Decided on October 21,2013

Dr. Himmani Gupta Appellant
State of Uttarakhand And Ors. Respondents


Sudhanshu Dhulia, J. - (1.) THE petitioners have done their Bachelor course of Ayurvedic Medicine and Surgery (hereinafter referred to as 'B.A.M.S.') from an institute in Uttarakhand. However, when the petitioners sought admission in a Post -Graduate Ayurvedic Medical course, the candidatures of the petitioners was considered as an "outsider" candidate and not as a "insider" candidate as there is a condition mentioned in Clause (ii) of the information Brochure in which it is provided that only such those candidates will be given the admission under the quota of State of Uttarakhand (i.e. as an "insider"), who have their domicile in Uttarakhand!
(2.) ADMITTEDLY , Dr. Himani Gupta and Dharmendra Kumar (the two writ petitioners above), are permanent residents of Delhi and Uttar Pradesh respectively. However, once the petitioners have already done their graduation from an institute in Uttarakhand, they cannot be considered outsider for a Post -Graduation course, the petitioners contend. According to the State counsel, the petitioners are not having a domicile of Uttarakhand. Mr. R.C. Arya, Standing Counsel for the State has argued that the petitioners are in fact estopped from seeking any remedy before this Court inasmuch as these are the candidates who had participated pursuant to the advertisement and the brochure conditions given in the brochure, which had been issued as far back as in August, 2012 and they were fully aware of such conditions. Consequent to that they have proceeded in the selection process and having failed in the selection process they are estopped from challenging the selection process by means of the present writ petitions. In support of their contention, the State counsel has relied upon a judgment of Hon'ble Apex Court in Dhananjay Malik and others v. State of Uttaranchal and others : (2008) 4 SCC 171 wherein while making selection of Physical Education Teachers, the Hon'ble Apex Court observed that no relief can be granted to the persons who have participated in the process and have failed to get an appointment or selection and they are estopped from complaining that the selection process was not in accordance with rules.
(3.) HOWEVER , it is not a case where petitioners participated in a "selection process" in the manner in which it is contemplated. Here the very "exclusion" of the petitioners is on a complete misreading and misapplication of the principle of "domicile".;

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