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2011 DIGILAW 706 (GAU)

Kevisikho Iralu v. State of Nagaland

2011-08-24

P.K.MUSAHARY

body2011
JUDGMENT P.K. Musahary, J. 1. Twelve persons originally joined as Petitioners in this writ proceeding. Five of them namely Petitioners No. 5,6,7,9 and 12 had withdrawn from the proceeding with permission granted by the court on 26.7.2011 as they have No. more cause of action. On Respondents' side five persons on their application made in Civil Misc. Case No. 90(K) of 2011, were impleaded vide order dated 25.7.2011. 2. There is a backdrop in this case. Amongst the Naga tribes as many as 9 tribes have been declared as educationally and economically backward tribes. A cabinet decision was taken on 27.7.1998 providing 15% reservation for them in the matter of technical studies. Over and above this 15% reservation, the Respondent State has introduced 100% point roster system for allotment of institutes for the said Backward tribes vide a resolution passed by the State Council for Technical Education (SCTE) in its fifth meeting held on 5.11.2008. The State vide letter No. HTE/TE/1-25/05 dated 4.4.2011 conveyed its administrative approval for implementation of the said 100% point placement reservation system under State JEE with effect from 2011-2012. Thus it was inserted in the guidelines issued by the Govt. for 2011 JEE selection to Technical/MBBS or Allied Degree Courses. The Petitioners belong to General Scheduled Tribes of Nagaland while the Respondents belong to said Backward tribes of Nagaland. The Petitioners as well as the Respondents pursuant to a Notification for selection to undergo various technical and allied courses within and outside the State of Nagaland for the session 2011-12 appeared in the Joint Entrance Examination (JEE in short) conducted by the Nagaland Board of School Education, Kohima (NBSE in short) on 23rd and 24th May, 2011. Several hundred candidates sat for the said examination. The Petitioners opted for MBBS Degree Course as their first preference. Aggregate marks secured in Physics, Chemistry and Biology (PCB) is taken into account for selection in MBBS course. Merit list for PCB group of students was first published by the NBSE after giving opportunity to all candidates for verification of marks in each subject and thereafter the merit list published by NBSE is forwarded to the Technical Education Department for selection of candidates for undergoing study in various technical and allied courses as per merit list prepared by the NBSE. Thus in terms of merit list Technical Education Department notified the names of selected candidates for undergoing various technical courses within and outside the State of Nagaland. By Notification dated 29.6.2011, which was published in the local print media including Nagaland Post dated 30.6.2011. The provisional selection for various courses is made in anticipation of seats. Thus, altogether 46 candidates have been selected in MBBS Degree Course in terms of their merit list published by NBSE and Technical Education Department. The Petitioners secured aggregate marks in PCB in the JEE as under: Petitioners No. with name JEE Marks Merit Rank No.1. Kevisikho Iralu 416 10 No.2. Bokaho T. John Yeptho 383 14 No.3. Ito T. Yeptho 351 24 No.4. Mughaka Sumi 380 16 No.8. Wongthungo L Jami 348 25 No.10.Vikie-o Khruomo 409 11 No.11.Wangba Konyak W 346 26 No.13.Ms.Thejasenuo Zumu 396 12 No.14.Obenthung Odyuo 379 17 No.15.Thomas Mero 374 20 No.16.Ms.Benchumi Y. Humtsoe 320 39 No.17.Ms. Koneite-u Zhiemi 319 40 Respondents No. with name JEE Marks Merit Rank No.4. Mr. Chonggya B L 319 41 No.5 Ms. K Romila Chawang 313 44 No.6 Ms. Yizehfi Thupitor 305 48 No.7.Mr. Rukuzo Nyekha 303 49 No.8. Ms. Yinlong H Phom 300 51 No.9.Ms.Yingngam Wangnaolim 273 72 No.10 Tikehlila Sangtham 241 106 3. The State Government has reserved 15% of seats of BTs for technical studies subject to merit, availability of seats and availability of candidates from the said tribes. Pursuant to publication of JEE 2011 merit list by the NBSE, the Technical Education Department selected candidates to undergo various technical courses purely on the basis of the marks scored by the candidates in the JEE and their preference in technical courses. Thus, by the Notification dated 29.6.2011 the Technical Education Department published the names of candidates selected in the JEE for undergoing studies in various technical courses. As per the aforesaid Notification, 46 candidates were selected for the 46 MBBS seats for the session 2011-12. Out of 46 MBBS seats 39 seats are kept open to all i.e. General tribes and Backward tribes of Nagaland. For the above 39 General Seats, candidates from Backward tribes can also compete. Due to 15% reservation, 7 seats in the MBBS course have been reserved for the Backward Tribes out of total seats of 46. The private Respondents were selected against the said 15% seats reserved for Backward Tribes in MBBS course. 4. For the above 39 General Seats, candidates from Backward tribes can also compete. Due to 15% reservation, 7 seats in the MBBS course have been reserved for the Backward Tribes out of total seats of 46. The private Respondents were selected against the said 15% seats reserved for Backward Tribes in MBBS course. 4. Accordingly, the Petitioners as well as the private Respondents were selected for MBBS course. The serial numbers of selected MBBS candidates were arranged as per their merit rank in the JEE which was published by the Technical Education Department as indicated hereunder: Petitioners No. with name JEE Marks Merit Rank MBBS rank No.1. Kevisikho Iralu 416 10 10 No.2. Bokaho T.John Yeptho 383 14 14 No.3. Ito T. Yeptho 351 24 23 No.4. Mughaka Sumi 380 16 16 No.8. Wongthungo L Jami 348 25 24 No.10.Vikie-o Khruomo 409 11 11 No.11.Wangba Konyak W 346 26 25 No.13.Ms.Thejasenuo Zumu 396 12 12 No.14.Obenthung Odyuo 379 17 17 No.15.Thomas Mero 374 20 19 No.16.Ms.Benchumi Y. Humtsoe 320 39 38 No.17.Ms. Koneite-u Zhiemi 319 40 39 Respondents No. with name JEE Marks Merit Rank MBBS Rank No.4. Mr. Chonggya B L 319 41 40 No.5 Ms. K Romila Chawang 313 44 41 No.6 Ms. Yizehfi Thupitor 305 48 42 No.7.Mr. Rukuzo Nyekha 303 49 43 No.8. Ms. Yinlong H Phom 300 51 44 5. Mr. Iralu, learned Counsel for the Petitioners submits that as per the normal practice all over the country to which Nagaland State is not an exception, the choice of place of study/institution is to be made as per the merit position of the candidates. In other words, at the time of counselling the first option of choice of place of study/institution is first offered in terms of the merit rank, and thus, the candidate placed at merit rank No. 1 of the MBBS list would get the first opportunity of choosing his/her choice of place of study before the candidate placed at merit rank No. 2 of the MBBS list. Similarly, the candidate placed at Sl. No. 10 would get first preference of choosing his/her choice of place of study over the candidates placed below him. Following this sequence, the candidate placed at merit rank No. 38 and 39 of the MBBS list would get preference over those candidates placed below them, i.e. Respondent Nos. 4 to 10. 