Research › Search › Judgment

Himachal Pradesh High Court · body

2003 DIGILAW 335 (HP)

AJIT KUMAR NEGI v. STATE OF H. P.

2003-11-18

K.C.SOOD, V.K.GUPTA

body2003
JUDGMENT V.K. Gupta, CJ.—With the consent of the parties, this petition is taken up for consideration and final disposal today itself, without formally admitted it to hearing. 2. The maxim, the golden rule, that merit cannot and should not be converted into de-merit and that by an executive fiat merit cannot be wiped out, is glaringly noticeable in the present case. 3. The petitioner Dr. Ajit Kumar Negi and respondent No. 5 Dr. Rajinder Kumar Negi both medical graduates and members of the Himachal Pradesh Health Service participated in the Entrance test conducted and organised by respondent No. 4 for and on behalf of respondent No. 1 for filling up the seats in the Post Graduate Courses in the Indira Gandhi Government Medical College, Shimla (IGMC, for short) for the academic session 2002-2004/2005. The intake of the students in the Post Graduate Courses was in two categories; in-service officers belonging to the Himachal Pradesh Health Service (HPHS-I) and the candidates belonging to the direct recruitment quota. In Clause 3.4 of the Prospectus, it was clearly mentioned that in so far as the Degree Courses were concerned, there was a total number of 30 seats available and the distribution of the seats was amongst the general category candidates, and the candidates belonging to the SC and ST categories, both with respect to HPHS-I and the direct entry candidates. As far as the ST category is concerned, only one out of the aforesaid 30 seats was reserved for this category and it was specifically mentioned in the table following Clause 3.4 (supra) that this seat was in skin and VD speciality. 4. The result of the entrance examination was declared. In so far as the ST category is concerned, in the order of merit, the first position was occupied by one Dr. Muninder Kumar, who obtained 98 marks. He was followed by the petitioner Dr. Ajit Kumar Negi, who obtained 93 marks and respondent No. 5 Dr. Rajinder Kumar Negi was third in the order of merit, he having obtained 92 marks. 5. Clause 4.19 of the prospectus laid down a system of counselling for allotment of available seats in all the subjects in order of merit drawn categorywise of all the eligible candidates. For ready reference, we reproduce hereinbelow Clause 4.19. Rajinder Kumar Negi was third in the order of merit, he having obtained 92 marks. 5. Clause 4.19 of the prospectus laid down a system of counselling for allotment of available seats in all the subjects in order of merit drawn categorywise of all the eligible candidates. For ready reference, we reproduce hereinbelow Clause 4.19. It reads thus : "There will be a counselling system to allot the available subjects in order of merit drawn categorywise by the H.P. University of all the eligible candidates. The counselling will be held within 15 days from the declaration of the entrance examination result of PG courses at IGMC Shimla. The call letters for counselling will be sent by the Principal individually. All the vacant seats will be filled up within six weeks. However, there shall be maximum three counselling in IGMC Shimla. In case of unavoidable reasons the candidates who are unable to appear in person may depute an authorised person for conveying his/her consent on behalf of the applicant with his/her letter of authority, failing which the merit of candidates shall be cancelled. A person who was present in first counselling shall be eligible for second and third counsel-ling." 6. The concept and institution of counselling as has been in vogue for a few years now as far as the facts and circumstances of the present case go was not at all attracted and was not applicable to this case and for a very simple reason. The concept and institution of counselling is attracted and applicable in situations where, from amongst a large number of candidates, with respect to a large number of subjects, choices have to be made, of course based on merit of the candidates inter-se offering their choices. For instance with respect to 15 Degree courses available in IGMC, as in the present case, the candidates belonging to the general category (15 in number) in order of merit would have participated in the counselling sessions with a view to enabling them to exercise their options, or making their choices of selecting the subjects, of course, on the basis of, and in accordance with the order of merit. As far as the facts and circumstances of the present case go, however, the counselling system was wholly inapplicable because in so far as the ST category is concerned, there was only one seat available in that category from out of the total 30 seats and that seat specifically was earmarked against skin and VD speciality. In other words, what is amply clear is that the lone ST candidate, in order of merit, meaning thereby, the only candidate holding the first position in merit, was to be adjusted only in the subject of Skin and VD and in no other subject. That being the position, therefore, as far as ST category is concerned, there was no question of the counselling session being held for this category because whether a counselling session was held or not held, the legal position in conformity of Article 14 of the Constitution had to be followed and observed in letter and spirit. In any case would be that the candidate, first in order of merit in ST category was to be admitted in the subject of Skin and VD because the candidate first in order of merit belonging to the ST category could not be admitted in any other seat against that category. 