Mundhe Kailas Maharudra v. All India Instt of Medical Sciences & Ors

MANMOHAN, J kapil

* HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on: 11th November, 2010 % Judgment Pronounced on: November 29, 2010 Corrected copy + DR. MUNDHE KAILAS MAHARUDRA ..... Appellant Through: Mr. Nitin Kumar Gupta with Mr. Arvind S. Avhad, Advocates Versus ALL INDIA INSTITUTE OF MEDICAL SCIENCES & ORS. ..... Respondents Through: Mr. Sunil Fernandes with Mr.Deepak Pathak, Advocates for Resp. 1 Mr.Ravinder Agarwal, CGSC for UOI CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANMOHAN 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ The present appeal is directed against the order dated 28th September, 2010 passed by the learned Single Judge in WP (C) No. 6436/2010. 2. The facts which are requisite to be exposited are that the first respondent, namely, All India Institute of Medical Sciences (for short "AIIMS") while conducting admission for the post of Post-Graduate / Post Doctoral / MDS pursuant to entrance test held in May, 2010 did not consider the case of the appellant in the general category on the base and foundation that he belongs to OBC category. 3. The learned Single Judge referred to his own order dated 19th August, 2010 passed in WP (C) No. 4230/2010 (Dr. Jagveer Singh v. The Chairperson, Counselling Committee, Academic Section, AIIMS) and opined that the action taken by the AIIMS was unsustainable and issued directions to the said respondent to allow candidates belonging to the reserved category to compete in the general / unreserved category from the next academic session. 4. Be it noted, though the learned Single Judge came to hold that there was illegality in the process of admission and injustice had been caused to the petitioner, distinguished the decisions in Vijay Jaimni vs. Medical Council of India, (2005) 13 SCC 461, Harshali v. State of Maharashtra, (2005) 13 SCC 464 and Dr. Manish Patnecha v. Chairperson Counseling Committee AIIMS rendered on 10th December, 2009 in LPA No. 622/2009 on the ground that in the first two decisions, the directions were given on consent and, therefore, were not precedents and as far as the decision in Dr. Manish Patnecha (supra) is concerned, he opined that it did not lay down any ratio. Eventually, the learned Single Judge expressed the view as follows: - "The petitioner has also claimed damages from the respondents 1 & 2. Though the respondent no. 1 AIIMS is clearly found at fault, however considering its constitution and the work which it is doing in the field of medicine, I refrain from awarding any damages against it. However, it is made clear to the counsel for the respondent no.1 AIIMS that if respondent no.1 AIIMS continues to act in contravention of law, thereby depriving the meritorious candidates from admission, the Court in future may be compelled to award damages also against it. The writ petition is disposed of. No order as to costs." 5. It is submitted by Mr. Nitin Kumar Gupta, learned counsel for the appellant that when learned Single Judge had expressed the view in categorical terms that the practice adopted by the AIIMS was defective, reliefs should not have been denied to him and he should have issued affirmative directions. It is also urged by him that in the case at hand, the AIIMS had delayed the declaration of marks from 25th May, 2010 till 6th September, 2010 to make the case of the appellant infructuous and hence, for no fault of his he should suffer. It is highlighted by him that the appellant had admittedly obtained more marks than the last selected candidate in the general category but he was not conferred the benefit of admission. 6. Learned counsel for the respondents submitted that the seats are few and the appellant cannot be accommodated in the ensuing academic session. 7. This Court in LPA No.611/2010 (Tej Pal Yadav v. Union of India & Ors. decided on 29.11.2010) while dealing with a similar