- (1.) RAJES Kumar, J. Heard Sri A. K. Gupta, assisted by Sri Ashish Agrawal, learned Counsel for the petitioner and Sri Vijay Bahadur Singh, learned Senior Advocate and Sri Pankaj Naqvi, learned Counsel appearing on behalf of Banaras Hindu University.
(2.) IN the present petition, the petitioner is seeking the following reliefs: (a) Issue writ, order or direction in nature of certiorari quashing the coun selling held on 12. 6. 2007 for the M. D. /m. S. Courses of INstitute of Medical Sciences (BHU) Varanasi. (b) Issue writ, order or direction in the nature of mandamus commanding the respondents to grant the admission to the petitioner on the available seat in the department of Anaesthesiology in M. D. Course. (c) Issue any other writ, order or direction please this Hon'ble Court may deem fit in the circumstances of the present case. The brief facts set up in the writ petition are as follows: The petitioner passed MBBS course and applied for the course of M. D. /m. S. and appeared in the admission test for M. D. /m. S. course conducted by the Insti tute of Medical Sciences, BHU, Varanasi in the year 2007 held on 18. 2. 2007. The petitioner appeared under the general category and secured position in waiting list. The said position was 31 to 34 and the same was subject to determination and verification of inter se merit as the petitioner along with some other candi dates secured equal marks. In pursuance of his selection in waiting list, the petitioner was issued a Counselling letter dated 17. 4. 2007 and the petitioner was required to appear in Counselling on 14. 5. 2007 at 10-00 A. M. in the office of the Director, IMS, BHU, Varanasi. In the Counselling letter a bifurcation of seats available with reference to the subject was provided. As per chart in the Anaesthesiology Department for General Category there were two seats. The petitioner was interested in Anaesthesiology subject. In the Counselling the peti tioner was informed that two seats of Anaesthesiology were filled by the candi dates who secured a better rank than the petitioner and since the petitioner was not interested in other subjects, when the other subject was being offered, the petitioner gave his consent i. e. not interested and signed the attendance register. When the petitioner came to know that two additional seats for Anaesthesioiogy subject were provided, and Counselling was going to be held on 12. 6. 2007, on 11. 6. 2007 the petitioner moved an application to the Director of IMS, BHU, Varanasi which was duly received in his office on the same day. In the said letter the petitioner categorically stated that since in the first Counselling held on 14. 5. 2007 he was not getting the subject of his choice i. e. Anaesthesiology and was not interest to any other subject. Now the second Counselling held on 12. 6. 2007, two seats for Anaesthesiology M. D. Course were available and thus the petitioner requested that he may be permitted to participate in the Counselling to be held on 12. 6. 2007. Despite the aforesaid letter, the petitioner had not been called upon in the second Counselling held on 12. 6. 2007 and the two candidates, namely, Dr. Rama Kant and Dr. Abhishek Srivastava whose ranks were about 100 to 105 were called for Counselling and were selected for M. D. Course in Anaesthesiology Department. The claim of the petitioner is that when after the Counselling held on 14. 5. 2007 two new seats had been provided to the University for Anaesthesiology Department which were not available earlier, the petitioner should have been called upon to participate in the Counselling in respect of the said subject on 12. 6. 2007 and the denial to participate in the Counselling held on 12. 6. 2007 amounts to infringement of the petitioner's fundamental right. Learned Counsel for the University submitted that though there is no spe cific statutory Rules or Regulations provided for the counselling but the procedure which has been followed by the University since long, in the second Counselling only those candidates who have not been called upon in the first Counselling were being called in the second Counselling. The same procedure had been adopted for two seats of Anaesthesiology which were provided to the University in addition to the earlier two seats and therefore, the petitioner was not called upon to participate in the Counselling held on 12. 6. 2007. He further submitted that the petitioner has waived his right by saying "not Interested" in Counselling held on 14. 5. 2007 and therefore, cannot raise his claim subsequently. He further submit ted that the Counselling was held fairly by a committee constituted by the re puted Professors and there are no allegation against them of being biased or unfair.
(3.) LEARNED Counsel for the petitioner further submitted that two seats for v Anaesthesiology subject came after the Counselling held on 14. 5. 2007 therefore, the fresh procedure for calling to the candidates for the said seats should be adopted and it should not be considered to be the part of the earlier Counselling held on 14. 5. 2007 for the seats available on the said date. He submitted that the consent of the petitioner, namely not interested on 14. 5. 2007 was confine to the seats available at the time of Counselling because the petitioner was not inter ested in any other subject other than Anaesthesiology and two seats available for the said subject had already been filled by the candidates of a higher rank and not for all time to dome in future. If the two seats of Anaesthesiology would have been available on 14. 5. 2007 the petitioner would have opted and be selected also for the said subject. Therefore, the consent not interested was only confined to the Counselling held on 14. 5. 2007 and will hot amount to waiver of his right to partici pate in the Counselling held in respect of seats created/provided in future. Learned Counsel for the petitioner further submitted that in the notification dated 26. 7. 2007 the list of the candidates provisionally admitted to M. D. /m. S. courses has been issued. In the said notification Dr. Amita Chaudhary has been admitted in a subject of Anaesthesiology subject to the final decision of the petitioner's writ petition. Thus, a proper precaution has been taken by the Univer sity to accommodate the petitioner in the event the writ petition of the petitioner would be allowed.;