7. Having taken note of the aforesaid factual situation and in the light of the aforesaid legal perspective, we now notice that Dr. Muninder Kumar was the candidate first in order of merit in the ST category and when the first counselling session was held on 6th May, 2003 (whether this counselling session was required to be held or not with respect to ST category not being relevant) admittedly the petitioner also participated in that counselling session along with Dr. Muninder Kumar and respondent No. 5, but because Dr. Muninder Kumar was the first in order of merit in the ST category and he unhesitatingly having joined the subject of Skin and VD in ST category. The lone seat belonging to ST category in Skin and VD subject having thus been filled up by absorption of Dr. Muninder Kumar, the petitioner who was next in order of merit went away because he knew that as against the only seat available, the person first in order of merit having joined, the petitioner had no prospects. 8. The lone seat belonging to ST category in Skin and VD subject having thus been filled up by absorption of Dr. Muninder Kumar, the petitioner who was next in order of merit went away because he knew that as against the only seat available, the person first in order of merit having joined, the petitioner had no prospects. 8. The second counselling session was held sometime thereafter and it is the contention of the respondents that because the petitioner did not attend the second counselling session, he was found ineligible for being adjusted against the aforesaid lone seat in Skin and VD which Dr. Muninder Kumar had vacated some time earlier or later on. 9. As we may now advert, Dr. Muninder Kumar having joined Skin and VD subject on the basis of his right to do so because of his being first in order of merit, later on vacated this seat. Actually on 16th June, 2003, as we are told, he left the Institution itself and went to some other place. Dr. Muninder Kumar, the person first in order of merit having vacated the lone seat in the ST category in the subject of Skin and VD, the mandate of Article 14 clearly enjoined upon respondents 1 to 4 to offer this seat to the person next in order of merit, namely, the petitioner. They did not do so and for the only reason that the petitioner had rendered himself ineligible because he did not attend the second counselling session. 10. As we have noticed above, the concept and institution of counselling was totally alien to the selection method in question as far as the lone seat of Skin and VD is concerned because this seat was to be offered to the candidate in the ST category only in accordance with merit as obtained in the entrance examination and upon no other consideration. Since the selection was based only on merit and upon no other consideration, whether the candidate attended the second counselling or not was wholly immaterial. The respondents No. 1 to 4, therefore, treating and considering the petitioner ineligible for being offered the seat despite his being next in order of merit only on the ground of not attending the second counselling was patently unconstitutional, illegal and contrary to the mandate prescribed under Article 14 of the Constitution. 11. The respondents No. 1 to 4, therefore, treating and considering the petitioner ineligible for being offered the seat despite his being next in order of merit only on the ground of not attending the second counselling was patently unconstitutional, illegal and contrary to the mandate prescribed under Article 14 of the Constitution. 11. Only because respondent No. 5 had attended the second counselling, he was offered the seat vacated by Dr. Muninder Kumar despite the fact that he was third in order of merit in the ST category, below the petitioner. The selection of respondent No. 5, therefore, was patently unconstitutional and illegal. 12. For the aforesaid reasons, therefore, this petition is allowed. The selection of respondent No. 5 as a student in the Post Graduate subject of Skin and VD in IGMC against the lone ST category seat is quashed and set aside. By issuance of a writ of mandamus, we direct respondents No. 1 to 4 to admit the petitioner in the said seat. 13. Mr. Goel, learned Counsel appearing for respondent No. 5 has informed us that before being offered the seat in the Degree course of Skin and VD against the ST category, respondent No. 5 had already taken admission in Diploma Course of Oto-rhino-Laryngology against ST category on 15th May, 2003. For good or bad reasons, reasons which were constitutional or otherwise, since respondent No. 5 shifted himself from the Diploma Course in Oto-rhino-Laryngology by getting himself admitted in the Degree course in Skin and VD, he atleast deserves to be relegated to the original position of being again permitted to join in the aforesaid Diploma Course against ST category, subject of course on the condition that in the meanwhile against the ST category the seat in the Diploma Course in Oto-rhino-Laryngology is still vacant and available. 14. We accordingly direct that respondent No. 5 offering, through a written representation to be submitted in one week from today to rejoin the Diploma Course in Oto-rhino-Laryngology against ST category, respondents No. 1 to 4 shall permit him to rejoin this Course and take the process to its logical conclusion. The petition is allowed. No orders as to costs. CMP No. 1908 of 2003. 15. In view of the disposal of the writ petition, the application stands disposed of.