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Madhya Pradesh High Court · body

2011 DIGILAW 618 (MP)

Abhishek Dadarwal v. State of M. P.

2011-05-19

A.M.NAIK, SHANTANU KEMKAR

body2011
ORDER Naik, J. -- 1. This writ petition has been preferred by the petitioner against the illegal action of respondents, depriving him thereby of admission to the Government Autonomous Dhanvantri Ayurveda College, Ujjain under unreserved category, despite his merits. 2. Briefly stated relevant facts are that the petitioner belongs to reserved category of Other Backward Classes (hereinafter referred to as the OBC). Vyavsayik Pariksha Mandal (hereinafter referred to as the VYAPAM) issued an advertisement in the newspaper of Madhya Pradesh Ayurvedic, Homeopathic and Unani Test, 2010. Petitioner duly submitted his application form which was accepted and admit card was issued to him on 2.7.2010 with Roll No.604262, as revealed in Annexure P-2. In the examination (written test), he was awarded 62 out of 150 marks and was kept at Merit No.314 of Reserved Category in Government Autonomous Colleges. He was also placed at consolidated Merit No.888 in private colleges, which is revealed in Annexure P-3. Counseling programme of first phase for admission to the first year course of BAMSIBHMS/BUMS for the academic year 2010-11 was advertised. Copy of the said counseling programme is Annexure P-5. Petitioner did not appear in the first counseling. He appeared in the second counseling, which commenced from 19.10.2010. He was granted admission in Pandit Shivshaktilal Sharma College, Ratlam, which was not availed by him, due to financial crisis. Third counseling commenced from 28.10.2010, which was advertised vide Annexure P-6. Petitioner prepared a demand draft of Rs.500/- drawn on STate Bank of India Service Branch, Bhopal on 27.10.2010, to appear in the third counseling. It is stated in the petition that the petitioner, as per clause 9..14 of the Madhya Pradesh Ayurvedic, Unani and Homeopathy under Graduate Entrance Examination Rules, 2010 (hereinafter referred to as the Examination Rules, 2010, for brevity), has an option to select seat during the counseling either from reserved categor) or unreserved category. Copy of Examination Rules, 2010 is placed on record as Annexure P-8. It is further stated in paragraph 5.8 that the petitioner, at the time of reporting in the third counseling process, submitted to the Principal of Pandit Khushilal Ayurvedic College, Bhopal that he was willing to appear in the counseling of general candidates along with counseling for OBC candidates. He was informed that his name would be automatically sent for the counseling for general candidates and no separate application is required. He was informed that his name would be automatically sent for the counseling for general candidates and no separate application is required. It is stated in specific that the petitioner was ready with separate demand draft for appearing in the counseling of OBC as well as general candidates. Respondents did not call the petitioner for counseling of general candidates, despite his eligibility and entitlement. Petitioner, later on, came to know that students, having lesser marks in comparison with the petitioner, were given admission in Government Dhanvantri Ayurvedic College, Ujjain. He submitted a representation on 9.11.2010, which was not responded. Thus, according to the petitioner, the respondents/authorities have acted in contravention of the Examination Rules, 2010 and have deprived the petitioner of admission in the said Government College. They have also granted admission to less meritorious students having lesser marks. Accordingly, a prayer has been made for issuance of appropriate writ, order or direction, ordering thereby the respondents to give admission to the petitioner, according to his eligibility and entitlement under the Examination Rules, 2010. 3. Respondents have submitted joint reply containing a general denial. It has been stated in the reply that the petitioner was granted admission to Pandit Shivshaktilal Sharma College at Ratlam in the second round of counseling. Petitioner did not avail the same and, instead, opted to appear in the third round of counseling. Petitioner was on OBC candidate. Since the OBC quota was already completed, petitioner could not be granted admission in any college in the third round of counseling. It is stated in specific that as the petitioner did not change his candidature as an unreserved candidate, he was never registered in the list of unreserved candidates nor did he deposit separate counseling fee for the purpose. Thus, petitioner was not considered as unreserved candidate. As regards OBC candidates, no candidate having less merit than the petitioner was admitted under this category. It is stated in specific that for being considered as an unreserved candidate, the petitioner was required to be registered in the list of unreserved candidates, which he could not do so, as no separate counseling fee for the said purpose was deposited nor was the petitioner having the requisite demand draft of Rs.l0,000/- towards partial fee as per rule 7.0. Thus, claim of the petitioner as unreserved candidate was not liable to be considered and accordingly, the petitioner has rightly been denied admission as per the Examination Rules, 2010. 