6. According to Mr. No. 10 would get first preference of choosing his/her choice of place of study over the candidates placed below him. Following this sequence, the candidate placed at merit rank No. 38 and 39 of the MBBS list would get preference over those candidates placed below them, i.e. Respondent Nos. 4 to 10. 6. According to Mr. Iralu, the Respondent authorities have violated the said accepted general procedure by way of introducing 100% Point Placement Reservation System with effect from 2011-2012 by which the merit positions of the Petitioners qua the Respondents Nos. 4 to 9 stand dislocated adversely affecting the Petitioners and causing prejudice to them. The adverse affect of the implementation of the 100% Point Placement Reservation, as worked out by the Petitioners, is as under: Petitioners No. JEE Merit Rank MBBS Rank By 100% Point No.1 10 10 11 No.2 14 14 15 No.3 24 23 26 No.4 16 16 18 No.8 25 24 27 No.10 11 11 12 No.11 26 25 28 No.13 12 12 13 No.14 17 17 19 No.15 20 19 21 No.16 39 38 44 No.17 40 39 45 Respondents No. JEE Merit Rank MBBS Rank By 100% Point No.4 41 40 10 No.5 44 41 16 No.6 48 42 22 No.7 49 43 28 No.8 51 44 34 No.9 72 45 40 No.10 106 46 46 No. change in respect of Petitioner No. 10. It is argued for the Petitioners that if the said 100% point placement is implemented, the candidate placed at rank No. 40 would be pulled up to rank No. 10 and he/she would get preference in opting for his/her choice of place of study/institute ahead of the Petitioner No. 1 whose original merit rank is at No. 10 but pulled down to rank No. 11. Similarly, the candidate placed at rank No. 41 in the MBBS list would be pushed up to Sl. No. 16 and he/she would get preference in opting place of choice/study ahead of the Petitioner No. 4 whose original merit rank is at No. 16. Following this sequence the Respondents No. 4 to 9 would get preference over the Petitioners No. 16 and 17 whose original merit rank in the MBBS list is at 38 and 39 but has been down graded to MBBS rank No. 44 and 45 respectively. 7. Following this sequence the Respondents No. 4 to 9 would get preference over the Petitioners No. 16 and 17 whose original merit rank in the MBBS list is at 38 and 39 but has been down graded to MBBS rank No. 44 and 45 respectively. 7. The Petitioners challenge this 100% point placement reservation system for 9 Backward Tribes of the State as introduced by the Respondent-authorities and the administrative approval dated 4.4.2011 issued for implementation of the same, on the following grounds: (i) By implementation of the impugned 100% Point Placement Reservation system the JEE merit list first prepared by the Nagaland Board of school Education/NBSE and the second merit list finally prepared by the Technical Education Department for various technical courses, have been nullified and made redundant making the duly prepared merit list meaningless and valueless. (ii) The resolution/decision of the State Council for Technical Education (SCTE) dated 5.11.08 has No. cabinet approval and the said resolution was not notified or published in the official gazette and newspaper or other media for information of general public although in the said resolution in paragraph VI (b) it is stated that "the amended guidelines are to be decimated for public information by necessary notification and wide publicity". These guidelines have never been publicized in any manner at any point of time. This fact is not denied by the Respondent authority. (iii) In the JEE Guidelines, 2011 under the general information Clause (vi) clearly indicated that for selection of places of study there will be 100% Point Placement Reservation System for the 9 backward tribes of the State wherever applicable. There is No. explanation as to when such system would be applicable. No. Notification/Office Memo and/or order giving effect to the 100% Point Placement Reservation System has been issued. (iv) A mere communication from State Govt. conveying administrative approval cannot legally authorise the Respondent authorities to implement the 100% Point Placement Reservation System unless it is shown that the State Cabinet has approved the said scheme/system. Such reservation for a class can be made only under Article 16 of the constitution of India. The State Council for Technical Education in Nagaland is only an advisory body having No. legal entity and as such it cannot pass such resolution. Such reservation for a class can be made only under Article 16 of the constitution of India. The State Council for Technical Education in Nagaland is only an advisory body having No. legal entity and as such it cannot pass such resolution. These grounds have been taken in Petitioners' rejoinder to the affidavit-in-opposition filed by Respondents No. 1, 2 and 3, and the contentions of the Petitioners have not been rebutted or denied by the Respondent-authorities. 8. It has been stated that the Petitioners No. 16 and 17 reported on the day of the first counselling on 8.7.2011 to opt either for RIMS, Imphal or NEIGRIHMS, Shillong as by that time seat allocation has already come from those two institutions but due to implementation of the impugned 100% point placement reservation, the Petitioners No. 16 and 17 would be deprived of the opportunity to opt for either of the said institutions. To this effect the aforesaid two Petitioners have filed affidavit-in-rejoinder to the additional affidavit filed by Respondent No. 1, 2 and 3. 9. The main ground for assailing 100% Point Placement Reservation System, as could be understood from the pleadings of the Petitioners, is that there is No. approval of the State Cabinet and as such it cannot be regarded as a public policy. Secondly, there is No. source of power for introducing such placement system and thirdly, the said system has provided double reservation for the Backward Tribes; one in the selection of seats and the other in the selection of institutions. 