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2012 DIGILAW 522 (ORI)

Rajashree Nayak v. State of Orissa

2012-11-30

SANJU PANDA

body2012
JUDGMENT SANJU PANDA, J. - In this writ petition, the petitioner challenges the action of the Chairman, Joint Entrance Examination, Odisha, 2012 - opposite party No.2, in not giving her admission in MBBS course in Government Medical Colleges under Ex-Servicemen category (in short ESM category). 2. The facts leading to the present writ petition are as follows: The petitioner, as per the Information Brochure for admission into MBBS Course, 2012 applied under the heading of seats meant for Ex - Servicemen category. In free Government Medical Colleges of the State, 3% of total vacancy has been ear-marked and reserved for the aforesaid category. There are total 450 seats available in the Government Medical Colleges, out of that only 14 seats meant under the said reservation category. The petitioner filed her application along with the certificate, issued by Rajya Sainik Board, Odisha in the prescribed format, appeared the examination and also secured rank in the merit list. As per the merit list, the petitioner secured 897 rank under General Category and 15 under ESM category. The petitioner, on verification of the rank list found that the candidate, whose name was found place at SI. No.14 of ESM category was not eligible to take admission, since his father is in service and erroneously his name was reflected in the merit list under Ex-Servicemen category. One Rakesh Mohanty, whose position' was at SI.1 under Ex - Servicemen category, preferred to join in the General Category. Similarly, one Lipsa Tripathy and Ajaya Moharana, whose names were found place at SI. Nos.2 and 3 respectively have also taken admission in General category. Accordingly, the petitioner position came to SI. No.11 of the Ex-Servicemen category. Therefore, the opposite parties should have allowed the petitioner to take admission in the MBBS Course as per her rank in the merit list. However, the opposite parties have permitted the candidates, whose positions were below the petitioner to take admission under the aforesaid category ignoring the rank of the petitioner Being aggrieved by such elimination to take admission in MBBS Course, the petitioner made a representation to the concerned authorities ventilating her grievance and since no action - was taken thereon, she has approached this Court in the present writ petition. 3. 3. It is submitted by the learned counsel for the petitioner that the action of the opposite parties is erroneous, illegal for not allowing her to take admission in MBBS Course under Ex-Servicemen Category. It was learnt from reliable source that the opposite parties have given priority to others while considering allotment of seats under the aforesaid reserved category, though the allotment should have been made on the basis of merit list only. Therefore, the action of the opposite parties is not legal and liable to be interfered with. 4. A counter affidavit has been filed by the Medical Council of India-opposite party No.4 taking a stand that as per the Regulation formed on Graduate Medical Education, 1997, the methodology of selection of candidates and determination of merit for admission to MBBS Course amongst the candidates, who are otherwise eligible for admission to the course, is prescribed under Regulation-5. Regulation-5 is quoted hereunder as follows: "5. Selection to Students: (5) Procedure for selection to MBBS course shall be as follows: (i) In case of admission on the basis of qualifying examination under clause (1) based 'on merit, candidate' for admission to MBBS course must have passed in the subjects of Physics, Chemistry, Biology/Bio-technology and English individually and must, have obtained a minimum of 50% marks taken together in physics, chemistry and biology at the qualifying examination as mentioned in clause (2) of regulation 4. In respect of candidates belonging to scheduled castes, scheduled tribes or other backward classes, the marks obtained in physics, chemistry and biology-Bio-technology taken together in qualifying examination be 40% instead of 50% as above. (ii) In case of admission on the basis of competitive entrance examination under clause (2) and (4) of this regulation, a candidate must have passed in the subjects of physics, chemistry, biology/Bio-technology and English individually and must have obtained a minimum of 50% marks taken together in physics, chemistry and biology/Bio-technology at the qualifying examination as mentioned in clause (2) of regulation 4 and in addition must have come in the merit list prepared as a result of such competitive entrance examination by securing not less than 50% marks