SANEH DEEP Vs. STATE OF U P

JUDGEMENT

(1.) By way of this application petitioner seeks provisional admission to any Medical College in the State, preferably S. N. Medical College, Agra as an interim measure during pendency of the writ petition in this Court After hearing learned counsels for parties at some length the ultimate relief which is proposed to be moulded is little unusual but the circumstances are so extra-ordinary that it is necessary to preface it by a reasoned order. While admitting the petition on 6-3-1982 the Bench permitted petitioner to serve respondents 2 and 3 personally. Notice on behalf of respondent No. 1 was accepted by the learned Standing counsel. He was granted three weeks time to file counter-affidavit. Affidavit of service has been filed. Respondent No 2 Meerut University, which conducted the combined Pre-Medical List of 1981 (hereinafter referred as C. P. M. T.) has put in appearance and has filed counter-affidavit. No counter-affidavit has been filed by respondent No. 1, State of Uttar Pradesh. But that does not make any difference in view of the facts which shall be narrated hereafter. But the application has been vehemently opposed both by the learned Standing counsel and the counsel for University. Admittedly the 'key answers' to some of the questions in Chemistry were incorrect. Two of the candidates who were not selected but were shown in waiting list approached this Court in December. 1981 by writ petitions No. 13970 and 13971 of 1981. In the supplementary counter-affidavit filed by the Registrar of the Meerut University the mistake was admitted and a chart was filed showing the received marks which the candidates ought to have been awarded, A copy of that chart has been filed by the Registrar in this petition as well. According to it thirty two candidates including those whose petitions were allowed were entitled to get more marks than the marks of the last candidate selected and admitted. In counter affidavit it has been stated that as a result of evaluation petitioner's position became 30 instead of 28. May be so but she is still above the last candidate selected. On this charge and as a result of concession by the respondent University the Division Bench which heard those petitions held: "the facts conceded by the respondent-University the conclusion seems inescapable that the petitioners were wrongly and illegally refused admis sion on the basis of a mistaken evaluation of their answers in Chemistry arising from the errors in the 'key answer themselves. There has thus been in our view, a clear breach of instruction No. 27. The petitioners have, on the facts established and admitted, become entitled to be admitted on merit. " A direction was issued to admit those candidates. When petitioner heard the rumour, as the decision has not been published as yet, she contacted the authorities but as no redress was available she approached this Court. It is indeed agonising and painful that despite a decision of this Court concluding the matter finally the petitioner had to knock the door again under Article 226 of the Constitution of India. It is a sad commentary on the attitude of respondents who did not take up the matter in right earnest and wait for every wronged candidate to invoke the litigative process. The least that can be expected of public bodies is to correct their mistake if it is found to be genuine but unfortunately for the candidates even after the decision by the Court nothing appears to have been done. What could be more imperative and urgent to engage attention of respondents than the career of these candidates who after keen competition and very high percentge of marks qualified to be selected, achis amac nemine fact injuriem. The Act of the Court does wrong to none. It is well established dictum that no one suffers for mistake of Court. Same principle applies to public bodies. There appears to be no difference between examining bodies entrusted with such grave responsibility of conducting professional examination. Why the mistake of incorrect answers should result in wrong to candidate whose answers were correct. The opposition by the learned Standing counsel and that also vehemently cannot be appreciated. It is a welfare State which treats its citizens equally. Education in Medical Colleges is undertaken by State. A big State like ours can without the least strain bear the expenditure of thirty two more candidates. The argument of learned counsel for Meerut University that as only three candidates had made representation and they were granted relief the dors of this Court are shut for others is not only untenable but shocking. Such litigations are by nature representations in character. The mistake is identical and if one is entitled to relief there can be no ground of denying it to others. It would be worst kind of discrimination, unsupported by any rationale. To expect representation under instruction 26 which contemplates correction of factual error is indeed amazing. Representations are made to focus attention on the wrong which the person suffering due to order of authority but where the mistake stands admitted and that also of such magnitude nothing remains to be done. Further the argument ignores the size, population and poverty of our State. Many villages do not have even proper postal facility or speedier mode of transport. And yet the candidates from such far areas come to appear in competitive examinations in search of career. Once the results are declared many may resign to their fate due to paucity of fund, non-availability of legal advice, lack of contact and poor knowledge, should these candidates be permitted to suffer for the draw-backs for which they are not responsible. On the other hand the respondents could have easily found from the record the address of those candidates, informed them of the mistake which occurred on their end, would have exhibited the magnanimity and