# ASHA v. PT. B.D. SHARMA UNIVERSITY OF HEALTH SCIENCES & ORS

- **Citation:** [2012] 6 S.C.R. 876
- **Court:** Supreme Court of India
- **Decided:** 2012-07-10
- **Case number:** Civil Appeal No. 5055 of 2012
- **Bench:** Swatanter Kumar, RANJAN GOGOi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/asha-v-pt-b-d-sharma-university-of-health-sciences-ors-28245
- **Pages:** 29

## Headnote

EDUCATION:
Medical admissions - MBBS course - Candidate
securing more marks and placed higher in merit list, ignored
on the ground of absence in counseling during relevant time
- Held: The rule of merit for preference of courses and
0
colleges admits no exception - It is an absolute rule and all
stakeholders and authorities concerned are required to follow
this rule strictly and without demur - Record indicates that the
candidate was present in the counseling at the time of
attendance and even subsequent thereto - Directions issued
E for her admission to MBBS course.
Medical admissions - Cut-off-date - Exception - Held:
30th September is undoubtedly the last date by which the
admitted students should report to their respective colleges
wifhout fail - Thereafter, only in very rare and exceptional
F
cases, admission may be permissible but such power may
preferably be exercised by the courts only if the conditions
stated by Supreme Court in the case of Priya Gupta and the
instant judgment are found to be unexceptionally satisfied -
Adherence to the schedule is the obligation of the authorities
G and the students both - Constitution of India, 1950 - Art. 141.
H
Medical admissions -Refusal of admission if found
arbitrary, violative of Rules and Regulations or contrary to
judgments of Supreme Court - Remedy - Explained - Further
876
ASHA v. PT. B.D. SHARMA UNIVERSITY OF HEALTH 877
SCIENCES & ORS.
directions given in order to avoid ambiguity and to ensure that
A
authorities act in accordance with law.
Medical admissions - Interim orders - Held: As has been
held in Priya Gupta's case, courts should avoid giving interim
orders where admissions are the matter of dispute - The8
students who· pursue the courses under the courts' orders
would not be entitled to claim any equity at the final decision
of the case nor should it weigh with the courts - Equity.
PLEADINGS:
Denial of an averrnent - Held: An averrnent made by the
appellant is expected to be specifically denied by the replying
party - If there is no specific denial, then such averrnent is
deemed to have been admitted by the respondent.
c
The appellant, a candidate belonging to Backward
D
Class B (BCB) and Ex-Serviceman (ESM) category,
secured 832 marks in the entrance examination for
MBBS, BOS and BAMS and was put at serial no. 13 of the
ESM category. In the first counselling held on 14-15th
July, 20.11, being lower in merit, she could not get
E
admission in MBBS course and, therefore, she took
admission in the BOS course. She participated in. the
second counselling held on 20.9.2011, but her name waS'
not declared for the admission, and respondent no. 3,
who had secured less marks (821) than her and was
F
placed at sl. No. 14 in ESM category, was given
admission in the MBBS course. She filed a writ petition
before the High Court. The single Judge allowed her
claim. The said order having been set aside by the
Division Bench .of the High Court, the writ petitioner filed
G
the appeal
Disposing of the appeal, the Court
HELD: 1.1 The rule of merit for preference of courses
H
878
SUPREME COURT REPORTS
[2012) 6 S.C.R.
A and colleges admits no exception. It is an absolute rule
and all stakeholders and authorities concerned are
required to follow this rule strictly and without demur. It
will be travesty of the scheme formulated by this Court
and. duly notified by the States, if the rule of merit is
B defeated by inefficiency, inaccuracy or improper methods
of admission. There cannot be any circumstance where
the rule of merit can be compromised. Circumvention of
merit is not only impermissible, but is also abuse of the
process of law. Relaxation of the rule of merit for reason
c of non-appearance is not permissible. [para 22, 30 and
36(a)] [893-B; 896-C, D; 900-G]
Priya Gupta Vs. State of Chhatisgarh & Anr. 2012 (7)
SCC 433; Harshali v. State of Maharashtra and Others (2005)
13 SCC 464; Pradeep Jain v. UOl 1984 (3) SCR 942 = 1984
D (3) SCC 654; Sharwan Kumar and Others v. Director of
Heal

## Text

_Characters 0–39,679 of 54,543. This is a partial read: ask again with offset=39679 for what follows._

A
B
c
[2012] 6 S.C.R. 876
ASHA
v.
PT. B.D. SHARMA UNIVERSITY OF HEALTH SCIENCES
& ORS.
(Civil Appeal No. 5055 of 2012)
JULY 10, 2012
[SWATANTER KUMAR AND RANJAN GOGOi, JJ.)
EDUCATION:
Medical admissions - MBBS course - Candidate
securing more marks and placed higher in merit list, ignored
on the ground of absence in counseling during relevant time
- Held: The rule of merit for preference of courses and
0
colleges admits no exception - It is an absolute rule and all
stakeholders and authorities concerned are required to follow
this rule strictly and without demur - Record indicates that the
candidate was present in the counseling at the time of
attendance and even subsequent thereto - Directions issued
E for her admission to MBBS course.
