Research › Search › Judgment

Himachal Pradesh High Court · body

2002 DIGILAW 306 (HP)

BIHARI LAL v. STATE OF H. P.

2002-11-13

A.K.GOEL, KAMLESH SHARMA

body2002
JUDGMENT Ms. Kamlesh Sharma, J.—Claiming himself to be the only eligible candidate for the second seat reserved for the candidates belonging to backward areas and who have passed two examinations but of Primary/Middle/Matriculation/10+2 from the Schools located in the backward area for admission to B.A.M.S. Course in the Sessions 2002-03, in Himachal Government Institute of Post-Graduate Education and Research in Ayurveda, Paprola, District Kangra (hereinafter called "the Institute"), the petitioner has assailed the admission granted to respondent No. 3, Sonu Ram, inter alia, on the ground that he had not submitted the requisite certificates within the stipulated period as per the Prospectus, rendering him ineligible for the admission. 2. The undisputed facts arising out of the pleadings of the parties and record produced by respondents No. 1 and 2 are that both the petitioner and respondent No. 3 appeared in the Entrance test for admissions to the Course in question on 18.8.2002 and the result was declared on 27.8.2002. The initial merit list was prepared and notified on 13.9.2002 by the H.P. University. As per the Prospectus under Group I, 36 seats were meant for bona fide Himachali out of which two seats were reserved for candidates belonging to backward areas and who have passed atleast two exams out of Primary/Middle/Matriculation/10+2 from schools located in backward areas. In the Merit list dated 12th September, 2002, besides the names of two candidates against the two seats meant for candidates of backward area, waiting list of 9 candidates was prepared. The names of respondent No. 3 with 84 marks and the petitioner with 80 marks find mention at Sr. Nos. 4 and 7 respectively thereof. 3. As per Note 1 in the merit list dated 12.9.2002, the candidature of the candidates was purely provisional subject to fulfillment of various requirements as mentioned in the prospectus, which was to be finally checked/ verified by the Counselling/Admission Committee or Principal at the time of Admission. Further as per Note 2, the merit candidates alongwith waiting as per available seats given in the Prospectus were called for Counselling/ Admission through registered letters separately to report to the Principal of the Institute at Paprola District Kangra on 27.9.2002. 4. Further as per Note 2, the merit candidates alongwith waiting as per available seats given in the Prospectus were called for Counselling/ Admission through registered letters separately to report to the Principal of the Institute at Paprola District Kangra on 27.9.2002. 4. Thereafter, as per office order dated 21.9.2002, a Counselling/ Admission Committee was constituted to scrutinize admission forms and other documents/original certificates to check final eligibility of the candidates as per the provisions of BAMS Prospectus and as per the Merit List of Pre-Entrance tests received from the H.P. University. By notice dated 27.9.2002 with reference to the first Counselling for admission to BAMS being held on 27.9.2002, out dates/schedule was notified for medical examination, deposit of fees and second counselling for vacant seats. The dates for medical examination for candidates on merit list of first counselling were fixed on 28.9.2002 and 30.9.2002 and the last date for deposit of full fee was fixed on 7.10.2002 (5.00 p.m.). After the first counselling on 27.9.2002, the merit list of provisionally selected candidates subject to the approval of the Officer on Special Duty-cum-Administrator and H.P. University was notified on 28.9.2002 and against the two seats meant for backward area category, Lalit Thakur with 88 Marks and the petitioner with 80 marks were declared provisionally selected and the name of respondent No. 3 with 84 marks was in the waiting list at Sr. No.3. By Corrigendum of the same date, that is, 28.9.2002, it was notified that in the category of backward area instead of the name of the petitioner, the name of respondent No. 3 may be read against the second seat meant for the said category. 5. From the records, including the noting sheets, we do not find any material to show, firstly, why the name of the petitioner having 80 marks was shown as selected candidate against the second seat when respondent No. 3with 84 marks was not found eligible and, secondly, what transpired which led to issue of Corrigendum immediately thereafter. However, there is noting on the file that on 4.10.2002 the Medical Certificate of respondent No. 3 was considered and the Officer on Special Duty of the Institution admitted him against the second seat meant for backward area category. However, there is noting on the file that on 4.10.2002 the Medical Certificate of respondent No. 3 was considered and the Officer on Special Duty of the Institution admitted him against the second seat meant for backward area category. It is also on record that during the course of first counselling, the petitioner filed representation that respondent No.3 had secured admission on the basis of backward area Panchayat Certificate which was not genuine as the Panchayat shown in his certificate did not fall in the backward areas. Taking action on his representation, the matter was referred to the District Vigilance Officer-cum-Superintendent of Police, Mandi by the Officer on Special Duty of the Institution vide his letter dated 7.10.2002 and the admission of respondent No. 3 was made provisional. 