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2011 DIGILAW 316 (MP)

Sanjay Patel v. State of M. P.

2011-03-08

R.S.JHA, S.R.ALAM

body2011
ORDER 1. Shri K.K. Patel, learned Counsel for the Petitioner. Shri Sanjay Dwivedi, learned G.A. for the Respondents No. 1 to 4. 2. The Petitioner has filed this petition by way of a Public Interest Litigation praying for quashing of Rules 20(9) and 20(11) of the M.P. Medical and Dental Post Graduate Course Entrance Examination Rules, 2010 (hereinafter referred to as the Rules of 2010) which provides for the sequence of category-wise counselling for allotment of seats in Post Graduate medical courses. 3. It is submitted by the learned Counsel for the Petitioner that in accordance with the constitutional mandate reservations have been made for selection and allotment of seats in the post graduate courses by the State of M. P. wherein till the year 2003 it was provided that counselling for allotting seats on the basis of the categories would be done in the following sequence: (A) Unreserved Category. (B) ST Category. (C) SC Category. (D) OBC Category. However, subsequently in the M. P. Medical and Dental Post Graduate Entrance Examination Rules, 2004 by way of introducing Rule 15.10 the sequence of counselling for various categories has been changed and it has now been provided that the counselling shall be done in the following sequence: (A) ST Category. (B) SC Category. (C) OBC Category. (D) Unreserved Category. It is submitted by the learned Counsel for the Petitioner that the sequence of counselling as changed in the Rules of 2004 is detrimental to the interest of the reserved categories and in spite of repeated representations the impugned sequence has been continued by the Respondent/State even in the Rules of 2010 under Rules 20(9) and 20(11) on the pretext that the said sequence has been changed in the year 2004 in view of the orders passed by this Court. The Petitioner has also stated that the aforesaid issue was taken up by the M.P. State Backward Class Commission and by order dated 9-8-2010 in exercise of powers under Section 10 of the M.P. State Backward Class Commission Act, 1995 the entire counselling proceedings held in the year 2010 were declared illegal and the State was directed to amend the rule accordingly. However, in spite of the aforesaid orders of the Commission no change has been brought about by the Respondent/State. 5. However, in spite of the aforesaid orders of the Commission no change has been brought about by the Respondent/State. 5. The learned Counsel appearing for the Respondents/State on a perusal of Annexure P-8, the order passed by the M.P. State Backward Class Commission dated 9-8-2010 has stated that the authorities of the State have pointed out that the sequence of counselling was changed on account of the decision of this Court rendered in W.P. No. 27382/2003 Mayank Jain v. State of M.P. and Ors. reported in 2003 (4) MPLJ 497 . It is further pointed out that the issue also stands concluded against the Petitioner in view of the judgment of this Court rendered in the case of Amit Kumar Aritwal Dr. v. State of M.P. and Ors. reported in 2004 (3) MPLJ 82 . 6. We have heard the learned Counsel appearing for the parties at length and gone through the record of the case. 7. From a perusal of Rules 15.9 and 15.11 of the M.P. Medical and Dental Post Graduate Entrance Examination Rules, 2003, a copy of which has been filed along with the petition as Annexure P-4, it is clear that initially the sequence of counselling of the reserved category prescribed in the Rules was as follows: (A) Unreserved category. (B) ST category. (C) SC category. (D) OBC Category. 8. The aforesaid rules were challenged before this Court in the case of Amit Kumar Aritwal Dr. v. State of M.P. and Ors. reported in 2004 (3) MPLJ 82 and this Court after taking into consideration the law in the field as well as the judgment of this Court in the case of Mayank Jain v. State of M.P. and Ors. (W.P. No. 27382/2003) reported in 2003 (4) MPLJ 497 , held that the sequence of counselling prescribed in the Rules of 2003 as stated above was unconstitutional as it sought to adopt a novel method of increasing the percentage of reservation beyond the limits prescribed and laid down by the Supreme Court in the case of Indra Sawhney etc. v. Union of India and Ors. AIR 1993 SC 477 and held that the counselling in respect of the reserved categories should be held first. v. Union of India and Ors. AIR 1993 SC 477 and held that the counselling in respect of the reserved categories should be held first. It is further clear that pursuant to the judgment of this Court the State subsequently amended the rules in 2004 and changed the sequence of counselling for the categories by providing the following sequence: (A) ST Category. (B) SC Category. (C) OBC Category. (D) General Category. which has now been challenged in the present petition. 9. It is, therefore, clear from a perusal of the aforesaid two judgments rendered by this Court; namely, in Amit Kumar's case (supra) and Mayank Jain's case (supra) that the change in the sequence of category-wise counselling brought about from the year 2004 onwards which we fully endorse and affirm is in conformity with and in compliance of the order passed by this Court in the aforesaid judgments as submitted by the learned Counsel for the State. 