Medical admissions - Cut-off-date - Exception - Held:
30th September is undoubtedly the last date by which the
admitted students should report to their respective colleges
wifhout fail - Thereafter, only in very rare and exceptional
F
cases, admission may be permissible but such power may
preferably be exercised by the courts only if the conditions
stated by Supreme Court in the case of Priya Gupta and the
instant judgment are found to be unexceptionally satisfied -
Adherence to the schedule is the obligation of the authorities
G and the students both - Constitution of India, 1950 - Art. 141.
H
Medical admissions -Refusal of admission if found
arbitrary, violative of Rules and Regulations or contrary to
judgments of Supreme Court - Remedy - Explained - Further
876
ASHA v. PT. B.D. SHARMA UNIVERSITY OF HEALTH 877
SCIENCES & ORS.
directions given in order to avoid ambiguity and to ensure that
A
authorities act in accordance with law.
Medical admissions - Interim orders - Held: As has been
held in Priya Gupta's case, courts should avoid giving interim
orders where admissions are the matter of dispute - The8
students who· pursue the courses under the courts' orders
would not be entitled to claim any equity at the final decision
of the case nor should it weigh with the courts - Equity.
PLEADINGS:
Denial of an averrnent - Held: An averrnent made by the
appellant is expected to be specifically denied by the replying
party - If there is no specific denial, then such averrnent is
deemed to have been admitted by the respondent.
c
The appellant, a candidate belonging to Backward
D
Class B (BCB) and Ex-Serviceman (ESM) category,
secured 832 marks in the entrance examination for
MBBS, BOS and BAMS and was put at serial no. 13 of the
ESM category. In the first counselling held on 14-15th
July, 20.11, being lower in merit, she could not get
E
admission in MBBS course and, therefore, she took
admission in the BOS course. She participated in. the
second counselling held on 20.9.2011, but her name waS'
not declared for the admission, and respondent no. 3,
who had secured less marks (821) than her and was
F
placed at sl. No. 14 in ESM category, was given
admission in the MBBS course. She filed a writ petition
before the High Court. The single Judge allowed her
claim. The said order having been set aside by the
Division Bench .of the High Court, the writ petitioner filed
G
the appeal
Disposing of the appeal, the Court
HELD: 1.1 The rule of merit for preference of courses
H
878
SUPREME COURT REPORTS
[2012) 6 S.C.R.
A and colleges admits no exception. It is an absolute rule
and all stakeholders and authorities concerned are
required to follow this rule strictly and without demur. It
will be travesty of the scheme formulated by this Court
and. duly notified by the States, if the rule of merit is
B defeated by inefficiency, inaccuracy or improper methods
of admission. There cannot be any circumstance where
the rule of merit can be compromised. Circumvention of
merit is not only impermissible, but is also abuse of the
process of law. Relaxation of the rule of merit for reason
c of non-appearance is not permissible. [para 22, 30 and
36(a)] [893-B; 896-C, D; 900-G]
Priya Gupta Vs. State of Chhatisgarh & Anr. 2012 (7)
SCC 433; Harshali v. State of Maharashtra and Others (2005)
13 SCC 464; Pradeep Jain v. UOl 1984 (3) SCR 942 = 1984
D (3) SCC 654; Sharwan Kumar and Others v. Director of
Health Ser.vices and Another 1993 Supp (1) SCC 632; Preeti
Srivastava v. State of MP 1999 (1) Suppl. SCR 249 = (1999)
7 SCC 120; Guru Nanak Dev University v. Saumil Garg and
Others 2005 (13) SCC 749; and A/IMS Students' Union v.
E A/IMS and Others 2001 (2) Suppl. SCR 79 = (2002) 1 SCC
428 - relied on.
1.2 The judgments of this Court constitute the law of
the land in terms of Art. 141 of the Constitution and the
F regulations framed by the Medical Council of India are
statutorily having the force of law and are binding on all
the parties concerned. Various aspE!cts of the admission
process as of now are covered either by the respective
notifications issued by the State ~overnments,
G prospectus issued by the colleges and, in any case, by
the regulations framed by the Medical Council of India.
[para 27) (895-C-E]
State of M.P. v. Gopal D. Tirthani and Others 2003 (1)
Suppl. SCR 797 = (2003) 7 SCC 83; State of Punjab v.
H Dayanand Medical College & Hospital and Ors. 2001 (4)
ASHA v. PT. 8.0. SHAR.MA UNIVERSITY OF HEALTH 879
SCIENCES & ORS.
Suppl. SCR 72 =AIR 2001 SC 3006; Bharati Vidyapeeth v.