10. Regarding source of power for making a reservation for a class, Mr. Iralu, learned Counsel refers to Article 16(4) of the Constitution of India. He makes it clear that Petitioners are not against reservation of 15% seats for technical studies inasmuch as the said provision has been made to give opportunity to the Backward Tribes in availing chance to pursue technical studies. The Petitioners are challenging only the said 100% Point Placement Reservation System. It is his submission that except the State Legislature No. other body has power to lay down such reservation policy as per law settled in Union of India and Anr. v. Tulsi Ram Patel reported in (1985) 3 SCC 398 . In this regard reference has also been made to Neidilhou Angami and Ors.v. State of Nagaland and Ors. reported in 2009 (3) GLT 692. v. Tulsi Ram Patel reported in (1985) 3 SCC 398 . In this regard reference has also been made to Neidilhou Angami and Ors.v. State of Nagaland and Ors. reported in 2009 (3) GLT 692. In the case of Tulsi Ram Patel(supra) the Apex Court in paragraph 126 held that "....there cannot be No. exercise of power unless such power exist in law. If such power does not exist in law, the purported exercise of it would be an exercise of non-existent power and would be void. The exercise of a power is, therefore, always referable to the source of such power and must be considered in conjunction with it.....It is also well settled that when a source of power exists, the exercise of such power is referable only to that source and not to some other source under which were that power exercised, the exercise of such power would be invalid and without jurisdiction....".Therefore the administrative approval conveyed vide impugned letter dated 4.4.2011 providing 100% Point Placement Reservation System is totally out of context and the same is liable to be declared void ab initio. 11. The admission in Medical Colleges, as submitted by Mr. Iralu, should be based on merit position alone and there are catena of decisions rendered by the Apex Court. Special reference has been made by him to a decision in Dr. Jagadish Saran and Ors. v. Union of India, wherein the constitutionality of reservation of seats or quota for local candidates in professional courses was discussed and observed that "nothing succeeds like excess. Reservation begins as a mild remedy but becomes, unless leashed, a Frankenstein's Monster". In this regard, reference has also been made to the following cases-(i) Association of Management of Unaided Private Medical and Dental College v. Pravesh Niyantran Samiti and Ors. reported in (2005) 13 SCC 704 (ii) Muskan Dogra and Ors. v. State of Punjab and Ors. reported in (2005) 9 SCC 186 , (iii) Mridul Dhar (Minor) and another v. Union of India and Ors. reported in (2005) 2 SCC 65 ; and (iv) Sharwan Kumar etc. v. Director General of Health Services and Anr. reported in 1992 AIEC 482. 12. Mr. N M Jamir, learned Government Advocate appearing for the State Respondents No. 1, 2 and 3 makes the following submissions: (1). reported in (2005) 2 SCC 65 ; and (iv) Sharwan Kumar etc. v. Director General of Health Services and Anr. reported in 1992 AIEC 482. 12. Mr. N M Jamir, learned Government Advocate appearing for the State Respondents No. 1, 2 and 3 makes the following submissions: (1). The 100% placement reservation for the recognised 9 Backward tribes in the State of Nagaland has been adopted by the Respondent-authorities as a method for implementation of the 15% reservation under Backward Tribes Reserved Quota for technical studies which was decided by the State Cabinet on 7.7.1998 and it was intimated to the concerned authorities by the Cabinet Secretary by letter dated 27.7.1998. The placement policy is adopted for the first time from the current session 2011. In the past, the Backward tribe candidates could not avail the place for studies desired by them as they were compelled to accept the places left out by the General Category candidates. Therefore, after examining the matter in entirety, this placement policy has been adopted by the Respondents-authorities. (2). By adopting this placement policy the Respondent authorities have given an opportunity to the JEE selected candidates from Backward tribes to make an option/preference for the place of studies desired by them. In the current session of 2011 the total seats allocation of MBBS course for the Sate of Nagaland is 46 out of which 39 candidates were selected on General category and the remaining 7 candidates were selected from amongst the Backward tribes in accordance with the 15% reservation for Backward tribes. The selected candidates from Backward tribes have been placed at sl No. 40 to 46 of the MBBS list. (3). The placement policy is not a reservation within reservation as the policy is only a measure for implementation of the 15% BT reservation in true sense. It does not dislodge or dislocate the merit position of the MBBS list inasmuch as all the 46 selected candidates for MBBS seat shall get their admission in any of the medical college/institutions. The placement policy is adopted as a rule for implementation of 15% BT reservation by way of affording opportunity to the candidates selected against reserved Backward tribes quota. The placement policy is adopted as a rule for implementation of 15% BT reservation by way of affording opportunity to the candidates selected against reserved Backward tribes quota. By adopting this policy, the Backward tribes candidate at sl No. 40 is given an opportunity for placement of studies at sl No. 10 after 9 general candidates opted for placement and the Backward tribes candidate at sl No. 41 is given an opportunity for placement of studies at sl No. 15 after another 5 general candidates opted for placement, the Backward tribe candidate at sl No. 42 is given an opportunity for placement of studies at sl No. 22 after another 5 general candidates opted for placement, the Backward tribe candidate at sl No. 43 is given an opportunity for placement of studies at sl No. 28 after another 5 general candidates opted for placement, the BT candidate at sl No. 44 is given an opportunity for placement of studies at sl No. 34 after 5 general candidates opted for placement, the Backward tribes candidate at sl No. 45 is given an opportunity for placement of studies at sl No. 40 after another 5 general candidates opted for placement and the Backward tribe candidates at sl No. 46 shall remain same and opt for the last as indicated in Annexure-C to the writ petition. (4). For the current session 2011, the Sate of Nagaland has been allocated 46 MBBS seats against which 10 seats have been allocated at RIMS at Imphal, 8 seats at NEIGRIHMS at Shillong and the remaining 28 seats have been allocated by the Government of India in various medical colleges/institutions in the country. Therefore, all the 46 candidates for MBBS course will definitely get admission in any of the medical colleges/institutions. The