Research › Search › Judgment

Madhya Pradesh High Court · body

2004 DIGILAW 805 (MP)

Mohit Gupta v. State of M. P.

2004-09-29

A.K.MISHRA

body2004
ORDER 1. Petitioners have come in this writ petition aggrieved by action of the respondents in not conducting the counseling in the order as provided in rule 9.10 of the M.P. Medical and Dental Under-Graduate Entrance Examination Rules, 2004 framed in exercise power u/s 10 of the Madhya Pradesh Chikitsa, Shiksha Samstha Niyantran Adhiniyam 1973. Petitioners have submitted that rule 9.10 prescribes the order in which counseling has to be held on the basis of merit list of different categories. Rule 9.10 reads thus: "9.10. Counseling will be done or merit-cum-option basis according to the category in the following sequence. (a) ST category (b) SC category (c) OBC category (d) Unreserved category" 2. It is further submitted that as per rule 9.11 in case candidates of reserved category are not available, vacant seats have to be filled from other categories as per the rules as provided under rule 9.11 which is quoted below: "9.11. In case the eligible candidates to the extent of reservations in any category are not available, the vacant seats will be filled up by making them available in other categories as giver below: (a) The vacant seats of ST category shall be filled up by the eligible SC category candidates. (b) The vacant seats of SC category shall be filled up by the eligible ST category candidates. (c) In case the eligible candidates to the extent of reservation in ST and SC categories are not available, the vacant seats shall be filled up by eligible OBC category candidates. (d) In case the eligible candidates are no available in these above THREE reserved categories in the above manner the vacant seats shall then be filled up by the eligible unreserved category candidates. " 3. It is submitted that in midst of counseling, statutory rule 9.10 has beer departed to on the basis of demand made by the other backward category candidates which is entirely impermissible and contrary to the statutory rules Respondents have no jurisdiction to depart from the sequence prescribed in the rules Power has been exercised in colourable manner. It is submitted that the order has been changed in the following manner: (1) ST (2) Unreserved category (3) SC (4) OBC Unreserved category order has beer changed, counseling of unreserved category has been conducted before counseling of SC and OBC category. It is submitted that the order has been changed in the following manner: (1) ST (2) Unreserved category (3) SC (4) OBC Unreserved category order has beer changed, counseling of unreserved category has been conducted before counseling of SC and OBC category. In the midst of counseling, when ST category candidates' counselling was over, order of counselling was changed. After counselling of ST candidates counselling of unreserved category was held. Thereafter SC and lastly OBC category candidates counselling was held. Counselling of SC and OBC was not done as per the order provided under rule 9.10. 4. Petitioners have submitted that they and others have been deprived of seat due to change in sequence of counselling. Due to change of the order, choice has also beer affected. 5. In the return filed by the respondents it is contended that though in the rules sequence is provided in the rule 9.10, first counselling was started on 23.7.2004 and continued up to 30.7.2004. Second counselling was to be held from 25.8.2004 to 28.8.2004. Change in the second counselling was made on 26.8.2004. SC and OBC candidates' counselling was postponed after the counselling of general category candidates. The change in the sequence of the counselling was made on 26.8.2004. The general category candidates' counselling remained on same dates as earlier fixed on 27th, 28th an 29th and SC and OBC candidates counselling fixed earlier for 26.8.2004 was postponed to 30.8.2004. Reason for change in the sequence was that the candidates of reserved category who are, appearing in the merit/waiting list of the unreserved category are usually lowered in the merit in the list of unreserved category particularly it was very difficult for the reserved category to exercise the choice given by rule 9.13 in terms of selection of a course (MBBS/BDS) and Government autonomous/private Medical/Dental colleges where fees in private college is very high. Hence, in order to protect the interest of SC/ST and OBC, sequence was changed so that they may get better choice in the course as to place and selection of the college. It was done in order that meritorious candidates may not suffer due to their belonging to unreserved category 6. Hence, in order to protect the interest of SC/ST and OBC, sequence was changed so that they may get better choice in the course as to place and selection of the college. It was done in order that meritorious candidates may not suffer due to their belonging to unreserved category 6. On facts it is not in dispute that rule 9.10 has been departed to by an executive decision and by the action at least 32 candidates of unreserved category have been deprived of seats as stated by Joint Director Dr. Dixit present in person or behalf of respondent. It is also not in dispute that rule 9.10 is having statutory force. Rule 9.10 clearly prescribes the sequence in which counselling has to be done on merit-cum-option basis according to the category: First category to be called for counselling is ST category, secondly SC Category, thirdly OBC category and lastly unreserved category. Once the statutory rules have been framed, it was not open to the respondents to act in derogation of the statutory rules. Whatever may have been the cause to depart from it, in view of the clear statutory rules by which respondents are bound, which manner was notified in advertisement (P-2), counselling was to be held in the year 2004 as prescribed under the rule 9.10. In my opinion, it was not permissible at all to depart from the sequence prescribed under rule 9.10 for any reason whatsoever as statutory rules are binding on the respondents. It is also not in dispute that they have departed from it in the midst of