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Judgment
N. Paul Vasantha Kumar, C.J.
These appeals are filed against the order dated 24.09.2015 made in OWP No. 1445/2015, allowing the writ petition filed by the 1st respondent
in both these appeals, challenging the selection and admission of the 4th respondent in DM Gastroenterology course for the session n 2015 at
SKIMS (Deemed University), Srinagar. The University has filed LPA No. 222/2015 and the 4th respondent, whose selection and admission was
cancelled has filed LPA No. 212/2015.
The fact leading to filing of the writ petition before this Court by the 1st respondent was that he was selected to undergo the Doctorate of
Medicines in the discipline of Gastroenterology on the basis of his higher merit secured by him in the entrance examination both in theory and
practical conducted by the SKIMS which is a deemed University. Applications were invited by the appellant-University by notification dated
22.05.2015. The 1st respondent as well as the 4th respondent in LPA No. 222/2015, amongst others, applied for selection/admission. After
considering the merit position of the 1st respondent he was issued an admission/selection order on 25.06.2015 stating that he should get relieved
from the Director of Health Services Kashmir, Srinagar and join the course before 31.07.2015. As the 1st respondent got selection order for
admission in DM Gastroenterology course, on 30.06.2015 he requested the Director Health Services, Kashmir to issue formal relieving order in
his favour so as to enable him to join the course on or before 31.07.2015. A reminder was also sent by the 1st respondent and no action being
taken till 14.07.2015, he was compelled to file SWP No. 1455/2015 praying for direction to the Director of Health Services Kashmir to relieve
him so that he can join D.M course pursuant to his selection and for direction to the appellants as well as respondent Nos. 2 and 3 in LPA No.
222/2015 to allow him to complete the said course by not cancelling his admission for having failed to get the relieving order from the parent
department. The Writ Court in Miscellaneous Petition No. 01/2015 on 14.07.2015 passed an interim order directing the respondent Nos. 2 and 3
herein to relieve the 1st respondent within ten days so as to enable him to pursue the DM course. The 1st respondent having not been relieved in
terms of the said interim order till 31.07.2015, he moved Miscellaneous Petition No. 02/2015 on 31.07.2015 seeking direction. In the said
Miscellaneous Petition on the same day, direction was issued to the effect that appellant-University shall not fill up the DM Gastroenterology seat
until further orders making it clear that in case the 1st respondent is relieved he alone shall be allowed to join the course.
It is the case of the 1st respondent that contrary to the said order/disobedience of the said order dated 31.07.2015, appellants issued admission
letter to the 4th respondent, who is appellant in LPA No. 212/2015, on 11.08.2015 to join the DM Gastroenterology course, stating that the 1st
respondent failed to receive the No Objection Certificate/Relieving Order up to 31.07.2015. The 1st respondent preferred Contempt Petition No.
571/2015 and on 25.08.2015 notice was issued to the Director of Health Services Kashmir as well as the appellant herein and after receiving
notice in the Contempt Petition by order dated 27.08.2015 the appellants/University kept the admission order issued to the 4th respondent in
abeyance. The 1st appellant as well as the Director of Health Services Kashmir thereafter tendered unconditional apology based on which the
contempt proceedings were dropped by this Court on 01.09.2015.
Finally SWP No. 1455/2015 was disposed of by the Writ Court on 03.09.2015 taking note of the fact that the 1st respondent has filed
subsequent writ petition OWP No. 1445/2015 challenging the selection and admission of the 4th respondent herein and the said writ petition has
to be decided on merits.
The 1st respondent was relieved by the order of Director Health Services Kashmir on 11.08.2015 and on the same day the 4th respondent was
also allowed to join the course by the appellants. The learned Single Judge, taking note of the fact that the 1st respondent is more meritorious who
also was eligible to apply and having submitted his application for relieving within time and having obtained order from this Court on 14.07.2015
giving direction to the Director of Health Services Kashmir to relieve him and the selection order having been issued to the 4th respondent in
contravention of the interim direction issued on 31.07.2015, allowed the writ petition by setting aside the selection and admission of the 4th
respondent, against which order these appeals have been filed.