placement policy is a balancing factor to give proportionate equality to the selected candidates against Backward tribes reserved quota for placement of studies. It does not take away any right of the candidates selected in General Category. (5). The Backward tribes candidates are from educationally and economically backward communities whose cases are required to be examined and considered in order to enable them to avail the opportunity enjoyed by the General category candidates. As such, this placement policy is adopted as a 'catch-up' measure to bring up the BT candidates up to certain level. (5). The Backward tribes candidates are from educationally and economically backward communities whose cases are required to be examined and considered in order to enable them to avail the opportunity enjoyed by the General category candidates. As such, this placement policy is adopted as a 'catch-up' measure to bring up the BT candidates up to certain level. For instance, in case of applying the merit list of MBBS candidates for placement of studies, all the 7 Backward tribes candidates who are listed from sl No. 40 to 46 shall have No. option to choose their desired place of studies as all the 39 General category candidates shall get first opportunity to opt for placement of studies and the said 7 Backward tribes candidates shall have No. option but to accept the left out colleges/institutions not preferred by the General category candidates. (6). The nomination for 10 seats at RIMS, Imphal and 8 seats at NEIGRIHMS, Shillong were issued to the selected candidates on 8.7.2011 before the instant writ petition was filed on 18.7.2011. As per the order dated 27.7.2011 passed by this Hon'ble Court, which has modified the interim order dated 18.7.2011, all the nominated candidates including Respondents No. 5,6,7 & 8 have already got admission in MBBS course at RIMS, Imphal and NEIGRIHMS, Shillong and they are attending the classes from 1.8.2011. None of the Petitioners have opted for MBBS seat at RIMS, Imphal and NEIGRIHMS, Shillong which is evident from the submissions of the learned Counsel for the Petitioners and reflected in the order dated 27.7.2011. To quote the same - "It has been submitted by Mr. R. Iralu, learned Counsel for the writ Petitioners that some of the writ Petitioners opted for admission in RIMS and NEIGRIHMS, but he is unable to say amongst the writ Petitioners, who have opted for which of these two institutions for their admission. It is verified from the writ petition that No. statement has been made regarding option of institutions made by the writ Petitioners". (7). To a great dismay, the Petitioners No. 16 and 17 on 29.7.2011 have sworn an affidavit stating that on 8.7.2011 they also attended the counselling for admission in RIMS and NEIGRIHMS. The Petitioner No. 16 and 17 have filed the affidavit after the interim order was modified by this Court on 27.7.2011. (7). To a great dismay, the Petitioners No. 16 and 17 on 29.7.2011 have sworn an affidavit stating that on 8.7.2011 they also attended the counselling for admission in RIMS and NEIGRIHMS. The Petitioner No. 16 and 17 have filed the affidavit after the interim order was modified by this Court on 27.7.2011. As such, the plea of the Petitioners No. 16 and 17 is only an afterthought and they have No. right to disturb the position of those students already admitted in RIMS and NEIGRIHMS in accordance with this Court's order dated 27.9.2011. (8). In the JEE 2011 merit list, the candidate at sl No. 18 does not belong to indigenous scheduled tribe of Nagaland and therefore, his name was struck off from the list. For this reason, when the Department of Technical Education prepared a list of indigenous scheduled tribes of Nagaland, the merit position from sl No. 19 onwards moved upward by one step. By this, the Respondent No. 5 was placed at sl No. 43 from 44, the Respondent No. 6 was placed at sl No. 47 from 48, the Respondent No. 7 was placed at sl No. 48 from 49 and the Respondent No. 8 was placed at sl No. 50 from51. The State Respondents have filed an affidavit on 16.8.2011 clarifying the matter. The Petitioners have No. right to question this action of the Respondent authorities. (9). The 9 recognised Backward tribes in the Sate of Nagaland are educationally and economically backward and most of them are from interior and far flung areas of the State for which they deserve special consideration until they reach a certain level of development, more particularly in the sphere of education. Therefore, unless this placement policy is given effect to and implemented, the 15% reservation for Backward tribes in technical studies shall not be achieved in true sense and reality. As such, there is No. illegality or arbitrariness in adopting this placement policy by the Respondent-authorities. 13. In support of the aforesaid argument and contention of the State Respondents the following decisions have been relied: (i) Nagraj v. Union of India and Ors. reported in (2006) 8 SCC 212 and (ii) Nair Service Society v. Dr. T. Beermasthan and Ors. reported in (2009) 5 SCC 545 . 14. Appearing on behalf of private Respondents No. 4 to 10, Mr. S.M. Ozukum, learned Counsel submits as follows: (1). reported in (2006) 8 SCC 212 and (ii) Nair Service Society v. Dr. T. Beermasthan and Ors. reported in (2009) 5 SCC 545 . 14. Appearing on behalf of private Respondents No. 4 to 10, Mr. S.M. Ozukum, learned Counsel submits as follows: (1). The private Respondent No. 4 Shri Chongya BL hails from Khiamiungan Tribe, the private Respondent No. 5 Smti Romila Chawang is from Zelonging or Zeliang Tribe, the private Respondent No. 6 Smti Yizehfi Thupitor is from Pochury Tribe, the private Respondent No. 7 Shri Rukuzo Nyekha is from Chakesang Tribe, the private Respondent No. 8 Smti Yinglong H. Phom is from Phom Tribe, the private Respondent No. 9 Smti Yingngam Wangnaolim is from Konyak Tribe and the private Respondent No. 10 Smti Tikehlila Sangtam is from Sangtam Tribe. The said Respondents belong to the Backward Tribe of the State of Nagaland and they are entitled to enjoy the benefit provided under by the State including the 15% reservation given to them for admission in technical education. (2). The Government had invited applications for the Joint Entrance Examination for admission in technical courses, including the MBBS course. Forms were issued in the first week of April, 2011 and the last date for submission of the application as mentioned in the information was on 3.5.11. Accordingly, the private Respondents applied and sat in the Joint Entrance Examination. Thereafter, results were declared by Notification dated 29.6.11(Annexure-A to the writ petition) and the