THE HONOURABLE MR. JUSTICE M.DHANDAPANI W.P. NO. 24095 OF 2021 AND CONTEMPT PETITION NO.1605 OF 2021 W.P. No.24095of 2021 Dr. A.S. Sree Devi For Petitioner : Mr.G.Sankaran For Respondents : Mr. Jayaprakash, GA for RR-1 to 3 in both petitions Ms. Subharanjani Ananth for R-4 in WP No.24095/21 For the reasons aforesaid, the writ petition is dismissed. Pursuant to the order of dismissal of the writ petition and there being no willful disobedience of the orders passed by this Court, nothing survives for consideration in this contempt petition and, accordingly, the contempt petition is closed. ..

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on Pronounced on
15.03.2022 25.03.2022

CORAM

THE HONOURABLE MR. JUSTICE M.DHANDAPANI

W.P. NO. 24095 OF 2021
AND
CONTEMPT PETITION NO.1605 OF 2021

W.P. No.24095of 2021

Dr. A.S. Sree Devi .. Petitioner

– Vs –

1. State of Tamil Nadu
Rep. by its Prl. Secretary to Govt.
Health & Family Welfare Dept.
Fort St. George, Secretariat
Cjhennai 600 009.

2. The Director of Medical Education
Kilpauk, Chennai 600 010.

3. The Selection Committee
Directorate of Medical Education
162, Periyar EVR High Road
Kilpauk, Chennai 600 010.

4. The National Medical Council
Rep. by its Secretary
Pocket 14, Sector – 8
Dwaraka, New Delhi 110 077. .. Respondents

Cont. Ptn. No.1605 of 2021

Dr. A.S. Sree Devi .. Petitioner

– Vs –

1. Dr. J.Radhakrishnan
2. Dr. R.Nrayanababu
3. Dr. P.Vasanthamani .. Respondents

Writ Petition filed under Article 226 of the Constitution of India praying this Court to issue a writ of certiorarified mandamus to call for the records relating to the impugned notification issued by the 3rd respondent in No.006/SCSII(I)/2021 dated 3.11.2021 and quash the same insofar as the petitioner is concerned and consequently direc the respondents to restore the petitioner’s selection and admission to MDS course in Oral and Maxillofacial Surgery in Tamil Nadu Governmental Dental College, Chennai, under SCA category as per Provisional Allotment Order dated 2.10.2021 based on the second phase of counseling.

Contempt Petition filed u/s 11 of the Contempt of Courts Act to punish the respondents for willfully disobeying the orders passed in WMP No.25399/2021 in WP No.24095/2021 dated 9.11.2021.

For Petitioner : Mr.G.Sankaran

For Respondents : Mr. Jayaprakash, GA for RR-1 to 3
in both petitions
Ms. Subharanjani Ananth for R-4
in WP No.24095/21

COMMON ORDER
The writ petition has been filed challenging the impugned order in and by which the petitioner, who was initially allotted a seat in Oral Maxillofacial Surgery in the Government Dental College, Chennai, was shunted out of the said seat in the second round of counseling and provided with a seat in Oral Maxillofacial Pathology and Microbiology at Government Dental College, Cuddalore inspite of the interim order granted by this Court, which has led to the filing of the contempt petition for willful disobedience of the order.

2. The brief facts necessary for the disposal of these petitions are as under :-
3. The petitioner belongs to Schedule Caste – Arunthathiyar Community (for short ‘SCA’). She completed BDS course in September, 2019 and registered her name in the Tamil Nadu Dental Council. Thereafter, the petitioner participated in NEET-MDS 2021 examination conducted in which she secured 273 marks. However, due to the outbreak of the Covid-19 pandemic, the admission to PG Medical and MDS courses for the session 2021-2022 got postponed.

