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2007 DIGILAW 841 (MP)

Neelam Singh v. State of M. P.

2007-08-06

A.K.GOHIL, SANJAY YADAV

body2007
JUDGMENT Gohil, J. -- 1. This judgment shall also govern the disposal of Writ Appeal No.654 of 2006 (Ku. Vibha Pal v. State of M.P. and others). 2. Both the appellants have filed these writ appeals separately under section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, against the order dated 10.10.2006 passed in Writ Petition No.4360/06 and Writ Petition No.4265/06, thereby dismissed the writ petitions filed by the appellants. As the common questions of law and facts are involved in both the appeals, therefore, they are being decided by this common judgment. 3. In Writ Appeal No.470/06 Ku. Neelam Singh is the appellant and in Writ Appeal No.654/2006 Ku. Vibha Pal is the appellant. Both appeared in the MPT Examination of 2006. It is the case of Ku. Neelam Singh that she passed XIIth class examination from Army School, Kota, securing 67.6% marks and her father is ex-military serviceman. He was posted as Seargent in the Indian Air Force and retired from service of Indian Air Force on 31.5.1993. She belongs to Jat caste and the said caste comes under the category of Other Backward Classes (OBC). She appeared in the PMT examination governed by the Madhya Pradesh Medical and Dental Undergraduate Entrance Examination Rules, 2006 (hereinafter referred to as the "Entrance Examination Rules, 2006") framed under section 10 of the Madhya Pradesh Chikitsa Shiksha Sanstha Niyantran Adhiniyam, 1973 (hereinafter referred to as the "Adhiniyam of 1973"). 4. Case of Ku. Vibha Pal is that she also appeared as GBC candidate in military quota, as she is the daughter of military person. She has also appeared and secured 159.29 marks out of total marks of 200, i.e., 79.64%. The father of this appellant is also ex -serviceman in Air Force and he was working on the post of Corporal. 5. The first counselling for the admission took place on 27/28th July, 2006 and second counselling took place on 28/30th August, 2006, but they were not considered for admission in the first counselling as no seats were allotted to OBC quota of military personnel. Thereafter, Ku. Neelam Singh submitted a representation on 8.8.2006 and Ku. Vibha Pal submitted the representation on 28.7.2006. When the representations were not decided, Ku. Neelam Singh filed Writ Petition No.470/2006 on 21.8.2006 and Ku. Vibha Pal filed Writ Petition No.654/2006 on 14.8.2006. 6. Thereafter, Ku. Neelam Singh submitted a representation on 8.8.2006 and Ku. Vibha Pal submitted the representation on 28.7.2006. When the representations were not decided, Ku. Neelam Singh filed Writ Petition No.470/2006 on 21.8.2006 and Ku. Vibha Pal filed Writ Petition No.654/2006 on 14.8.2006. 6. In nutshell the case of the appellants was that they belong to Other Backward Class (OBC category) and they are entitled for admission under the GBC military quota. It was pointed out that as per clause 5.2 of the Entrance Rules, 2006 there was 3% reservation in the total seats for military personnel. Admittedly, in all 477 seats were available for MBBS courses and on counting of 3% seats and total 477, it will come to 14.31 and on rounding up 14 seats were to be allotted to the children of military personnel. Rules 2.5, 2.6, 5 and 5.5 of the Entrance Examination Rules, 2006 read as under: "2.5 "Category" means Scheduled Tribe, Scheduled Caste, Other Backward Classes and unreserved category as specified and laid down by the Government of Madhya Pradesh. 2.6 "Class" means Military Personnel (M.P.), Freedom Fighter (FF) No Class (X) and FEMALE (F) as specified and laid down by Government of Madhya Pradesh. Physically Handicapped (PH) means as specified and laid down by Ministry of Labour, Government of India for vocational Rehabilitation of Physically Handicapped. 5. Reservation - 20% seats are reserved for candidates belonging to Scheduled Tribe, 16% seats are reserved for candidates belonging to Scheduled Caste and 14% seats are reserved for candidates belonging to Other Backward Classes (other than creamy layer) and remaining seats are available for unreserved category candidates. 5.2 For children of Military Personnel (MP) belonging to ST, SC, OBC and UR categories 3% seats are reserved for admission to MBBS/ BDS course. Reservation shall be horizontal and compartmentalized." 7. According to the aforesaid rule 5.2, 14 seats to be allotted to the children of military personnel and as per rule 5, out of 14 seats 20% seats were reserved for candidates belonging to Scheduled Tribe (ST), 16% seats were reserved for candidates belonging to Scheduled Caste (ST), 14% seats were reserved for candidates belonging to Other Backward Classes (OBC), and remaining seats were available for candidates of Unreserved Category (UR). On the basis of the aforesaid ratio, out of 14 seats 20% seats for ST catgegory comes to 2.8, which may be rounded to 3; 16% seats for SC category comes to 2.24 which may be rounded to 2; 14% seats for OBC category comes to 1.96, which may be rounded to 2 seats; and 50% seats will go to unreserved candidates, which would come to 7 seats. But in the counselling it is not in dispute that for this quota of military personnel 6 seats were allotted for unreserved candidates; 4 seats were allotted to ST category and 4 seats to SC category and no seat was allotted to OBC category. There is no dispute that as per rule the reservation shall be horizontal and compartmentalized. 