counselling, unreserved category counselling was to be held at last. It was held before the SC category and OBC category. Counselling of SC and OBC category was postponed for the reasons best known to the respondents. The only reason stated is that the students had gathered and they had demanded, as such demand was succumbed to. Once Rules have been framed, without amendment of the Rules, the respondents could not have violated the sequence. Rules have not been amended nor it was permissible to amend the Rules. Once the exercise of counseling was going on as notified, it was illegal to change the sequence of category in which counselling was to be held. 7. Once Rules have been framed, without amendment of the Rules, the respondents could not have violated the sequence. Rules have not been amended nor it was permissible to amend the Rules. Once the exercise of counseling was going on as notified, it was illegal to change the sequence of category in which counselling was to be held. 7. Division Bench of this Court has deal with rules 15.9, 15.11 of Pre-PG Entrance Test Rules, 2003, which were declared ultra vires by Division Bench of this Court in WP No. 27819/2003 [Dr. Manish Kumar Mishra v. The State of M.P. and others]. Rule 15.9 provided sequence of counselling -- (1) Unreserved category (2) ST category (3) SC category (4) OBC category Such a sequence was struck down Again respondents have changed sequence in the manner which was prohibited by decision of this Court. Division Bench of this Court held thus: "7. We may at the very outset state that the petitions were filed in the last week of September, 2003. We have stated so at the beginning as the reliefs which have been claimed would be governed by the same. However, presently we proceed to deal with the legal validity of the Rules. As has been stated, in one case assail is to rule 15.9 and in another case the challenge is to rules 15.10 and 15.11. To understand the rules it is essential to reproduce the said rules: "15.9. Counselling will be done on merit basis according to the category in the following sequence: (a) Unreserved category (b) ST category (c) SC category (d) OBC category 15.10. In case the eligible candidates to the extent of reservations in any category are not available, the vacant seats will be filled up by converting them in other categories as given below: (a) The vacant seats of ST category shall be filled up by the eligible SC category candidates. (b) The vacant seats of SC category shall be filled up by eligible ST category candidates. (c) In case the eligible candidates to the extent of reservation in ST and SC categories are not available, the vacant seats shall be filled up by eligible OBC category candidates. (d) In case the eligible candidates are not available in these above THREE reserved categories in the above manner, the vacant seats shall then be filled up by the eligible unreserved category candidates. 15.11. (d) In case the eligible candidates are not available in these above THREE reserved categories in the above manner, the vacant seats shall then be filled up by the eligible unreserved category candidates. 15.11. A candidate belonging to SC/ST/OBC category and whose name also appears in the Merit Waiting list of unreserved category besides the merit/waiting list of his/her own reserved category, shall be eligible in the counselling of both the categories. It shall not apply to class of horizontal reservation in various categories. He/she shall however have the option to opt for allotment in either of the two categories of his/her own choice. In case the reserved category candidate opts for allotment of a seat from his/her own category, seat will be made available to his/her own category from the remaining seats of unreserved category.” 8. First we shall take up the validity of rule 15.11 of the Rules. In this regard we may refer with profit to rule 9.3 of M.P. Medical and Dental Graduate Entrance Examination Rules, 2003 (for brevity 'the 2003 Rules'). The said rule is in Hindi and English translation of the same which was done in the case of Mayank Jain (supra) reads as under: "Rule 9.3. If the name of the candidate from SC/ST/OBC appears in the merit/waiting list of reserved category list as also in the merit/waiting list of general category list, then he/she has the option to participate in both the lists. Such candidate will have the option to select the seat from anyone of the lists mentioned above." "In such circumstances, if the candidate opts for the reserved category list as a reserved candidate, then in such a case the students of reserved category will be filled in the category of general category list vacated by the reserved category candidate in the same proportion." 9. In the aforesaid case, while dealing with said rule, this Court referred to the case of Indira Sawhney etc. v. Union of India and others [ AIR 1993 SC 477 ] and after referring certain paragraphs of the judgment of the Supreme Court in paragraphs 12, 13 and 14 held as under: "12. In the aforesaid case, while dealing with said rule, this Court referred to the case of Indira Sawhney etc. v. Union of India and others [ AIR 1993 SC 477 ] and after referring certain paragraphs of the judgment of the Supreme Court in paragraphs 12, 13 and 14 held as under: "12. We are conscious that the aforesaid decision was rendered in the context of reservation for admission to the Post-Graduate Course in various professional faculties but we have referred to the aforesaid paragraph to indicate what is the view of the apex Court in relation to weaker sections and what their Lordships have stated therein. We may repeat at the cost of repetition that the cause put forth by the State for advancement of the weaker section cannot distort the dictum of the apex Court. It was contended before us that in certain exceptional cases, extra reservation is permissible. But, in our considered opinion, the present one does not fit into the said prism. When the students are appearing in the examination harboring hope that when they would qualify they would be selected, their hopes cannot be marred or smothered by ushering in a rule of this type. The said rule does not sub-serve the Constitutional philosophy and as we have noted earlier, it runs contrary to the principles laid down by the apex Court. If we allow ourselves to say so, an innovative attempt has been made to frame a rule to enhance the conception of reservation which the law proscribes. By no stretch of rationalisation or ratiocination it can be conceived that this is the field where this innovative approach is warranted. On the contrary, it is absolutely unthinkable. 