4. Upon resumption of the activities on the downfall of the pandemic, the 3rd respondent published prospectus for admission to MDS course, which prescribed that allotment will be made by online counseling by applying the rule of reservation. It is the stand of the petitioner that the counseling procedure consists of four rounds, viz., round-1, Round-2, Mop-Up and Stray vacancy round of counseling. It is the further averment of the petitioner that as per Clause 19 (iv) of the Prospectus, a candidate, who has not registered and choice locked in the first round of online counseling will not be permitted to participate in the subsequent rounds of online counseling.

5. As per the procedure, as notified in the prospectus, the second round of online counseling is to be conducted for the vacant seats arising due to All India Quota surrendered seats and/or not joined seats in State quota and/or newly sanctioned seats arising after the first phase of counseling. It is the further averment of the petitioner that she submitted application for admission to MDS course with the time stipulated and as per the schedule for MDS courses, the date of registration ended on 3.10.2021 and for choice filling and locking was fixed on 4.10.21 and 5.10.21. The first round of counseling was scheduled to be conducted on 6.10.2021.

6. It is the admitted case of the petitioner, as averred in the affidavit, that she has secured 8th rank as per communal rank and that she was not selected for admission in the first round of counseling. It is further averred by the petitioner that the 3rd respondent announced second phase of counseling and the petitioner also registered her name for second phase of counseling and further gave her choice filling option and locking of the said option within the date specified in the schedule.

7. It is the further averment of the petitioner that pursuant to the second round of counseling, as per the results published on 29.10.2021, the petitioner was given admission to Oral and Maxillofacial surgery in Government Dental College, Chennai under SCA category. It is the further averment of the petitioner that she reported before the Government Dental College, Chennai on 1.11.2021 and also paid her admission and college fees.

8. Whileso, the 3rd respondent/Selection Committee, uploaded the impugned notification on 3.11.2021 stating that in continuation of the communication received from the Medical University and Dental Council of India not to admit persons to MDS course in Raja Dental College, Tirunelveli and, therefore, the second phase of counseling for Government Dental Colleges and Government Seats in Self-Financing Dental Colleges stood cancelled. Subsequent to the recounselling conducted for the second round, the petitioner was provisionally issued allotment order allotting the petitioner to MDS course in Oral Maxillofacial Pathology and Microbiology in Government Dental College, Cuddalore, under SCA category.

9. It is the averment of the petitioner that the petitioner has been deprived of her admission in Oral Maxillofacial Surgery in Government Dental College, Chennai, on account of very many discrepancies in the second round of counseling, inspite of the fact that she was provided with admission and even got admitted on 1.11.2021 even before the order of cancellation. According to the petitioner, the admission of the petitioner in the college stood concluded and, therefore, the recounselling would not in any way affect the admission of the petitioner in the Government Dental College, Chennai. Aggrieved by the act of the respondents in conducting recounselling, which deprived the petitioner of her admission in Government Dental College, Chennai, the present petition has been filed to quash the impugned notification.

10. Pending the writ petition, interim order having been passed by this Court to keep one MDS seat in Oral and Maxillofacial Surgery in Tamil Nadu Government Dental College, Chennai, under SCA category vacant, the respondents having not kept the seat vacant and not complying with the order passed by this Court, the contempt petition has been filed for willful disobedience of the order.

11. Learned counsel appearing for the petitioner submitted that the prospectus for MDS course reveals four rounds of counseling, viz., Round-1, Round-2, Mop-Up counseling and Stray vacancy. It is the submission of the learned counsel that registration and choice locking are mandatorily to be followed even prior to the first round of counseling and persons, who have not registered or choice locked the courses in the first round of counseling are barred from participating in the second round of counseling and thereafter.

12. It is the submission of the learned counsel that assuming without admitting that recounselling is permitted, it should be confined only to the candidate, who participated in the second round of counseling at the first instance and the candidate, who had not participated in the second round of counseling cannot be permitted to participate in the recounselling. It is the submission of the learned counsel that the respondents allowed candidates, who had not participated in the second round of counseling to register and exercise option in the recounselling. To buttress the said stand, learned counsel for the petitioner brought to the attention of this Court that one Dr.Preethi, who belonged to SCA category, who did not participate in the second round of counseling at the first instance, had registered and choice locked in the recounselling and she was allotted MDS (Paedodontics) in Government Dental College, Cuddalore.