A
State of Maharashtra and Another 2004 (2) SCR 775 = (2004)
11 SCC 755; Chowdhury Navin Hemabhai and Others v.
State of "Gujarat and Others 2011 (2) SCR 1071 = (2011) 3
SCC 617; Harish Verma and Others v. Ajay Srivastava and
Another 2003 (3) Suppl. SCR 833 = (2003) 8 SCC 69 - relied
B
on
Medical Council of India v. MadhtJ Singh and Others
2002 (2) Suppl. SCR 228 = (2002) 7 SCC 258; Ms. Neelu
Arora and Another v. Union of India and Others 2003 ( 1 ) C
SCR 562 = (2003) 3 SCC 366; Aman Deep Jaswal v. State
of Punjab and Others 2005 (1) SCR 380 = (2006) 9 SCC 597;
Medical Council of India v. Naina Verma and Others (2005)
12 SCC 626; Mridul Dhar and Another v Union of India and
Others 2005 (1) SCR 380 = (2005) 2 SCC 65- cited.
1.3 There is no dispute to the fact ttiat the appellant
had appeared before the authorities and marked her
attendance in the attendance sheet on 20.9.2011. When
the list of successful candidates revealed that candidates
D
of merit lower to her had been admitted to the MBBS E
course, she instantly raised her claim and even submitted
a representation to the respondents, but to no avail. In the
reply filed on merits by the respondents, this aspect was
dealt with in a most casual manner and no specific denial
was made. It is a settled principle of law of pleadings that
F
an averment made by the appellant is expected to be
specifically denied by the replying party. If there is no
specific denial, then such averment is deemed to have
been admitted by the respondent. Therefore, this Court
is of the considered view that the appellant has been able G
to make out a case for interference. [para 14, 16,17 and
18] [888-E-F; 889-F; 890-F-G;] [891-E-G]
2.1 30th September is undoubtedly the last date by
which the admitted students should report to their
H
880
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A respective colleges without fail. In the normal course, the
admissions must close by holding of second counseling
by 15th September of the relevant academic year in
terms of the decision of this Court in Priya Gupta.
Thereafter, only in very rare and exceptional cases of
B unequivocal discrimination or arbitrariness or pressing
emergency, admission may be permissible but such
power may preferably be exercised by the courts, only if
the conditions stated in Priya Gupta's case and this
judgment are found to be unexceptionally satisfied and
c the reasons therefor are recorded by the court of
competent jurisdiction. Adherence to the schedule is the
obligation of the authorities and the students, both. The
courts have consistently taken the view that the schedule
is sacrosanct like the rule of merit. The prescribed
0 schedule is to be maintained stricto sensu by all the
stakeholders. The authorities should follow the
procedure prescribed under the Rules and maintain due
records thereof. [para 24, 26, 27 and 36(b)] [894:-A; 894G-H; 895-D-E; 900-H; 901-A-D]
E
State of Bihar v. Sanjay Kumar Sinha & Ors. 1989 (2)
Suppl. SCR 168 = (1990)" 4 SCC 624; Medical Council of
India v. Madhu Singh & Ors. 2002 (2) Suppl. SCR 228 =
(2002) 7 SCC 258; GSF Medical and Paramedical
Association v. Association of Management of Self Financing
F
Technical Institutes and Anr. 2003 (12) SCC 414; Christian
Medical College v. State of Punjab and Others (2010) 12
sec 167 - relied on.
2.2. In the instant case, since the appellant is not at
G fault and she pursued her rights and remedies as
expeditiously as possible, this Court is of the considered
view that the cut-off date· cannot be used as a technical
instrument or tool to deny admission to a meritorious
student. The rule of merit stands completely defeated in
H the instant case. [para 31] [897-C-D]
ASHA v. PT. 8.0. SHARMA' UNIVERSITY OF HEALTH 881
SCIENCES & ORS.
Arti Sapru and Others v. State of J & K and Others 1981
A
(3) SCR 34 = (1981) 2 SCC 484; Chavi Mehrotra v. Director
General Health Services (1994) 2 SCC 370; and Aravind
Kumar Kankane v. State of UP and Others 2001 (1) Suppl.
SCR 262 = (2001) 8 sec 355 - relied on.
3.1. Wherever the court finds that the action of the
authorities has been arbitrary, contrary to the judgments
B
of this Court and violative of the Rules, regulations and
conditions of the prospectus, causing prejudice to the
rights of the students, the court shall award
compensation to such students as well as direct C
initiation of disciplinary action against the·erring officers/
officials. The court shall also ensure that the proceedings
under the Contempt of Courts Act, 1971 are initiated
against the erring authorities irrespective of their stature
and empowerment. Where the admissions given by the
D
authorities concerned are found by the courts to be
legally unsustainable and where there is no reason to
permit the students to continue with the course, the mere
fact that such students have put in a year or so into the
academic course is not by itself a ground to permit them
E
to continue with the course. [para 36(c) and (d)] [901-EH; 902-A]
3.2. In fact, normally, keeping in view the factual
matrix of the case, this Court would have directed the
admission of the appellant to the MBBS course in the
academic year 2011-2012 and would further have directed
the re$pondents to pay compensation to her. But the
records show that the appellant has attended only 28 to
F
42 per cent lectures insteCld of the required 75 per cent
and has not even pursued her BOS course properly and,
G
thus, she has not fulfilled even the pre-requisites for
MBBS course, assuming that the BOS and MBBS
courses are similar for the first six months. In these
circumstances, the respondents are directed to give the
appellant admission to the MBBS course in the current
H
882
SUPREME COURT REPORTS
[2012) 6 S.C.R.