13. Quite apart from the above, rule 5.0 clearly stipulates that there would be 50 percent reservation for other categories and 50% seats shall fall to the category of general category rule 9.3, as has been understood by us, is totally inconsistent with rule 5.0. The definiteness and certitude of rule 5.0 cannot be throttled by incorporating rule 9.3. It is totally inconsistent and brings in an incurable dent in the essential feature of rule 5.0 which is in consonance with the judgment of the apex Court. As rule 9.3 runs counter to the same, it cannot be allowed to prevail. They do not harmoniously co-exist and the disharmony ensues unacceptability. 14. It is totally inconsistent and brings in an incurable dent in the essential feature of rule 5.0 which is in consonance with the judgment of the apex Court. As rule 9.3 runs counter to the same, it cannot be allowed to prevail. They do not harmoniously co-exist and the disharmony ensues unacceptability. 14. In view of our preceding analysis, we irresistibly come to the conclusion that rule 9.3 is constitutionally invalid and the same cannot be allowed to have any play. We declare it to be ultra vires. The counselling which is to take place shall be strictly in accordance with rule 5.0. 10. In view of the aforesaid, rule 15.11 being pari materia, cannot withstand scrutiny and the same has to be declared ultra vires as it is unconstitutional and we so hold. 11. Presently we shall address with regard to the validity of rule 15.9. The learned counsel for the petitioners have submitted that the sequence as has been prescribed under the rule is logically unwarranted inasmuch as it is anomalous to rule 15.10. To appreciate the aforesaid submission it is necessitous to discern the anatomy of rule 15.10. In the said rule it has been provided that vacant seat of ST category shall be filled up by the eligible candidates of SC category and vacant seats of SC category shall be filled up by the eligible candidates of ST category and further if both these categories are not available, the vacants seats would be filled up by eligible candidates of OBC category candidates. In the absence of aforesaid candidates, the vacant seats would be filled up by the unreserved category candidates. If this sequence is understood in proper perspective there can be no trace of doubt that selection process must start in the same order or in that sequence. If the person of unreserved category is considered first and he does not get the opportunity to get the subject of his choice, he would be compelled to opt for a different subject. If the person of unreserved category is considered first and he does not get the opportunity to get the subject of his choice, he would be compelled to opt for a different subject. That apart, by the time the seats fall vacant following the guidance of rule 15.10, the unreserved category candidates who have not been selected in the first counselling of unreserved category would not get the chance even if the seats would fall vacant, as by that time he must have taken admission in some other subject and rules prohibit the change of subject and change of institution. Thus, in our considered opinion, rule 15.9 of the Rules has to be declared invalid as it does not stand in consonance with other rules. Once we declare rule 15.11 to be unconstitutional, the sequence as provided in rule 15.9 cannot withstand scrutiny. On both the count rule becomes susceptible and has to be declared ultra vires. 12. As far as rule 15.10 is concerned, we do not find any justification to hold that the said rule is defiant of any of the Constitutional provisions or it creates any kind of anomaly in the operational sphere of the Rules. In our considered opinion, the said rule is saved as we have already declared rules 15.9 and 15.11 as invalid. To elaborate, if sequence of rule 15.9 changes, the sequence mentioned in the rule 15.10 would fit into the proper parameters. 13. Though we have held so but we may reiterate that the last date for counselling was over and if we direct change of sequence at this stage, it would usher if a lot of disorderliness and, therefore, We refrain from doing so. However, we express our anguish at the manner in which the rules have been couched. This Court from time to time has stated that rules are being framed in such a manner which bring in a lot of confusion and create utmost chaos at the time of admission every year. We trust that the State Government would be well advised to frame proper rules in consultation with the Medical Council of India so that every year a spate of litigation are not filed assailing the rules. We say no more." 8. In the instant case, change to sequence has been done in the manner which was not approved by this Court in the previous case -- Dr. We say no more." 8. In the instant case, change to sequence has been done in the manner which was not approved by this Court in the previous case -- Dr. Manish Kumar Mishra's case (supra). In view of the facts and circumstances of the case, as rule 9.10 is admittedly departed from, I direct, let the counselling of the students who have been affected be done afresh. I am not inclined to quash the admission at this stage as there may be the students eligible for admission Let the respondents forthwith consider that in case petitioners in order of merit can be considered along with other similarly affected candidates, if they can be accommodated in any other mode without disturbing the admission made, let this aspect be gone first by the respondents failing which fresh counselling from the date sequence as provided in rule 9.10 was changed, be held within 15 days. Writ petition is allowed. Costs on parties.