# Dr. Richa Shukla v. U.O.I. & Ors

- **Citation:** (2022) 8 ILRA 112
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-02
- **Case number:** Writ C No. 3283 of 2022
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-richa-shukla-v-u-o-i-ors-48722
- **Pages:** 6

## Headnote

A. Civil Law -Selection/Admission in NEET
SS-Petitioner was ranked at Serial No. 7,
the petitioner had to await his turn
subject to six candidates-the said seats
were filled- candidate at Serial No. 6
subsequently
resigned-petitioner
expected that the said seat would be
available
in
the
mop-up
round
of
counselling but the said seat was not
included in the vacant seat as the MCC of
DGHS does not allow resignation as per
the policy-It is well settled that the seats
should not go vacant and should be filled,
only on account of the fact that there is no
provision contained in the online portal to
include the seats vacated on account of
resignation,
the
said
technical
glitch
8 All. Dr. Richa Shukla Vs. U.O.I. & Ors.
113
cannot eradicate the need for fulfilling the
seat-Hence, the petitioner was granted
admission.(Para 1 to 5)

The writ petition is allowed. (E-6)

List of Cases cited:

## Text

112 INDIAN LAW REPORTS ALLAHABAD SERIES

14. Shri Ramendra Pratap Singh,
learned counsel representing the respondent
Nos. 2 to 4, who has filed counter affidavit,
does not dispute the fact as argued and
mentioned in the writ petition. He submits
that due to circumstances beyond the
control of the authority, construction of the
flats have been delayed and the orders
dated 14.8.2019 and 17.9.2019 have been
issued as per the terms of the brochure. He
further submits that the money would be
refunded as per the terms of the brochure of
GNIDA after deduction of 10% along with
interest @ 4% per annum.

15.

Learned
counsel
for
the
petitioners
vehemently
opposed
the
arguments made by Shri Ramendra Pratap
Singh, learned counsel for the respondent
Nos. 2 to 4 and submits that as per
Condition-F of the brochure of GNIDA
"Mode of Payment" in case of default of
payment, petitioners are required to pay the
same with interest at the rate of 15% per
annum compoundable quarterly, therefore,
GNIDA is also liable to return the entire
amount along with the same interest.

16. We have considered the rival
submissions made by the learned counsels
for the parties and have perused the
record.

17. We have also gone through the
decision dated 26.11.2019 of the coordinate Bench of this Court passed in Writ
Petition (C) No. 33847 of 2019. The SLP
against the said decision has also been
dismissed by the Apex Court vide its
decision dated 20.11.2020. We are of the
view that the petitioners are also entitled to
the same benefit as extended to the
petitioners of Writ Petition (C) No. 33847
of 2019 particularly, in view of the fact that
it relates to the same scheme.

18. In view of the above, considering
the facts and circumstances of the case, the
writ petitions are partly allowed with
direction to the respondents to refund the
entire amount of the petitioners deposited
by them against the flats allotted within 2
months from the date of production of
certified copy of this order along with 9%
interest from the date of deposit. Petitioners
are also entitled to costs quantified at
Rs.20,000/- each.
----------
(2022) 8 ILRA 112
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.08.2022

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ C No. 3283 of 2022

Dr. Richa Shukla ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Prabhu Ranjan Tripathi

Counsel for the Respondents:
A.S.G.I., Shubham Tripathi

A. Civil Law -Selection/Admission in NEET
SS-Petitioner was ranked at Serial No. 7,
the petitioner had to await his turn
subject to six candidates-the said seats
were filled- candidate at Serial No. 6
subsequently
resigned-petitioner
expected that the said seat would be
available
in
the
mop-up
round
of
counselling but the said seat was not
included in the vacant seat as the MCC of
DGHS does not allow resignation as per
the policy-It is well settled that the seats
should not go vacant and should be filled,
only on account of the fact that there is no
provision contained in the online portal to
include the seats vacated on account of
resignation,
the
said
technical
glitch
8 All. Dr. Richa Shukla Vs. U.O.I. & Ors.
113
cannot eradicate the need for fulfilling the
seat-Hence, the petitioner was granted
admission.(Para 1 to 5)

The writ petition is allowed. (E-6)

List of Cases cited:

1. Dr. Arup Mohanta Vs U.O.I. & ors.
WPA/9685/2022

2. Dr. Sharada PB Vs U.O.I., WP No. 9597 of
2022

3. Anjana Chari S.N. Vs MCC & ors. Writ C No.-
174 of 2022
(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard the counsel for the parties.

