the list and therefore the names of the petitioners did not figure in the list." In reply, the petitioner would aver as under:

"Contents of para 7 are wrong and incorrect to the knowledge of the deponent of the affidavit under reply and the same are vehemently denied. In the list submitted by June 10, 1993, some of the candidates who had applied before December 23, 1992 for change of medical college were included and one such example is Km Namita Jhamb (1465) at Serial No. 37. It is submitted that Km Namita Jhamb had applied before December 28, 1992 and her representation was not considered by the respondent where for no change was given to her. Km Namita Jhamb preferred writ petition before this Hon'ble Court and annexed her representation and acknowledgment thereof issued by the respondent herein before December 28, 1992. It is, therefore, false to the knowledge of the respondent that the candidates who had applied after December 28, 1992 for change of medical college were included in the list and the candidates who had applied before December 28, 1992 were not included therein. The statement on oath made by Professor Girish Tayal, Assistant Director General is false and he deserves to be proceeded against for suitable action for deliberately and knowingly making a false statement on oath before this Hon'bl e Court." .lm0

6. Again by way of reply to the supplementary affidavit of the petitioner filed on November 8, 1993, it is stated by the Assistant Director General (Medical Education) in paragraph 7 as under 373 "I submit that Kumari Rohini Khurana had been placed at rank No. 1312 and was allotted a seat at Medical College, Thanjavur on October 1, 1992. The petitioner has been placed at rank No. 1462 in the same entrance examination. Kumari Rohini Khurana could not be reallotted either on January 25, 1993 or on June 28, 1993 due to non-availability of a seat at her rank as per her choices. Kumari Rohini Khurana again requested for a change to K.G.M.C., Lucknow vide letter dated September 3, 1993. A seat was found to be vacant at K.G.M.C., Lucknow and she being higher in merit than the petitioner was allotted said seat on October 28, 1993. On July 26, 1993 this Hon'ble Court while staying the order of High Court at Lucknow for keeping a seat vacant at K.G.M.C., Lucknow for the petitioner (Kumari Chhavi Mehrotra) has directed that the Director General of Health Services is at liberty to fill it up otherwise." Further it proceeds as follows :

"I submit that the petitioner in this para has herself admitted that Kumari Rachna Aggarwal rank No. 1071 has sent a representation to the Secretary, Medical Education, Govt. of Uttar Pradesh and Director of Medical Education, Govt. of Uttar Pradesh for her reallocation to K.G.M.C., Lucknow in August 1992. The said representation of Km Rachna Aggarwal has not been received by this respondent. This respondent came to know of the High Court's order on October 25, 1993 through the telephonic message from the Director of Medical Education, Govt. of Uttar Pradesh.

This respondent was asked about the eligibility for the admission of Km Rachna Aggarwal to K.G. Medical College, Lucknow at her merit position 107 1. The Director of Medical Education, Govt. of Uttar Pradesh was informed about this Hon'ble Court's orders dated July 26, 1993 and July 30, 1993 advised to act accordingly. The perusal of the order of Hon'ble High Court at Lucknow annexed with the supplementary affidavit of the petitioner shows that the High Court has directed the respondents (Secretary, Medical Education, Govt. of U.P., Director, Medical Education, Govt. of Uttar Pradesh) and the Principal, K.G. Medical College, Lucknow to consider the application of the petitioner for her migration/admission to K.G.M.C., Lucknow and pass appropriate orders considering the guidelines of the Medical Council of India as well as the notification in that regard within 15 days from the date of production of a copy of this order. I submit that the DGHS was not a party to this petition."

7. The same stand is reiterated in the affidavit dated January 4, 1994 filed by the Assistant Director General (Medical Education) in relation to the admission of Kumari Rachna Aggarwal.

8. It is somewhat surprising that whenever it suited the Director General of Health Services to obey the orders of the High Court, he would not bring up this matter to this Court but chose to obey even though he was not a party. Be that so.

374

9. In spite of the specific directions dated June 10, 1993 requiring the surrender of unfilled seats to State quota, we do not know how there could be a disobedience thereof. Then again, there is disobedience of directions dated June 10, 1993, in that Kumari Jaya (rank No. 703) and Mr Anup Kumar (rank No. 575) were not in the list of eighty candidates, the list which came to be submitted to this Court. Lastly, in relation to Kumari Namita Jhamb (rank No. 1465) the application is prior to December 28, 1992 while it is sought to be made out that the candidates who had applied after December 28, 1992 were included in the list dated June 10, 1993. This statement is misleading.

10. Accordingly, we direct issue of notices to the Director General of Health Services and Dr Girish Tayal, Assistant Director General (Medical Education) to show cause why they should not be proceeded against under Section 2(a) of the Contempt of Courts Act, 1971 and be punished under Section 12 of the said Act.

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