Research › Search › Judgment

Gauhati High Court · body

2004 DIGILAW 71 (GAU)

Pawan Mudoi v. State of Assam

2004-02-04

BIPLAB KUMAR SHARMA

body2004
JUDGMENT B.K. Sharma, J. 1. Heard Mr. Prabin Mahanta, learned Counsel for the Petitioner and Mr. P.K. Mushahary, learned Senior Govt. Advocate, Assam. 2. The matter pertains to admission to the First Year M.B.B.S. Course for the year of 2003-04. By this writ petition a grievance has been raised to the effect that due to a wrong reservation policy the Petitioner has been deprived of his admission to the aforesaid course. 3. According to the Petitioner his name appears at Serial No. 21 of the provisional selection list for interview of admission into under Graduate Course in the Medical College of Assam for the session of 2003-04. According to the Petitioner after counseling his position was upgraded to serial No. 10 in the waiting list. The Petitioner belongs to SC category and thus he is entitled to the admissible reservation in the matter of admission to medical College. 4. Referring to the Annexure-E provisional list, the learned Counsel for the Petitioner submits that as many as 7 (seven) SC candidates who were otherwise eligible as per their own merit who could otherwise come within the zone of consideration could not have been accommodated against the quota prescribed for the reserved category candidates and thereby could not have deprived the Petitioner and other similarly situated reserved category candidates who were required to be considered against the quota earmarked for them. 5. Mr. Mushahary, learned Counsel appearing for the Respondents, submits that although the SC candidates who were otherwise eligible to be admitted in the Medical course on the basis of their merit position, had to be accommodated against the reserved seats on the basis of their choice and option. In this connection he refers to the statements made in para 4 of the affidavit. The same is quoted below: 4. That with regard to the statements made in para 5 and 6 and 7 of the writ petition, the deponent bages to state that the present case is different from the case of Indra Sawamy and the same is not applicable in the present case. It may be stated that some of the SC candidates who found place in the general merit list opted for admission in the Gauhati Medical College against both General and Reserved seat. It may be stated that some of the SC candidates who found place in the general merit list opted for admission in the Gauhati Medical College against both General and Reserved seat. For admission in the Gauhait Medical College a candidate is required to obtain minimum 108 marks in the General Category and for SC a minimum 60 marks. It is pertinent to mention there that comparatively more meritorious students are given admission, in the Gauhat Medical College and the less qualified/meritorious student are put in Assam Medical College and Silchar Medical College respectively. Some of the General Categories mentioned by the Petitioner have shortage of marks for being admitted in the Gauhati Medical College as per the merit list and therefore they opted for admission in the Gauhati Medical College against the SC reserved seat. As the option was given by the candidates themselves for admission in the Gauhati Medical College against the reserved seat the Respondent authorities had to take decision to give admission to them against the reserved quota in G.M.C. and as such the question of denial of seat to the Petitioner does not arise. The Apex Court in Ritesh Sah's case reported in (1996) 3 SCC 253 held that a student who is entitled to be admitted on the basis of merit though belonging to reserved category cannot be considered to be admitted against reserved category seat. But at the same time the provision should be so made that it will not work out to the disadvantage of such candidates and it cannot be placed at the more disadvantage position then the other less meritorious reserved category candidates. In the present case some SC candidates who were selected in merit have been accommodated for admission against the reserved seat for their advantage, otherwise they would have lost the change of admission in the G.M.C. By giving such SC candidates chance of admission in the reserved category, the interest of SC candidates have been served and due justice was given. The guidelines issued by the Director of Technical Education, Assam are not violative of Article 14 , 15 and 16 of the Constitution of India and oppose to various decision of the constitutional bench of the supreme Court of India but it has been made for the benefit of the students for study in College of their choice/preference, the choice given by the students cannot be termed as unconstitutional and such choice of educational institution for study cannot be denied by the authority. 