Research › Search › Judgment

Gauhati High Court · body

2004 DIGILAW 615 (GAU)

Bikash Roy v. State of Assam

2004-12-09

P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. This order shall dispose of the main Writ petition, WP(C) No. 5767/2004 along with the Misc. Case 3298/2004 and Misc. Case 3301/2004. 2. Heard Mr. S.P. Deka, learned Counsel for the Petitioner, Mr. P.K. Musahary, learned Govt. Advocate, Assam and Shri A.K. Goswami learned Counsel appearing for the Respondent No. 5, Sri Pratap Kumar Deb, in M.C. 3301/2004 and Respondent No. 6, Swati Lekha Karmakar, in M.C. Case No. 3298/2004. 3. Before proceeding with the matter, we may briefly note the broad facts, as detailed by this Court in the order dated 30.9.2004. The Petitioner, Shri Bikash Roy, had appeared in the Selection Test for admission into the MBBS/BDS/BMS Courses for the Sessions 2004-05. The examinations were conducted by the Gauhati University, for which applications were invited sometime in the month of May, 2004 and the Entrance Examination was held in June, 2004. The Petitioner belongs to reserved category of OBC/MOBC and his Roll No. was 03520 in the said Entrance Examination. The Petitioner scored 160 marks and he was placed at SI. No. 1 of the Waiting List for OBC. The Petitioner was called for interview/Counseling on 17.7.2004. However, the said Counseling was deferred on that date and he was again called on 22.7.2004. On 14.7.2004 a corrigendum was issued by the Gauhati University and published in the newspaper, Assam Tribune, dated 14th July, 2004, whereby the name of three candidates, bearing Roll Nos. 01272, 07583 and 02430, were added to the Merit List on the plea that they had scored 165, 163 and 162 marks respectively in the Entrance Examination but due to some mistake/inadvertence their names were not added in the Merit List for the OBC/MOBC. In view of the above addition, the Petitioner was deprived from getting admission as only 2 (two) seats were available for Waitlisted OBC candidates. The Petitioner has challenged the addition of those names on the grounds that there was subsequent manipulation as regards the inclusion in the category of OBC/MOBC. The answer scripts were produced by the Gauhati University and we find that so far the marks scored by them is concerned, it is as per the notification. Now coming to the second allegation, we had directed the Respondent State to produce the original Application Form etc. The answer scripts were produced by the Gauhati University and we find that so far the marks scored by them is concerned, it is as per the notification. Now coming to the second allegation, we had directed the Respondent State to produce the original Application Form etc. and accordingly the Application Form of Sanjoy Dey, bearing Roll No. 07583 and Pratap Kumar Deb, bearing Roll No. 01272 have been produced. We have perused the Form-A of Sanjoy Dey and find that the said candidate had applied under the category of OBC and the Caste Certificate was issued to him on 30.8.2000 itself. Under Column 6 to Form A of the Application Form for Common Entrance Examination, if a candidate belongs to reserved category and seeks admission under that category, he is to give a tick mark against the relevant category and in case of Sanjoy Dey we find such tick mark in Form-A. Hence, so far the candidature of Sanjoy Dey is concerned, we find no illegality or irregularity. We also find not much force in the submission that the Respondent authorities are precluded from making any corrections if any genuine mistake comes to light, as if these are not allowed due to the mistake of Ors., a genuine candidate would be deprived of his lawful rights of getting admission. Coming to the case of Pratap Kumar Deb, we have perused 'Form-A' in original, produced before us, and find that there is no tick mark against Column-6 in Form-A, which means that the said Pratap Kumar Deb does not belong to the reserved category; and/or he is not seeking admissions of that count. In respect of the third candidate Swati Lekha Karmakar, the Respondent, Director of Medical Education, Assam, has produced a photostat copy of the Form-A and a photostat copy of the Caste Certificate on the ground that the originals are lying with the Principal, Silchar Medical College. We have perused the Form-A, against the Column No. 6. There was a cross mark, which has been subsequently corrected as tick mark, the overwriting is visible in naked eyes. Further, we find that the said Swati Lekha Karmakar has filed her application on 17.5.2004 and a copy of the Caste certificate has been produced before us along with the Form-A. The Caste certificate issued by the Sub-Divisional Other Backward Classes Development Board, Silchar bears SI. Further, we find that the said Swati Lekha Karmakar has filed her application on 17.5.2004 and a copy of the Caste certificate has been produced before us along with the Form-A. The Caste certificate issued by the Sub-Divisional Other Backward Classes Development Board, Silchar bears SI. No. 5326 (figure 2 is not clearly visible) dated 2.7.2004. The said caste certificate was issued on 2.7.2004 and it was attested by the Executive Engineer, Silchar Development Authority on 5.7.2004. Thus, a Caste certificate which was issued on 2.7.2004 could not have been filed by her along with her application dated 17.5.2004. The Govt. of Assam had published an information Brochure, wherein under Column-6, under the heading, How to Apply', the procedure has been prescribed. Sub-clause (iii) and (iv) of Clause-6 reads as follows: (iii) The candidates must indicate their category in the Application Form A