HC junks NEET candidate's migration plea due to Non-receipt of OTP

Kolkata: The Calcutta High Court recently denied granting relief to a NEET-qualified student, who sought migration from a private medical college to a government medical institute.

Filing the plea, the petitioner, who belongs to an economically backward section of society, submitted that even though his EWS rank was adequate to get admitted to a Government Medical College, due to technical difficulties in the West Bengal Medical Counselling Committee's server and problem in receiving the one-time password (OTP), he could not participate in the first round of counselling and lost his chance to pursue MBBS from a Government Medical College.

While the petitioner prayed for migration from the private medical college, where he was enrolled, to a government medical college, the HC bench dismissed the plea while noting that "The applicability of the doctrine of delay and laches cannot be lightly brushed aside."

The bench comprising Justices Partha Sarathi Chatterjee and Tapabrata Chakraborty questioned the delay by the candidate in approaching the court and observed, "In such circumstances, this case cannot be construed as the rarest of rare cases for issuance of any direction upon the respondents for grant of admission to the appellant in any government medical college in the academic session of 2023-2024. Any such direction would be an instance of misplaced sympathy."

Also Read: HC Relief to MBBS Aspirant Wrongfully Denied Seat, orders Rs 1 Lakh Compensation, Future Admission

As per the plea, the petitioner hails from a very poor minority community and appeared in NEET UG 2023 exam under the Economically Weaker Section (EWS) category. He secured 52515 rank in the UG medical entrance test and as per the petitioner, such ranking was much above other candidates under the EWS category, who were admitted to the GMCs to pursue the MBBS course. 

He claimed that during the first round of online counselling, the server of West Bengal Medical Counselling Committee (WBMCC) was not working properly and the appellant could not register his name since he did not receive any one-time password (OTP) in his registered mobile number and email ID. He immediately contacted the helpline number of WBMCC on 28.07.2023 at around 7 pm and prayed for assistance. However, allegedly, he was advised to participate in the second round of counselling.

Aggrieved by this, the appellant submitted a representation to the authorities followed by a demand notice through his advocate. Thereafter, he was called for a hearing on 29.09.2023 and at the time of hearing, he was verbally directed to take admission first at JIS as had been allotted to him in the subsequent counselling process and he was assured that thereafter the authority would arrange for his migration to any government medical college.

Allegedly, based on this assurance, the petitioner took admission at JIS. On the instruction of the Nodal Officer, the appellant was granted admission without tuition fees. However, after this, no steps were taken by the authorities to admit him to a GMC, claimed the petitioner. The counsel for the petitioner argued that merely sending of OTP does not prove that the OTP was delivered. Therefore, the appellant could not participate in the first round of counselling due to the laches on the part of the authorities. 

It was submitted that in the event that he could have participated in the first round of counselling, he would have positively secured admission to a government medical college based on his NEET rank. 

The petitioner's counsel submitted that the EWS category of reservation was incorporated with the sole object to uplift and accommodate brilliant students from the lowest strata of the society. Therefore, the State has the duty and responsibility to ensure that such poor students do not succumb to the procedural ringmarole. The counsel argued that the petitioner had been victimized for no fault on his part and in such circumstances, the single judge bench should have exercised discretion in his favour and allowed him to take admission to any government medical college. In this regard, the counsel relied on a judgment delivered in the case of S. Krishna Sradha versus State of Andhra Pradesh and others.

He argued that through a memo dated 19.01.2024, the State Government authorities removed three ST candidates, who got admitted to Medical College, Kolkata in the MBBS Course (session 2023-2024) and as such three vacancies had occurred in the said government medical college and the appellant could be admitted to any one of such vacancies.

On the other hand, the counsel for the State authorities submitted that the registration for the first round of counselling started from 25.07.2023 and the process continued till 28.07.2023. The OTP for the registration was sent to the appellant on 28.07.2023 at 09.48.00 hours, as would be explicit from the document annexed. 

The State counsel submitted that the appellant tried to fetch the OTP only once and that too on the last date stipulated for the first round of counselling. There was no explanation as to why he waited for the last date to fetch the OTP. Further, it was submitted that no representation alleging any inaction on the part of the authorities was submitted till 27.09.2023. 