8. The learned writ Court after considering the table 2.1 and the distribution of seats to various colleges has held in para 7 of the judgment as under: "From the table 2.1 it is clear that the entire seats are divided in 4 compartments by the Government, i.e., Unreserved category, SC category, ST category and OBC category. There is further division in these compartments namely female, open, military personnel, freedom Fighter and Physically Handicapped. There is horizontal division also in five colleges mentioned in the scheduled i.e., College at Bhopal, Gwalior, Indore, Jabalpur and Rewa. In unreserved category more than 50 seats are allotted to every college except Rewa, in Rewa they have allotted 23 seats that's why they have allotted two seats for military personnel in each of the category except Rewa Medical College while in SC category Bhopal College is allotted 18 seats, Gwalior College is allotted 17 seats, Indore College is allotted 18 seats, Jabalpur College is allotted 17 seats and Rewa College is allotted 7 seats and therefore they have allotted one seat each in MP quota in SC category to Bhopal, Gwalior, Indore and Jabalpur and no seat is allotted to Rewa. 3% of 18 and 17 will come to more than 0.5 therefore they rounded it to 1 while 3% of 7 seats will bellow 0.5% hence no seat is allotted to Rewa College. 3% of 18 and 17 will come to more than 0.5 therefore they rounded it to 1 while 3% of 7 seats will bellow 0.5% hence no seat is allotted to Rewa College. While in ST category Bhopal College is allotted 21 seats, Gwalior College is allotted 21 seats, Indore College is alloted 22 seats, Jabalpur College is allotted 21 seats and Rewa College is allotted 9 seats hence one seat is allotted to each college except Rewa because 3% of 9 seats will below 0.5% hence no seat is allotted to Rewa College. While in GBC category none of the college was allotted more than 16 seats and 3% of 16 seats will come to 0.48 and that will be below 0.5%, therefore, they have rightly allotted "0" (Zero) seat to military personnel in GBC." While recording the aforesaid finding though the learned writ Court held that 14 seats were available in this category, but considering the table 2.1 appended to the rules held that since no seat has been mentioned in OBC category and after distribution of seats to the various colleges only 0.5% seat will come in OBC category. Therefor, the State Government has not committed any error in allotment of seats and the same is not contrary to the Entrance Rules, 2006 and dismissed the writ petition. 9. Learned counsel for the appellants submitted that the allotment of seats by the State Government is not as per the Entrance Rules, 2006. If there is a separate category for military personnel, out of 14 seats 2 seats were required to be allotted to GBC category as per 14% reservation, but the respondents have not allotted any seat in any of the colleges in the GBC quota of military personnel. Therefore, it was argued that the allotment and distribution of seats as per table 2.1 is illegal and submitted that if despite the rules the admission is not granted, this would amount to denial of right to a candidate. Therefore, it was argued that the allotment and distribution of seats as per table 2.1 is illegal and submitted that if despite the rules the admission is not granted, this would amount to denial of right to a candidate. In support of their contention learned counsel for the appellants placed reliance on the decisions in the cases of Aman Deep Jaswal v. State of Punjab and others [2006(4) SLR 375]; Sunil Harioudh v. State of M.P. and others [ 2006(4) MPHT 426 (DB); also on the decisions of this High Court in the cases of Vivekanand Tiwari and others v. State of M.P. and others (Writ Petition No.1 2623/2005, decided on 24.2.2006), and Dr. Anshu Dubey v. State of M.P. and others {Writ Appeal No.241/2006, decided on 23.2.2007 [ 2007(2) JLJ 78 ]}. 10. In reply, it was submitted that mid-stream admissions are not permitted and on that ground it was submitted that even if there was any mistake in calculating the reservation against a particular OBC category and not allotting two seats in GBC category, even the admission cannot be granted to the appellants. 11. The first question in this appeal is whether the respondents committed mistake in calculating the seats for allotment to OBC category under military quota and thereby committed illegality in not granting admissions to the appellants those who were eligible for admission in that category. The second question involved is whether now after a year in the current session 2007 the Court should give direction for the admission of the appellants. 