10. From a perusal of the record and the submissions made before us it is uncontroverted and undisputed that the reservation prescribed for the reserved category in Rule 8 of the Rules of 2010 is strictly being followed and that reserved candidates who have obtained more marks than general category candidates are also made eligible for counselling in either their own category or in the unreserved category in accordance with the prior option given by them under Rule 20(13) and, therefore, there is no violation of the rules of reservation or the rules prescribing the extent of the reservation for the reserved category. In other words there is no allegation in the petition or otherwise that reservation to the extent prescribed is not being made available or that the impugned rule reduces the extent of reservation prescribed in any manner. 11. At this stage, it is submitted by the learned Counsel appearing for the Petitioner that the authorities of the State are also not complying with the order passed by the M.P. State Backward Class Commission, dated 9-8-2010, Annexure P-8. 12. 11. At this stage, it is submitted by the learned Counsel appearing for the Petitioner that the authorities of the State are also not complying with the order passed by the M.P. State Backward Class Commission, dated 9-8-2010, Annexure P-8. 12. We are unable to find any substance in the aforesaid submission for the simple reason that the M.P. State Backward Class Commission Act, 1995 was enacted in view of the directions issued by the Supreme Court in the case of Indira Sawhney (supra) in paragraph 243(17) whereof the State Government has been directed to create a permanent machinery for examining the cases of requests for inclusion or exclusion of any caste, community of persons or in the other backward class. A perusal of Sections 9 and 10 of the M.P. State Backward Class Commission Act, 1995 further indicates that the Commission has only been entrusted with the task of recommending inclusion or exclusion of communities in the list of backward class and to tender advise regarding reservation for Other Backward Classes in public services and admission in educational institutions and for that limited purpose have been given limited powers of the Civil Court under Section 10. The aforesaid Act of 1995 does not constitute the Commission as an adjudicatory body with judicial powers to declare provisions of the Rules or bye-laws made pursuant thereto to be illegal or to direct the State to frame rules in a particular manner. The Commission can only recommend and advise the State Government in certain matters which recommendation or advise may be accepted or may not be accepted by the State. 13. This Court in the case of S.K. Verma v. State of M.P. and Ors. reported in 2009 (1) MPLJ 632 : ILR (2008) MP 1892 while considering the provisions of Sections 9 and 10 of the M.P. State Scheduled Caste Commission Act, 1995 which are in pari materia with the provisions of Sections 9 and 10 of the M.P. State Other Backward Class Commission Act, 1995 has categorically held that the Commission constituted under the Act has no power to enquire into the individual complaints like a Civil Court, a disciplinary authority or a trial Court and cannot direct the Government to take a particular action nor does it have any power to enforce its orders and call for compliance thereof. 14. 14. In view of the decision of this Court in the case of S.K. Verma (supra), the submissions of the learned Counsel for the Petitioner and the reliance placed by him on the order of the M.P. State Backward Class Commission, dated 9-8-2010 is also held to be misconceived as the Commission has no judicial or adjudicatory powers nor can it hold rules framed by the State to be illegal and direct the State to change the sequence of counselling for the reserved category specifically when it has been changed and is in accordance with the decisions rendered by this Court holding the previous sequence of counselling prescribed in the 1993 Rules to be unconstitutional and illegal. It is hereby clarified that in such circumstances the Commission cannot direct the State to quash the selection proceedings and implement the sequence of counselling in the reserved category which has been declared unconstitutional by this Court. Therefore, the order of the Commission dated 9-8-2010 has rightly not been complied with by the State as it is misconceived and has been passed in ignorance of the decision rendered-by this Court in the cases of Amit Kumar Aritwal (supra) and Mayank Jain (supra). 15. In the instant case as we have already held that the sequence of counselling for the categories prescribed under Rules 20(9) and 20(11) of the 2010 Rules is in compliance of the decision of this Court rendered in the Amit Kumar's case (supra) and Mayank Jain's case (supra), therefore, in view of the decision of this Court rendered in the case of S.K. Verma (supra) wherein it has been held that the Commission constituted under the Act of 1995, has no judicial or adjudicatory powers, we do not find any illegality or unconstitutionality in the sequence of counselling provided in Rules 20(9) and 20(11) of the Rules of 2010 and the challenge by the Petitioner to the same is accordingly rejected. 16. In view of the aforesaid, the petition filed by the Petitioner being without merit is dismissed. A copy of the order pass today be transmitted to the concerned authority for information and compliance. Petition is accordingly, dismissed.