A academic year i.e. 2012-2013, subject to the condition that
she will pursue her MBBS course right from the
beginning without any advantage of her course in the
BOS. While giving her admission to the MBBS course, the
respondents shall follow the procedure as explained in
B the judgment. [para 33-35) [898-D; 899-D; 900-B-C]
4. As has been held in Priya Gupta's case, it is
reiterated that the courts should avoid giving interim
orders where admissions are the matter of dispute. Even
C in cases where the candidates are permitted to continue
with the courses, they should normally be not permitted
to take further examinations of the professional courses.
The students who pursue the courses under the orders
of court would not be entitled to claim any equity at the
final decision of the case nor should it weigh with the
D courts of competent jurisdiction. In order to put the matter
to rest beyond ambiguity and to ensure that the
authorities act in accordance with law, this Court issues
further directions, as detailed in the judgment. [para 37
and 38) [902-B-D]
E
Case Law Reference:
2012 (7 > sec 433
relied on
para 22
(2005) 13 sec 464
relied on
para 22
F
1984 (3) SCR 942
relied on
para 22
1993 Supp (1) sec 632
relied on
para 22
1999 (1) Suppl. SCR 249
relied on
para 22
G
2005 (13) sec 149
relied on
para 22
2001 (2) Suppl. SCR 79
relied on
para 22
1989 (2) Suppl. SCR 168
relied on
para 26
H
2002 (2) Suppl. SCR 228
relied on
para 26
ASHA v. PT. B.D. SHARMA UNIVERSITY OF HEALTH 883
SCIENCES & ORS.
2003 (12) .;cc 414
relied on
para 26
A
c2010) 12 sec 167
relied on
para 26
2003 (1) Suppl. SCR 797
relied on
para 28
2001 (4) Suppl. SCR 72
relied on
para 28
B
2004 (2) SCR 775
relied on
para 28
2011 (2) SCR 1071
relied on
para 28
2003 (3) Suppl. SCR 833
relied on
para 28
c
2002 (2) Suppl. SCR 228
cited
para 30
2003 (1) SCR 562
cited
para 30
2006 (9) sec 597
cited
para 30
2005 (12) sec 626
cited
para 30
D
2005 (1 ) 'SCR 380
cited
para 30
1981 ( 3 ) SCR 34
relied on
para 31a
1994 < 2 >sec 370
relied on
para 31
E
2001 ( 1 ) Suppl. SCR 262
relied on
para 31
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5055 of 2012.
From the Judgment & Order dated 27 .01.2012 of the High
F
Court of Punjab & Haryana at Chandigarh in LPA No. 2129 of
2011.
Himanshu Gupta, Anil Kumar Tandale for the Appellant.
G
S.S. Upadhyay, Vikrant Yadav, M.C. Dhingra, Dr. Kailash
Chand, Rajat Rathee for the Respondents.
The Judgment of the Court was delivered by
H
884
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A
SWATANTER KUMAR, J. 1. Leave grante.d.
2. Admission to the medical courses (MBBS and BOS)
has been consistently a subject of judicial scrutiny and review
for more than three decades. While this Court has enunciated
8 the law and put to rest the controversy arising in relation to one
facet of the admission and selection process to the medical
courses, because of ingenuity of the authorities involved in this
process, even more complex and sophisticated set of questions
have come up for consideration of the Court with the passage
of time. One can hardly find any infirmities, inaccuracies or
C impracticalities in the prescribed scheme and notifications in
regard to the process of selection and grant of admission. It is
the arbitrary and colourable use of power and manipulation in
implementation of the schedule as well as the apparently
perverse handling of the process by the concerned persons or
D the authorities involved, in collusion with the students or
otherwise, that have rendered the entire admission process
faulty and questionable before the courts. It is the admissions
granted arbitrarily, discriminately or in a manner repugnant to
the regulations dealing with the subject that have invited judicial
E catechism. With the passage of time, the quantum of this
litigation has increased manifold.
3. Thus, it is both the need of the hour and the demand of
justice that this Court clarifies its decision and states the
F principles with greater precision so as to ensure elimination of
colourable abuse and arbitrary exercise of power in the process
of selection and admission to these professional courses by
all concerned.
4. Therefore, in our view, though the present appeal arises
G from very simple facts, yet it raises questions of considerable
importance and application. These questions are bound to
arise repeatedly not only before this Court, but even before the
High Courts. Therefore, it is imperative for us to formulate the
questions and answer them in accordance with law.
H
ASHA v. PT. B.D. SHARMA UNIVERSITY OF HEALTH 885
SCIENCES & ORS. [SWATANTER KUMAR, J.]
5. The questions are :-
a) Is there any. exception to the principle of strict adherence
to the Rule of Merit for preference of courses and colleges
regarding admission to such courses?
A
b) Whether the cut-off date of 30th September of tho
B
relevant academic year is a date which admits any
exception?
c) What relief the courts can grant and to what extent they
can mould it while ensuring adherence to the rule of merit, c
fairness and transparency in admission in terms of rules
and regulations?
d) What issues need to be dealt with and finding returned
by the court before passing orders which may be more
equitable, but still in strict compliance with the framework
D
of regulations and judgments of this court governing the
subject?