Respondents were also selected for MBBS course, 2011-12. Their names appeared at sl. No. 40, 41, 42, 43, 44, 45 & 46 respectively. (3). In the said Notification, it is clearly mentioned that candidates who are interested for RIMS Imphal and NEIGRIHMS, Shillong are requested to report to the Directorate of Technical Education on 8th July,2011 at 12.00 noon and accordingly four of the Respondents reported at the venue as per the notification. The Respondent Nos. 5 and 6 opted for RIMS Imphal and Respondent No. 7 and 8 opted for NEIGRIHMS, Shillong. Thereafter, the Directorate of Technical Education nominated the said Respondents to the said institutions. The said Respondents have already joined the respective institutions. The nominations were made as per option given by the said Respondents as per the 100% point placement reservation policy of the Government. (4). Thereafter, the Directorate of Technical Education nominated the said Respondents to the said institutions. The said Respondents have already joined the respective institutions. The nominations were made as per option given by the said Respondents as per the 100% point placement reservation policy of the Government. (4). The guidelines for filling up the application for the Joint Entrance Examination was also attached to and supplied along with the application form. In the said Guidelines candidates have been asked to read the instructions carefully before filling up the application form. The said guidelines incorporated in Clause-vii under heading "General Information" which reads-"For selection of places of study there shall be 100% point placement reservation system for the 9 backward tribes of the state wherever applicable". Therefore, even before the candidates sat for the Joint Entrance Examination, the Directorate notified that there will be 100% point placement reservation for the 9 backward tribes of Nagaland. All the Petitioners were aware of the said placement on the basis of the reservation for the Backward Tribes even before they took the examination. Yet, none of the Petitioners agitated or questioned the 100% point placement reservation for the Backward Tribe. Therefore, at this stage, they are stopped from questioning the same. (5). The Respondents further submit that in the Notification dated 29.6.2011 by which result of the JEE was declared, it is clearly mentioned that candidates who wish to opt for RIMS Imphal and NEIGRIHMS Shillong should report on 8.7.11 at 12.00 noon and accordingly as stated above Respondents No. 5, 6, 7 & 8 reported at the Directorate of Technical Education. However, it is an admitted position that the Petitioners No. 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 13, 14 & 15 did not report to the Directorate. With regard to the Petitioners No. 16 & 17 there is nothing to show that they had reported to the directorate except their affidavit filed before this Court only on 29.7.2011 saying that they were present, which is nothing but an afterthought. Having not opted for the aforesaid institutions, the said Petitioners cannot, at this stage, turn around and question the admission of Respondents No. 5, 6, 7 & 8. The Petitioners first of all, is stopped from challenging the 100% point placement reservation as they were all aware of it even before they took the JEE. Having not opted for the aforesaid institutions, the said Petitioners cannot, at this stage, turn around and question the admission of Respondents No. 5, 6, 7 & 8. The Petitioners first of all, is stopped from challenging the 100% point placement reservation as they were all aware of it even before they took the JEE. Secondly since the Petitioners No. 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 13, 14 & 15 as well as Petitioners No. 16 and 17 who, as stated in the affidavit, did not opt for RIMS Imphal or NEIGRIHMS Shillong, are stopped from questioning the nomination of Respondents Nos. 5,6,7 & 8 for opting these institutions. In this regards, the learned Counsel refers to the principles laid down in Madanlal and Ors. v. the State of J and K and Ors. reported in (1995) 3 SCC 486 and Arun Deka (Dr) and Ors. v. The State of Assam and Ors. reported in 2006 (3) GLT 107. (6). The 100% point placement reservation system adopted by the Government is not reservation within reservation as it is sought to be portrayed by the Petitioners. In fact it is a continuation or culmination of the reservation policy for the Backward Tribes. The reservation for Backward Tribes itself is not under challenge in this petition. In earlier instances, the Backward Tribes selected in the JEE on the basis of the reservation policy were always placed at the bottom of the list as a result of which they got nomination to institutions which were rejected by all the candidates. This caused serious adverse consequences and in fact frustrated and defeated the reservation policy adopted for the uplift of the Backward Tribes. (7). The candidates from the Backward Tribes had always to go to institutions rejected by others. As such, the candidates from the Backward Tribe did not get quality education. Therefore, the "catch up" concept which is the intention behind all reservation policies could never be achieved. The 100% point placement reservation policy has ensured that the candidates from the Backward Tribes would also get opportunity to go to good institutions and get quality education and thereby ensuring overall uplift of the Backward Tribes. Such policy is in conformity with the provisions of Article 15(4) of the Constitution of India. 15. There is No. representation for the subsequently impleaded private Respondents No. 13 to 17. Such policy is in conformity with the provisions of Article 15(4) of the Constitution of India. 15. There is No. representation for the subsequently impleaded private Respondents No. 13 to 17. No. response has also been filed on their behalf. 