responsibility by moving the State Government for creating additional posts for this year and admitted all of them. This is the least that should have been done by them if not compensation for mental agony and shock that those candidates must have suffered, after having been declared unsuccessful. "the learned counsel for opposite parties submitted that allowing of the application for interim relief would amount to allowing of the writ petition. Therefore, the petition itself may be listed for hearing. The suggestion, no doubt, is very attractive. But in the circumstances it is both unnecessary and illusory. Unnecessary because the controversy on merits stands concluded by a Division Bench decision of this Court and the order it is stated has been accepted by respondents. Illusory because due to shortage of Judges no Benches are available for final hearing and nearly the entire High Court is busy in doing fresh petitions and orders cases. Due to this difficulty even applications for vacation of stay orders are being listed after long gap. And in cases where orders have been passed expediting the hearing they arc not being listed. The batch of 1981 was admitted sometimes in September, Six months have already elapsed. Even if the petition is directed to be listed for hearing after a week due to heavy pressure of work it may be taken up only after summer vacation. And then even if the petition is allowed, petitioner's one valuable year shall stand lost. " For the reasons stated above this application is allowed. The respondents are directed to admit petitioner in any of the Medical Colleges of State prefer ably S. M. Medical College, Agra in M. B. B. S. course of 1981-82. Respondent No. 1 did not file any counter-affidavit in writ petitions which were allowed. It is expected that it was not sheer omission bat a gesture of good grace. It is directed to take steps immediately to create as many additional posts as are necessary to accommodate the candidates mentioned in the chart filed by respondent No. 2 in the academic year 1981-82 for examination held in 1981. Urgency of the matter need not be emphasised. Such was the course adopted by Hon'ble Supreme Court in State of Kerala v. V. T. D. Roshana. ( A. I. R. 1959 S. C. 765) It was observed:- "the Selection of these 30 students will not be confined to those who have moved this Court or the High Court by way of writ proceedings or appeal. The measure is academic excellence, not litigative persistence. " Respondent No. 2 is directed to intimate all such candidates immediately that they are entitled to be admitted to M. B. B. S. courses of 1981-82. All those who are willing to be admitted shall be allotted to respective Medical Colleges in accordance with instructions and guidelines in this regard. A copy of this order shall be furnished to learned counsel for parties today on filing requisite application. Apart from it the office shall send copies immediately to Secretary, Medical Health and Family Planning, U. P. Govern ment and Director, Medical and Health Services, Lucknow. Allahabad Law Reporter Editorial Note: The Meerut University held in July, 1981, the Combined Pre-Medical "test. 1981. for the selection of candidates for admission to the various Medical Colleges of the State of Uttar Pradesh. The admissions were to be made strictly in order of merit. The test comprised of four papers of Chemistry, Physics, Botany and Zoology. In each paper 100 questions were put by the University. " The candidates were required to choose and fill in the chart one of the four alternative answers provided by the University to each one of the questions. If the answer of a candidate tallied with the one marked by the University as the correct answer, he received three marks for it; if it did not so tally he lost one mark. Two candidates Km. Neelima Bhatnagar (General Female category) and Sushil Kumar (Backward Male category) discovered after the results were declared that the University had judged four of the questions in the Chemistry paper according to wrong answers and that the answers given by them to the four questions (alone) were the correct answers; accordingly, they had been deprived of three plus marks and lost one mark for each one of the four questions. They sent representations to the Meerut University. The representations went unheeded. They ultimately filed writ petitions in the Allahabad High Court. During the pendency of the writ petitions, the Meerut University conceded that it had given wrong answers to the aforesaid four questions. Accordingly 16 marks were added by it to the marks of Neelima Bhatnagar and Sushil Kumar as also some other candidates. As a result of this increase in the marks the candidates now obtained more marks than the last candidates selected in their respective categories. The High Court was faced with the question whether it should allow all the candidates whose marks had improved now to get admissions to the Medical Colleges or only the two petitioners. It decided that since the two petitioners alone had made representations to the Meerut University and others had not, they alone would be given admission and not the others. On hearing about this judgment another candidate Km. Sneh Deep whose marks too had been increased by the Meerut University, filed the present writ petition in the Allahabad High Court claiming admission to the Medical Colleges of the State. Km. Sneh Deep had made no representation to the Meerut University, (because of ignorance of the mistakes in the University answers ). While passing the interim order reproduced below the Hon'ble Mr. Justice R. M. Sahai held: (i) the fact that Km. Sneh Deep did not make any representation was immaterial to the question of entitlement to admission to the Medical Colleges. (ii) the relief given to Km. Sneh Deep must be given to all others similarly situated irrespective of whether they had filed petitions in the High Court or not. .