Mr. Jahangir Iqbal Ganai, the learned Advocate General appearing for the appellants in LPA No. 222/23015 has contended that the 1st
respondent has not submitted his application through the 2nd appellant and he has also suppressed the cut off date fixed in the admission order
issued to him i.e. he has to join the course before 31.07.2015 failing which he will lose his admission. The learned Advocate General relied on the
affidavit filed by the 1st respondent before the appellants, stating that he has given an undertaking that he will get the relieving order from the
Director of Health Services Kashmir within the stipulated time as directed by SKIMS as stated in the advertisement, failing which his selection shall
be deemed as cancelled and the next candidate shall be selected for admission and no legal action will be sought by him. The learned Advocate
General also cited judgments in support of his contention, for the proposition that if any person approaches the Court by suppressing vital
information, that person is not entitled to get any relief from the Court.
Mr. Mir Manzoor, learned counsel appearing for the 4th respondent-appellant in LPA No. 212/2015, while supporting the arguments of the
learned Advocate General, submitted that the 1st respondent having failed to get the relieving order and joining the course in terms of his selection
order before 31.07.2015, the University was right in cancelling his admission and issuing the selection order in favour of the 4th respondent who
was the next candidate available as per marks secured in the entrance examination. Learned counsel also submitted that the 4th respondent has
joined the course on 11.08.2015, therefore, he is entitled to continue the course and prayed for setting aside the order of the learned Single Judge,
quashing the selection and admission of the 4th respondent.
Mr. M.I. Dar, learned counsel appearing for the 1st respondent submitted that even though in the advertisement notice dated 22.05.2015 it is
stated that in-service candidates shall route their application forms through proper channel, the 1st respondent having been in employment of the
very same deemed University, he has submitted his application like five other candidates and the same is made clear in the letter of the
Administrative Officer of the appellant-University dated 30.06.2015 wherein it is stated that five in-service Doctors who have earlier been relieved
by the Directorate of Health Services for joining the Senior Residency in different specialties of SKIMS, which they have joined and are presently
doing the same, have been selected for various DM/M.Ch. courses for the Session 2015 at this institute, have made a joint representation that
information may be communicated to their parent department and the said communication was issued accordingly. In the said five names, the name
of the 1st respondent is shown at serial No. 4. On the basis of the said letter the learned counsel contended that all other four candidates whose
applications were not submitted through proper channel because they were also doing their senior residentship in the very same deemed University,
their applications were entertained as in the case of the 1st respondent, and after getting them relieved from their parent department, they were
allowed to join their respective course. Hence the contention of the learned Advocate General is not right i.e. the 1st respondent has not applied
through proper channel and, therefore, he is ineligible for selection.
Insofar as the second contention of the learned Advocate General is concerned, namely, submitting the affidavit by the 1st respondent, as stated
supra, and the fact that he has to report for admission before 31.07.2015 failing which his admission will be cancelled before the Writ Court, is not
correct as the cause of action for filing SWP No. 1455/2015 arose due to cut off date fixed and the inaction on the part of the Director of Health
Services Kashmir in issuing the relieving order in spite of submitting the application by the 1st respondent on 30.06.2015, and considering the said
fact only the Writ Court passed interim order on 14.07.2015, directing to issue the relieving order within ten days from 14.07.2015 and no
relieving order having been issued up to 31.07.2015, the 1st respondent moved Miscellaneous Application No. 02/2015 and the Writ Court on
31.07.2015 passed an interim order in presence of the learned counsel for the University, directing the appellant-University not to fill up the seat of
DM Gastroenterology, for which the 1st respondent was selected and if the 1sxt respondent is relieved from his parent department, he shall be
allowed to join the course. Thus the contention of the learned counsel for the 1st respondent is that every thing was disclosed before this Court,
particularly the cut off date fixed by the University to join i.e. 31.07.2015, failing which the 1st respondent will lose the seat and in violation of both
these directions i.e. relieving the 1st respondent within ten days and by issuing the selection order to the 4th respondent in spite of interim
directions, the appellants are not justified in contending that the 1st respondent has suppressed the fact and obtained orders. The learned counsel
also submitted that the 1st respondent is diligently and bonafidely prosecuting the matter before this Court and by dubious methods the appellants
have attempted to grab the seat secured by the 1st respondent to a less meritorious candidate who was not even shown in the select list but was
placed below. He has also relied on the judgments of Hon'ble the Supreme Court reported in Asha Vs. Pt. B.D. Sharma University of Health
Sciences and Others, and Priya Gupta Vs. State of Chhatishgarh and Others, in support of his contentions. It is also submitted that the 1st
respondent having been relieved on 11.08.2015 from his parent department, he has remitted the fee on 30.09.2015 by giving the joining report
along with the order of the learned Writ Court and by paying a sum of Rs. 67,000/- through Demand Draft and the same was also accepted, as
such, the 1st respondent is entitled to continue with the course for which he has been selected as he got admitted in DM Gastroenterology course
on 30.09.2015 i.e. on or before the cutoff date fixed by the Medical Council of India.
