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2006 DIGILAW 1201 (MP)

SUNIL HARIOUDH v. STALE OF MADHYA PRADESH

2006-10-17

A.K.PATNAIK, S.C.SINHO

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Judgment ( 1. ) THIS is a Writ Appeal against the order dated 10-7-2006 passed by the learned Single Judge in Writ Petition No. 3860/2006. ( 2. ) THE facts briefly are that the appellant is a member of the scheduled Caste Community. He appeared in the Pre-Medical Examination, 2004 conducted for selection of candidates for admission to MBBS/bds Courses in different Colleges in the State of Madhya Pradesh and he was placed in waiting list of candidates for seats reserved for Scheduled Caste candidates. He was called in the first and second counselling, but he was not given any offer of a seat in the MBBS Course and he opted for waiting as per the provisions of the Pre-Medical Test Rules, 2004. Thereafter, he was called for third counselling by a paper publication in dainik Swadesh and his position amongst the waiting list candidates from the Scheduled Caste Category in the third counselling was at serial No. 1. But when he went for the third counselling on 24-9-2004, he was informed that one seat which was earlier reserved as per paper publication for scheduled Caste candidates in MGMMC Medical College, Indore, has now been converted and reserved for a physically handicapped Scheduled Caste candidate. ( 3. ) AGGRIEVED, the appellant filed Writ Petition No. 3860/2004 before this Court and on 5-10-2004, a learned Single Judge was pleased to issue notices in the said Writ Petition to the respondents. Pending disposal of the writ petition, the appellant took admission in BDS Course at Indore under protest. But, when the W. P. No. 3860/2004 was taken up for hearing on 10-7-2006, the learned Single Judge took a view that it was not a case where the appellant has been illegally deprived of admission as against the seat of Scheduled Caste candidate because the appellant was given liberty in the first and the second counselling where he did not opt for the seat and before the third counselling was held, an order was passed under the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short the Act, 1995) reserving the MBBS seat which was earlier reserved for Scheduled Caste candidate for a disabled candidate. With the aforesaid reasons, the learned Single Judge dismissed Writ Petition No. 3860/2004 by the impugned order dated 10-7-2006. ( 4. With the aforesaid reasons, the learned Single Judge dismissed Writ Petition No. 3860/2004 by the impugned order dated 10-7-2006. ( 4. ) WHEN this Writ Appeal was taken up for hearing on 28-9-2006, we put a query to Mr. Sanjay Yadav, learned Dy. A. G. appearing for the respondent nos. 1 and 2, as to whether the MBBS Seat that was published for the third counselling in which the appellant was called belonged to the quota reserved for scheduled Caste candidates or not and Mr. Yadav very fairly submitted that the said MBBS seat belonged to the quota reserved for Scheduled Caste candidates and was diverted for a Scheduled Caste disabled person under the provisions of the Act of 1995. ( 5. ) SECTION 39 of the Act, 1995 provides that all the Government educational institutions and other educational institutions receiving aid from the government, shall reserve not less than three per cent seats for persons with disabilities. Reservation of seats for disabled candidates under the Act, 1995 has to be made out of seats for general candidates and cannot be made by diverting seats which have been reserved for Scheduled Castes. Under Article 15 (4) of the Constitution of India, the State has been empowered to make a special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. It is in exercise of such enabling powers under Article 15 (4) of the Constitution of india that the State Government had reserved some seats in MBBS course for scheduled Castes candidates for the year 2004. A diversion of a seat reserved for scheduled Caste candidate would not only violate the provisions made by the state Government for such reservation but also would be contrary to the object of Article 15 (4) of the Constitution of India. The provisions of the Act, 1995, it is true, cannot be ignored by the authority and reservation of seats in MBBS course will have to be made also for disabled persons in accordance with the provisions of the Act, 1995, but while reserving seats for disabled persons under the Act, 1995, the seat reserved for Scheduled Caste candidates cannot be affected by the State Government. Thus, by diverting a seat reserved for Scheduled caste candidate for which the appellant had been called for the third counselling, a patent illegality had been committed by the authorities. ( 6. ) IN Punjab Engineering College, Chandigarh Vs. Sanjay Gulati ( AIR 1983 SC 580 ), the Supreme Court has held that the authority, who makes admission by ignoring the rules of admission, must pay for such