# Saurabh Gupta v. The Chairman Councilling Board/C.P.M.T. and another

- **Citation:** (2002) 1 ILRA 245
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-02-07
- **Case number:** Civil Misc. Writ Petition No. 32780 of 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saurabh-gupta-v-the-chairman-councilling-board-c-p-m-t-and-another-39812
- **Pages:** 5

## Headnote

Constitution of India - Article 226 -A
candidate
who
appeared
in
CPMT
Examination in disabled category was
required to come in merit list but his
candidature was subject to his fitness
declared by the Board - Once he was
found fit by the Board and the earlier
Board had not found him unfit, the
procedural requirements was complete.
(Held - Paras 11 & 13)

The respondents cannot be permitted to
take advantage of their own omission of
not issuing a certificate. Once the
petitioner was found suitable, it was
immaterial whether he was examined by
the Board before or after the counseling
In any case, it was during pendency of
the Writ petition in the court and it shall
be deemed that it was the first medical
test of the petitioner.

The respondents are directed to admit
the petitioner in M.B.B.S. course within
three weeks from the date a certified
copy of this order is produced before
respondent no. 1
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
246

## Text

1All] Saurabh Gupta V. The Chairman Councilling Board/C.P.M.T. and another
245
known address or as may be disclosed
in advance by the landlord in writing
before
the
concerned
Prescribed
Authority) time and date on which
Landlord is to take possession from
the tenant.

3. Petitioner shall on or before 8.3.2002
deposit entire amount due towards
rent etc. up to date i.e. entire arrears
of the past if any, as well as the rent
for
the
period
ending
on
the
31.8.2002.

4. Petitioner and everyone claiming
under him undertake not to 'change'
or
'damage'
or
transfer/alienate/assign
in
any
manner,
the
accommodation
in
question.

5. In case Tenant/Petitioner fails to
comply with any of the conditions/or
direction/s contained in this order,
landlord shall be entitled to evict the
Tenant-Petitioner forthwith from the
accommodation
in
question
by
seeking
police
force
through
concerned prescribed authority.

6. If there is violation of the undertaking
of anyone or more of the conditions
contained in this order the defaulting
party shall pay Rs. 25000/- (Rupees
Twenty Five Thousand only) as
damages to the other party, besides
rendering
himself
liable
to
be
prosecuted for committing grossest
contempt of the Court.

20. The writ petition is dismissed
subject to the above conditions and
observations.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.02.2002

BEFORE
THE HON'BLE V.M. SAHAI, J.

Civil Misc. Writ Petition No. 32780 of 2001

Saurabh Gupta Minor son of Sri Ashok
Kumar Gupta

 ...Petitioner
Versus
The Chairman Councilling Board/C.P.M.T.
and another

 ...Respondents

Counsel for the Petitioner:
Sri Swapnil Kumar
Sri Saurabh Gupta
(In Person)

Counsel for the Respondents:
Sri Ashutosh Srivastava

Constitution of India - Article 226 -A
candidate
who
appeared
in
CPMT
Examination in disabled category was
required to come in merit list but his
candidature was subject to his fitness
declared by the Board - Once he was
found fit by the Board and the earlier
Board had not found him unfit, the
procedural requirements was complete.
(Held - Paras 11 & 13)

The respondents cannot be permitted to
take advantage of their own omission of
not issuing a certificate. Once the
petitioner was found suitable, it was
immaterial whether he was examined by
the Board before or after the counseling
In any case, it was during pendency of
the Writ petition in the court and it shall
be deemed that it was the first medical
test of the petitioner.

The respondents are directed to admit
the petitioner in M.B.B.S. course within
three weeks from the date a certified
copy of this order is produced before
respondent no. 1
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
246
(Delivered by Hon'ble V.M. Sahai, J.)