13. It is the vehement submission of the learned counsel for the petitioner that recounselling is not permitted under the prospectus and that candidates, who did not participate at the first instance in the second round of counseling cannot be allowed to participate in the recounselling conducted for the second round.

14. It is the further submission of the learned counsel that even assuming without admitting that recounselling is conducted for second phase for the reason that allotment/admission made to 6 candidates allotted to Raja Dental College, Tirunelveli, was cancelled, of the six vacancies, 5 pertained to BC and 1 pertained to Sc and, therefore, reallotment should be confined only to the said reserved category seats and in entirety cancelling the second phase of counseling and conducting fresh recounselling for all the candidates is wholly illegal, more so, when candidates selected under SC/BC categories are in no way connected to the said selection process under SCA category.

15. It is the further submission of the learned counsel for the petitioner that though Dr.Shanmugapriyan belonged to SCA category secured higher rank than the petitioner, however, had not choice locked MDS (Maxillofacial Surgery) course in the second phase of counseling and he was allotted to MDS (Paedodontics) in Government Dental College, Cuddalore, based on his choice locking.

16. Therefore, it is the submission of the learned counsel that recounselling, though not permitted as per the prospectus, was conducted, more so in an arbitrary manner by allowing candidates, who have not even registered for the second phase of counseling when they are ineligible to participate in the recounselling, thereby depriving the petitioner of her right to continue MDS (Maxillofacial Surgery) at Government Dental College, Chennai in the seat already allotted to her and, therefore, not only the impugned order suffers illegality and arbitrariness, but the act of the petitioners in the contempt petition is in willful disobedience of the orders passed by this Court, necessarily the writ petition has to be allowed and the contemnors should also be punished and prays for appropriate direction.

17. Per contra, learned Government Advocate appearing for respondents 1 to 3 submitted that the seats were filled up by the respondents even before the knowledge about the interim orders passed by this Court and, therefore, the contempt alleged to have been committed does not arise.

18. It is the further submission of the learned Government Advocate that the General Rank of the petitioner is 543 and her community rank, viz., SCA, is 8 and that the petitioner had given her choice lock in the first phase of counseling which was held from 3.10.21 to 8.10.21. It is the further submission of the learned Government Advocate that initially the petitioner, in the 2nd phase of counseling, was allotted Oral and Maxillofacial Surgery in Tamil Nadu Government Dental College, Chennai in the MDS course. However, in view of the letter forwarded by the Tamil Nadu MGR Medical University with regard to the communication from the Dental Council of India pertaining to Rajas Dental College, Tirunelveli, in which six persons were accommodated and in view of the cancellation of affiliation, the said persons could not continue their admission in the said college. Therefore, the Dental Council of India along with Dr.MGR Medical University and the Secretary, Selection Committee convened a meeting in which it was decided to conduct re-counselling so that the meritorious candidates, who had since been relegated back to the pool from Rajas Dental College, could be accommodated.

19. It is the further submission of the learned Government Advocate that only in the above backdrop, the 2nd phase of counseling was cancelled and, thereafter, notification was issued for fresh recounselling. It is the further submission of the learned Government Advocate that in the notification published for recounselling, since the allotment of persons made to Rajas Dental College, Tirunelveli, was cancelled and they being meritorious then other persons, who participated in the second phase of counseling, the notification permitted the persons, who intend to partake in the second phase of counseling to fill their choices afresh. Such being the case, Dr.Shanmugapriyan and Dr.Preethi had not only choice locked pursuant to the notification for recounselling, but their overall rank and also the SCA rank was also above that of the petitioner which resulted in the respective allotment in their favour and the petitioner was allotted Oral Maxillofacial Pathology & Microbiology in Government Cuddalore Dental College, Cuddalore. It is the further submission of the learned Government Advocate that based on the schedule for counseling and allotment of seats, which is to be conducted in a time bound manner and within the time prescribed, the respondents have conducted the counseling. It is the further submission of the learned Government Advocate that if at all the petitioner is aggrieved by the notification permitting choice locking in the second phase of counseling, the course open to the petitioner is to question the said notification and without questioning the aforesaid notification, the present prayer of the petitioner for a direction to the respondents to restore the selection of the petitioner in the earlier round of counseling is wholly unjustified and unsustainable. Accordingly, he prays for dismissal of the present petitions.