2. This court after hearing the parties
had
passed
the
following order
on
16.07.2022:

The present petition has been
filed
alleging
that
the
petitioner
participated in the NEET SS to various
super specialty DM/MCh/DrNB Courses in
the academic sessions 2021-22 and secured
7th Rank in D.M. Geriatric Mental Health
Branch. It is argued that in the Branch, in
which the petitioner had qualified, there
were three seats available and as the
petitioner was ranked at Serial No. 7, the
petitioner had to await his turn subject to
six candidates before him exercising their
option. It is argued that the candidates at
Serial Nos. 1, 2 and 3 did not participate in
the counselling, as such in the next round of
counselling, the same was offered to the
candidates placed at Serial Nos. 4, 5 and 6.

It is stated that the second round
of counselling in respect of the said seats
was held and as the seats had already been
taken up by the candidates placed at Serial
Nos. 4, 5 and 6, the seats were not reflected
in the second round of counselling.
Subsequent to the second round of
counselling Dr. Sumit Mukherjee, the
candidate placed at Serial No. 6 tendered
his resignation on 27th April, 2022, as a
result whereof one seat out of the total
three seats of Geriatric Mental Health
Branch became vacant. It is stated that the
petitioner expected that the said seat
vacated by Dr. Sumit Mukharjee would be
available
in
the
mop-up
round
of
counselling conducted by the respondents,
however, the said seat was not reflected for
the proposed mop up round of assessed
counselling 2021, as such the petitioner
preferred the present writ petition.

In the present case, it has been
averred that the seat matrix for the mop-up
round of counselling was released on
27.05.2022 at around 3:00 p.m., which
demonstrated that 612 unfilled seats were
proposed to be filled up through mop-up
round of counselling, however, the said seat
vacated by Dr. Sumit Mukherjee was not
reflected in the said seat matrix.

The petitioner came to know of
the said fact that the seat vacated by Dr.
Sumit Mukherjee is not reflected in the seat
matrix of mop-up round of counselling,
approached respondent no. 1 by writing
through e-mails and prayed that the vacant
seat of D.M. Geriatric Mental Health
Branch should be included in the mop-up
round of counselling, which became vacant
on account of resignation of the 6th rank
holder namely, Dr. Sumit Mukherjee.

When the writ petition was filed,
this Court passed an interim order on 31st
May, 2022 to the following effect:-

"1. Sri S. B. Pandey, Senior
Advocate and Additional Solicitor General
of India assisted by Sri Anand Dubey
appearing for the opposite parties, on the
basis
of
instructions
received
from
respondent
No.2-Medical
Counselling
114 INDIAN LAW REPORTS ALLAHABAD SERIES
Committee (MCC), Ministry of Health and
Family Welfare, Government of India,
Nirman Bhawan, New Delhi, has informed
this Court that the seat allotted to Dr. Sumit
Mukherjee, who is said to have resigned,
his seat has not been declared to be vacant
and still appears to have been retained by
him. It is on the strength of the aforesaid
facts it is stated that the seat has not fallen
vacant
in
King
Georges'
Medical
University, Lucknow and consequently in
the aforesaid circumstances the petitioner
cannot be allotted the said seat.

