Central Administrative Tribunal - DelhiDr. Bangkim Chandra Khangembam vs All India Institute Of Medical Sciences on 3 January, 2014CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI

OA NO.2239/2013

Reserved on 06.12.2013
Pronounced on 03.01.2014

HONBLE MR. ASHOK KUMAR, MEMBER (A)
HONBLE MR. RAJ VIR SHARMA, MEMBER (J)

Dr. Bangkim Chandra Khangembam
S/o Sh. Surendra Kumar Khangembam,
R/o Room No.4, Department of Nuclear Medicine,
AIIMS, Ansari Nagar,
New Delhi-110608.						Applicant

(By Advocate: Mr. N.K. Gupta)

VERSUS

1.	All India Institute of Medical Sciences
	Ministry of Health & Family Welfare,
	Through its Director,
	Ansari Nagar,
	New Delhi-110608.

2.	Union of India
	Ministry of Health & Family Welfare,
	Nirman Bhawan,
	Through Secretary,
	New Delhi-110011.					Respondents

(By Advocate: Mr. Sahil Singh Chauhan)

ORDER

HONBLE MR. ASHOK KUMAR, MEMBER (A):The applicant is a qualified doctor possessing MBBS degree and has been working as Junior Resident (Post Graduate) in the Department of Nuclear Medicine of AIIMS since 09.07.2010. In consonance with the prospectus dated 22.05.2013, he had appeared in the examination for recruitment to the post of Senior Resident in the said Department, which was held on 23.06.2013.2.	According to the applicant, the prospectus for recruitment to the post of Senior Resident for January 2013 session was issued on 12.12.2012. A certificate dated 21.5.2013 was issued to the applicant stating that he had been working as Junior Resident since 09.07.2010 and would complete his period of registration on 08.07.2013. Another certificate dated 24.5.2013 was issued by respondents stating that there was no objection to his applying for the Senior Residency Examination. The issue of finishing tenure before 30.06.2013 was taken up with the Registrar and a representation was also filed on 29.05.2013 by the applicant and few other candidates, wherein a reference was made to a similar problem in July 2012 session when in a similar situation, candidates had been advised to fill up the form by mentioning that the said candidates had completed tenure by 30.06.2012 and they were advised to follow the same course of action.3.	Accordingly, the applicant, after issuance of admit card, appeared for the written examination (for the Department of Nuclear Medicine) and was declared as passed on 24.06.2013 and was called for interview on 02.07.2013. The result was announced vide notice no.13-6/2013/Acad./(SR-July-2013) for courses other than in the Department of Nuclear Medicine wherein it was mentioned that candidates, who have not completed their tenure of Post Graduation by 30.06.2013, would not be considered eligible for the post.  However, even after approaching the Registrar and taking up the issue of candidates having been given the benefit of extension in July 2012 and January 2013 sessions, the same benefit was not considered. The candidature of the applicant was cancelled in the result announced by the Department of Nuclear Medicine on 05.07.2013.4.	This OA has been filed by the applicant based on the final result dated 05.07.2013 announced by the notice at Annexure-A/1 seeking the following reliefs:-(i)	quash/set-aside the Clause 4 of the prospectus for July 2013 session and treat the Applicant eligible for the post of Senior Resident for Department of Nuclear Medicine having finished the tenure of qualifying degree latest by 31.07.2013.(ii)	Directing Respondent No.1 to allow the Applicant to attend to his duties and participate in the other activities ancillary to appointment during the pendency and final disposal of the present Application.(iii)	Declare the Clause 4 of the July 2013 prospectus as illegal and violative of the Constitution of India.(iv)	Directing the Respondent No.1 not to appoint any candidate on the seats earmarked for OBC candidates for the post of Senior Resident for Department of Nuclear Medicine till the pendency and final disposal of the present Application.(v)	Award the costs of the present application and compensation for the mental agony and harassment caused due to infringement of fundamental rights in favour of the Applicant and against the Respondents; and(vi)	Pass such other and further order/orders as deemed fit and proper in the facts and circumstances of the present case and in the interest of justice.5.	We have heard learned counsel for both parties.6.	