6. The learned Counsel for the Petitioner refers to the decision of the Apex Court as reported in (1996) 3 SCC 253 in Ritesh R. Sah v. Dr. Y.L. Yamul and Ors. case. The Apex Court referring to its earlier decision on the question of reservation observed as follows: In view of the legal position enunciated by this Court in the aforesaid cases the conclusion is irresistible that a student who is entitled to be admitted on the basis of merit though belonging to a reserved category cannot be considered to be admitted against seats reserved for reserved category. But at the same time the provisions should be so made that it will not work out to the disadvantage of such candidate and he may not be placed at a more disadvantageous position than the other less meritorious reserved category candidates. The aforesaid objective can be achieved if after finding out the candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different college which have been kept reserved for reserved category and thereafter the cases of less meritorious reserved category candidates should be considered and they be allotted seats in whichever colleges the seats should be available. In other words, while a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission in the college where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as an open category candidate and not as a reserved category candidate. 7. 7. In the aforesaid decision, the Apex Court while accepting the procedure of adjustment of the reserved category candidates who could be admitted on the basis of their own merits, has pointed out that while reserved category candidates entitled to admission on the basis of their merit will have option of taking admission in the Colleges where specific number of seats have been kept reserved for reserved category candidates but while computing the percentage of reservation they will be deemed to have been admitted as open category candidates, and not as a reserved category candidates. 8. In the aforesaid decision the Apex Court while recognizing the choice and option of the reserved category candidate who could otherwise be accommodated on the basis of his own merit has categorically pointed out that such accommodation on the basis of choice and option cannot eat up the quota of reservation. From the Affidavit in opposition filed on behalf of the Respondents and their stand as reflected in the paragraph 7, the same is contrary to the proposition laid down in the aforesaid decision of the Apex Court. 9. In the instant case the admitted position is that the Petitioner whose original position was at serial No. 21 of the provisional merit list after counseling his position was upgraded to the serial No. 10 in the waiting list. The statement made to that effect in the writ petition has not been controverted by the Respondents in their affidavit. Thus, it is the case of the Petitioner that after the counseling his position in the waiting list came to be No. at 10 and their, he was entitled to be considered for admission in the M.B.B.S. course against the vacant seat earmarked for the reserved category candidates. His grievance is that because of the accommodation of the SC candidates by way of their adjustment against the college of their choice against reserved seats although they were otherwise entitled to be admitted on the basis of their own merit, the right of consideration of the Petitioner as a reserved candidate has been violated. Mr. Mushahary, learned Counsel for the Respondents, submits that even if the case of the Petitioner is true, he is not entitled to get any direction from this Court for his admission to the aforesaid course. 10. Mr. Mushahary, learned Counsel for the Respondents, submits that even if the case of the Petitioner is true, he is not entitled to get any direction from this Court for his admission to the aforesaid course. 10. Considering the above submissions on behalf of the parties and also considering the aforesaid decision of the Apex Court I dispose of this writ petition with a direction to the Respondents to consider the case of the Petitioner as a reserved category candidate against the seats, available for reserved category candidate. While considering the case of the Petitioner the admission made against 7 seats in respect of the reserved category candidates who were otherwise eligible as per their own merit should be left aside and should not be counted as reserved category seat in as much as these candidates got them admission on the basis of their own merit as General Category candidate. At this stage, the learned Counsel for the Petitioner submits in fact 7 (seven) candidates were admitted against the reserved category seats, who were otherwise entitled to be admitted on the basis of their own merit against the General category seats and in the remaining seat the candidate concerned did not turn for counseling and thus there are total 8 (eight) reserved category seats and the case of the Petitioner needs to be considered against anyone of the said 8 seats. 11. The learned Counsel for the parties submit that the course in question has already started. In view of this necessary follow up action in terms of this order shall be carried out by the Respondents within two weeks from the date of furnishing the certified copy of the order by the Petitioner. He shall also furnish a copy of the writ petition to the Respondents. 12. The writ petition stands disposed of.