2. Contesting the aforesaid facts,
learned counsel for the petitioner has
placed reliance on the letter written by
King
Georges'
Medical
University,
Lucknow
to
respondent
No.2-Medical
Counseling Committee (MCC), Ministry of
Health and Family Welfare, Government of
India, Nirman Bhawan, New Delhi dated
18.5.2022
informing
that
Dr.
Sumit
Mukherjee has resigned from the course of
D.M. (Geriatric Medicine & Health) on
27.4.2022 and the petitioner being next in
the merit list is entitled for allotment of the
said seat.

3. In view of aforesaid facts,
learned counsel for the opposite parties
pray for and are granted three weeks' time
to file counter affidavit. The petitioner shall
have two weeks' time thereafter to file
rejoinder affidavit.

4. List on 20.7.2022.

5. As an interim measure, it is
provided that in case the said seat falls
vacant on resignation of Dr. Sumit
Mukherjee, the same shall not be filed up
by the next date of listing."

It is argued by the petitioner that
subsequent to the said order being passed
by this Court, the respondents conducted
yet another mop-up counselling, however,
the seat in question vacated by 6th rank
holder was once again not reflected merely
on the ground of the interim order passed
by this Court on 31st May, 2022.

In the light of the said, the
learned counsel for the petitioner argues
that the seat, as of now, remains vacant and
was not included in the second mop-up
round of counselling held in the Month of
June, 2022 only on account of the fact that
an interim order had been passed by this
Court.

It also bears from the record and
the stand taken by the respondent no. 3 to
the effect that the candidate placed at
Serial No. 6 namely, Dr. Sumit Mukharjee
had indeed tendered his resignation on 27th
April,
2022
and
this
fact
was
communicated to the respondent nos. 1 and
2. Specific assertion in this regard has been
made in paragraph nos. 9 and 10 in the
counter
affidavit,
which
are
quoted
hereinbelow:-

"9. That at this juncture it is
pertinent to mention that one candidate
namely Dr. Sumit Mukherjee (AIR 06 and
Roll No. 2144117440), who took admission
in the course of D.M., Geriatric Mental
Health, vide its letter dated 27.04.2022,
tendered his resignation. A copy of the
letter dated 27.04.2022 is being annexed
herein as Annexure No. SCA-1.

10. That it is humbly submitted
that Deen Academics, KGMU, vide its
letter dated 18.05.2022 informed the
Assistant
Director
General,
Medical
Counselling Committee (MCC), New Delhi,
about the fact that one student namely Dr.
Sumit Mukherjee has resigned from the
course of D.M. (Geriatric Mental Health).
It was also requested that one seat of DM
(Geriatric Mental Health) may kindly be
included in Mop-Up round of NEET SS2021. A copy of letter dated 18.05.2022
sent by the Deen Academics, KGMU is
being annexed herein as Annexure No.
SCA-2."
8 All. Dr. Richa Shukla Vs. U.O.I. & Ors.
115

Learned counsel for the petitioner
argues that in similar circumstances, in a
writ petition filed before the Calcutta High
Court with a prayer for inclusion of two
surrendered/vacant
seats
of
M.Ch.
(Urology) in the mop-up counselling, the
Calcutta High Court vide its judgment
dated
09.06.2022
passed
in
WPA/9685/20222 (Dr. Arup Mohanta Vs.
Union of India and Ors.), directed the
respondents to include the vacant seats in
the mop-up round of counselling. He
further draws my attention to the judgment
of the Kerala High Court, which had issued
similar directions for including the vacant
seats in the mop-up counselling vide order
dated 25th May, 2022 passed in WP (C)
No. 16404 of 2022 (A). He also relies upon
the similar order passed by Karnataka
High Court passed on 17.05.2022 in WP
No. 9597 of 2022 (Dr. Sharada PB Vs.
Union of India).