6. Initially in the writ petition, relying on the Notification dated 16.6.1995 issued by the Financial Commissioner-cum-Secretary (Planning) to the Government of H.P. (Annexure P-l to the Writ Petition), the petitioner had set up a case that respondent No. 3 is a resident of village Deoli, Gram Panchayat Koon under block Dharampur in Mandi District which was not a backward area though Gram Panchayat Tarkhola under Dharampur block was declared as backward area and the schools from where respondent No. 3 had passed his middle/matric examinations were in Gram Panchayat Tarkhola which was declared backward area by the said Notification. 7. As per the petitioner, he is resident of village Damohar which falls under Gram Panchayat Namahog under block Ani in District Kullu.which has been declared backward area vide Notification dated 16.6.1995 (Annexure P-l) and having passed his Primary from G.P.S. Deori (Block Anni) Middle and Matric from Government Senior Secondary School, Anni (Anni Block), he is eligible to be considered against the backward area seat. According to him, after the counselling on 27.9.2002, he appeared for medical check up on 28.9.2002, he was declared medically fit, as per the endorsement made on Medical Examination Slip, Photocopy of which is Annexure P-3 to the writ petitions ljut when he went to deposit the fees, he was informed by the O.S.D.-cum-Administrator that his case was to be reconsidered as respondent No. 3 was placed higher in merit. In these circumstances, he filed a written representation on 28.9.2002 that while considering the case of respondent No. 3 vis-a-vis his claim, the Notification dated 16.6.1995 Annexure P-l should be kept in view. In these circumstances, he filed a written representation on 28.9.2002 that while considering the case of respondent No. 3 vis-a-vis his claim, the Notification dated 16.6.1995 Annexure P-l should be kept in view. On the next date, the petitioner was informed by the OSD-cum-Administrator, that the final decision would be taken after verification of the documents supplied by respondent No. 3. Apprehending that respondent No. 3 would be admitted against the second seat meant for backward area candidates, ignoring his claim, the petitioner filed the present writ petition on 1.10.2002. 8. When the writ petition came up for admission on 7.10.2002, the learned Additional Advocate General accepted notice on behalf of respondents No. 1 and 2 and took time to file reply Notice was ordered to be issued to respondent No. 2 for 22.10.2002. On the basis of the material on record, interim order was passed that the second seat meant for backward area category will not be filled up till the next date of hearing. 9. Respondents No. 1 and 2 and respondent No. 3 have filed separate reply affidavits. Respondents No. 1 and 2 in their preliminary submissions have stated that respondent No. 3 belongs to backward Gram Panchayat Koon Block Dharampur District Mandi as is evident from the certificates dated 21.9.2002 and 24.9.2002 issued in his favour (Annexures R-l and R- 2) by the competent authority. It is also stated that the petitioner has suppressed the Corrigendum dated 6.1.1997 (Annexure R-3) to the Notification dated 16.6.1995 vide which the words "Panchayat Kun" were inserted instead of the words "Panchayat Kunjablh" at Sr. No. 9 Para 3 of Development Block Dharampur District Mandi which shows that respondent No. 3 belongs to backward area and having passed two examinations from a school situated in backward area, he is eligible for admission to BAMS Course in the second seat reserved for the backward area category, being higher in merit as compared to the petitioner. 10. In reply on merits, it is further stated that there was no reason to doubt the certificates submitted by respondent No. 3 which were issued by the competent Executive Magistrate and the Sub Divisional Magistrate Sarkaghat verifying that respondent No. 3 belongs to backward area. 10. In reply on merits, it is further stated that there was no reason to doubt the certificates submitted by respondent No. 3 which were issued by the competent Executive Magistrate and the Sub Divisional Magistrate Sarkaghat verifying that respondent No. 3 belongs to backward area. It is further stated that the petitioner was not given medical fitness certificate by the Medical Superintendent who is the competent authority and he, of his own obtained endorsement on the proforma for medical examination supplied with the Prospectus which is preliminary examination report given only by one department, that is, Department of Medicines which was required to be submitted to the Medical Superintendent of the Institution, the competent authority for issue of Medical Certificate. On the representation of the petitioner, the matter has already been sent to the Vigilance Officer (S.P.) Mandi for verification of the certificates submitted by respondent No. 3. It is denied that on 29.9.2002, being Sunday, the petitioner had any talks with the O.S.D.