16. In the course of argument, Mr. Iralu, learned Counsel submits that the Petitioners would be able to get admission in the MBBS course in any Institution outside the States of N.E. if the impugned placement policy is implemented in RIMS Imphal and NEIGRIHMS, Shillong and due to implementation of the impugned placement scheme the Petitioners are going to be deprived of placement in the said Institutions. The Petitioners are going to be deprived of placement in the State Institutions located in two States of N.E. and thereby they would be forced to take admission in the Institution outside the N.E. region against their option. The Petitioners are aggrieved because they have been compelled to take admission in other Institution and their parents, who are financially unsound, would face hardship in bearing the extra financial burden. Mr. Iralu, learned Counsel made a serious attempt to establish that the JEE guidelines of 2011 was prepared/printed only after 4.4.2011 and till 4.4.2011 the JEE guidelines 2011 was kept confidential and only on 12.7.2011 an informal note without signature of any authority was pasted on the notice board of the Technical Education Department. The said informal note runs as follows: "QUOTE-" ALLOTMENT of MBBS SEATS Through 100% point placement reservation where 15% of seats is reserved for the 9 recognised Backward Tribes of Nagaland" Whereas the first counselling was held on 08-07-2011 for nomination of candidates for MBBS course at RIMS, Imphal and NEIGRIHMS, Meghalya. This will show that nomination of Respondents No. 5, 6, 7 and 8 was preplanned and predetermined. The nomination was done in a hurry discretely, and therefore, the nomination in favour of the Respondents No. 5, 6, 7 and 8 was done wrongly. The nomination letters dated 8th July, 2011, at pages 17, 18, 25 and 26 of the Govt. Addl. Affidavit, categorically specified the Basis of selection as THROUGH JOINT ENTRANCE EXAMINATION and also indicated Merit Rank of the candidates in JEE. The glaring illegality in this is that the JEE Merit Rank as indicated in the Nomination letter is NOT the Nominated candidate. Addl. Affidavit, categorically specified the Basis of selection as THROUGH JOINT ENTRANCE EXAMINATION and also indicated Merit Rank of the candidates in JEE. The glaring illegality in this is that the JEE Merit Rank as indicated in the Nomination letter is NOT the Nominated candidate. The Merit List prepared and finalised by the Board and subsequent to its publication, authority has the power to chance the Merit List and merit position of the candidates. For some reasons, even if some candidates from the Merit List do not appear, there will be No. changed of the merit position/merit rank of the others. It cannot be upgraded or downgraded. The individual will continue to remain his first and original merit position/rank published by the Board till admission into Colleges. Marks secured by a candidate is the sole criteria of placing a candidate in a particular Merit position. The merit position is the sole criteria for selection to various technical courses. A difference of one or two marks judges the merit rank/position of the candidates. The Technical Education Department has No. authority whatsoever to alter/modify or change the Merit position which has been finalised and published by the Examination Board. 17. The accepted factual position that have emerged from the pleadings and submissions of the parties are that - (i) as many as 9 Naga Tribes have been declared as Backward Tribes. (ii) The State Government has provided 15% reservation for the State Backward Tribes in the matter of admission in the technical educational institutions. (iii) All the private Respondents belong to the Backward Tribes (iv) All the Petitioners as well as the private Respondents were selected in the JEE and they have been selected for admission in the MBBS course, 2011-12 as per their merit position. (v) The selection process is not challenged or questioned. (vi) The merit position of the Petitioners and the private Respondents as published by the NBSE and the Director Technical Education on the basis of merit is not challenged or questioned. (vii) The provision of 100% point placement reservation policy for Backward Tribes has been made by the Respondent-authorities without the cabinet approval. (viii) Due to implementation of the 100% point placement reservation policy, the merit position in the selection list has been altered and in the said process Petitioners' position have been placed below the respective position of the private Respondents. (viii) Due to implementation of the 100% point placement reservation policy, the merit position in the selection list has been altered and in the said process Petitioners' position have been placed below the respective position of the private Respondents. (ix) The process of counselling is going on and the admission in the MBBS course of 2011-12 would be completed by 31.8.2011. (x) The placement of the selected candidates for technical course would be made as per the aforesaid 100% point placement reservation and the selected candidates would be recommended for admission in the Institution as would be allotted by the counselling committee. If it is done so, the Petitioners would be deprived of getting admission in the Institution of their choice. 18. As per statements made by learned Counsel for the Petitioners, factual aspects of the matter are not disputed. Although, lengthy arguments were advanced by the learned Counsel for the parties, there is only one issue to be decided in this case. The sole and real issue is whether 100% point placement reservation is constitutionally and legally valid. I have gone through the various decisions referred to by the learned Counsel for the parties. So far the decision referred to by Mr. Iralu, learned Counsel for the Petitioners are concerned, they are broadly on the principle of reservation and admission of students in MBBS course on the basis of merit. The first case of Association of Management (supra) relates to demand for conduct of admission process and it has No. relevancy to the issue involved in the present case. The case of Muskan Dogra (supra) relates to admission of general category candidates against the faculty quota meant for the wards of the bonafide faculty members introduced by DMC Ludhiana. Mridul Dhar (supra) primarily relates to 15% seats of All India Quota of BDS course in Govt. Institute or State quota in private Institute. Therein it was held, amongst other, that merit determined by competitive examination should not be tinkered with by making provisions like grant of marks by mode of interview or any other mode. This case has a little effect on the present case, in so far as it relates to providing admission as per merit position. But it has No. relevancy at all so far it relates to placement of candidates after counselling to be made on the basis of 100% point reservation system. This case has a little effect on the present case, in so far as it relates to providing admission as per merit position. But it has No. relevancy at all so far it relates to placement of candidates after counselling to be made on the basis of 100% point reservation system. The case of Sharwan Kumar (supra) pertains to 15% All India quota and admission against the said quota in Medical and Dental Colleges where the Petitioners were found qualified but their ranks were not so high as to enable them to secure placement as per list announced. They were seeking admission in the seats remaining unfilled against the said 15% quota in various Institutions. The issue involved in the present case, therefore, not at all similar to the aforesaid case. The last case, Jagadish Saran (supra)pertains to rules reserving 70% of seats at the Post Graduate level of Delhi University Graduates and remaining 30% kept open to all including Graduates of Delhi. Due to the aforesaid Institutional reservation, the Petitioner, Medical Graduate from Madras University was refused admission in post Graduate Degree course. The issue raised in the present case is different and the law laid down in the said case cannot be made applicable to the present case. 19. The Petitioners' stand is very clear inasmuch as they have fairly said that they are not against 15% reservation for the Backward Tribes. This Court, therefore, is to examine only the legality and/or validity of 100% point placement reservation provided for the Backward Tribes. The source of power for adopting the aforesaid system is to be located and if the source of power is not traceable, the same would naturally be declared void and illegal. For making provision for reservation, the State has been given power under Article 15(4) and 16(4) of the Constitution of India. Both these Articles are included in the Part-III of the Constitution providing provision for right to equality. Article 15(4) empowers the State from making special provision for advancement of socially and educationally Backward Classes of citizens or for the Scheduled Castes and Scheduled Tribes. It reads as under: 15(4) Nothing in this Article or in Clause (2) of Article 29 shall prevent the Sate or making any special provision for the advancement of any socially and educationally Backward Classes of citizens or for the Scheduled Castes and Scheduled Tribes. It reads as under: 15(4) Nothing in this Article or in Clause (2) of Article 29 shall prevent the Sate or making any special provision for the advancement of any socially and educationally Backward Classes of citizens or for the Scheduled Castes and Scheduled Tribes. Similarly Article 15(5) also gives power to the State to make special provision, by enacting law for the advancement of socially and educationally Backward Classes of citizens or for the Scheduled Casts or Scheduled Tribes in so far as such special provisions relate to their admission to Educational Institutions including private educational institutions whether aided or unaided by the State, other than the minority educational institutions referred to any class(1) of Article 30. There is another provision under Article 16(4) which empowers the State to make provisions for reservation of appointments or posts in favour of any backward classes of citizens which, in the opinion of the State is not adequately represented in the services under the State. Both the provisions under Articles 15(4) and 16(4) are similar; former one being meant for social and educational development of Backward Classes and the latter being meant for adequate representation of Backward classes of citizens in employment. Article 15(4) is the appropriate provision under the existing scheme of the Constitution of India for taking necessary steps/measures by the State for social and educational uplift of the Backward Classes. Although the Respondent-authorities have not clearly mentioned that the provision for 15% reservation in the matter of admission in educational Institutions have been made under Article 15(4) and 16(4), there is No. difficulty in understanding that the said provision was made under Article 15(4). Thus, it can be said with certainty that the source of power for making the aforesaid provision lies with Article 15(4). 20. The pertinent critical question is in regard to source of power in making provision of 100% point placement reservation. The Respondent-authorities have not indicated under what source of power such provision has been made. Is it under Article 15(4) of the Constitution of India or other law enacted for the purpose. There is a substance in the submission of the learned Counsel for the Petitioner that if source of power cannot be disclosed by the State-Respondents the said special provision should be declared null and void. Is it under Article 15(4) of the Constitution of India or other law enacted for the purpose. There is a substance in the submission of the learned Counsel for the Petitioner that if source of power cannot be disclosed by the State-Respondents the said special provision should be declared null and void. Before making endeavour to trace the source of power, it is imperative to have a look at the rationale for making such provision by the Sate. In this regard, paragraph 8 of the counter affidavit filed by the Respondents No. 1, 2 and 3 may be read, wherein it is stated that system of 100% point placement reservation of Backward Tribes have been adopted as per resolution of the State council for technical education on 5.11.08 resolving to provide 15% reservation for Backward Tribes 100% point reservation system for allotment of Institutions. It is mentioned therein that the provision has been made to "protect and safeguard the interest of "upcoming generation". The said resolution has been annexed along with minutes of meeting of the State Council for technical education (SCTE) dated 5.11.2008. The extract of the relevant resolution under heading reservation policy and selection procedure for JEE is quoted hereunder: VI. Reservation Policy and selection procedure for Joint Entrance Examination. The conduct of the State Joint Entrance Examination (JEE) and selection of the candidates is amended as follows: a) The JEE will be conducted for candidates of i) Medical and allied and ii) Agri and allied courses. b) Candidates for Engineering and allied courses will be selected on the basis of ranking obtained in the AIEEE. c) Under the 15% reservation for backward tribes, 100% point roster system for allotment of Institutions will be maintained. d) The department is to initiate for a regular AIEEE centre in the State. e) The department is to provide guidance and counselling for all the JEE candidates at the appropriate time. f) The amended guidelines are to be decimated for public information by necessary notification and wide publicity. 21. Pursuant to this resolution, Clause (vi) has been incorporated in the JEE guidelines under general information about 100% point placement reservation system for 9 Backward Tribes wherever applicable. The Respondent authorities in another affidavit filed on 16.8.2011 made the following statements in paragraph 4 thereof as under: 4. 