lapse and wrong done to the deserving candidates, who have been admitted, has to be rectified and the best solution under the circumstances is to ensure that the strength of seats is increased in proportion to the wrong admissions made. In the said case, a contention was raised by the State Government that in case of Medical Colleges, the medical Council of India will not sanction additional seats, but the Supreme court rejected the said contention raised by the State Government. Paragraph 6 of the judgment of the Supreme Court in the case of Punjab Engineering college, Chandigarh Vs. Sanjay Gulati (supra), is quoted hereinbelow :- "it is strange that in all such cases, the authorities who make admissions by ignoring the rules of admission contend that the seats cannot correspondingly be increased, since the State Government cannot meet the additional expenditure which will be caused by increasing the number of seats or that the institution will not be able to cope up with the additional influx of students. An additional plea available in regard to medical colleges is that the Indian medical Council will not sanction additional seats. We cannot entertain this submission. Those who infringe the rules must pay for their lapse and the wrong done to the deserving students who ought to have been admitted has to be rectified. The best solution under the circumstances is to ensure that the strength of seats is increased in proportion to the wrong admissions made. " Similarly in Anil Kumar Gupta and others Vs. State of U. P. and others, (1995) 5 SCC 173 , the Supreme Court directed creation of thirty-four seats in the MBBS course for admission of 34 students from the OC category for the purpose of rectifying the injustice done to the OC Category candidates. In Dolly chhanda Vs. " Similarly in Anil Kumar Gupta and others Vs. State of U. P. and others, (1995) 5 SCC 173 , the Supreme Court directed creation of thirty-four seats in the MBBS course for admission of 34 students from the OC category for the purpose of rectifying the injustice done to the OC Category candidates. In Dolly chhanda Vs. Chairman, Jee and others, (2005) 9 SCC 779 , the Supreme Court having found that the appellant in that case has been illegally denied admission in MBBS Course, directed the authorities to give admission to the appellant in any one of the State Medical Colleges and further observed that in case the State seats have already been filled up, one extra seat shall be created for the appellant. ( 7. ) IT is for the aforesaid reasons that we passed the order dated 28-9-2006 in the present writ appeal that an additional seat will be created in mgmmc College, Indore, in the MBBS Course and the appellant will be given admission in the said additional seat by 30-9-2006 as the appellant had already lost two valuable years since 2004. In the said order dated 28-9-2006, we have further observed that admission to MBBS Course for the academic session 2006-07 have to be completed by 30th September, 2006 as per the schedule fixed by the Supreme Court and on account of paucity of time, it is not possible for this court to deliver a detailed judgment with reasons before 30-9-2006. By the said order, the case was to be listed later for the detailed judgment. Unfortunately, despite the said directions, the appellant was not given admission in MGMMC college, Indore, on the ground that it will take some time to create an additional seat in MGMMC College, Indore, with the permission of the Medical Council of India and the Central Government. When we passed the order on 28-9-2006, we were very much aware that the formalities of taking permission from the medical Council of India/central Government for creation of additional seat will take some time. When we passed the order on 28-9-2006, we were very much aware that the formalities of taking permission from the medical Council of India/central Government for creation of additional seat will take some time. Yet we directed by the said order dated 28-9-2006 that the appellant be given admission in the additional seat in MGMMC College, Indore, only because of the dead line of 30-9-2006 fixed by the Supreme Court for admission in MBBS courses, but the respondents seem to have understood that only after the permission was obtained from the Medical Council of India/central government for the creation of the additional seat, admission was to be given to the appellant. ( 8. ) FOR the aforesaid reasons, we set aside the impugned order of the learned Single Judge and direct that the appellant will be allowed admission in mgmmc College, Indore, in the MBBS Course positively by tomorrow (18-10-2006)and the said admission will be treated as admission made by 30-9-2006 as per our order dated 28-9-2006 and the Medical Council of India and the Central government will compete the formality of granting permission to create additional seat considering the peculiar facts and circumstances narrated in this judgment.