4. Shri Manoj Manav, learned counsel for the petitioner and Shri Vivek Patwa, learned Deputy Government Advocate appearing for the respondents made their respective submissions, which have been considered in the light of the material on record, including original proceedings of counseling which are made available by Shri B.M. Gupta, Nodal Officer (Counseling) and Dr. A.P.S. Chouhan, OIC of the case. 5. Undisputedly, the petitioner belongs to OBC category and is governed by the M.P. Ayurvedic Unani and Homeopathy under Graduate Entrance Examination Rules, 2010 (i.e. Examination Rules, 2010). He appeared in the entrance examination held in the year 2010 and secured 62 marks out of 150. He was placed at Merit No.314 in the reserved category and consolidated Merit No.888 in private colleges. It is all revealed in Annexure P-3. It is further an undisputed fact that the petitioner was allotted Pandjt Shivshaktilal Sharma College, Ratlam in the second round of counseling, which was not availed by him. Instead, he expressed his desire to opt to appear in the third round of counseling (this is admitted by the respondents in paragraph 2 of the reply). 6. According to the petitioner, he, at the time of reporting for third counseling, was having a separate demand draft for counseling of general candidates. He submitted an application to the Principal of Pandit Khushilal Sharma Government Ayurveda College, Bhopal that he is willing to appear in the counseling of general candidates alongwith counseling of OBC candidates. He was told by him (respondent No.4) that his name would be sent automatically for the counseling of general candidates and no separate application is required for the said purpose. The respondents did not call the petitioner for counseling of general candidates and, instead, admitted inferior students with lesser marks than the petitioner in the Government Dhanvantri Ayurvedic College, Ujjain. Various such illustrative cases are mentioned at page 43 to 50 of the writ petition, which have not been denied by the respondents. Defence of the respondents is that the petitioner did not change his candidature as an unreserved candidate. He was never registered in the list of unreserved candidates. Further, he did not deposit separate, counseling fee for the purpose. Defence of the respondents is that the petitioner did not change his candidature as an unreserved candidate. He was never registered in the list of unreserved candidates. Further, he did not deposit separate, counseling fee for the purpose. This being so, the petitioner was not considered as unreserved candidate. According to the respondents, the petitioner was required to be registered himself in the list of unreserved candidates, which he could not do as no separate counseling fee for the purpose was deposited nor was the petitioner having requisite demand draft of Rs.l0,000/- towards partial tuition fee as per rule 7.0. 7. In the above mentioned backdrop, we feel it appropriate to reproduce the following rules of Examination Rules, 2010, which come up for consideration in the present case: "4.0 Availability of seats: The seats available in BAMS/BUMS and BHMS course are shown college wise in table number 1 to 4.The sanctioned seats of Government Autonomous Ayurveda/Unani/Homoeopathic Medical Colleges and of private colleges shall be filled in accordance with reservation policy of State Government and shall be filled up through counseling by selected eligible candidates of PAHUT 2010 Entrance Examination. 5.0 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 belong to other backward classes (other than creamy layer) and remaining seats are available for unreserved category candidates in all the colleges. 7.0 Fees structure: Every candidate admitted in Government (Autonomous) Colleges shall have to pay fees regularly as shown in table number 5 and every candidate admitted in private colleges shall have to pay fees regularly as shown in table number 6. Candidates taking admission through counseling will have to deposit an amount of Rs.l0,000/- (Rupees Ten thousand only) in case of unreserved category and Rs.l,000/- (Rupees One thousand only) in case of reserved category (SC, ST and OBC) as a partial tuition fees by bank draft drawn in favour of Principal, Pandit Khushilal Sharma Government (Autonomous) Ayurveda College and Institute, Bhopal. If candidate does not take admission after allotment of a college in counseling for any reason partial tuition fee will not be refunded. If candidate does not take admission after allotment of a college in counseling for any reason partial tuition fee will not be refunded. Note: The benefit of Government schemes of reimbursement of fees and scholarships to the students admitted in to the Government Autonomous and private colleges under the Department, may be achieved as per the eligibility under the concerned rules of the Government. 8.4 Merit List: A combined merit list including the candidates belonging to unreserved category who have secured not less than 50% marks and the candidates belonging to reserved category who secured not less than 40% marks shall be declared for the admission into Government Autonomous Ayurveda/Unani Colleges. 9.0 Counseling: The allotment of seats shall be made to the candidates through counseling on the basis of personal appearances. The counseling committee will consist of – (i) Director, Indian System of Medicine and Homeopathy or his authorized representati ve. (ii) Director, Professional Examination Board or his representative. (iii) All Principals of the Ayurved/Unani and Homeopathy Autonomous Medical Colleges of Madhya Pradesh. (iv) Representative of reserved category not below the rank of Reader nominated by the State Government. 9.1 The programme for counseling shall be advertised in the leading newspapers of the State and outside State in time. The candidates shall appear in the counseling on the date published in the newspaper as per his/her order or merit. After first counseling the second counseling will be conducted for the remaining vacant seats. Counseling schedule in detail will be informed to all the candidates through Rojgar Nirman or newspapers of the State and out State. The schedule of counseling will be available on the website (http// dismh.nic.in) of Director, Indian System of Medicine and Homoeopathy. No call letters shall be sent for counseling process. 9.1.1 All the candidates then only be allowed to participate in the counseling after depositing a sum of Rs.500/- (Rupees Five hundred only) as counseling processing fees in the form of bank draft payable to "The Principal, Pandit Khushilal Sharma Government Ayurveda College and Institute, Bhopal". 9.6 The candidates or their authorized representative shall wait for their turn in the order of merit. 9.6 The candidates or their authorized representative shall wait for their turn in the order of merit. They shall be called in small groups of 10-20 for scrutiny i.e. verification of original documents and if found eligible, shall further be permitted for the counseling where they shall exercise their option for allotment of anyone of the available seats which shall be final and the same shall be allotted to them and the allotment letter shall be issued on payment of bank draft (as per rule 7). 9.8 In pursuance of order passed by Hon'ble Supreme Court in the case of MCI v. Madhu Singh, the time schedule for completion of the admission process for Ayurved/Homeopathy and Unani course has been finalised by the Government of India. The proposed time schedule is mentioned in rule 12. All claims of a candidate therefore, who due to any reason does not opt for any course in a college available at his/her turn as per merit shall be forfeited, however, the name of such candidate can be kept in the waiting list on a written request. Such a candidate may be considered in the subsequent counseling. 9.9 During the first counseling allotment of seats of Ayurved/Unani/ Homoeopathy colleges shall be done. If a candidate has already selected a seat in counseling, in that situation to appear in the next counseling after re-depositing a new bank draft. The amount of the bank draft deposited earlier will be confiscated. 9.11 Counseling shall be done on merit cum option basis according to the category in the following sequence: (A) ST category (B) SC category (C) OBC category (D) Unreserved category. 9.12 In case the eligible candidates to the extent of reservations in any category are not available, the vacant seats shall be filled up by making them available 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 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. (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 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. 