He further submitted that the appellant without raising any objection participated in the subsequent rounds of counselling and locked his choice finally on 21.09.2023. Thereafter, he waited for fifteen days, without any reason and ultimately affirmed the writ petition on 05.10.2023. Meanwhile, admission in the academic session was over and the appellant had also not attended his classes at JIS. When an aggrieved person, without adequate reason, approaches the Court at his own leisure or pleasure, no discretion can be exercised by the Court in his favour, argued the counsel.

Meanwhile, the court took note of a submission pointing out that while the petitioner prayed to be migrated to any GMC, such migration is a bar under clause 18 of the notification dated 02.01.2023 issued by the National Medical Commission. It was submitted before the Court that the period of admission for 2023-2024 had already expired and the appellant had not even attended his classes in the 2023 academic session at JIS. Considering this, the question of granting admission mid-stream to any GMC, after the commencement of the course, does not occasion. 

After taking note of all the submissions, the HC bench noted, "To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience. Justice cannot be forsaken on alter of technicalities. Judiciary has a strong sense of justice and it works to maintain social justice and fairness as distinguished from misplaced sympathy. Upon application of such proposition to the facts of the case, it needs to be ascertained as to whether the appellant can be admitted in any government medical college to pursue the MBBS Course in the academic session of 2023."

Terming it as a "real conundrum", the bench observed, "...we are considering as to whether a candidate under EWS Category, who had pursued his studies under extreme financial distress and had by the dint of his merit secured a rank much higher than many candidates under EWS Category, can be directed admission in a government medical college where he would be able to pursue his studies with lesser tuition fees. It has made and compelled us to pause, ponder and confer anxious consideration. The case may not warrant a zerotolerance approach but the claim needs to be considered in the totality of the circumstances."

The Division bench noted that the appellant's claim for migration was rightly discounted by the single Judge in view of clause 18 of the notification dated 02.06.2023. Further noting that the appellant had not attended regular classes and today almost two semesters of the course are over, the court noted, "As per catena of decisions of the Hon’ble Supreme Court the time schedule relating to admissions to the professional courses should be strictly adhered to."

From the photostat copy of the log obtained from the server of the National Informatics Centre (NIC), the Court noted that though the first round of counselling commenced from 25.07.2023, the appellant fetched the OTP only once and that too on the last date of the said counselling, i.e., on 28.07.2023. In response of this, the OTP was sent to the appellant’s mobile on 28.07.2023 at 09.48.00 hours. However, to participate in the second round of counselling the appellant logged in and fetched the OTP on multiple occasions from the date the second round of counselling commenced.

"Records further reveal that having allegedly failed to obtain the OTP on 28.07.2023, the first representation was submitted about two months thereafter on 26.09.2023, i.e., after publication of the result of the Online Stray Round on 25.09.2023. The document annexed at page 41 of the A/O would reveal that the second round of counselling started on 14.08.2023 and the appellant waited till the fourth round which started on 18.09.2023 to get a seat at JIS. The locking date and time was 21.09.2023 at 20.41.00 hours. The writ petition was affirmed about fifteen days thereafter on 05.10.2023. The above sequence of facts clearly reveals that the appellant did not take immediate steps after having failed to register himself in the first round of counselling. Having not appeared in the first round of counselling, the appellant cannot even challenge the admission of other EWS category candidates in any government medical college, who may have obtained lesser rank than him in NEET," the Court noted.

"We do not find any explanation as to why the appellant did not fetch the OTP immediately upon commencement of the first round of counselling on 25.07.2023. He unnecessarily waited till 28.07.2023 to obtain the OTP. There is no explanation as to why he participated in the second round of counselling without even submitting any representation contemporaneously alleging that for the fault of the respondents he could not register himself in the first round of counselling. An alleged assurance given by the respondent no.4 towards admission in a government college does not confer any legal right upon the appellant," it held.

The bench observed that in the case of S. Krishna Sradha (Supra) itself it has been observed inter alia that where the candidate is challenging the first round of counselling process then he/she must approach the Court immediately after the first round of counselling and before the commencement of the second round of counselling. With this observation, the bench denied granting relief to the candidate and dismissed the appeal.

To view the order, click on the link below: