Shreyashi Ghosh Anr vs State & Ors

This writ petition is directed against an act of the private medical college in allowing admission to those candidates who are alleged to have obtained lower marks in the NEET compared to the petitioners. The manner in which such admission was made is also impeached.

The college and the students who obtained admission have used affidavits in opposition which are kept on record. The petitioners have used affidavits in reply and the writ petition has been amended whereafter additional pleadings have been exchanged.

The questions raised by the writ petitioners are not trivial. In a fit case it will be vital for a Court in the future to decide whether Regulation V published on December 21, 2010, of the Medical Council of India Graduate Medical Education Regulations, 1997 as amended requires that a person qualifies in NEET, or having higher marks than others in NEET to obtain admission.

Such question however, does not fall for decision before me. This is because during the pendency of the writ petition, the writ petitioner No. 1 who alleged herself to be aggrieved by the decision of the private medical college to favour 21 management quota candidates after obtaining capitation fees from them, nonetheless took admission in another private medical college and is perusing her MBBS course from that private institution.

Though Mr. Lahiri, learned counsel for the petitioners, has submitted that the said other institution is 100 per cent deficient and a judicial order has been passed requiring alternative arrangement to be made for those students who are in such other institution by accommodating them in other medical colleges, which are not so deficient, it is therefore an admitted position, that without obtaining the leave of the Court, the writ petitioner no.1 took admission in another medical college even while pursuing her challenge against being passed over by the KPC Medical College and Hospital. It is trite that a person cannot get two MBBS degrees in the same session. Therefore, so far as the writ petitioner no.1 is concerned, she has lost her locus to maintain the writ petition by her own conduct, during the pendency of the case and therefore, I sever the case of the writ petitioner no.1 from that of the writ petitioner no. 2 and the writ petition is dismissed as against the writ petitioner no.1. In addition, because of the own conduct of the petitioner no.1 as outlined above, as far as she is concerned, the petition has become infructuous. This dismissal is subject to the caveat in the last paragraph of this judgment.

So far as the writ petitioner No. 2 is concerned, there is no allegation that this petitioner has acted in a similar manner.

After considering the submissions of Mr. Lahiri on behalf of the writ petitioner, Mr. Mitra and Mr. Mukherjee Learned Senior Advocates for KPC Medical College and Hospital and Mr. Basu, Learned Senior Advocate for the Added Respondents (the 21 students affected by the writ petition) it appears that a substantial question of law of interest to the general public has arisen as to whether in order to obtain higher capitation fees it is possible for a medical college to pick and choose the persons to whom admission is to be given irrespective of their position in the merit list as reflected by their marks in NEET, and the question of interpretation of Regulation V of the Regulations of 1997 as amended, as indicated in the earlier portion of this judgment, are to be decided. This impinges on Article 21 of the Constitution of India in respect of the citizenry in general, since what is involved is the right of persons to obtain a qualification to medically treat people and if unsuitable, unmeritorious persons are allowed to do it in preference over meritorious candidates, it will be giving an incentive to those who have money, but are incompetent to deal with the life and death and health of the sick.

Mr. Basu submits that neither writ petitioner had locus to institute or maintain the writ petition and as of today the writ petition has become infructuous even for the petitioner no.2. He therefore, submits that no reference to the appropriate Bench be made nor the matter referred to the Hon'ble the Acting Chief Justice for assigning the matter to a bench taking public interest litigation or for hearing the substantial question of law as aforesaid.

I will, therefore, have to bear the submissions of both the sides as to whether private interest survives to the writ petitioner No. 2 or the matter should be referred in the public interest or the matter should be dismissed as a whole.

Accordingly, the hearing of this matter stands adjourned till March 12, 2019 at 2 p.m.

Since the matter will be heard on March 12, 2019 the operation of the order dismissing the writ petition against the writ petitioner No. 1 shall remain stayed till that date.

This Court did not allow Mr. Lahiri, learned counsel to submit on other points so far as the writ petitioner no.1 is concerned, on the limited ground that I found that his client has lost her locus.

However, nothing shall prevent the parties from considering and allowing the grant of admission to the writ petitioner No. 1, if so advised, in terms of the order dated 18th December 2018 passed in W.P. 15813(W) of 2018 subject to the result of any appeal which has been carried therefrom.