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2005 DIGILAW 208 (RAJ)

Suman Verma v. State of Rajasthan

2005-01-24

S.K.KESHOTE

body2005
Judgment S.K Keshote, J.-Petitioner, namely, Suman Verma Daugher of Shri Prabhu Dayal Verma, the student of General Nursing Training Course at Shri Kalyan Aarogya Sadan, Bajaj Gram Sawali, Sikar, filed this writ petition under Article 226 of the Constitution of India and prayed for issue of a writ, order or direction in the nature thereof and thereby the respondents be directed to convert the category of the petitioner from General Category into Scheduled Case Category and that the petitioner be admitted in S.K. Government Hospital, Sikar and the excessive fee paid by her be refunded to the petitioner. 2. Briefly stated the facts of the case are that the petitioner passed her secondary school examination in the year 1999 and she secured 66.33% marks therein. 3. The petitioner passed her senior secondary examination in the year 2001 and obtained 62.92% marks therein. The petitioner is by caste Balai, the Schedule Caste. 4. The petitioner applied for her admission in General Nursing Course conducted by the respondent No. 1. Alongwith the application for admission to the aforesaid course the petitioner sent caste certificate in the category of Scheduled Caste (for short, SC). 5. The petitioner though is a member of SC but ignoring this fact, what the petitioner alleged, she has been admitted in the General Nursing Training Course under the General Category and allotted to her the seat at Shri Kalyan Aarogya Sadan, Bajaj Gram Sawali, Sikar. The admission of the petitioner at the Shri Kalyan Aarogya Sadan, Bajaj Gram Sawali, Sikar (hereinafter shall be referred to as the respondent No.2) was against the payment seat. The respondent No.2 charged the fees of Rs. 25,600/ - fromthe petitioner. 6. The petitioners grievance is that less meritorious candidates have been geven admission in the SC category and they got all the benefit of choice of institution as well as of free seat. As per the merit list of the SC candidates, the petitioner submitted that she stood at serial No. 16. For free seat a nominal fee is charged. The petitioner submitted oral as well as written complaints to the respondents for change of her category from General to SC; for refund of excessive fee charged from her and also for providing her admission in S.K. Government Hospital, Sikar. The respondents even have not acknowledged the same what to say to give any reply thereto to the petitioner. The petitioner submitted oral as well as written complaints to the respondents for change of her category from General to SC; for refund of excessive fee charged from her and also for providing her admission in S.K. Government Hospital, Sikar. The respondents even have not acknowledged the same what to say to give any reply thereto to the petitioner. The petitioner before approaching this Court also sent a notice for demand of justice through her Advocate on 5th of April, 2002 but that too has also not been acknowleged and replied by the respondents. 7. The reply to the writ petition has been filed by the respondent No.1. It is admitted in the reply that the petitioner belongs to SC. The percentage of marks obtained by her in senior secondary has also been admitted. The respondent No.1 averred that the candidaes belonging to SC (Female) having the marks of 59.08% were only given the benefit of reservation. The petitioner was considered in the merit list of general category. In the reply the reference has been made to the Circular dated 7Th of January, 1996 and the further Circular dated 210.2000 of the respondent No.1 and stated that a candidate belonging to reserve category stands in the merits of the general category is given admission accordingly and as selected in the general category he/she will not get any benefit of the reserve category. 8. As regards to the allotment to the petitioner seat at the respondent No.2 college it is given out that the general category female candidates having the marks of 63.38%were given admission in S.K. Government Hospital, Sikar. The substance of the reply to the writ petition is that the petitioner as per her own merits got the admission in the general category though belongs to SC and in the SC (Female) category the candidates secured lesser marks were given the admission in the Government College against free but she could not be given the benefit of reservation. 9. The learned Counsel for the petitioner submitted that the petitioner belongs to a family of Teacher Grade III and her father is not in a position to bear the expenses of the payment seat for studying at the respondent No.2 Institution. In his submission the petitioner though meritorious in comparison to the other SC female candidates but she has been put in disadvantageous position. 10. In his submission the petitioner though meritorious in comparison to the other SC female candidates but she has been put in disadvantageous position. 10. The learned Counsel for the respondents, on the other hand, supported the action of the respondents. 11. I have given my thoughtful and anxious consideration to the rival contentions made by the learned Counsel for the parties. 12. The facts of the case clearly reveal that the merit of a candidate put to a candidate in a disadvantageous position. A less meritorious candidate not only got the admission in reserved category but also got many other advantages i.e., choice of the college and free seat etc. The meritorious candidate is to be given the benefit and other advantage in comparison to the less meritorious candidate but here the welfare State has acted contrary thereto. The Circulars of the Government, the reference of which has been made in the reply to the writ petition, put a meritorious candidate in a disadvantageous position. It is prejudicial to the interest of a meritorious candidate. That apart, it rules out the benefit for which a meritorious candidate would have been entitled. Where this approach and the criteria laid down by the respondent No. 1 is allowed to stand the possibility cannot be ruled out that a SC Female candidate though by virtue of her merit given admission in general category but as a result thereof she is deprived of the benefit of choice of place, choice of college and also the benefit of free seat. She may not be, being a daughter of Grade III Teacher, in a position to afford the expenses of payment seat and ultimately may forego her study. If it is the object and effect of the merit then the candidates belonging to SC/ST will prefer to secure less merit. They will not put hard labour and work for securing higher merits and feel contented and satisfied to have the less merit. The approach of the Government is against the basic principle that the admissions are to be made on merits and a SC candidate should not be allowed to sacrifice the benefit of reservation as a result thereof . The petitioner by virtue of her marks would have got in SC (Female) category admission against the reserved seat, and admission at the S.K. Government Hospital, Sikar against a free seat. The petitioner by virtue of her marks would have got in SC (Female) category admission against the reserved seat, and admission at the S.K. Government Hospital, Sikar against a free seat. The petitioner could not get the college of her choice and free seat as she stood lower in general merit lis. She is more meritorious amongst the SC (Female) candidates; she should have been given the benefit of free seat and the college of her choice. By this action and approach of the respondent No.1 the petitioner has suffered double loss. This cannot be allowed to stand. 13. The petitioner has raised a contention that separate merit lists should have been prepared of the General and SC candidates but I am not deciding this point in this petition for the reason that though the petitioner is put in merit list of general category by virtue of her merit but she cannot be put in a disadvantageous position to the SC (female) candidates who, though, have lesser merits, have been given the benefit of reservation. 14. The petitioner by this time either would have completed the course or is at the verge of completion thereof and thus at this stage it is not required nor in her benefit to shift her from the respondent No.2 College to the S.K. Government Hospital, Sikar. However, the state Government to pay her the difference of the tuition fee charged by the respondent No. 2 College from her and the tuition fees prescribed at the S.K. Government Hospital, Sikar for the Girls SC candidates of free seat. 10.15. The learned Counsel for the respondent No.1 submitted that the respondent No.2 College to refund the excess fees charged to the petitioner. I do not find any substance and merit in this contention. The respondent No.2 College has not given the admission to the petitioner. She has been given the admission treating her in General category and allotted the respondent No. 2 College, by the respondent No.1. Where the petitioner would not have been allotted that College, another candidate would have been admitted against the payment seat. In case what it is prayed for by the respondent No.1s Counsel is granted it will result in causing the monetary loss to the respondent No.2 without there being any fault on its part. 116. Where the petitioner would not have been allotted that College, another candidate would have been admitted against the payment seat. In case what it is prayed for by the respondent No.1s Counsel is granted it will result in causing the monetary loss to the respondent No.2 without there being any fault on its part. 116. As a result of the aforesaid discussion the writ petition succeeds and the same is allowed. The respondent No.1 is directed to refund the difference amount of the fee paid by her to the respondent No. 2 College and the fee prescribed at the S.K. Government Hospital, Sikar of the free seat for the SC ( female) candidates. The respondent No.1 is further directed to pay interest on the difference amount of the fee, at the rate of 9% per annum from the date on which the fee was deposited by her with the respondent No.2 College and till the payment is made to the petitioner. The amount together with interest thereon be paid to the petitioner within a period of one month from the date of receipt of the copy of this order. 117. Having heard learned counsel for the parties I am satisfied that it is a fit case for award of costs to the petitioner. It is unfortunate that though the petitioner was entitled for free legal services but she has to incur the litigation expenses of Rs.6500/-in filing the writ petition. Shri Anoop Dhand, the learned Counsel for the petitioner, submitted that he charged from the petitioner Rs.5500/-towards the fee to provide his professional services in the matter to her. He further submitted that about Rs.1000/-have been spent by the petitioner towards typing charges, Court fee stamps, PF, notice etc. 118. In my opinion when this category of litigants approach to an Advocate he is being the officer of the Court is under an obligation to inform her that he/she is entitled for free legal services and where he/she chooses not to go for free legal services, it is appreciable that the Counsel may charge his fees. This appears not to have been done. In the ignorance of her right what poor litigant has to do other than to approach an Advocate? This appears not to have been done. In the ignorance of her right what poor litigant has to do other than to approach an Advocate? That apart this class of litigants may not widely made know of their right of free legal service by the concerned persons and they are not getting benefits thereof . 119. Be that as it may be, the petitioner may not be in a position to bear out a heavy expense of litigation and in case the cost is not awarded to her of this litigation, it will cause grave injustice to her. Awarding of cost does not mean the award thereof for the sake of cost or a token cost. A poor SC Female candidate has been compelled by the respondent no.1 to come to this Court. Litigation in these days heavily costs. In the matter of the fees there is no Act or the Rules providing any scale and thus the Advocate to whom a litigant approaches for providing his legal services, can charge his fees. The respondent No.1 is directed to pay Rs. 6500/-as costs of this petition to the petitioner. 120. The difference amount of tuition fees and interest thereon, as indicated above, along with the amount of costs is to be paid to the petitioner personally by Account Payee Cheque/DD/Pay Order. 121. In view of this order, the stay application, filed along with the writ petition, also stands disposed of .