BDS Admission Given To Student Who Failed Class 12 Subject Cancelled After One Year; Rajasthan HC Asks NEET Counselling Board, College To Pay Rs 10 Lakh Compensation Each

The court, in its judgement, while holding the petitioner not eligible in the first place to have appeared in NEET UG 2019 Exams or to avail the option of continuing his course from hereon, made the following directions to the respondents:

"This Court, in the present facts of the case, deems it proper to issue direction to pay a compensation of Rs.10,00,000/- (Rs. Ten Lakhs only) to the petitioner by NEET Counselling Board and further the respondent - Darshan Dental Medical College And Hospital, Udaipur will also pay Rs.10,00,000/- (Rs.Ten Lakhs only) to the petitioner."

The court took into consideration the expenses incurred inclusive of fees already paid for the course, and impact of the loss of an academic year for the petitioner student due to the negligence of respondent authorities while deciding the quantum of compensation.

Facts

The petitioner appeared for the NEET UG 2019 exams and underwent the Counselling process after the Merit List was published. He was subsequently given provisional allotment to Darshan Dental Medical College and Hospital in July 2019. After allotment, he paid the requisite fees and submitted the mandatory documents including the Senior Secondary Certificate. Prior to the first-year exam in August 2020, he received a letter from the University pointing out his ineligibility to be enrolled, citing his failure in the Chemistry Paper of the CBSE Board Exams as the reason.

Submissions Made By Counsels

Petitioner Student's Counsel

Advocate Chandrabhan Sharma, for the petitioner, argued before the court that as per the CBSE mark sheet, his result has been shown as 'Pass'. The petitioner also acknowledged that, against Chemistry, it has been marked as 'Fail In Theory'. However, it was the contention of the petitioner that the minimum passing marks for all subjects are 33 and he had obtained more than that for all subjects including Chemistry.

Reference was also made by the petitioner to the NEET-UG, Medical & Dental Counselling Board's Information Booklet which specifies the eligibility criteria for applicants. It was the interpretation of the petitioner that the booklet does not specify pass marks in both theory and practical constituents of a subject if the result has been declared as 'Pass'. According to the petitioner, the only requirement was 40% aggregate marks in all the subjects and securing individual pass marks for the same.

Petitioner's counsel further argued that the denial of enrolment was unjustified since the petitioner has completed one year at the College and the current situation has not been an after effect of the petitioner misleading the authorities.

Counsels For Rajasthan University of Health Sciences And CBSE

Advocate Ravi Chirania for the respondent University alleged a 'human error' from the part of CBSE in issuing the mark sheet and serious lapses from the part of NEET Examination Authority and Counselling Board in verifying the documents. Mere declaration in the mark sheet as 'Pass' won't bestow eligibility upon the petitioner unless he has passed both the theory and practical aspects of the subject.

Both the Respondent University and the CBSE drew the attention of Court to Clause 40.1 (ii) of CBSE Bye-Laws which states that if a subject involves practical work, the student must obtain 33 per cent in practical and theory separately, so as to have 33 per cent marks jointly, to pass each subject.

It was the contention of the Counsel For CBSE, Advocate MS Raghav, that the petitioner had opted for five subjects and one additional subject as per Clause 43 of Bye-Laws, hence he was declared as 'Pass' on the basis of those five subjects even when his positional grade for Chemistry was 'E'. He denied any kind of 'human error' on the part of CBSE.

Counsels For NEET Counselling Board & Dental College

NEET Counselling Board, in turn, with respect to the issue of document verification, submitted that it was the responsibility of the allotted/admitting college to check the original documents and the documents pertaining to the eligibility of the candidate, inclusive of the 12^th Standard Marksheet. After examining if a student has passed in Chemistry, Physics, Biology and English subjects individually and had secured 40% marks as per the booklet, the concerned college was expected to report to the Counselling Board about the details of admission of the candidate via Online Reporting Module.

It was also their submission that the petitioner candidate, who belonged to the ST Category, was personally liable to make sure that he met the eligibility criteria For the ST Candidates as per the Booklet, including revocation of admission even after admission if any lapses from the part of candidate are identified at a later stage.

The counsel for Respondent Dental College, Advocate JR Tantia, in turn, tried to establish that it was the obligation of the NEET Committee To ascertain the veracity of original documents presented at the time of issuing provisional allotment letter to the candidate and that the college was merely honouring the decision of the Counselling Board as per their own information booklet.

Court's Findings

After examining the information booklet of NEET-UG Counselling Board and the submissions made by the concerned parties, Justice Ashok Kumar Gaur inferred that the petitioner has not met the mandatory criteria to pass the subjects of Physics, Chemistry and Biology/ Biochemistry individually when Clause 40.1 (ii) CBSE Byelaws is parallelly applied.

"This Court finds that a candidate, who appears in any of the examinations, has to ensure that he fulfills the minimum educational qualification and any other conditions, which are required before entering into fray for writing the examination. The specific requirement of educational qualification cannot be diluted by this Court, as the requirement of possessing and passing the subjects, is a pre-condition for making a candidate eligible."

The single-judge bench went on to note that "...Candidates/Doctors deal with the human lives, which are of immense importance.." and the petitioner had no right to seek permission to pursue the course even after a clear finding as to the lack of his qualification.

Regarding the responsibility of Respondents No. 3 & 4, i.e., Counselling Committee and Dental College, Justice Ashok Kumar Gaur reached the following conclusion:

"…Minimum educational qualification was to be ensured by all the Authorities, including NEET Counselling Board as well as the College and only after verification of such fact that the petitioner possessed the requisite educational qualification, the admission process should have been undertaken by these Authorities."

The court observed that neither of the parties can absolve themselves from liability by shifting the blame to one another. The court also recorded that the respondent college came to know of the discrepancy in qualification only when examination forms were to be filled and enrolment was to be done by the University, and the same can't be condoned by the reasoning that they were devoid of any options other than complying with the provisional allotment letter from NEET Committee in the previous year.

The court relied on the Apex Court judgements in Krina Ajay Shah & Ors. Vs. The Secretary, Association of Management of Unaided Private Medical & Dental Colleges & Ors. [(2016) 1 SCC 666] and S. Nihal Ahamed Vs. The Dean, Velammal Medical College Hospital and Research Institute & Ors. [(2016) 1 SCC 662] whereby it has repeatedly considered the grant of compensation to the candidates if such candidates were not to be granted admission after lapse of time, so that the candidates could be given damages under "public law damages" theory.

As a result, the court recorded in its judgement the extent to which the NEET Counselling Board and Respondent College should compensate the ineligible petitioner student for negligence, i.e., Rs 10 Lakhs each.

Case Title: Nitendar Kumar Meena v. Rajasthan University of Health Sciences & Ors.

Case no.| Date: Civil Writ Petition No. 9052/2020| 14th September 2021

Coram: Justice Ashok Kumar Gaur

Counsel:  Advocate Chandrabhan Sharma For Petitioner

Dr Vibhuti Bhushan Sharma, AAG – For Respondent State

Advocate Jai Raj Tantia- For Respondent College

Advocate MS Raghav – For Respondent CBSE

Advocate Ravi Chirania - For Respondent University