We have considered the rival submissions, perused the material documents and the decisions cited.
The following issues arise for consideration:--
(i) Whether the 1st respondent has suppressed any material facts before the Writ Court and obtained orders.
(ii) Whether the University and the Health Ministry as well as the Director of Health Services Kashmir, Srinagar, are entitled to plead against the
orders passed by this Court, for which they have tendered apology for disobeying the orders of this Court.
(iii) Whether the 4th respondent who is also the appellant in LPA No. 212/2015, and is less meritorious than the 1st respondent, is entitled to get
selection/admission/right to continue in D.M course.
The facts narrated above, namely, the submission of the application by the 1st respondent in terms of notification dated 22.05.2015, he having
doing the Senior Residentship from the very same University, had submitted his application directly as in the case of four other candidates, his merit
position, namely, securing 102.50 marks in DM Gastroenterology and non-selection of the 4th respondent in the selection list as he secured only
100 marks are admitted.
It is true that an affidavit was filed by the 1st respondent while submitting his application that he will get the relieving order and will join the
course, if selected, as per the date fixed by the University, failing which his selection be cancelled. It is equally a fact that the 1st respondent was
given the selection order by the University on 25.06.2015 by imposing a condition that he should get the No Objection Certificate from his
employer and join the course by 31.07.2015. It is an admitted fact that the 1st respondent submitted his application for relieving him before the
Director of Health Services Kashmir on 30.06.2015 and no action being taken by the Director of Health Services Kashmir, he was forced to file
SWP No. 1455/2015 and obtained an interim order on 14.07.2015 from the learned Single Judge, directing the respondent Nos. 2 and 3 in LPA
No. 222/2015 to relieve him within ten days so as to enable him to join the course. It is also a fact that the said direction issued was not obeyed by
the respondent Nos. 2 and 3 within the stipulated time or before the last date fixed i.e. 31.07.2015. It is also admitted fact that on 31.07.2015 in
Miscellaneous Petition No. 02/2015 the 1st respondent got an interim direction against the appellant-University not to admit any other candidate
and if No Objection Certificate is obtained by the 1st respondent, he alone shall be allowed to join the course and the said order was passed in the
presence of the learned counsel for the University. It is also admitted that the said direction was in force till 03.09.2015 and after disobeying the
interim directions of this Court, Contempt Petition No. 571/2015 was preferred and unconditional apology was tendered by the respondents in the
Contempt Petition and the order issued in favour of the 4th respondent was kept in abeyance. The said order reads thus:--
Sub: Abeyance of DM Admission.
OFFICE ORDER No. SIMS/Acad 597 of 2015
DATED: August 27, 2015.
In pursuance to the order of Hon'ble J&K High Court Srinagar, passed in the matter of SWP No. 1455/2015 and OWP No. 1445/201, the
admission of Dr. Hussaini S. Haider Mehdi S/o. Late Prof. S.W.H. Hussaini R/o Hussaini Manzil Abad Nagar, Dodhpur, Aligarh bearing Entrance
Roll No. Gast15/21 session 2015, who has been allowed to join DM Gastroenterology course on provisional basis w.e.f. 11-08-2015 is hereby
kept in abeyance till further orders.
The 1st respondent was issued with the relieving order by the Director of Health Services Kashmir on 11.08.2015. Thus it is beyond doubt
that the 1st respondent has disclosed everything in his affidavit filed in SWP No. 1455/2015 and after satisfaction the leaned Single Judge issued
positive directions on 14.07.2015 and again on 31.07.2015 and the disobedience was admitted and apology was tendered and this Court showing
its magnanimity has accepted the apology. In such circumstances, this Court is of the firm view that no suppression of facts, as alleged by the
learned Advocate General, is established in this case to apply the judgments cited by him to non-suit the 1st respondent-writ petitioner.
It is relevant to note at this juncture that the directions issued by the competent Courts are bound to be obeyed by all concerned and if any
order was passed in disobedience/violation of the said orders/directions, the fruits of the said order cannot be allowed to be enjoyed by the
beneficiary. Hon'ble the Supreme Court in the decision reported in Manohar Lal (D) by Lrs. Vs. Ugrasen (D) by Lrs. and Others, has held that an
order obtained, which is contrary to the Court order is a nullity and no one can take advantage of the said order. In paragraph Nos. 23 to 28 it is
held thus:--
....
The 1st respondent rightly filed OWP No. 1445/2015 and challenged the order granting admission to the 4th respondent dated 10.08.2015 as
well as granting permission to join the course dated 11.08.2015 and the said orders were rightly quashed by the learned Single Judge by taking the
note of higher merit secured by the 1st respondent who was found in the original select list and taking note of the fact that the 4th respondent was
not in the select list and was selected by the alleged default of the 1st respondent in not joining the course before 31.07.2015.
It is also to be noted at this juncture that relieving order was issued by the Director Health Services Kashmir and there is no fault on the part of
the 1st respondent in approaching the 3rd respondent. The delay on the part of the 2nd respondent-Director health Services Kashmir or the 3rd
respondent in taking action and disobedience of the order of the Court cannot be put against the 1st respondent who is a meritorious candidate,
diligent enough in prosecuting his case before the competent Court of law as held by Hon'ble the Supreme Court in the decisions reported in Asha
Vs. Pt. B.D. Sharma University of Health Sciences and Others, and Priya Gupta Vs. State of Chhatishgarh and Others, . If the modus operandi
adopted by the appellants as well as respondent Nos. 2 and 3 in LPA No. 222/2015 are approved by this Court, the consequences will be
disastrous as any meritorious candidate can be denied admission by taking technical plea even though there is no fault committed by the candidate.
It is also to be noted that for Super Specialty Courses merit alone should be the criteria for selection. The 1st respondent was found
meritorious. He was rightly relieved before the cut off date fixed by the Medical Council of India and he has also joined the course before the last
date fixed i.e. on or before 30.09.2015. Thus the 1st respondent is entitled to continue with the course for which he was selected and admitted,
namely, DM Gastroenterology.
In fine issues No. 1 and 2, which are dealt with jointly, are held against the appellants.
In so far as issue No. 3 is concerned, admittedly the 4th respondent has secured only 100 marks in the selection whereas the 1st respondent
has secured 102.50 marks and the 1st respondent was also selected by the University. Not issuing the relieving order in spite of the interim order
granted by the Writ Court by the Director Health Services Kashmir, has resulted the order of selection in favour of the 4th respondent, by
operating the wait list. It is an admitted fact that the 1st respondent was relieved on 11.08.2015 by the Director health Services after the Contempt
petition was filed. The said relieving order having been obtained before 31.09.2015, the 4th respondent has no right to claim selection and
admission to DM Gastroenterology seat, as he is not admittedly figuring in the select list though placed at serial No. 1 in the waiting list. The said
issue is also held against the appellant ion LPA No. 212/2015.
Consequently both the appeals are dismissed. The appellants in LPA No. 222/2015 are directed to permit the 1st respondent to undergo the
course of DM Gastroenterology in terms of his selection and send his name to the Medical Council of India forthwith for the Sessions 2015.
No costs.