such as SC/ST/TGL/ Ex-TGL/Char Area etc. (iv) Attested copies of all documents in support of their educational qualification/age/caste/community and any other reservation must be enclosed along with the Form-B. Thus, we find that a candidate seeking admission under the reserved category must indicate the category in Form-A and also must file attested copy of Caste Certificate in support of the same. A photostat copy of the Caste Certificate in favour of Pratap Kumar Deb has been made available by the Respondent authorities, i.e. the Director of Medical Education, Assam and we find that it bears SI. No. 04-24172, issued by the Joint Secretary of Assam Other Backward Classes Association. It is dated 24.6.2004. The application form of Pratap Kumar Dey was filed by him on 17.5.2004. Hence, naturally this Caste certificate could not have been produced by him along with the Form-A. Admittedly, this caste certificate has been obtained after the examinations were over. No explanation has come for ward as to how this caste certificate dated 24.6.2004 got tagged with the Application Form-A. As Pratap Kumar Deb had not sought admission in the reserved category and he had not filed any valid caste certificate along with his application. We find that his case could not have been considered for admission in the said courses under the reserved category of OBC. We find that his case could not have been considered for admission in the said courses under the reserved category of OBC. As Shri Pratap Kumar Deb and Swati Lekha Kamakar have not been made parties in this Writ petition, at this sage, we direct that their admission/further studies in the admitted course, if any, be kept in abeyance until further order. The Petitioner shall take steps for impleading Shri Pratap Kumar Deb and Swati Lekha Karmakar as party Respondents in this Writ petition. The Respondent authorities shall also cause an enquiry into the matter and submit a report as to how the names of these candidates, namely, Pratap Kumar Deb and Swati Lekha Karmakar were included under the OBC category. We also direct the deputy Commissioner of the respective district(s) to enquire and submit a Report as to the date of application, date of issuance of Caste Certificate in respect of Pratap Kumar Dey and Swati Lekha Karmakar after making physical verification of the application form and relevant Register. We, therefore, direct the Director of Medical Education, Assam to produce the original records in respect of Swati Lekha Karmakar. The documents produced by the Respondents shall be kept in sealed cover by the Registry. 4. As per direction of this Court, Sri Pratap Kumar Deb and Swatileka Karmakar were arrayed as Respondents and necessary documents were produced before us. Swati Lekha Karmakar has filed Misc. Case No 3298/2004 praying for vacation of the order passed on 11.10.2004, whereby she and the other Respondent Pratap Kumar Deb were restrained from prosecuting their further studies in the 1st Year MBBS Course. Shri Pratap Kumar Deb has filed Misc. Case No. 3301/ 2004 praying of the same relief. 5. So far the requirement of filing the Caste Certificate is concerned, there is a consensus, and there is also no dispute at the Bar, that the Caste Certificates are required to be filed with Form-B only for the Academic Sessions 2004 and not with Form-A. The only requirement is that in Form-A, a candidate is required to indicate whether he is seeking admission under any of the reserved category provided in the application form itself. Submission of Form-B arises only when a candidate is selected in the written examination and he is called for counseling. Submission of Form-B arises only when a candidate is selected in the written examination and he is called for counseling. Form-B are given to the candidates on the last day of Written examination and they are to be filled up and along with the required document, if any, they are to be submitted at the time of counseling. Learned Counsel for the private Respondents No. 5 and 6 have fairly submitted that at the time of filing of the application/Form-A, the required Caste Certificate was not with them and admittedly the Caste Certificates were obtained by them after their written examination but before the date, on which the Counseling was held, i.e. on or before filing of the Form-B. However, so far the genuineness of the Caste Certificate is concerned, the same is not disputed before us, as we find from the list submitted and the materials available that Swati Lekha Karmakar, as well as, Pratap Kumar Deb belong to the category of the caste for which they have produced their certificates. 6. Now, coming to the case of Swati Lekha Karmakar, as stated in the earlier order and as seen from the original application, made available by the Respondent State, there is a 'tick mark' against the name 'OBC/MOBC' and in the Column provided-there is a X mark, which has been corrected with two tick marks. The explanation given by Shri Goswami is that due to mistake it was crossed but it was rectified and it was made tick mark and on the other side also a tick mark was provided to rule out confusion. Considering the fact that the private Respondent belongs to 'Karmakar' community of Cachar, which is recognized OBC/MOBC. We hold that the benefit of the same cannot be denied merely because of some overwriting, when there is no material before us to hold that the overwriting was made subsequently. On the other hand, the production of the original Form by the Respondent State shows that the overwriting was from before and it clearly shows that the Petitioner had claimed admission in the reserved category of OBC/MOBC. Following the order passed by this Court, as quoted above, the case of the Respondent Swati Lekha Karmakar is similar to that of Sanjoy Dey and the Respondent Swati Lekha Karmakar cannot be deprived from the benefits due to mistake of the Respondent authorities. Following the order passed by this Court, as quoted above, the case of the Respondent Swati Lekha Karmakar is similar to that of Sanjoy Dey and the Respondent Swati Lekha Karmakar cannot be deprived from the benefits due to mistake of the Respondent authorities. We, therefore, modify the earlier order and hold that so far as Swati Lekha Karmakar is concerned, she was rightly admitted in the category of OBC/MOBC, for which she applied and that she would be eligible to continue her studies in the MBBS Course (1st Year). 