9.13 If eligible candidates are not available for admission on vacant seats in MP, FF, PH and F class of any category, the such vacant seats shall be made available into Open (x) seats of the same category. Even if Open (x) eligible candidates are not available for admission on vacant seats of reserved category to the extent of reservation in any reserved category, the vacant seats shall be filled up by making them available in other categories as mentioned in rule 9.12. 9.14 A candidate belonging to ST/SC/OBC category, whose name also appear in the merit/waiting list of unreserved category beside the merit/waiting list of his/her own reserved category shall have an option during counseling to select the seat either from reserved category or unreserved category." 8. Main defence of the respondents, as reflected in the pleadings, is that the petitioner was an OBC candidate. He did not change his candidature as an unreserved candidate and was never registered in the list of unreserved candidates. He did not deposit separate counseling fee for the purpose. Therefore, he was not considered as an unreserved candidate. 9. We have quoted relevant rules in paragraph 7 above. There is no rule requiring a reserved candidate to change his candidature as an unreserved candidate. Further, there is no provision that he was required to be registered in the list of unreserved candidates. On the contrary, rule 8.4 of the Examination Rules, 2010 is specific that the authorities were required to prepare a combined merit list including the candidates belonging to unreserved category candidates who have secured not less than 50% marks and the candidates belonging to reserved category who secured not less than 40% marks. Such combined merit list after it's preparation, ought to have been declared for admission into Government Autonomous Ayurvedic and Unani Colleges. Such combined merit list after it's preparation, ought to have been declared for admission into Government Autonomous Ayurvedic and Unani Colleges. Rule 9.14 clearly provides that a candidate belonging to ST/SC/OBC categories, whose name also appears in the merit/waiting list of unreserved category, despite merit of his own reserved categories shall have an option during counseling to select seat either from reserved category or unreserved category. 10. Petitioner, who secured 42% marks in the entrance examination, ought to have found place in the combined merit list by virtue of rule 8.4 and further, ought to have been given an option by virtue of rule 9.14 (supra). It has been admitted during the course of arguments on behalf of the respondents that combined merit list, required mandatorily by virtue of rule 8.4, was not prepared and declaration of such list was not made at all. Absence of such combined merit list obviously deprived the petitioner from exercising his option available under rule 9.14. Respondents have, thus, acted in contravention of the aforesaid rules and have, thus, deprived the petitioner from exercising an option during counseling to select the seat in Government Autonomous Ayurved College under unreserved category. 11. Further contention on behalf of the respondents is that the petitioner did not appear in the counseling for unreserved category candidates. This contention stands refuted by the record of third counseling itself. In the record of third counseling dated 28.10.2010 of PAHUT, name of petitioner (i.e. Abhishek Dadarwal) is mentioned at Serial No.19. In the column opposite his name, it has been clearly mentioned that he was not willing to accept the available vacant seat in private college, but was desirous of exercising option under general category. The remark in Hindi is reproduced below: ^^miyC/k izkbZosV dkyst esa izos’k ugha pkfg,] tujy dsVsxjh ls** Remark contained in the official record clearly goes to show that the petitioner expressed his desire to exercise his right of option available to him, by virtue of rule 9.14. Thus, it is totally incorrect to say that the petitioner did not appear and did not intend to opt the seat under unreserved category. The petitioner has also placed on record Bank Demand Draft No.969929 dated 27.10.2010 for a sum of Rs.500/- drawn on State Bank of India, Service Branch, Bhopal for counseling fees. Respondents He not in a position to refute it. The petitioner has also placed on record Bank Demand Draft No.969929 dated 27.10.2010 for a sum of Rs.500/- drawn on State Bank of India, Service Branch, Bhopal for counseling fees. Respondents He not in a position to refute it. Thus, contention of respondents that the petitioner was not having fees of Rs.500/- for counseling is also equally incorrect. 