6. The appellant cleared her Secondary examination
(medical stream) with 75% marks and was eligible for taking
E
medical entrance examination as she fulfilled the requisite
criteria to take that exam. Pt. B.D. Sharma University (for short
'the University') issued a notification/advertisement for the
entrance examination for MBBS, BDS and BAMS to be held
in the first week of May, 2011. The appellant applied for the
F
same in the Backward Class 'B' (for short 'BCB') and
dependent of Ex-Serviceman (ESM) category. Her application
was accepted and roll number was issued to her. The date of
the examination was fixed for 12th June, 2011 by the University.
The appellant was declared successful in the entrance
G
examination having secured 832 marks. The appellant was at
serial number 13 of the ESM category. All concerned were
informed that the first counseling for allotment of seats was to
be held on 14th -15th July, 2011. In this counseling, the
appellant was not admitted to MBBS Course as she was lower
H
886
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A
in merit. Consequently, she took admission in the BOS Course.
on that very day. Thereafter, a declaration was made by the
respondents that the second counseling for allotment of seats
in the MBBS course would ba held on 20th September, 2011.
The appellant again participated in the counseling but her name
B
and roll number was not declared by the respondents for the
said admissions. How~ver, when the list of allocation of seats
was displayed, it came to light that though the appellant had
not been admitted to the MBBS Course, candidates who
ranked below her in the merit list, including the respondent no.3,
c . Vineeta Yadav, who had obtained 821 marks and was at serial
number 14 of the ESM Category, had been given admission
to the MBBS Course.
7. On the above facts, the learned Single Judge of the
High Court of Punjab and Haryana at Chandigarh, observed
D that according to the respondents, the 'appellant left the
counseling place' without appearing before the Counseling
Board. Resultantly, her candidature was not considered for
admission to the MBBS course under the ESM category and
the candidate next in merit was given the admission. It was the
E
opinion of the Court that it would be too far fetched to accept
that the appellant, though was physically present at the time of
taking of attendance, thumb impressions and photography, did
not respond to the call for counseling at the relevant time.
Further, the Court observed that no reason whatsoever could
F
be seen for absence of the appellant at the relevant moment
from the record before the Court. In view of the fact that the
appellant had filed the writ petition within a week of the second
counseling, the Court accepted the facts averred in the writ
petition and directed the rE;lspondents to admit the appellant to
G the MBBS course while further directing that it would be open
for the respondents to see that admission of other students
lower in merit is not cancelled, if so permissible and possible
under the relevant Rules.
H
8. Upon appeal, the Division Bench of that Court upset the
ASHA v. PT. B.D. SHARMA UNIVERSITY OF HEALTH 887
SCIENCES & ORS. [SWATANTER KUMAR, J.]
judgment of the learned Single Judge and held as under:-
A
"We find that such directions could not have been issued
on the basis of possibilities. In view the process of
counseling, we find that the writ petitioner herself has failed
to appear before the counseling board at the relevant time.
It is not that she has not got admission. She is pursuing
BOS course at Rohtak whereas, the other two candidates
B
are pursuing their courses at PGI Rohtak and Medical
College Agroha. At this stage, to disturb the entire
admission process would not in the interest of academics
when there is no substantive allegation in respect of
C
admission process."
9. The Division Bench also noticed the contention of the
respondents that the appellant was a student of the same
college and other candidates were even outstation, thus it was
0
possible that the appellant was not present when the call for
her name was made, may be due to her negligence or
carelessness.
10. The Court also observed that since there was no
allegation of mala tides against any member of the Counseling
Board and there also being no allegations of misconduct .and
favouritism, the conclusion arrived at by the learned Single
Judge was not sustainable in law.
11. The moot question which falls for consideration of this
Court in view of the divergent views taken by the Single Judge
and the Division Bench of the High Court is whether the
decision of the learned Single Judge is based on inferences
or assumptions or whether it was a reasonable conclusion
which the Court could arrive at in view of the pleadings of the
parties and the relevant rules in force.
12. Notification for the second counseling was issued on
26th August, 2011". The second counseling was to be held for
admission to MBBS and BOS courses in Government Aided
Medical Dental Colleges in the State of Haryana on 20th
E
F
G
H
888
SUPREME COURT REPORTS
(2012] 6 S.C.R.
A September, 2011 in the Office of the Director, Pandit B.D.
B
c
D
E
Sharma University of Health Sciences, PGI, Rohtak, as per the
schedule given therein.
13. The notification inter alia also stated:-
Date
Re1;1orting Time
Categorv
Rank
20.09.2011
8.00 AM.
General
01 to 704
(Common
Merit List)
SC
01 to 65
BCA
01 to 144
BCB
01 to 150
PH
01
ESM
01 to 30
FF
01
14. In furtherance to this notification, there is no dispute to
the fact that the appellant, who was at Sr. No. 13 of ESM
category, had appeared befo~e the authorities and marked her
attendance in the attendance sheet on 20th September, 2011.