-cum-Administrator of the Institution as alleged by him. It is reiterated that both respondent No. 3 and the petitioner fulfilled the eligibility criteria of belonging to backward area but the respondent No. 3 having secured 84 marks in the entrance examination as compared to 80 marks secured by the petitioner, he has been admitted to the Course in question on his depositing the admission fee. However, in view of the interim order passed by this Court, respondent No. 3 has not been enrolled as a student in the class though classes have started with effect from 10.10.2002. 11. Respondent No. 3 in his reply affidavit has taken a stand similar to respondents No. 1 and 2 and asserted that the petitioner is not right in alleging that respondent No. 3 is not eligible for admission against the second seat meant for backward area category and the certificate submitted by him are not genuine. 12. In rejoinder to the reply of respondents No. 1 and 2, the petitioner has though admitted that in view of the Corrigendum dated 6.1.1997 (Annexure R-3), respondent No. 3 belongs to backward area but his eligibility for admission to BAMS course against the second seat meant for backward area category is disputed on the ground that the backward area certificates submitted by him do not conform to the requirement of the Prospectus. Therefore, on the basis of the said documents, he could not be considered eligible despite his being higher in merit. It is further alleged in the rejoinder that at the first instance the petitioner was rightly selected by the Counselling Committee and his name figured in the select list but by issuing the Corrigendum, respondent No. 3 was selected in his place though he had already undergone medical examination and was declared medically fit. It is further stated that on the basis of the Certificates Annexures R-l and R-2, the candidature of respondent No. 3 was liable to be rejected as the deficiency in the said certificates on the date of counselling could not be made good at a latter date. 13. We have heard the learned Counsel for the parties and gone through the record. Before we deal with the submissions of the learned Counsel for the petitioner, we would like to refer to the relevant clauses of the prospectus. 14. The manner for filling in the backward area seats is given in Clauses 2, 3. It is : "Backward area seats in BAMS course reserved for candidates belonging to the backward areas as notified by the H.P. Government from time to time will be filled in the following manner : (a) Candidates belonging to the backward area who have passed atleast two examinations out of Primary, Middle, High and 10+2 from the schools located in the Backward area. (b) If no such candidate as per 2, 3(a) is available then to a candidate belonging to backward areas. (c) In case no such candidate as per 2,3(b) is available for the backward area seats, the same will go to the General category of Group-l(a) candidates. Note.—In case any candidate competes for backward area category and falls in merit in general category under Group l(a), but he/she did note have two schooling from backward areas, in that case his/her admission will be made under General Category group-I(a) and seat (s) will be treated as General for backward area category provided no candidate is available under sub-clause (a), and or clause (c)." 15. The documents which are required to be submitted alongwith the application form (OMR) as well as the documents which are to be submitted at the time of counselling/admission are mentioned in clauses 7.2(a), 7.2(b), 7.2(c), 7.2(d) and 7.2(e). The documents which are required to be submitted alongwith the application form (OMR) as well as the documents which are to be submitted at the time of counselling/admission are mentioned in clauses 7.2(a), 7.2(b), 7.2(c), 7.2(d) and 7.2(e). Under Clause 7.2(c) (iii), it is stated that in case of candidates seeking admission against reserved seats for SC/ST/OBC/ Backward Areas/Children of Ex-servicemen/children of defence Personnel/wards of Freedom Fighters, a certificate of belonging to these categories must be from the competent authority as indicated in the Prospectus at Appendix A-2 to A-7. 