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Dr. Shah Kushal Vandankumar v/s Rajiv Gandhi University of Health Sciences Karnataka, Rep by its Registrar & Another

    W.P. No. 38844 of 2015 (EDN-AD)

    Decided On, 06 April 2018

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE B.S. PATIL & THE HONOURABLE MR. JUSTICE S. SUNIL DUTT YADAV

    For the Petitioner: Ajoy Kumar Patil, Advocate. For the Respondents: R1, Yogesh D. Naik, R2, G.N. Hegde, Advocate.



Judgment Text

(Prayer: This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned order Dt.16.4.2015 Vide Annx-N passed by the R1 and to direct the R1 to approve the admission of the petitioner made on 10.7.2014 to the R2 institution for the Post Graduation Degree, Ms in Orthopaedic, and etc.)

B.S. Patil, J.

1. Petitioner is a student admitted to PG Course in Orthopedics in the 2nd respondent - College for the academic year 2014-15. According to petitioner, he was admitted on 10.07.2014, the last date fixed for admission to PG Course as per the calendar of events published. After the petitioner submitted all his original certificates to the college, he was permitted to attend the classes. After completing one year of his studies, on 01.09.2015 petitioner was informed by the Head of the Department that his admission had not been approved by the 1st respondent - University because the admission statement of petitioner could not be uploaded online due to some technical error in the website on the same day. Thereafter, 1st respondent - University directed the college to discharge petitioner from the college vide communication dated 16.04.2015 which is produced at Annexure-N. In the circumstances, aggrieved by the action of respondents and challenging the communication / Annexure-N dated 16.04.2015 petitioner has filed this writ petition.

2. Petitioner filed this petition on 09.09.2015. On 21.09.2015 this Court granted interim stay of the impugned communication / Annexure-N initially for a period of four weeks. On 22.08.2016, this Court restored the interim order granted earlier. Paragraph 8 of the order dated 22.08.2016 is usefully extracted. It reads as follows:

"But we find it appropriate to observe that the University - respondent No.1 herein should be at the liberty to make enquiry about the genuineness of the stand on the part of respondent No.2 - College. Hence, the following order:

Rule.

By interim order, the earlier ad-interim relief granted in the present petition shall continue to remain in operation until further orders. However, respondent No.1 - University shall be at liberty to enquire into the correct date of admission of petitioner to 2nd respondent - College. If such enquiry is conducted, the report shall be produced before this Court before the matter is finally heard".

3. Thereafter, this Court issued a direction to respondents to issue hall ticket to petitioner and to permit him to appear for the examination, making it clear that the same would be subject to the result of writ petition and petitioner shall not claim equity.

4. It now transpires that petitioner has completed PG Course during May, 2017. However, his results have been withheld. It is in this background, the matter is listed before us.

5. Pursuant to the direction issued by this Court, University has conducted an enquiry and has produced the proceedings of the enquiry dated 17.10.2016. Petitioner has produced communication of the Registrar, Rajiv Gandhi University to their advocate with a copy marked to the Principal of the College regarding the result of investigation conducted by them after issuing notice to the Principal and securing his presence in person in connection with the date of admission of petitioner. This document dated 22.11.2016 is produced at Annexure-R along with the objections filed by petitioner to the proceedings of the enquiry filed by respondent No.1 - University. Another communication dated 18.03.2017 addressed by the Registrar to their advocate with a copy marked to the Dean of the 2nd respondent - College in connection with the very matter is also produced at Annexure-S.

6. It is contended by learned counsel for petitioner that petitioner was admitted to 2nd respondent - College on 10.07.2014 to the PG course; he has attended classes with effect from the date of his admission and has completed the course during May, 2017 itself and hence, necessary direction may be issued to the University to approve the admission and announce the results. He draws our attention to the proceedings of the enquiry dated 17.10.2016, communication of the Registrar dated 22.11.2016 addressed to the counsel of the University with a copy marked to the Principal of 2nd respondent - College and yet another communication dated 18.03.2017 addressed to their counsel with a copy marked to the Dean of 2nd respondent - College to contend that cumulative effect of these communications would show that petitioner - Student was admitted on 10.07.2014 and that though his admission was not uploaded on the said date, the Register of Attendance maintained and other documents clearly disclosed that he was studying in the college right from the date of admission made on 10.07.2014 and that the student has attended the classes straight away with effect from the date of admission.

7. The documents maintained by the college namely attendance register and other contemporaneous documents probablise the assertion made by the student which is supported by the 2nd respondent - college. However, the stand of the University is that as the admission particulars were not uploaded on 10.07.2014 the student cannot be regarded as having been duly admitted on 10.07.2014. It is their case that fees pertaining to the student were paid on 15.07.2014 and therefore, 15.07.2014 has to be regarded as the date on which he was admitted. In that event, admission having been made beyond the last date fixed, action of the University in directing the College to discharge the student could not be found fault with.

8. In the light of the respective contentions, we have carefully examined the entire materials on record. It is clear from the affidavit filed by the Dean of 2nd respondent - College, Dr. Jayaprakash Alva that the intake for MS Orthopaedics was increased from 5 to 7 in the 2nd respondent - College for the academic year 2014-15. Out of 2 additional seats sanctioned, one was management seat and the other was earmarked for being filled up through CET. The CET seat to be filled up by counseling through CET was not filled up and the said fact was informed to the College only on 10.07.2014. It is thereafter that the College made the admission as against the unfilled seat on the very day which happened to be the last date for admission as per the calendar of events notified by the University.

9. It is further asserted in paragraph 5 of the affidavit that due to error in online updation in the website made available by the 1st respondent - university, the 2nd respondent was unable to upload the details of petitioner though he had already been admitted on 10.07.2014. It is also stated that as there was set back in uploading the petitioner's name they informed the 1st respondent that due to error in the online updation package they were unable to upload the details of petitioner. Having noticed the letter of the Principal stating that the student was indeed admitted on 10.07.2014 the University has concluded as under in the enquiry proceeding placed before the court:

"As per the online admission statement submitted by the college & also as per the check list generated by the system, the said student's name is not present on 10.07.2014 which is the last date for admission as stipulated by the Apex body (MCI).

However, as per the records submitted by the principal the said student's attendance at the institute is started from 10.07.2014 (attendance copy enclosed).

As per the admission register maintained at the institute it suggest that the said student's admission is on 10.07.2014.

To the university, Institute will pay the fees of all the admitted students after the last date of admission, as per the calendar of events of the University.

Hence, the said institute has paid the University fees on 15.07.2014 of all the admitted students, which also includes the students in question now.

After going through all the documents submitted by the Principal and considering the fact that, there was no name in online portal and the fees remittance date is 15.07.2014, which is as per the principal statement, this enquiry reiterates the opinion of the Syndicate sub-committee decision.

Hence, the date of admission of the said student is 15.07.2014 as suggested by the documents produced by the Principal"

10. It has to be seen here that there is no reference to the fact that principal was asked to be present wherein his statement was recorded or for that matter any notice was given to the student to appear before the enquiry. It has to be also noticed that as per the attendance register maintained by the college, student was shown to have been admitted on 10.07.2014 and attended classes with effect from 10.07.2014. Despite this the University holds that the date of admission of the student has to be treated as 15.07.2014 because it was on that day fees were remitted to the University. The glaring factor that is lost sight of by the University is that fees of all student who were admitted were remitted on 15.07.2014.

11. In addition to the above, it has to be stated that as per the stand of the University in the communications dated 22.11.2016 and 18.03.2017 placed before the Court by way of objections filed by petitioner to the enquiry proceedings, it is evident that the University takes up the stand that the admission register maintained by the Institution disclosed that student had been admitted on 10.07.2014 and other records submitted by the Principal also disclosed that attendance of the institution started from 10.07.2014. Despite the same, date of admission is being sought to be assimilated to the date on which the fees were remitted and that is how the conclusion has been reached stating that student was admitted on 15.07.2015. This is evident from the correspondence dated 22.11.2016 made by the Registrar to the Advocate appearing for the University, copy of which has been marked to the College. Interestingly, in the latest communication dated 18.03.2017 addressed by the Registrar again to his counsel copy of which has been marked to the respondent - College, it is sought to be stated as under

"as the student has attended classes from 10.07.2014, as per the attendance register, the date of admission is considered as 10.07.2014"

12. The above facts make it clear that university is not clear and firm in its stand as to what was the actual date of admission of the student. It has accepted the documents produced by the College regarding the attendance register of the student and other admission records which unmistakably show that student was admitted on 10.07.2014 and attended the classes with effect from the said date. Though fees were remitted on 15.07.2014, only because admission of the applicant could not be uploaded on the same date, objection regarding approval of admission has been raised. Having due regard to the entire materials on record which are adverted by us in detail we find that this is not a case where admission is sought to be antedated or that petitioner has come up with distorted facts in order to take undue advantage of his own mistake or that the respondent - College has antedated the admission. In the specific and special facts of this case, particularly, because the University has not found fault with the genuineness of

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the attendance register maintained and the genuineness of other admission records placed before it by the college and also because the stand taken by the Registrar vide his communication dated 18.03.2017 which is produced at Annexure-S along with the objection statement of petitioner filed to the enquiry report, we are of the clear view that the admission of petitioner has been indeed made on 10.07.2014 on the last date fixed for admission. 13. We are also conscious of the fact that the student has completed three years of PG Course as back as in May, 2017 and no fault is attributed to him in any manner. This is not a case where petitioner wants to take advantage of his own wrong doing or mistake. Therefore, it would not be just and fair to deny him the fruits of the hard work and investment of precious time made by him in his studies for the last 3 years. 14. Therefore, this writ petition is allowed. Impugned communication Annexure-N is set aside. A direction is issued to the University to approve the admission of the petitioner and announce the results. We make it clear that this judgment is rendered having regard to the special facts and circumstances of the case involved and it cannot be treated as a precedent in other cases.
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