F It is interesting to note that the same sheet had been signed
by the candidates to mark their presence even on 15th July,
2011, when the first counseling was held. The appellant had
also signed on 15th July, 2011 and, as already noticed, was
given admission to the BOS course.
G
H
15. Another important aspect which needs to be noticed
at this stage is the original merit list which has been produced
before us. This merit list relates to the date of first counseling,
i.e., 15th July, 2011. According to the respondents, the
appellant had been given admission to the BOS course but in
ASHA v. PT. B.O. SHARMA UNIVERSITY OF HEALTH 889
SCIENCES & ORS. [SWATANTER KUMAR, J.]
this merit list the column for signature in front of her name is
empty. This document does not have any of the members of
the Board or any candidate specifying the date of this
counseling. Therefore, we would take it that this document is
dated and relates to the proceedings .of 15th July, 2011. If that
be so, it is difficult to understand as to how the appellant was
given admission to the BOS cours~ on 15th July, 2011 when
nothing is noted in front of her name. It does not even say,
whether she was given admission to MBBS or BOS course.
Interestingly, in the remark column, the members of the Board
have noted the candidates who have already been given
admission to a college or who were not interested in BOS
course or who had vacated the seat of BOS. The merit list for
admission dated 20th September,· 2011 has not been placed
on record. There is no explanation available from the records
produced before us, as ~o why this has not been done. It has
also not been clarified in the affidavit filed on behalf of
respondent Nos. 1 and 2.
16. We may notice that in thewrit petition before the High
Court the appellant had specifically averred that slle was
present in the second counseling at the time of attendance and
even subsequent thereto. However, despite such presence, her
name and roll number were not declared by the respondents
for the purpose of admission to the MBBS course. However,
the list of successful candidates revealed that candidates of
merit lower to her had been admitted to the MBBS course.
According to her, she instantly raised her claim and even
submitted a representation upon the respondents but to no
avail. Paragraphs 7 to 9 of the writ petition read as follows :
"7. That the respondents have decided to take second
counseling and the date for second counseling was fixed
for 20.09.2011. The petitioner again participated in the
second counseling but her name and roil number was
again not declared by the respondents for the said
admission in the MBBS course.
A
B
c
0
E
F
G
H
A
B
c
D
E
F
G
H
890
SUPREME COURT REPORTS
[2012] 6 S.C.R.
8. That after the date of second counseling, the petitioner
was shocked to know that one Vinita Yadav daughter of
Sh. Arvind KumarYadav Roll No. 126038 having the same
category i.e. BCB-ESM and having 821 marks which is
lower then the marks secured by the petitioner got
admission in MBBS Course conducted by the
respondents. The petitioner has visited the office of the
respondent just after getting the information that a
candidate who is lower in merit/marks got admissioh in
MBBS Course and requested the respondents that this is
totally illegal and discriminatory on the part of them that
they are giving admission to a candidate who is having
lesser marks than the petitioner but the respondents have
not considered her genuine claim and legal rights and
willfully ignored the request of the petitioner.
9. That the petitioner has not continuously visited the office
of the respondents and raised her voice for her genuine
claim for the admission in MBBS Course and she has
specifically mentioned that a candidate having lesser
marks as compared to the petitioner has got admission
in MBBS course but in vain. The petitioner submitted a
representation before the respondents mentioning
everything about the incident but the respondents have not
considered her request. A true typed copy of the
representation is attached herewith as ANNEXURE P-3."
17. In the reply filed on merits by the respondents, these
paragraphs were dealt with in a most casual manner and no
specific denial was made. Paragraphs 7 to 9 of the reply read
as under:-
"7. That in reply to Para No. 7 of the petition averments
made in Para No. 3 and 4 of the preliminary submissions
are reiterated here.
8. That in reply to Para No. 8 of the petition it is submitted
that since the Petitioner left the counseling place without
ASHA v. PT. B.D. SHARMA UNIVERSITY OF HEALTH 891
SCIENCES & ORS. [SWATANTER KUMAR, J.]
appearing before the counseling board her candidature
A
was not considered for admission to MBBS course under
ESM category and the Respondent No. 3 who was next
in merit than the Petitioner got the admission in MBBS
course under ESM category. Averments made in Para No.
3 and 4 of the preliminary submissions are also reiterated
B
here.
9. That Para No. 9 of the writ petition is wrong and denied.
The Petitioner has never approached to the answering
Respondents with regard to her admission in MBBS
course after 2nd counseling as claimed in this para.
C
However, in any case she is not entitled for admission to
MBBS Course under ESM category in present
circumstances in view of facts mentioned in Para No. 2, 3
& 4 of the preliminary submissions."
D
18. From a bare reading of the reply rn·ed by the
respondents, it is clear that there is no specific denial of the .
above-noted averments made by the appellant. It is a settled
principle of the law of pleadings that an averment made by the
appellant is expected to be specifically denied by the replying
E
party. If there is no specific denial, then such averment is
deemed to have been admitted by the respondent. In the
present case, it is evident that the above-noted averments in
the writ petition were relevant and material to the case. In fact,
the entire case of the appellant hinged on these three
F
paragraphs of the writ petition. It was thus, expected of the
respondents to reply these averments specifically, in fact to
make a proper reference to the records relevant to these
paragraphs. In view of the omission on part of the respondents
to refer to any relevant records and failure to specifically deny
G
the averments made by the appellant, we are of the considered
view that the appellant has been able to make out a case for
interference.