16. The definition of Backward area is given in clause 3.1 (ii) which is as follows : "Backward Area: The Backward areas as listed in the Notification No. PLG-F (BASP)-I/95 dated the 16th June, 1995 issued by the Financial Commissioner-cum-Secretary (Planning) Government of Himachal Pradesh, or areas as may be notified to be backward areas by the Government of Himachal Pradesh from time to time.” 17. Clause 7(c)(iv) deals with the consequences of bringing incomplete certificates at the time of counselling. It is as follows : "(iv) The candidate who brings incomplete certificates at the time of counselling will be rejected without any notice there and then by the committee constituted for the counselling/admission by the Head of the Institute." 18. Medical Examination and registration is provided under clause 8 of the Prospectus. It is : "8.1.The selected candidates will be called for medical examination and verification of documents attached to the original application in the college at their own expenses. 8.2. The students who take admission in BAMS course should get vaccinated with anti-Hepatitis B themselves at their own expenses. They are to do so within 6 months from the date of their admission in the course. 8.3. The standard of physical fitness will be as prescribed in Appendix A-10. If declared unfit, he/she will not be admitted in the college. Prescribed form of physical fitness is available with the college office. Any disability like colour blindness for technical studies and to perform the duty as a physician/surgeon will be considered as medical unfitness for admissions to BAMS course by the candidates. 8.4. If the selected candidate does not join the college by the stipulated date and complete the Medical Examination etc. Any disability like colour blindness for technical studies and to perform the duty as a physician/surgeon will be considered as medical unfitness for admissions to BAMS course by the candidates. 8.4. If the selected candidate does not join the college by the stipulated date and complete the Medical Examination etc. as laid down in the prescribed form, he/she will not have any claim for the allotted seat which will then be offered to the next candidate in the merit list. 8.5. Every candidate coming from other Universities/Boards for admission to first year BAMS course in the college has to produce an eligibility certificate obtainable from the Himachal Pradesh University like students coming from Foreign Universities before admission. 8.6. Soon after the admission in the college the students will get themselves registered on payment of prescribed fee with the Himachal Pradesh University as required under rules. 8.7. If a candidate is admitted on the basis of statements made in the application form but at a subsequent time it is discovered that any of the statement was false, the student shall be removed from the college and all the fees and other dues paid shall be confiscated. Any further action against the candidate and his/her guardian that may be considered suitable may also be taken." 19. The main thrust of the arguments of the learned Counsel for the petitioner is that as per the definition of backward area under clause 3.1(ii), backward areas are those which were listed in the Notification dated 16.6.1995 or areas as may be notified to be backward areas by the Government of H.P. from time to time and since the certificates Annexures R-l and R-2 mention Notification of an earlier date, that is, 10.1.1986, which was superseded by the Notification dated 16.6.1995, these Certificates were not in conformity with the requirement of the prospectus rendering the respondent No. 3 as ineligible. According to the learned Counsel, the Counselling Committee was required to reject the case of respondent No. 3 declaring him ineligible because he had produced incomplete backward area certificate as provided under clause 7(c)(iv). For making his submissions, the learned Counsel for the petitioner has relied upon the judgment of this Court in Gunajan Kapoor v. State of Himachal Pradesh and others, 1999 (1) Shim. L.C. 246. For making his submissions, the learned Counsel for the petitioner has relied upon the judgment of this Court in Gunajan Kapoor v. State of Himachal Pradesh and others, 1999 (1) Shim. L.C. 246. It is also urged by the learned Counsel for the petitioner that being ineligible, respondent No. 3 was not equal to the petitioner and, as such, there was no question of their comparison and higher merit of respondent No. 3 was of no consequence. Another submission of the learned Counsel for the petitioner is that after issue of first select list declaring the petitioner selected against the second seat meant for backward area candidates, the counselling committee had become functus officio and had no authority to review its earlier selection and replace the petitioner by respondent No. 3 by issuing a Corrigendum. 