1. The petitioner appeared in CPMT
Examination
2001
under
physically
handicapped category. In the result the
petitioner's over all rank was 2126 and
his rank in physically handicapped
category was 18. He was required to
produce a certificate at the time fo
counselling from the special medical
board (in brief Board) constituted by the
respondents in accordance with clause 3
(Chha) of the brochure that he was
medically suitable to pursue medical
studies.
The
first
counselling
was
scheduled to be held on 25.9.2001. In
paragraph 5.3 of the brochure the dates of
counselling were mentioned. It is not
disputed by the respondents that the
petitioner appeared before the board on
15.9.2001
whereas
counselling
was
scheduled to commence from 25.9.2001.
The
board
did
not
issue
medical
certificate to the petitioner. It further did
not issue any rejection certificate to him
that he was medically unfit to persue
medical education. The petitioner was
running before the board for issuance of
medical certificate, but for the reasons
best known to the board, he was neither
issued
any
medical
certificate
nor
rejection order. However, the petitioner
appeared in the first counseling on
25.9.2001 along with medical Certificate
issued by the Chief Medical Officer,
Ghaziabad but his candidature was not
accepted by the respondents on the
ground that the medical certificate of the
board was not available.

2. The petitioner had filed this
petition on the ground that out of 18
candidates under physically handicapped
category the petitioner was at serial
number 5 of the merit list, as other
candidates did not appear for counselling.
He was entitled for M.B.B.S. seat but due
to arbitrary action of the board in not
issuing him medical certificate, he has
been deprived of admission to M.B.B.S.
course. This fact is not denied by the
respondents in the counter affidavit that
the petitioner was at serial number 5 in
the merit list and was entitled for
admission. This court passed an interim
order on 27.9.2001 directing respondents
to keep one seat reserved for the
petitioner under physically handicapped
category.

3. While the writ petition was
pending second counselling was to be
held on 8.1.2002. The petitioner appeared
before the board on 22.12.2001. The
board issued a medical certificate to the
petitioner that he was a physically
handicapped candidate and his disability
was not such that he was unfit to receive
medical education. The petitioner had
filed the medical certificate before this
court by means of a supplementary
affidavit and since one seat was already
reserved as per interim order of this court,
the petitioner did not appear in the second
counselling. He claims admission on
M.B.B.S. seat as per his standing in the
merit list.

4. Sri Swapnil Kumar the learned
counsel for the petitioner has urged that
due to fault of the board in not issuing
medical certificate to the petitioner, he
has been deprived of his admission on
M.B.B.S. seat. However, subsequently the
board has issued medical certificate to
him, therefore, as per interim order of this
court, he is entitled for admission to
M.B.B.S. course.
1All] Saurabh Gupta V. The Chairman Councilling Board/C.P.M.T. and another
247
5. Sri Ashutosh Srivastava the
learned counsel for the respondents has
vehemently urged that the petitioner was
rejected by the first board and no rejection
certificate or order is required to be
issued. Since one seat was directed to be
reserved by this court, the respondents
have reserved one seat in BDS course,
therefore, the petitioner cannot be given
M.B.B.S. seat.

6. It is not disputed that the
petitioner is a physically handicapped
candidate and his rank in physically
handicapped category was 18 and when
he appeared in first counselling his rank
was at serial number 5 as other candidates
did not appear. Therefore, he was entitled
for M.B.B.S. seat in the first counselling.
But the seat was not allotted to the
petitioner nor he was granted admission,
on the ground that the board constituted
by the respondents had not issued any
medical certificate to him. Subsequently,
in December, 2001 the board issued
medical certificate to the petitioner.

7. In Paragraph 19 of the counter
affidavit filed by the Director General,
Medical Education and Training, U.P., it
is stated..." The petitioner failed to
submit such a certificate at the time of
counselling
held
on
25.9.2001
Consequently no allotment of seat under
(07) category could be made in his favour.
It is further submitted that the Special
Medical Board is required to issue a
certificate only when it is satisfied that a
candidate is physically handicapped upto
a certain percentage and can pursue
Medical Education. It does not issue a
certificate otherwise."