12. Petitioner has secured 62 marks out of 150 in PAHUT and by virtue of rules 8.4 and 9.14 he was entitled to get admission on the seat meant for unreserved category in Government Autonomous Ayurveda Colleges as per his position on merits because it appears from the third counseling dated 28.10.2010 that the respondents have given admission to various general category candidates in the Government Ayurveda College who secured 61 or lesser marks out of 150 in the entrance examination. Petitioner having secured 62 marks in the entrance examination out of 150 marks had an option to seek admission in the Government Ayurveda College against unreserved category at his appropriate place. Had the respondents prepared a combined merit list under rule 8.4 and had allowed the petitioner to exercise his option under rule 9.14, he would have got admission in the Government Autonomous Dhanvantri Ayurveda College, Ujjain where general category candidates having 58 marks (Rishabha Jain), 54 marks (Mahendra Tiwari), 53 marks (Anshita A wadhiya), 51 marks (Aditi Sahu), 50 marks (Rashmina Sayyad), 49 marks (Sangram Singh), 48 marks (Tammana Pathan), 47 marks (Prashant Sharma), 46 marks (Archana Jain), 42 marks (Dhiraj Chaibe), 39 marks (Deepika Gupta), 37 marks (Bhavna Tiwari) and 37 marks (Jansher Alam Khan) are shown to have been admitted in the Government Ayurveda College, Ujjain against unreserved category. Petitioner, in view of rules 8.4 and 9.14 ought to have been considered before them for admission against a seat meant for unreserved category by virtue of aforesaid rules. This having not been done, the action of the respondents depriving thereby the petitioner of admission to Government Autonomous Dhanvantri Ayurveda College, Ujjain is totally illegal and arbitrary and is so held accordingly. 13. Officer on special duty from the Directorate of Indian Medical System and Homeopath has informed vide letter dated 21.3.2011 that no vacant seat is available in the recognized private Ayurved Colleges. 13. Officer on special duty from the Directorate of Indian Medical System and Homeopath has informed vide letter dated 21.3.2011 that no vacant seat is available in the recognized private Ayurved Colleges. This perhaps is no reason to deprive the petitioner of his legitimate right to have admission in Government Ayurveda College despite his meritorious position in the entrance examination. 14. Hon'ble Supreme Court of lndia in the case of Anil Kumar Gupta v. State of U.P. [ (1995)5 SCC 173 ], has directred for creation of 34 seats having regard to the facts and circumstances of the case. Likewise, in the case of Punjab Engineering College. Chandigarh v. Sanjay Gulati [ (1983)3 SCC 517 ], 17 additional vacancies for a particular academic year was directed to be made in accordance with merits on the basis of lists which were prepared for the previous academic year. 15. The apex Court has directed for admission of 50 students in the case of Ajay Hasia v. Khalid Mujib Sehravardi [ (1981)1 SCC 722 ], by making provision for allocation of additional seats. Addition of 30 seats for students was made in the case of State of Kerala v. Kumari T.P. Roshana [ (1979) 1 SCC 572 ]. 16. Petitioner is on quite better footing inasmuch as he, on the basis of his merits, was entitled to be admitted in the Government Ayurveda College against unreserved seat by virtue of rule 8.4 and 9.14. Opportunity under these rules was denied by the respondents by non-declaration of combined merit list and further by not providing him opportunity in the third counseling for general category candidates. Petitioner is an OBC candidate. An option has been provided to SC, ST and OBC candidate to select the seat meant for unreserved category if he secures not less than 40% marks in PAHUT according to his position in the combined merit list by virtue of rules 8.4 and 9.14. This privileged option has been snatched away from him for want of combined merit list and further by not allowing to participate in the third counseling for unreserved category candidates. This was a clear invasion on his rights available to him by virtue of rules 8.4 and 9.14 and such invasion cannot be permitted to go unnoticed. In this view of the matter, the writ petition is allowed on cost of Rs.l0,000/ (Rs. This was a clear invasion on his rights available to him by virtue of rules 8.4 and 9.14 and such invasion cannot be permitted to go unnoticed. In this view of the matter, the writ petition is allowed on cost of Rs.l0,000/ (Rs. Ten thousand), payable by the respondents to the petitioner within one month which may be recovered from the officers/employees who are found responsible for violation of rules 8.4 and 9.14 after due enquiry. Respondents are further directed to grant admission to the petitioner in the first year of BAMS Course 2010-11 in the Government Autonomous Dhanvantri Ayurveda College, Ujjain within one month from the date of order. If required, additional seat may be created for the purpose by issuing necessary orders/directions within the same period. Writ petition, accordingly, stands allowed in the aforesaid manner.