12. In the writ petition the Stale Government has not submitted any reply. The return was tiled by respondent Professional Examination Board and, according to their return, their stand was that they have allotted the seats as per table 2.1 mentioned in the rules and as per the aforesaid table it is clear that in the category and classwise distribution of State quota seats no provision is made for OBC military personnel and, therefore, the answering respondent was not in a position to declare her result in this category and class and she is below the cutoff marks in the said category, therefore, she was unable to be selected in the comparative merit. 13. No doubt, the respondent State cannot be permitted to distribute the seats arbitrarily and discriminatorily. 13. No doubt, the respondent State cannot be permitted to distribute the seats arbitrarily and discriminatorily. In this case prima facie it appears that the respondents have committed illegality while allotting the seats to UR, SC and ST category of MP quota and has also committed illegality in not allotting the seats to OBC category for military quota. As per the provisions of the Entrance Rules, 2006 the reservation is horizontal and compartmentalized. Out of 14 seats reserved for the children of military personnel 7 seats ought to have been allotted to the candidates of unreserved category whereas only 6 seats have been allotted; 3 seats ought to have been allotted to the ST category whereas 4 seats have been allotted to this category; 2 seats were required to be allotted for SC category, instead 4 seats have been allotted and 2 seats were to be allotted for OBC category but none of the seats have been allotted to OBC category. Therefore, prima facie it shows that the distribution of the seats is not according to the provisions of Entrace Rules, 2006. Percentage of the seats have been mentioned in the rules, but the aforesaid distribution goes to show that the respondents have extended undue benefit to some of the students of UR, SC and ST category and have not extended any benefit to the students of OBC category under military quota. Thus, prima facie, action of the respondents is wholly unjustified and patently illegal. The respondent authorities have committed patent illegality in distributing and allotting the seats to various categories in excess of their entitlement and not allotting the seats to the OBC category in military quota. Learned Single Judge has also not considered this aspect of the matter that in view of the horizontal and compartmentalized reservation first the seats were required to be allotted to the categories mentioned in rule 5 and 5.2 and thereafter distribution to be made as per collegewise. 14. It was pointed out that for the PMT 2005 also as per table 2.1, two seats were reserved under OBC quota for military personnel in an open category. Therefore, it was submitted that while preparing table 2.1 the respondents have also not followed the rules and have ignored the right of the persons of OBC category under military personnel quota. It was pointed out that for the PMT 2005 also as per table 2.1, two seats were reserved under OBC quota for military personnel in an open category. Therefore, it was submitted that while preparing table 2.1 the respondents have also not followed the rules and have ignored the right of the persons of OBC category under military personnel quota. Therefore, it is a clear case of discrimination and respondents have committed patent illegality in not allotting the seats for the OBC persons in MP quota and as submitted by the appellants, if they are eligible on the basis of merit and are at serial No.1 and 2 in the list of that particular quota, they are entitled for admission. 15. As regards the second question, if it is found that the State has wrongly made distribution of the seats in a particular quota and has wrongly denied admission to the eligible candidates whether a direction can be given to the respondents to give admission to the appellants who have been denied admission by wrongly calculating and acting contrary to the rules. In this regard, we have considered the basic judgment in case of Punjab Engineering College, Chandigarh v. San jay Gulati [ AIR 1983 SC 580 ], in which the Supreme Court has held as under: "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." 16. 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." 16. In the case of Anil Kumar Gupta and others v. State of U.P. and others [ (1995)5 SCC 173 ], the Supreme Court directed creation of thirtyfour 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. 17. In the case of Dolly Chanda v. Chairman, JEE and others [ 2004(7) Supreme 297 ], in the matter of eligibility certificate the apex Court has held as under: "9. The appellant undoubtedly belong to reserved MI category. She comes from a very humble background, her father was only a Naik in the armed forces. He may not have noticed the mistake which had been committed by the Zila Sainik Board while issuing the first certificate dated 29.6.2003. But it does not mean that the appellant should be denied her due when she produced a correct certificate at the stage of second counselling. Those who secured rank lower than the appellant have already been admitted. The view taken by the authorities in denying admission to the appellant is wholly unjust and illegal. 