We have considered the pleadings and documents on record as well as the arguments of both learned counsels. We find that Annexure-A/7 is a copy of the notice inviting applications as per Government of Indias Residency Scheme, qua the post of Senior Resident/ Senior Demonstrators, on ad-hoc basis for a tenure period, which would become available till 31.12.2013. This was issued on 22.05.2013 for a tenure period of three years as per Govt. of Indias Residency Scheme for the July 2013 at the AIIMS, New Delhi. The total number of posts was 254 and total vacancies in the Department of Nuclear Medicine were 3 (Sl.No.36 - page 54 of the paper book). The eligibility for selection for these posts, as stated in Para-4, was that the candidates should have passed the qualifying examination by 30.6.2013 and result declared to this effect on or before by this date. Further, the tenure of qualifying degree should also be finishing latest by 30.6.2013. It was also made clear in the said paragraph that only those candidates who had been declared successful in their qualifying degree exam/viva, i.e., MD/MS/PhD and would be completing their tenure for the same on or before 30.6.2013 would be eligible to be considered for these posts and in case of those who had appeared for exam/viva voce and result was yet to be declared, such candidates would be allowed to appear in theory and/or interview provisionally subject to production of certificate of successfully passing/qualifying  PG/ PhD exam and completion of tenure for this course latest by 1.00 PM on 30.06.2013. In this way, the applicant in the OA was fully aware of this pre-condition of degree to be finished by 30.6.2013 before appearing in the said examination. Para-4 itself further provided as follows:-To be eligible for final selection, such certificate/proof of passing, should be submitted latest by 1.00 PM on 30.6.13 in physical form in Academic Section.Failure to do so will lead to cancellation of their candidature. Any certificate received after 1.00 PM on 30.6.13 will not be considered and candidature will stand cancelled.In cases where result is declared after 30.6.13, their candidature will stand cancelled and no claim for selection on the basis of theory exam and Interview allowed provisionally will be considered.7.	It is stated that Junior Residents of AIIMS, New Delhi had given a representation dated 29.05.2013 to the Registrar AIIMS, that they had joined various Departments of AIIMS, New Delhi in July 2010 as Junior Residents and had been given time upto 31st July 2010 to join as Junior Residents. They were not going to complete three years residency period on or before 30.6.2013, as per the requirement for appearance in the examination for Senior Residents, and hence should be allowed to appear in the examination for the post of Senior Residency. However, applicant has not produced any document to show that any extension was granted regarding the condition of completing the residency period by 30.06.2013.8.	We have also noticed that in some of the earlier examinations the tenure period specified was different. Yet, however, the fact remains that no change was made in the tenure period as ending on 30.06.2013. In so far as the Residency Scheme for July 2013 for AIIMS was concerned, no document has been produced to show that there was any change in the stipulation made in Para-4 referred to above.9.	Learned counsel for the applicant referred to paragraphs 20 and 21 of the judgment of the Honble High Court of Delhi dated 29.11.2010 in Tej Pal Yadav Versus Union of India & Ors., which are reproduced below:-20. Presently we shall proceed to delve into the issue as to what relief can be granted to the appellant. The submission of Mr. Saini, learned counsel for the appellant, is that when injustice is caused to a person, he should not be declined or denied relief solely on the ground that the admissions are over. It is urged by him that he has to be adjusted in respect of a seat meant for the general category. We are disposed to think that there is substantial force in the submission of the learned counsel for the appellant. In this regard, we may think it apt to refer to certain citations in the field.21.InPunjab Engineering College, Chandigarh v. Sanjay Gulati, AIR 1983 SC 580, the Apex Court has categorically held that the authority which makes admission by ignoring the rules of admission must pay for its own lapse and wrong caused and injustice meted to the deserving candidates. In the said case, their Lordships directed for increase of strength as a course of solution. It is worth noting that in the said case, a contention was propounded that the Medical Council of India would not sanction additional seats but the said proponement was repelled. We think it apt to reproduce the relevant paragraph fromthe said decision:"It is strange that in all such cases, the authorities who make admissions by ignoring the rules of admission contend that the seats cannot correspondingly be increased, since the State Government cannot meet the additional expenditure which will be caused by increasing the number of seats or that the institution will not be able to cope up with the additional influx of students. An additional plea available in regard to medical colleges is that the Indian Medical Council will not sanction additional seats. We cannot entertain this submission. Those who infringe the rules must pay for their lapse and the wrong done to the deserving students who ought to have been admitted has to be rectified. The best solution under the circumstances is to ensure that the strength of seats is increased in proportion to the wrong admission made."10.	