20. On the other hand, the learned Additional Advocate General appearing for respondents No. 1 and 2, has urged that in view of the Corrigendum dated 6.1.1997 Annexure R-3, Gram Panchayat Kun to which the respondent No. 3 belonged was declared backward area Panchayat, therefore, respondent No. 3 is eligible and he has been rightly selected against the second seat meart for backward area candidates, being higher in merit having 84 marks vis-a-vis the petitioner having 80 marks. According to the learned Additional Advocate General, if the competent authority has made mention of a wrong notification No. in Certificates Annexures R-l and R-2, it is of no consequence as under the said Notification, read with notifications dated 16.6.1995 and the Corrigendum dated 6.1.1997, the Gram Panchayat Kun continued to be backward area Panchayat. Otherwise also, respondent No. 3 should not suffer if the competent authority mentioned wrong No. of Notification in certificates issued in favour of respondent No. 3. 21. The learned Counsel for respondent No. 3 has reiterated the submissions made by the learned Additional Advocate General and has further added that the petitioner had intentionally withheld the factum of issue of Corrigendum dated 6.1.1997 Annexure R-3 whereby Gram Panchayat Kun, to which respondent No. 3 belongs was declared as backward area panchayat, in order to get interim relief in his favour and on this ground alone, his writ petition deserves to be dismissed. 22. 22. We are not inclined to accept this submission of the learned Counsel for respondent No. 3 presuming that the petitioner at the time of filing the writ petition, might not be in the know of the Corrigendum dated 6.1.1997; though with the Publication of the said Corrigendum in the Gazette, the petitioner was supposed to know it. On the other hand, we do not find any substance in the submissions made by the learned Counsel for the petitioner that the Certificates Annexures R-l and R-2 were no Certificates and respondent No. 3 was required to be declared ineligible for the second seat meant for backward area candidates. If in these certificates the particulars of the Notification whereby Gram Panchayat Kun, to which respondent No. 3 belongs, have been wrongly given by the competent authority, the petitioner cannot be blamed as he could only approach the competent authority for issue of the certificates and it was for the competent authority to give correct particulars therein. Moreover, supplying wrong particulars of the Notification in these certificates Annexures R-l and R-2 is of no consequence as admittedly, Gram Panchayat Kun was declared backward area by Notification dated 10.1.1986 and also Notification dated 16.6.1995 read with the Corrigendum dated 6.1.1997. Had it not been a backward area, under the Notification dated 16.6.1995 read with the Corrigendum dated 6.1.1997, mentioning of Notification dated 10.1.1986 in the Certificates Annexures R-l and R-2, would have significance and the submission of the learned Counsel for the petitioner would have some substance. 23. Therefore, we reject the submission of the learned Counsel for the petitioner that respondent No. 3 was not eligible on the basis of the Certificates Annexures R-l and R-2 and his case was required to be rejected by the Counselling Committee. we also do not find any substance in the another submission of the learned Counsel for the petitioner that after issue of the select list, the counselling committee had become functus officio and it had no authority to issue Corrigendum dated 28.9.2002. In our opinion, the Counselling Committee was very much within its right to make corrections and issue Corrigendum if some factual error had come to its notice. Moreover, the select list declared by the counselling committee was subject to the approval of the OSD-cum-Administrator who, while scrutinizing the same, could correct any factual error. In our opinion, the Counselling Committee was very much within its right to make corrections and issue Corrigendum if some factual error had come to its notice. Moreover, the select list declared by the counselling committee was subject to the approval of the OSD-cum-Administrator who, while scrutinizing the same, could correct any factual error. In the present case, the factual error was that respondent No. 3 with 84 marks was higher in merit but was placed in the waiting list whereas the petitioner with 80 marks was declared selected for the second seat meant for the backward area candidates. In fact, no right accrued to him by his placement in the provisional merit list for the second seat meant for the backward area candidates and his preliminary medical examination by the department of medicine. The endorsement made on Appendix A-10 Annexure P-3 in respect of the medical fitness of the petitioner is not a medical certificate issued by the competent authority, that is, the Medical Superintendent of the Institute as required and also issued in the case of respondent No. 3 and other candidates on the basis of which they were admitted to the course. 