7. Now coming to the case of Pratap Kumar Deb, we find that in the application, Form-A, the Petitioner has not indicated to have sought admission under the reserved category of OBC/MOBC. This fact has not been disputed, on the contrary, learned Counsel has fairly submitted that the Petitioner had admitted the same in the written application made by him to the Commissioner, Health and Family Welfare on 2nd July, 2004, copy of which has been annexed as Annexure-A/4 in the Annexures. In Annexure A/4 it has been clearly stated by the Respondent Pratap Kumar Deb that he had not put tick mark against the Caste OBC in the application Form. 8. Learned Counsel has however, submitted that when the mistake was detected by him, they filed an application on 2nd July, 2004 before the Commissioner. Health and Family Welfare and thereafter the Petitioner was considered in the category of OBC. 9. Shri S.P. Deka, learned Counsel appearing for the Writ Petitioner has submitted that there was no scope for doing so in view of the notification issued by the Controller of Examination, whereby a provisional Select list was issued in Column 4 of the said notification, published in the newspaper (Assam Tribune) dated 1.7.2004, and it was specifically provided "Any applicant who has not mentioned his/her category in Form-A shall not be considered under the category during Counseling." We have enquired from the Counsel appearing for Pratap Kumar Deb as well as the learned Govt. Advocate, Shri P.K. Musahary, whether there is any provision under the Rules or under the instructions issued, for converting a candidature from General category to reserved category subsequently, when in the Form, a candidate has not sought admission in that particular reserved category. Learned Counsel could not show us any provision which empowers the State Govt. Advocate, Shri P.K. Musahary, whether there is any provision under the Rules or under the instructions issued, for converting a candidature from General category to reserved category subsequently, when in the Form, a candidate has not sought admission in that particular reserved category. Learned Counsel could not show us any provision which empowers the State Govt. or the concerned authorities for such conversion or consideration. 10. On perusal of the application forms, we find that there are as many as 12 categories of reservations provided for the candidates besides the General category and hence, the requirement was made specific that in case a candidate desires to have or seeks admission under a particular category he/she must indicate his/her choice clearly and in absence of any choice he/she will be treated as general candidate. We also considered a hypothetical question, where a person has applied for admission under the SC category but because of the marks obtained by him he has not been selected/he has not been called for counseling, the person, who had applied for the SC category, also falls under Anr. category of the sons and Daughters of the Martyrs of Assam Movement. The question now that we put to ourselves is, failing to get admission under the SC category, for which he had applied, can this candidate seek admission under the quota or seats reserved for the Sons and Daughters of the Martyrs of Assam Movement where the cut off mark is less, as below the marks obtained by him, and he becomes eligible? The notification, as quoted above, clearly bars such change and we also find that there is justifiable reasons for doing so otherwise, there would be no end to this seat hunting by way of conversion from one category to other category. Moreover, in absence of any provision under the Rules and in view of the Notifications, and considering the fact that the Respondent No. 5, Pratap Kumar Deb had not indicated or sought admission under the category of OBC/MOBC, the Respondent authorities illegally allowed the Respondent Pratap Kumar Deb to be treated as OBC/MOBC candidate. We set aside the above decision of the Respondent authorities and hold that Pratap Kumar Deb cannot be teated as a candidate belonging to OBC/MOBC category. The admission given to him under that category cannot be allowed to stand, and we accordingly quash the same. We set aside the above decision of the Respondent authorities and hold that Pratap Kumar Deb cannot be teated as a candidate belonging to OBC/MOBC category. The admission given to him under that category cannot be allowed to stand, and we accordingly quash the same. The resultant vacancy in the category of OBC/MOBC be given to the next eligible candidate, and if the Petitioner Bikash Roy is found otherwise eligible amongst the persons to whom the seat should go, the same shall be made available to him within a period of 10 days from today. 11. The writ petition stands disposed of. There will be however, no order as to costs.