In this judgment, the facts of the case were somewhat different. The judgment related to the candidates being admitted in the general quota, although he belonged to the OBC category and in view thereof the Honble High Court directed in Para-25 as under:-25. In view of the aforesaid enunciation of law, we are disposed to think that the appellant should not suffer and his career should not be given an indecent burial and accordingly, we direct that he shall be admitted in the general category quota in the next academic year.11.	The other judgment relied upon by the learned counsel is that of the Honble Supreme Court in the case of A.C. Jose Versus Sivan Pillai & Others (1984) 2 SCC 656. This judgment related to an election application for an election conducted by the Election Commission of India. Para-38 ofthe said judgmentreads as follows:-38.	Lastly, it was argued by the counsel for the respondents that the appellant would be estopped from challenging the mechanical process because he did not oppose the introduction of this process although he was present in the meeting personally or through his agent. This argument is wholly untenable because when we are considering a constitutional or statutory provision there can be no estoppel against a statute and whether or not the appellant agreed or participated in the meeting which was held before introduction of the voting machines, if such a process is not permissible or authorized by law he cannot be estopped from challenging the same.12.	It this case the argument of estoppel was found untenable as when the issue of constitutional or statutory provision is raised, there can be no estoppel against a statute. In the case of the applicant in the present OA, he had applied for the examination after having read the terms and conditions of the examination which were duly notified. Therefore, he was not entitled to apply outside the ambit of the stipulations contained in the prospectus for the examination in July 2012 session for the post of Senior Resident.13.	Another judgment referred to was of the Honble High Court of Delhi dated 18.12.1997 in the case of Vineeta Srivastava Versus Jamia Millia Islamia, wherein it was observed that this was a case in which denial of admission was on the ground of provisions which was not provided in the admission policy. In the present case, it is observed that the terms and conditions were duly notified and would apply in the case of the applicant in this OA. He cannot be given benefit under this judgment.14.	During arguments, learned counsel for the applicant also placed reliance on the decision of Honble High Court of Delhi in Dr. Mundhe Kailas Maharudra Versus All India Institute of Medical Sciences and Ors., 176 (2011) DLT 488, which was on the issue of reserved category candidates competing in unreserved category. This judgment also is not relevant to the case of the present applicant in this OA.15.	Applicants counsel has also referred to the judgment of the Honble High Court of Delhi in Dr. A.M.V.R. Narendra Versus Union of India & another dated 22.01.2003 (supra), where the issue was whether prescribing interview was a sole decisive factor for admission. Since in the present case the applicant was fully aware of the terms and conditions prescribed in the prospectus for examination, he cannot now challenge those conditions. The said judgment of Honble High Court of Delhi does not seem to be relevant for the present OA.16.	Having taken notice of the facts and contentions of both parties, we do not find that the applicant deserves any consideration in the OA simply for the reason that he was fully aware of the pre-condition before appearing in the said examination of the degree to be finished by 30.6.2013. He cannot now agitate against the same condition under which he applied and appeared in the said examination. We also do not feel that there is any need to interfere with Clause-4 of the prospectus of the Examination because determination of the conditions of an examination is best left to the examining body, and does not lie with us.17.	For the aforenoted reasons, we do not find any merit in this OA. The same is dismissed. No costs.(Raj Vir Sharma)							(Ashok Kumar)
  Member (J)							           Member (A)



/jk/