21. Pursuant to this resolution, Clause (vi) has been incorporated in the JEE guidelines under general information about 100% point placement reservation system for 9 Backward Tribes wherever applicable. The Respondent authorities in another affidavit filed on 16.8.2011 made the following statements in paragraph 4 thereof as under: 4. That on consideration of the education and economic position of the nine recognized backward tribes, the State Cabinet has taken a decision that "Regarding 15; reservation under Backward Tribe Quota for technical studies, it was decided that not more than one seat per tribe may be accommodated to any of the backward tribes in a single year out of the 15% reserved quota for Backward tribes as to provide opportunities for all backward tribes. This would however be subject to merit, availability of seats and candidates from the said tribes". The said decision of the State Cabinet was conveyed by the Cabinet Secretary by letter No. CAB-1/98 Dated 27.07.1998 to the concerned authorities. 22. In paragraph 6 of the aforesaid affidavit the State Respondents have further stated that "100% point placement policy for candidates selected as per 15% Backward Tribes reserved quota has been adopted by the Respondent authorities with a scope and object to achieve the meaning of reservation. The selected candidates from backward reservation quota shall always be in the bottom of the list as regard to placement for studies if the present placement policy is not implemented." To clarify the position better, the State Respondents in paragraph 7 of the aforesaid affidavit stated that the policy is "only for placement of studies by giving opportunity for the selected candidates on reserved Backward category. For instances, out of 10 MBBS seats allocation RIMS Imphal the selected candidates from reserved Backward quota should also get an opportunity to prefer/opt for placement of studies and likewise in the other Institutions where seats are allocated for studies of MBBS/Engineering and other allied courses. From the submissions made in the aforesaid two affidavits as mentioned above, the rationale behind making provisions for 100% point placement reservation for Backward Tribes is to ensure admission in technical Institutions with ultimate goal to bring the Backward Tribes at per with the other S.Ts of Nagaland in the sphere of social and educational advancement and thus to bring the entire tribes of Nagaland to the main stream of the country. The State is taking a view that mere 15% reservation in the selection of candidates from Backward Tribes would not serve the aforesaid purpose if 100% placement is not ensured to the Backward Tribes. Before making 100% point placement there was a precedent, as disclosed by the State Respondents that all the backward tribe candidates selected for technical education were put at the bottom of the selection list and they were given placement only after the general candidates are given placement on earlier occasions and therefore, there was always an uncertainty in the matter of placement of selected candidates from Backward Tribes. By making the present provision for 100% placement, the State is making endeavour to remove the aforesaid uncertainty and ensure placement of the Backward Tribes selected candidates in technical institutions. The 100% placement policy has a nexus with 14% reservation policy adopted by the Govt. for the Backward tribes in the matter of admission in educational institutions. Both the policies are connected with and complementary to each other. If the 100% point placement policy is abolished there would be always uncertainty in implementing the 14% admission reservation policy meant for the Backward Tribes. 23. In a recent judgment rendered by the Hon'ble Supreme Court in Gulshan Prakash and Ors. v. State of Haryana and Ors. reported in 2010 (1) SCC 477 , it has been held in clear terms that the principle behind Article 15(4) is that a preferential treatment can be given validly when the socially and educationally Backward Classes need it and this Article enables the State Govt. to make provision for upliftment of SCs and STs including reservation of seats for admission to educational institutions. Further it has been held therein that such special provisions may be made not only by the Legislature but also by the Executive. However the Apex Court also observed that when protective discrimination for promotion of equalisation is pleaded the burden is on the party who seeks to justify the ex facie deviation from equality and the reservation, as an exception may be justified subject to discharging the burden of proving the justification in favour of the class which must be educationally handicapped. In other words, the rationale behind reservation in the case of medical students must be removal of regional or class inadequacy or like disadvantage. In other words, the rationale behind reservation in the case of medical students must be removal of regional or class inadequacy or like disadvantage. In the light of the aforesaid judgment of the Apex Court I must come to a conclusion that the State of Nagaland have the power to make provision of 100% placement policy in the matter of admission of students from Backward Tribes in the technical education, either by way of enacting law/rules or by way of taking executive decision in the matter. Here in the present case, the State Respondents have adopted the 100% placement policy in question by taking Executive decision and such decision cannot be said to be illegal or void for want of source of power. In my considered view the State Respondents have been able to present and justify the rationale behind adopting such Executive policy. I am also of the considered view that by making statements in the affidavits and placing enough material documents, as discussed earlier, the State Respondents have been able to discharge their burden of prove with justification in taking the Executive decision of 100% placement policy in favour of the Backward Tribes in the matter of admission in technical education. The argument advanced by the learned Counsel for the Petitioners, for the above reasons, particularly in the light of the decision of the Apex Court in the aforesaid case, get faded. The Petitioners have failed to make out a case for interference with the impugned 100% point placement reservation policy for Backward Tribes for admission in educational institutions. This writ petition, accordingly, stands dismissed. No. costs. 24. The Registry shall furnish a copy of this judgment to Mr. N M Jamir, learned Govt. Advocate in the course of the day for onward transmission to the Respondent authorities. Petition dismissed.