- (1.)WE have heard Mr. M.K. Bhardwaj, learned senior Advocate, along with Mr. Ajay Abrol, Advocate, representing the appellant as well as Mr. K.S. Johal, learned Additional Advocate General and Mr. D.S. Thakur, advocate, appearing for the respondents, in extensor.
(2.)THIS appeal is directed against the judgment and other dated 27 -2 -2003 propiunded by learned Single Judge in SWP No. 433/2002, entitled Dr. Harbaksh Singh & others Versus State of J&K & others. By the aforesaid judgment and order, the learned Single Judge held that the admission of the petitioner to the MD Anaeshthesia was fraudulent and he was a party to the fraud, so cannot be permitted to say that he was entitled to hearing before his admission came to be cancelled and therefore, not entitled to any relief, and dismissed the writ petition with costs.
(3.)FACTS relevant for the disposal of this letters patent appeal in resume may be noticed. After the issuance of the select list of the Entrance Examination for admission to various courses in the State of Jammu and Kashmir held on 31st December, 1995 and 1st January ,1996 unsuccessful candidates including the petitioner filed various writ petition to press their claim for admission to various courses. The appellant/petitioner also approached the court through writ petition being SWP No. 1742/1999 in alleging that no seat has been allotted under Sports category by the competent Authority. The court in disposing of the writ petition, issued a direction to the competent Authority to fill up the seat in sports category, of course, considering the merits of the candidates, who appeared in the Entrance Examination. Dr. Vipin Mangotra, on account of his merit in Sports category being at Serial No. 1, was given admission in MD Anaeshthesia, whereas seat in Diploma in Anaeshesia was allotted to the writ petitioner/appellant, who was at Serial No. 2 in the merit Subsequently, Dr. Vipin Mangotra was granted admission in post -Graduation in Radio Diagnosis in pursuance ot a direction of the Supreme court in SLP filed by Dr. Vipin Mangotra. In a civil Appeal No. 4935 of 2000 field by Dr. Vikrant Parihar, the Apex court in taking note that no post -Graduation Entrance Examination was held after 1995 -96 and the candidates, who participated and passed MBBS in the said Entrance Examination, continued to get admission for the candidates, who passed the MBBS Examination after 1996 to compete and pursue post -Graduate courses in various disciplines of medicine, issued the following direction: (i) The competent authority shall conduct an entrance examination for selection of Doctors for admission to post Graduate Degree and Diploma courses in different disciplines in the Medical College in the State of Jammu and Kashmir on the basis of their merit, (ii) All eligible candidates whether in the earlier selection list or not shall be entitled to take part in the said entrance examination. (iii) Rules relating to reservation of seats to the extent permission in law and applicable, shall be respected by the authorities at the time of making selections and admission. The Apex court, however, did not disturb the admission already granted to the candidates and continuing with their post -
Graduate course in Pursuance of the orders made by High Court or the Supreme court, but directed the Entrance Examination to be held for filling up the determined vacancies for the Post -Graduate courses for 1999 -2000 Academic Session, In pursuance of the direction of the Supreme Court, the Entrance Examination was to be conducted within two months from the date of the order. Another writ petition came to be filed by the petitioner, being SWP No. 2219/2000, after the decision of the Supreme Court dated 06 -09 -2000 in case of Dr. Vikarnat Parihar and urged that the seat in MD Anaesthesia vacated by Dr. Vipin Mangotra who after having been allotted seat in Radio Diagnosis in Sports category, be given to him, being next in order of merit. This writ petition was, however, dismissed in view of the judgment of the Supreme Court in Dr. Vikrant pariharâ„¢s case. In that service Writ Petition no.2219/2000, chairman and Registrar, competent Authority, entrance Examination, were also respondents and had a knowledge of dismissal of the writ petition. Despite direction of the Apex Court for holding entrance Examination within two months of the order made in Dr. Vikarnat Pariharâ„¢s case, the Competent Authority gave admission to the petitioner in MD Anaesthesia vacated by Dr. Vipin Mangotra, merely because the petitioner had been pressing his claim for the said seat since the year 1999. this act of the Competent Authority being in clear defiance of the order of the Supreme Court, led to initiate Contempt Petition, in which Competent Authority tendered an unconditional apology and cancelled the admission of the petitioner in issuing a notification No. 13 -CAEE of 2002 dated 12 -02 -2002 in withdrawing the earlier notification no. 14 -CAEEof2001, by which admission was granted to the petitioner in MD Anaesthesia, which became the subject matter of challenge in SWP no. 433/2002 filed by the petitioner or twin grounds; firstly, that he had not been heard by the Competent Authority before the learned Single was that he could not be made a victim of the remissness of the Competent Authority by allotting him seat in MD Anaesthesia and which, subsequently, could not be cancelled once he had started attending the classes. It may not be out of place to mention that the Supreme Court in Dr. Vikrant pariharâ„¢s case protected the admission of only those candidates, who had already been granted admission and are pursuing various Post -Graduate courses either under the orders of the High Court or the Apex Court - The petitioner was neither granted admission nor undergoing Post -graduate status on the date of the decision, so was not saved by the aforesaid judgment of the Apex Court. The petitioner therefore, cannot stake his claim to the seat in MD Anaestheia vacated by Dr. Vipin Mangotra and entitled to relief merely on the ground that he was next in merit in Sports Category, it, is therefore, explicit that the admission by the Competent Authority to the petitioner was in contravention to the judgment of this High Court passed in SWP No. 2219/2000. As a matter of fact, the admission was given by the competent Authority, Entrance Examination, to the petitioner in MD Anaesthesia despite he fact, that he was a party before the Supreme Court and also in the writ petition filed earlier by the writ petitioner, which stood dismissed in view of the judgement of the Apex Court and, therefore, had a full knowledge of the direction of the Apex Court, but yet granted admission to the petitioner.