19. Not only this, if the averments made in paragraph 9
are correct and the appellant had instantaneously raised her
H
892
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A claim before the respondents, followed by making of the
representation, we see no reason why the claim of the appellant
could not be settled at that time or in any case in the subsequent
counseling held on 30th September, 2011, where the appellant
was admittedly present. The attendance sheet produced before
B us shows that the appellant was present on all the three days.
Even the records produced by the respondents before the Court
support the case of the appellant.
20. The appellant filed the writ petition before the High
Court without any undue delay and on 4th November, 2011, the
C judgment by the court was passed in her favour. The cumulative ·
effect of the above factual matrix, the pleadings of the parties
and the expeditious manner in which the appellant had taken
action before the authorities and then before the court and
pursued her remedies, persuade the Court to believe that the
D case of the appellant is truthful. The cases of the present kind
are not required to be tested by us on the touchstone of
stringent principles of burden of proof applicable to criminal
jurisprudence. As already mentioned, it was the obligation of
the respondents to specifically deny the averments made by the
E appellant and to produce the relevant records to show that the
stand taken by them is worthy of credence. Having failed to do
so, they cannot shift the burden upon the appellant and expect
this Court to believe that a student of the same college, would
disappear at the relevant time of counseling after having
F marked her presence at thP. counseling.
21. It is not necessary for the appellant to plead and prove
mala fides, misconduct or favouritism and nepotism on the part
of the parties concerned. Failure to do the same could be an
G error, intentional or otherwise, but in either event, we see no
reason why the appellant should be made to suffer despite
being a candidate of higher merit.
22. At this stage, we may refer to certain judgments of the
Court where it has clearly spelt out that the criteria for selection
H has to be merit alone. In fact, merit, fairness and transparency
ASHA v. PT. B.D. SHARMA UNIVERSITY OF HEALTH 893
SCIENCES & ORS. [SWATANTER KUMAR, J.J
are the ethos of the process for admission to such courses. It
A
will be travesty of the scheme formulated by this Court and duly
notified by the states, if the Rule of Merit is defeated by
inefficiency, inaccuracy or improper methods of admission.
There cannot be any circumstance where the Rule of merit can
be compromised. From the facts of the present case, it is
B
evident that merit has been a casuality. It will be useful to refer
to the view consistently taken by this Court that merit alone is
the criteria for such admissions and circumvention of merit is
not only impermissible but is also abuse of the process of law.
Ref. Priya Gupta Vs. State of Chhatisgarh & Anr. [CA @ c
SLP(C) No. 27089 of 2011, decided on 8th May, 2012),
Harshali v. State of Maharashtra and Others [(2005) 13 SCC
464], Pradeep Jain v. UOI [1984 (3) SCC 654), Sharwan
Kumar and Others v. Director of Health Services and Another
[1993 Supp (1) SCC 632], Preeti Srivastava v. State of MP
D
[(1999) 7 SCC 120], Guru Nanak Dev University v. Saumif
Garg and Others [2005 (13) SCC 749], A/IMS Students' Union
v. A/IMS and Others [(2002) 1 SCC 428].
23. It is true that the notification dated 26th August, 2011
had clearly stated that the candidate should appear before the
E
second Counseling Board well in time along with all the original
documents and that the photograph and thumb impression of
the candidate would be taken at the time of the counseling. The
notification stated the reporting time as 8.00 a.m. The exact
time when the candidates of each category i.e. General, SC,
F
PH (MS), EMS and FF were to be present was nowhere
stated. In other words all candidates were required to be
present at 8.00 a.m .. It cannot be disputed that the appellant
was present at that time and undisputedly she had marked her
presence in the attendance register. She admittedly G
participated in the photography and taking of thumb
impressions held by the concerned authority. However, her
absence at the crucial time of counseling is the essence of
dispute in the present case.
H
894
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A
24. Adherence to the schedule is the obligation of the
authorities and the students both. The prescribed schedule is
to be maintained stricto sensu by all the stakeholders because
if one party adheres to the schedule and others do not or there
is some kind of lack of communication or omission to make
B proper announcements and maintain proper records for such
counseling, disastrous results can follow, of which the present
case is an apt example.
25. The Court cannot ignore the fact that these admissions
relate to professional courses and the entire life of a student
C depends upon his admission to a particular course. Every
candidate of higher merit would always aspire admission to the
course which is more promising. Undoubtedly, any candidate
would prefer course of MBBS over BOS given the highcompetitiveness in the present times, where on a fraction of a
D mark, the admission to course could vary. Higher the
competition, greater is the duty on the part of the concerned
authorities to act with utmost caution to ensure transparency and
fairness. It is one of their primary obligations to see that a
candidate of higher merit is not denied seat to the appropriate
E course and college, as per his preference. We are not oblivious
of the fact that the process of admissions is a cumbersome
task for the authorities but that per se cannot be a ground for
compromising merit. The concerned authorities are expected
to perform certain functions, which must be performed in a fair
F and proper manner i.e. strictly in consonance with the relevant
rules and regulations.