In the light of the said, learned
counsel for the petitioner argues that
undisputed fact remains that the candidate
placed at Serial No. 6 namely, Dr. Sumit
Mukherjee has tendered his resignation and
this fact was duly communicated by the
respondent no. 3 to the respondent nos. 1
and 2 well within time and prior to the
mop-up round of counselling held by the
respondents and thus it was incumbent
upon the respondents to have included the
said seat as vacated by the candidate
placed at Serial No. 6 for the mop-up round
of counselling, which was not done for the
reasons best known to the respondents. He
argues that in the second mop-up round of
counselling held in June, 2022, the said
seat was once again not included probably
because of the order passed by this Court
on 31st May, 2022. He, thus, argues that in
view of the undisputed facts that one seat
remained
vacant,
entire
purpose
of
selection cannot be frustrated and keep the
seat vacant on technical grounds and thus
prays that suitable orders be passed and
the respondents be directed to conduct
special mop-up round of counselling to fill
the seat vacated by the candidate placed at
Serial No. 6 namely, Dr. Sumit Mukherjee.

Learned
counsel
for
the
respondent no. 3 argues that the facts, as
narrated by the petitioner, are not disputed.
He
argues
that
the
fact
regarding
resignation
tendered
by
Dr.
Sumit
Mukherjee, the person selected at Serial
No. 6, was duly intimated to respondent
nos. 1 and 2. He argues that the respondent
no. 3 has no role to play in respect of the
counselling.

Learned
counsel
for
the
respondent nos. 1 and 2 Shri Anand
Dwivedi, argues that on the basis of the
instructions produced before me that the
complete counselling is conducted in an
online
mode,
wherein
allotment
and
admission takes place through the online
portal, the colleges themselves filled the
admission status of the allotted candidates
on the common online portal between the
colleges and the M.C.C., however, as there
was no option to fill the facts pertaining to
the resignation, the intimation given by the
respondent no. 3 was not accepted being
contrary to the 'no resignation policy' of the
M.C.C., as such the seat vacated by Dr.
Sumit Mukherjee was not shown as vacant
and still appears to be taken by Dr. Sumit
Mukherjee. The further stand taken by the
respondent nos. 1 and 2 is that if Dr. Sumit
Mukherjee at any point of time wishes to
join the said seat, he may join the same
within a reasonable period of time, as he is
shown to be holding the said seat in the
Database of the M.C.C. of DGHS. A further
stand has been taken based upon the
directions given by the Supreme Court in
Writ Petition No. 316 of 2022 to the
following effect:-
116 INDIAN LAW REPORTS ALLAHABAD SERIES

"10. However, in regard to the
alternative prayer, since a second round of
counselling has been held at the end of
which 940 seats still remain vacant, the
Additional Solicitor General has informed
the Court that a mop up round of
counselling shall be held for those seats
including for the stray vacancies, while
maintaining the eligibility percentile at 50
for the year 2021-2022."

It has further argued that in terms
of the directions given by the Supreme
Court in Writ Petition (C) No. 174 of 2022
in the case of Anjana Chari S. N. v/s MCC
& Ors., the following directions have been
issued:-

"(v) In line with the regulations
which have been notified on 5 April 2018,
students who have joined in round 2 of the
state quota or round 2 of the AIQ shall not
be eligible to participate in the mop-up
round for All India Quota."

In sum and substances, the
argument is that in the record of the MCC
of DGHS, Dr. Sumit Mukherjee is still
shown to be holding seats of D.M.
Geriatric Mental Health in King George's
Medical University UP, Lucknow, as such
the seat was never included in the mop-up
round of counselling either the first or the
second round of mop-up counselling, held
in the Month of June, 2022.

A stand has also been taken in the
subsequent instructions received by the
learned counsel for the respondent on
25.06.2022 to the effect that the petitioner
could have participated in the mop-up
round as well the special mop-up round of
counselling and the petitioner did not
participate in either of the said rounds. It
has been reiterated that MCC of DGHS
does not allow resignation as per the
policy.

In
the
light
of
the
said
submissions, learned counsel for the
respondents Shri Anand Dwivedi argues
that the petition is liable to be dismissed.

On the basis of the arguments
placed at the bar, the facts which emerge
and are undisputed at the bar are that the
petitioner was placed at Serial No. 7 in the
merit list prepared, the candidate at Serial
No. 6 namely, Dr. Sumit Mukherjee had
taken admission and had subsequently
resigned after the
second round of
counselling, vide his resignation dated
27.04.2022. The fact with regard to the
resignation of the said candidate was duly
intimated by the respondent no. 3 to the
respondent nos. 1 and 2, thus the seat
which has allotted to Dr. Sumit Mukherjee
continues to be remained vacant. The said
seat was not included in the vacant seat as
there is no facility of including the vacancy
arising out of resignation on the portal of
the respondents which shows vacancy.

Considering the fact that it is well
settled that the seats should not go vacant
and should be filled, only on account of the
fact that there is no provision contained in
the online portal to include the seats
vacated on account of resignation, the said
technical glitch cannot eradicate the need
for fulfilling the seat, which has arisen and
remains vacant only on account of
technical glitch, the seat has not been
filled.

Considering the fact that the seat
is clearly vacant, the respondent nos. 1 and
2 are directed to hold special mop-up round
of counselling for the said seat vacated by
Dr. Sumit Mukherjee in respect of the D.M.
Geriatric Mental Health at King George's
Medical University UP, Lucknow. The said
exercise is to be carried out in respect of
the said seat, as directed above, with all
expedition, preferably within a fortnight
from today.

The
learned
counsel
for
respondent nos. 1 and 2 Shri Anand
8 All. M/S Omaxe Ltd. Vs. L.D.A. & Anr.
117
Dwivedi shall inform the respondents about
this order. The petitioner shall also be at
liberty to inform the respondents by moving
an application in that regard.

The petition is adjourned to
02.08.2022.

The parties shall inform the fate
of the order passed today to this Court on
the next date.

3. It is informed at the bar that in
compliance of the said order, the petitioner
has been granted admission.

4. In view of the statement as given at
the bar, nothing further survives in the
matter.

5. The petition stands disposed off in
view of the order passed by this Court as
extracted above.
----------
(2022) 8 ILRA 117
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.08.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE RAJNISH KUMAR, J.

Writ C No. 5217 of 2022

M/S Omaxe Ltd. ...Petitioner
Versus
L.D.A. & Anr. ...Respondents

Counsel for the Petitioner:
Lalta Prasad Misra, Prafulla Tiwari, Vineet
Kumar Singh Bisen

Counsel for the Respondents:
Ratnesh Chandra

A. Civil Law-U.P. Urban and Planning
Development Act, 1973-Sections 4 & 56
-
Lucknow
Development
Authority(Powers and Duties of the
Secretary and Chief Accounts Officer)
Regulations,
1983-Regulation
2(8)-
Agreement-Show cause notice to cancel
concessional
agreement-the
concessional agreement was entered
into between the parties in relation to
developing the township which will be
covered
within
the
meaning
of
developmental activities undertaken by
LDA-Secretary does have power and he
is possessed with necessary authority to
issue show cause notice in relation to
developmental activities as he exercises
not only general administration and
supervision but overall control over
developmental activities as well.(Para
12)

The petition is dismissed. (E-6)

List of Cases cited:
1. Dy Commr, Central Excise & anr. Vs Sushil &
Co. (2016) 13 SCC 223

2. U.O.I. & anr. Vs Vicco Laboratories (2007) 13
SCC 270

3. Siemens Ltd. Vs St. of Mah. & ors. (2006) 12
SCC 33

4. U.O.I. & anr. Vs Kunisetty Satyanarayana
(2006) 12 SCC 28 and

5. St. of U.P. & anr. Vs Anil Kumar Ramesh
Chandra Glass Works & anr. (2005) 11 SCC 451

6. Manmohan Nanda Vs United India Assr. Co.
Ltd & anr. (2022) 4 SCC 272

7. Wellington Asso. Ltd. Vs Kirti Mehta (2000) 4
SCC 272

8. AFCONS Infra. Ltd. Vs Nagpur Metro Rail
Corp. Ltd. (2016) 16 SCC 818

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.
&
Hon'ble Rajnish Kumar, J.)