10. The appellant had qualified in the JEE-2003 but the said academic year is already over. But for this situation the fault lies with the respondents, who adopted a highly technical and rigid attitude and not with the appellant. We are, therefore, of the opinion that the appellant should be given admission in MBBS course in any of the State medical colleges in the current academic year." 18. Again in the case of Aman Deep Jaswal v. State of Punjab and anthers (supra), the apex Court directed that the petitioner, who was more meritorious other than the respondents, was wrongly denied the admission. He is entitled to be admitted in MD Anaesthesia in Government College Patiala in the next academic year 2006-2007 within the sanctioned intake of the college. 19. He is entitled to be admitted in MD Anaesthesia in Government College Patiala in the next academic year 2006-2007 within the sanctioned intake of the college. 19. The Division Bench of this High Court have also consistently held that when rules are not followed and admissions are denied to eligible candidates, they are entitled for admission in next academic session. In case of Sunil Harioudh v. State of M.P and others (supra), while considering the case of reservation for disabled candidates the Division Bench considered the provisions of section 39 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1996 (No.1 of 1996), and held that the seats reserved for a particular category cannot be diverted otherwise this would amount to violation of Article 15(4) of the Constitution and the Division Bench set aside the impugned order of learned Single Judge and directed that the appellant will be allowed admission in th MGMMC College, Indore in the MBBS Course positively by tomorrow and the said admission will be treated as admission made by 30.9.2006 and the Medical Council of India and the Central Government will complete the formality of granting permission to create additional seat considering the peculiar facts and circumstances narrated in the judgment. 20. In case of Vivekanand Tiwari (supra) [Writ Appeal No.12623/05, decided on 24.2.2006], considering the various judgment, when irregularities were found in admissions as per merit list, the Division Bench of this High Court again directed that the petitioners who were denied admission shall be admitted as against 50% management quota for the academic year 2005-06. It was held that equity of student who was wrongfully deprived admission in 2004 shall be settled by giving him admission in academic year 2005-06 out of sanctioned intake of the college. 21. We have also considered the decision of another Division Bench of this High Court, in which one of us (Gohil, J.) was party, in the case of Dr. Anshu Dubey v. The State of M.P and others {Writ Appeal No.2411 2006, decided on 23.2.2007 [ 2007(2) JLJ 78 ]}. Division Bench considered this aspect of the matter that the admission was given to Dr. Harsh Sukhwani, who secured less marks than Dr. Anshu Dubey and held that Dr. Anshu Dubey was senior to Dr. Ritu Mahana, Dr. Nidhi Chaturvedi and Dr. Division Bench considered this aspect of the matter that the admission was given to Dr. Harsh Sukhwani, who secured less marks than Dr. Anshu Dubey and held that Dr. Anshu Dubey was senior to Dr. Ritu Mahana, Dr. Nidhi Chaturvedi and Dr. Harsh Sukhwani, who were less meritorious and after considering the comparative merit held that the admissions were granted to the less meritorious students, therefore, Dr. Anshu Dubey was also entitled for admission in DGO course and after considering the various decisions the order of the learned Single Judge was set aside and it was directed that the appellant's case be considered for admission in DGO course. 22. As discussed above, in the light of the-judgments in the case of Punjab Engineering College (supra), Anil Kumar Gupta (supra) Dolly Chhanda (supra), Arnan Deep Jaswal (supra) of Supreme Court, and, Sunil Harioudh (supra), Vivekanand Tiwari (supra) and Dr. Anshu Dubey (supra) of M.P. High Court, the direction can be given to the college to increase the seats and to give admission to the appellants. In case of Punjab Engineering College (supra), the Supreme Court has clearly held that 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 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 case of Dolly Chhanda (supra), and Arnan Deep Jaswal (supra), similar directions were issued by the apex Court to give admission in the next academic session. 23. Thus, in view of the aforesaid facts and circumstances of the case and for the aforesaid reasons we allow these appeals and direct the respondents to consider the case of the appellants for grant of admission in MBBS course under OBC category of military personnel quota in any of the college situated in Madhya Pradesh in this academic session 2007. If the seats are not available, the same shall be created and permission shall be obtained from Medical Council of India including the Central Government for completing the formalities. 24. Parties are directed to bear their own costs.