26. Strict adherence to the time schedule has again been
a matter of controversy before the courts. The courts have
G consistently taken the view that the schedule is sacrosanct like
the rule of merit and all the stakeholders including the
concerned authorities should adhere to it and should in no
circumstances permit its violation. This, in our opinion, gives
rise to dual problem. Firstly, it jeopardizes the interest and future
of the students. Secondly, which is more serious, is that such
H
ASHA v. PT. B.D. SHARMA UNIVERSITY OF HEALTH 895
SCIENCES & ORS. [SWATANTER KUMAR, J.]
action would be ex- facie in violation of the orders of the court,
A
and therefore, would invite wrath of the courts under the
provisions of the Contempt of Courts Act, 1971. In this regard,
we may appropriately refer to the judgments of this Court in the
cases of Priya Gupta (supra), State of Bihar v. Sanjay Kumar
Sinha & Ors. [(1990) 4 SCC 624), Medical Council of India
B
v. Madhu Singh & Ors. [(2002) 7 SCC 258), GSF Medical and
Paramedical Association v. Association of Management of
Self Financing Technical Institutes and Anr. [2003 (12) SCC
414), Christian Medical College v. State of Punjab and Others
[(2010) 12 sec 167J.
c
27. The judgments of this Court constitute the law of the
land in terms of Article 141 of the Constitution and the
regulations framed by the Medical Council of India are statutorily
having the force of law and are binding on all the concerned
parties. Various aspects of the admission process as of now D
are covered either by the respective notifications issued by the
State Governments, prospectus issued by the colleges and, in
any case, by the regulations framed by the Medical Council of
India. There is no reason why every act of the authorities be
not done as per the procedure prescribed under the Rules and
E
why due records thereof be not maintained.
28. This proposition of law or this issue is no more res
integra and has been firmly stated by this Court in its various
judgments which may usefully be referred at this stage. Ref.
State of M.P. v. Gopa/ D. Tirthani and Others [(2003) 7 SCC
F
83], State of Punjab v. Dayanand Medical College & Hospital
and Ors. [AIR 2001 SC 3006], Bharati Vidyapeeth v. State of
Maharashtra and Another [(2004) 11 SCC 755], Chowdhury
Navin Hemabhai and Others v. State of Gujarat and Others. G
[(2011) 3 SCC 617], Harish Verma and Others v. Ajay
Srivastava and Another [(2003) 8 SCC 69].
29. In the prospectus issued by the respondents, Chapter
9 dealt with the method of selection and admission. Clause 3.1
stated that it was mandatory for the qualified candidates to
H
896
SUPREME COURT REPORTS
[2012) 6 S.C.R.
A appear before the Counseling Board in person. No relaxation
was to be given to the candidates who were unable to appear
before the Counseling Board on the fixed dates. Further, it was
stated in the prospectus that at the time of the counseling, the
candidates would be required to exercise their choice for the
B institution and the course. The allotment of the seats would be
made according to the merit and preference exercised by the
candidates at the time of counseling. During the subsequent
counseling the Course/Institution would be allotted as per the
merit of the candidates depending on the availability of seats.
c
30. All these clauses are in accordance with the regulations
framed by the Medical Council of India or the notifications
issued by the concerned State Government. Relaxation of the
Rule of Merit for reason of non-appearance is not permissible.
In the present case, there is no disputeifiat the appellant was
D present at the place and on the date of the second counseling
but the dispute relates to her absence at the particular time
when her name was called out for the purpose of counseling.
As far as this issue is concerned, we have already expressed
the opinion that there is no substance in the defence taken by
E the respondents and the appellant should be entitled to the relief
prayed for. However, the question that immediately follows is
whether any mid-term admission can be granted after 30th
September of the concerned academic year, that being the last
date for admissions. The respondents before us have argued
F with some vehemence that it will amount to a mid-term
admission which is impermissible, will result in indiscipline and
will cause prejudice to other candidates. Reliance has been
placed upon the judgments of this Court in Medical Council of
India v. Madhu Singh and Others [(2002) 7 SCC 258), Ms.
G Neelu Arora and Another v. Union of India and Others [(2003)
3 SCC 366), Aman Deep. Jaswal v. State of Punjab and
Others [(2006) 9 SCC 597], •Medical Council of India v. Naina
Verma .and Others [(2005) 12 SCC 626), Mridul Dhar and
Another v Union of India and Others [(2005) 2 SCC 65),
H Medical Council of India v Madhu Singh and Others [(2002)
ASHA v. PT. 8.D. SHARMA UNIVERSITY OF HEALTH 897
SCIENCES & ORS. [SWATANTER KUMAR, J.]
7 sec 258].
A
31. There is no doubt that 30th September is the cut-off
date. The authorities cannot grant admission beyond the cutoff date which is specifically postulated.