8. It is thus not disputed that the
petitioner was not allotted a seat because
he could not produce Handicapped
Certificate from the Board constituted on
15.9.2001. There was no other reason.
Paragraph 3 (chha) of the brochure reads
us under:-

"(N)
fodykax vH;fFkZ;ska dks lqjf{kr lhVksa ij
,e0ch0ch0,l0@ch0Mh0,l0@ch0,0,e0,l0@
ch0,p0,e0,l0@ch0;w0,e0,l0
ikB;dzeksa
esa
ikB;dze@dkyst vkoaVu ds fy, vH;fFkZ;ksa dks
viuh fpfdRlk ijh{kk esMhdy dkWyst esa rnFkZ
xfBr fo'ks"k esfMdy cksMZ ls djkuh gksxh rFkk mDr
cksMZ }kjk bl Js.kh dh vkjf{kr lhVksa ds le{k
mlds vH;FkZu ds lEcU/k esa fn;k x;k fu.kZ; vfUre
:i ls ekU; gksxkA mDr fo'ks"k cksMZ ds xBu ds
lEcU/k esa vko';d funsZ'k egkfuns'kd] fpfdRlk
f'k{kk }kjk vyx ls tkjh fd;s tk;saxsA esfMdy
cksMZ fyf[kr ijh{kk dk ifj.kke ?kksf"kr gksus ds
i'pkr dkmaflfyax ds igys cSBsxkA esfMdy cksMZ
ds le{k dsoy mUgha vH;fFkZ;ksa dks mifLFkr gksuk
gksxk ftUgksaus bl Js.kh gsrq vkosnu fd;k gks vkSj tks
fyf[kr ijh{kk dh esfjV ds vk/kkj ij fodykax dh
Js.kh esa dkmaflfyax gsrq vkeaf=r fd;s tk;saxsA
dsoy egkfuns'kd] fpfdRlk f'k{kk mRrj izns'k }kjk
xfBr esfMdy cksMZ }kjk fn;k x;k izek.k&i= gh
ekU; gksxkA ;fn cksMZ dh jk; esa fdlh vH;FkhZ dh
fodykaxrk bl lhek rd gS fd og fpfdRlk f'k{kk
xzg.k ugha dj ldrk gS rks ,sls vH;FkhZ izos'k gsrq
vgZ ugha gksaxsA"

9. It gives the procedure for
constitution of the Board and the manner
of exercise of its power. What is
important is that the decision of the Board
on disability has been made final. It is
further provided that if in the opinion of
the Board the disability of any candidate
is to such extent that he cannot persue
medical education then such a candidate
would not be entitled for admission. The
requirement of taking decision coupled
with the expression " If in the opinion of
the Board" makes it obligatory for the
Board to issue a certificate or an order. In
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
248
absence of any order of rejection the
Board shall be deemed in law to have
failed to perform the duty imposed on it.
When any rule, order or provision
provides for giving decision or makes the
opinion final and such decision or opinion
effects rights of a person then the opinion
and decision has to be recorded in writing
and must be communicated. The stand in
the counter affidavit filed by the Director
that the Board was not required to issue a
certificate of rejection cannot be accepted.
It is held that the Board whenever does
not find any physically handicapped
candidate unfit for pursuing medical
education it will issue an order refusing to
issue certificate expressing its opinion,
otherwise it shall be deemed that the test
as required has not been held.

10. Therefore, the appearance of
petitioner before the Board in September,
2001 was of no consequence. The next
Board was announced for 22.12.2001.
Counselling is linked with seats available
for allotment in M.B.B.S. The Board was
constituted.
The
petitioner
appeared
before it. He was found eligible for
pursuing medical education. A Certificate
was issued to him. The petitioner,
therefore, satisfied all the requirements
and he was entitled for allotment of a seat
in M.B.B.S.