24. Another submission of the learned Counsel for the petitioner that the Certificates Annexures R-l and R-2 produced by respondent No. 3 were incomplete and his case was required to be rejected by the Counselling Committee as per clause 7(c)(iv) of the Prospectus is also without any substance. In our opinion, the said certificates were complete, as discussed hereinabove, and wrong mentioning of the particulars of the Notification by the Competent Authority is not such a defect as to render the certificates Annexures R-l and R-2 incomplete. 25. In this view of the matter, the submissions made by the learned Counsel for the petitioner are not well founded that the case of the petitioner is similar to the case of Gunjan Kapoor (supra) and the law laid down therein is applicable to the case in hand. The case of Gunjan Kapoor is distinguishable on facts. In that Case the application of respondent No. 9, was admittedly, received after the expiry of the last date and that too without the gradation certificate of sportsmen from the Director of Sports as prescribed under Para 3.1(g) of the Admission Brochure of the College. The case of Gunjan Kapoor is distinguishable on facts. In that Case the application of respondent No. 9, was admittedly, received after the expiry of the last date and that too without the gradation certificate of sportsmen from the Director of Sports as prescribed under Para 3.1(g) of the Admission Brochure of the College. Therefore, the learned Judges of the Division Bench were of the opinion that, "....when the date, time and stipulation of enclosing the documents with the application form have been specified in the Advertisement and also in the Information Brochure, it must be strictly adhered to as otherwise it leads to uncertainty, unending process, anomaly and deprivation of equality clause and further it widens the competition amongst the candidates seeking admission into professional courses who had not complied with the stipulated essential conditions. It is also difficult to determine up to what period the time limit can be extended and if such power is to be exercised by the committee or the college authority, it will lead to arbitrariness. ..."In view of these observations, the admission of respondent No. 9 in the Sports Category was held to be bad. 26. On the other hand, the present case is squarely covered by the decision of the Supreme Court in Ganu Ram v. Rikhi Ram, AIR 1984 SC 1513. In the said case, the learned Judges were dealing with Section 33 of the Representation of Peoples Act which deals with the presentation of nomination papers and requirement for a valid nomination. Sub-section (2) of Section 33, provides that in a constituency where a seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste or tribe of which he is a member and the area in relation to which that caste or tribe is a scheduled caste or, as the case may be, a Scheduled Tribe of the State. Admittedly, in the said case, the nomination form filed by the appellant before the Supreme Court and his proposer, no written declaration had been made specifying the caste to which he belonged and the area in relation to which that caste was scheduled caste of the State but it was not in dispute that alongwith the nomination papers the appellant had filed as an Annexure thereto a certificate issued by the Sub-Divisional Magistrate certifying that the appellant belonged to Scheduled Caste, namely, Lohar. On these facts, the learned Judges opined that the certificate which was produced by the appellant as an annexure to the Nomination Papers was required to be treated as forming part of the Nomination Papers and the declaration contained therein that the appellant belonged to scheduled caste of Lohar must be understood and treated as a declaration by the appellant in the nomination form within the meaning of sub-section (2) of Section 33. The learned Judges have further observed in Para (5). "....We have to remember that we are dealing with nomination papers pertaining to candidates belonging to scheduled castes and Scheduled Tribes, who, for well known historical reasons, are unfortunately, extremely backward socially, economically and educationally in comparison with other sections of our people......" 27. So far the case in hand is concerned, a student is not supposed to know the particulars of the Notification under which the area, to which he belongs, has been declared to be backward. He could only know the factum of his area being declared backward and it was for the competent authority to give correct particulars with regard to the latest Notification under which his area was declared to be backward. Moreover, had Gram Panchayat Kun, to which respondent No. 3 belongs, not been a backward area Panchayat as per the Notification dated 16.6.1995 read with the Corrigendum dated 6.1.1997, there would have been substance in the submissions made in behalf of the petitioner. 28. The result of the above discussion is that there is no merit in this writ petition and it is rejected. There is no order as to costs. Writ petition dismissed.