20. Learned counsel appearing for the 4th respondent submitted that the counseling has been conducted as per the schedule and the seats have been filled up following the prospectus and the counseling notification, including the notification issued for the second phase of recounselling and there is no irregularity or arbitrariness in the selection and allotment of candidates and the grievance of the petitioner does not stand the test of judicial scrutiny and, accordingly, prays for dismissal of the present petitions.

21. This Court gave its anxious consideration to the submissions advanced by the learned counsel appearing on either side and perused the materials available on record.

22. The fact that the initial notification prescribed registration for online counseling and choice locking of the courses before conduct of the online counseling. Clause 16 (a) provides that admission to MDS course shall be made through online counseling on the basis of rank by applying the rule of reservation. Clause 19 (iv) provides that a candidate who has not registered and not choice locked in the first round of online counseling will not be permitted to the subsequent rounds of online counseling. From the above, it is evident that a candidate should have registered for the online counseling and choice locked the courses of his/her choice in the first round of online counseling and failure of the same will render the said candidate invalid to participate in the second round of online counseling.

23. There is no dispute about the fact that the petitioner, Dr.Shanmugapriyan and Dr.Preethi have registered in the first round of counseling and choice locked their choices. However, Dr.Preeti has not entered the 2nd round of counseling by choice locking her choices. However, it is an admitted fact that both Dr.Shanmugapriyan and Dr.Preeti belong to SCA community and they rank above the petitioner both in the General rank and also in the SCA community rank. The main thrust of argument of the learned counsel for the petitioner is that the choice locking of Dr.Shanmugapriyan and Dr.Preethi were different at the time of registration and before the first round of counseling and Dr.Shanmugapriyan had subsequently given his choices in the second round of recounselling, which is erroneous and unsustainable, as the candidates cannot choice lock for the second time. Further, Dr.Preeti has not choice locked in the initial second phase of counseling, but had later registered and locked her choices in the 2nd phase of recounselling, which is also impermissible.

24. It is borne out by record that six candidates, who were allotted to Rajas Dental College, Tirunelveli, who were more meritorious than the petitioner and the other two persons, were relegated back to the pool on account of the said Rajas Dental College not fulfilling the requisite criteria. This necessitated the respondents to go for recounselling, as otherwise, the more meritorious candidates, who were allotted to Rajas Dental College could not be accommodated in better choiced colleges in view of their ranking over and above the petitioner. For the said purpose, notification was published by the respondents for recounselling of second phase. While publishing the said notification for recounselling for second phase, instructions have been provided for therein which provides for the following :-
“i) All candidates have to register to participate in this counseling.
ii) Fresh choice filling and locking should be done by the candidates.
iii) Candidates who wish to retain their seats in first phase of counseling need not participate in this counseling.”

25. From the above, it is implicitly evident that all the candidates have been provided with an opportunity to register for the said 2nd phase of recounselling and that fresh choice filling has been permitted to be carried out by the respective candidates, within the time prescribed. Therefore, the contention of the petitioner that the act of permitting Dr.Shanmugapriyan and Dr.Preeti to choice fill is erroneous and impermissible does not merit acceptance. It is to be pointed out that the option for choice filling was opened to enable the candidates to exercise their choices on account of the six candidates, who had since been relegated to the 2nd phase of counseling from Rajas Dental College. If the choice filling had not been permitted, the said candidates could not have exercised their choices to participate in the 2nd phase of counseling. The above provision clearly shows that the portal has been enabled and all the candidates were permitted to choice fill the courses. Such being the case, the stand of the petitioner that the said two candidates have been permitted to choice fill, which is beyond the notification, is per se unsustainable.

26. Further, one other clause in the fresh notification, which stares writ large on the face of the petitioner is that the candidates, who have not participated in the 1st and 2nd phase of counseling were also permitted to participate. For better clarity, the relevant clause is quoted hereunder :-
“Candidates who are not participated in 1st phase and 2nd phase (which was cancelled) counseling can also participate in the counseling. They have to pay a non-refundable amount of Rs.1000/- through online as processing fee by using Debit Card/Net Banking or credit card.”

27. The above provision in the fresh notification issued for the 2nd phase of recounselling permitted candidates, who have not participated in the 1st and 2nd phase of counseling (which was cancelled) to participate in the counseling, which gave the leverage for Dr.Shanmugapriyan and Dr.Preeti to participate in the 2nd phase of recounselling. Such being the case, the claim of the petitioner that recounselling is not permitted and that Dr.Shanmugapriyan and Dr.Preeti have exercised their present options only pursuant to the present recounseling notification is impermissible does not merit acceptance.

28. Further, it is to be pointed out that only pursuant to the fresh notification, Dr.Shanmurapriyan and Dr.Preeti had exercised their choices afresh. Further, it is to be pointed out that the petitioner has not challenged the fresh notification for the 2nd phase of recounselling, inspite of the notification being issued.

29. There is no dispute with the fact that the aforesaid two individuals are more meritorious than the petitioner, both in the general rank as also in the community rank. Accordingly, the petitioner as also the aforesaid two individuals have been provided with allotment and they have joined the courses pursuant to the provisional allotment issued to them on the basis of recounselling. Further, it is the stand of the respondents that the petitioner has been allotted to Oral Pathology in Government Cuddalore Dental College, Cuddalore on the basis of her rank and she has joined the said course and is continuing the said course as on date. Therefore, it would not be in the interest of either of the candidates to disturb the said allotment.

30. In view of the discussion above, this Court is of the considered view that the contentions advanced on behalf of the petitioner does not stand the test of judicial scrutiny and, accordingly, the writ petition fails and the same deserves to be dismissed.

31. Insofar as the contempt petition is concerned, though this Court, vide order dated 9.11.2021 had directed the respondents to keep one seat vacant, however, it is the stand of the respondents that the said order was received only on 16.11.2021, by which time, even as on 5.11.2021, provisional allotments were made. It is the stand of the petitioner that the order dated 9.11.2021 has not been complied with; but the stand of the respondents insofar as the above submission, which is placed on record, has not been disputed by the petitioner. Such being the case, though the order passed by this Court has not been complied with, however, as on the date of receipt of the order, the whole allotment process for the 2nd phase of recounselling having been completed, the respondents cannot be held to have disobeyed the orders passed by this Court. Therefore, the contempt petition deserves to be closed.

32. For the reasons aforesaid, the writ petition is dismissed. Pursuant to the order of dismissal of the writ petition and there being no willful disobedience of the orders passed by this Court, nothing survives for consideration in this contempt petition and, accordingly, the contempt petition is closed.

25.03.2022
Index : Yes / No
Internet : Yes / No
GLN

To
1. The Prl. Secretary to Government
Health & Family Welfare Dept.
Government of Tamil Nadu
Fort St. George, Secretariat
Cjhennai 600 009.

2. The Director of Medical Education
Kilpauk, Chennai 600 010.

3. The Selection Committee
Directorate of Medical Education
162, Periyar EVR High Road
Kilpauk, Chennai 600 010.

4. The Secertary
National Medical Council
Pocket 14, Sector – 8
Dwaraka, New Delhi 110 077.

M.DHANDAPANI, J.

GLN

PRE-DELIVERY ORDER IN
W.P. NO. 24095 OF 2021
AND
CONT. PTN. NO.1605 OF 2021

Pronounced on 25.03.2022