11. Sri Ashutosh Srivastava argued
that the petitioner having appeared before
the Board on 22.12.2001 for which
counselling was to take place on 8.1.2002
in which he did not appear, therefore, he
cannot be allotted any seat. The argument
ignores that the petitioner had approached
this court against the rejection of his
candidature in the counselling held on
25.9.2001 only because he was not issued
a certificate by the Board. During
pendency of the writ petition, the
petitioner was found suitable and eligible
for medical studies. A candidate who
appeared
in
CPMT
examination
in
disabled category was required to come in
merit list, but his candidature was subject
to his fitness declared by the Board. Once
he was found fit by the Board and the
earlier Board had not found him unfit, the
procedural requirement was complete.
And the respondents cannot be permitted
to take advantage of their own omission
of not issuing a certificate. Once the
petitioner was found suitable, it was
immaterial whether he was examined by
the Board before or after the counselling.
In any case, it was during pendency of the
writ petition in the court and it shall be
deemed that it was the first medical test of
the petitioner.

12. Sri Ashutosh Srivastava further
argued that a seat has been reserved for
the petitioner in B.D.S. course. It is not
the case of respondents that there is no
seat in M.B.B.S. course. Further the
petitioner had filed this petition in
September, 2001 and had sought quashing
of the order dated 25.9.2001 and for a
direction to respondents to keep one seat
for him in M.B.B.S. This court by interim
order on 27.9.2001 directed respondents
to reserve one seat for him in the
category of physically handicapped. The
respondents could not go behind this
order which had to be understood in the
context of the writ petition.

13. In the result, this petition
succeeds and is allowed. The respondents
are directed to admit the petitioner in
M.B.B.S. course within three weeks from
the date a certified copy of this order is
produced before respondent no. 1.
1All] Tribeni Prasad Patel V. Union of India, through Secretary and others
249
14. The parties shall bear their own
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.2.2002

BEFORE
THE HON'BLE S.K. SINGH, J.

Civil Misc. Writ Petition No. 41123 of 1997

Tribeni Prasad Patel

...Petitioner
Versus
Union of India, through Secretary of
Ministry of Labour/Shram Mantralaya
New Delhi

 ...Respondents

Counsel for the Petitioner:
Sri I.N.Singh
Sri Ajay Yadav

Counsel for the Respondents:
Sri S.C.
Sri Himanshu Tiwari

Constitution
of
India,
Article
227.
Reference- Rejected on the ground of
delay of 13 years- supporting documents
not
considered-
Rejection
order
quashed- direction issued to decide the
matter on merit.

Held - Para 13

In the light of aforesaid discussions the
order of the respondent no. 4 gives a
firm impression to the court that the
explanation as has been given by the
petitioner vide para 8 of the affidavit
(Annexure-8)
to
the
writ
petition
supported by documents Annexure A to
F)
have
not
been
taken
into
consideration and it appears that in
ignorance thereof just by a casual
observation that he has raised the issue
after a lapse of nearly 13 years without
furnishing any justifiable reason for the
delay' the reference have been refused.
On the facts and circumstances and in
view of aforesaid, I am of the view that
the matter requires fresh consideration
by the respondent no. 4 in respect of the
claim of the petitioner without being
influenced by the observations as made
in this judgement.
Case law discussed:
AIR 1959 SCC 1217
AIR 1970 SC-1205
2000(2) AWC 923

(Delivered by Hon'ble S.K. Singh, J.)

1. By means of this writ petition,
petitioner has prayed for issuance of a
writ in the nature of Certiorari quashing
the orders dated 31.10.1996 (Annexure-I)
and 22.8.1997 (Annexure-2) to the writ
petition) passed by respondents 2 and 4
respectively.

2. The petitioner claims to have been
appointed as Class IV employee in the
Allahabad
Bank
in
the
district
Bulandshahr on 11.2.1981 on the death of
his father Jagannath Prasad who was a
confirmed Class IV employee in the said
Bank. It has been stated that having
worked for 89 days, without any rhyme or
reason petitioner was asked not to work.
In view of the aforesaid fact petitioner
states that he approached the concerned
authorities from time to time but his claim
for continuance was not considered on
account of which he has to make a
detailed
representation
on
8.5.1995
raising industrial dispute against the
illegal and arbitrary order of termination
of his service. As the petitioner happened
to be a poor person and not being in a
position to contest his case before the
respondent No. 2 he gave authority letter
dated 8.5.1995 authorising the General
Secretary of the U.P. Bank Employees
Union to represent his case and to sign
documents/papers etc. on his behalf. It is