in physics, chemistry and biology/ Bio-technology taken together in the competitive examination. In respect of candidates belonging to scheduled castes, scheduled tribes or other backwards classes the marks obtained in physics, chemistry and biology/Bio-technology taken together in qualification examination and competitive entrance examination be 40% instead of 50% as stated above. Provided that a candidate who has appeared in the qualifying examination the result of which has not been declared he may be provisionally permitted to take up the competitive entrance examination and in case of selection for admission to the MBBS course, he shall not be admitted to that course until he fulfils the eligibility criteria under regulation 4. 5. In view of the aforesaid regulation, the merit of a candidate shall not be ignored in respective category and admission shall be made as per the position in the merit list in the common entrance test conducted by the authority. Further also, it was stated that the apex Court in the case of Ranjan Purohit v. Rajasthan University of Health Sciences, 2012 (8) SCC 71 held that admission in violation of Regulation of Medical Council of India is not permissible. The opposite party No.4 has also taken a stand that the apex Court has also fixed the time schedule for admission to the respective Medical Courses. In the case of Medical Council of India v. Madhu Singh and others, (2002) 7 SCC 258 , the time schedule has been fixed to 30th September as the last date for admission to MBBS/BDS courses. Therefore, the admission in all the Medical courses in the colleges/institutions of the Country are to be made within the said stipulated time within the annual intake capacity sanctioned for each Medical Colleges and no direction is permissible to be passed for admission of the student after the last date of admission for MBBS courses. So far as intake sanctioned capacity of the College is concerned, the same is contrary to Section 10 of the Act and Regulation as per the Indian Medical Council Act, 1956. In view of the principle laid down by the apex Court, the prayer of the petitioner being contrary to the statutory provision, the writ petition is not maintainable. However, admission has to be done on merit basis and if admission has been granted in violation of principle of merit, action against the authority may be taken. 6. In view of the principle laid down by the apex Court, the prayer of the petitioner being contrary to the statutory provision, the writ petition is not maintainable. However, admission has to be done on merit basis and if admission has been granted in violation of principle of merit, action against the authority may be taken. 6. Opposite party No.2, Chairman, Joint Entrance Examination, 2012, Odisha filed a counter affidavit admitting the fact that the petitioner was placed at SI. No.15 of the merit list and the candidates, who have placed in SI. Nos.1, 2, 3 and 14 though were selected under Ex-Servicemen reserve quota, but they preferred to take admission as against general category seats. Under the Ex-Servicemen reservation quota seat, only 13 numbers of seats are available and the petitioner's position came to 11. From the list furnished by the Rajya Sainik Board, Odisha on 27.6.2012 giving prioritization in respect of Ex-Servicemen category candidates of OJEE, 2012, it is found that out of 45 number of candidates attended the Board for medical stream and two candidates have been given priority - III, four candidates have been given priority-IV and 89 number of candidates have been given priority-VI. The said prioritization was made as per the procedure prescribed by the Ministry of Defence Government of India for Ex-Servicemen which was communicated vide their D.O. No.3547 AS (R) 94 dated 3.6.1994. Accordingly, the Government of Odisha, Industry Department vide order dated 8.7.2009 circulated the order regarding reservation of seats for children/widows of Ex-Servicemen who are the natives of Odisha. In the said order, it has been categorically mentioned that Prioritization Policy is to be adopted for admission to the seats reserved for the children of Ex-Servicemen as prescribed by the Ministry of Defence, Government of India in their letter dated 3.6.1994. The chart of prioritization is quoted below as under : "Priority-I Children/widows of Ex-Servicemen killed in action. Priority-II Children of Ex-Servicemen disabled in action. Priority-III Children/widows of Ex-Servicemen who died in peace time with death attributable to military service, Priority-IV Children of Ex-Servicemen disabled in peace time with disability attributable to military service. Priority-V Children of Ex-Servicemen who are in receipt of Nerve Gallantry Awards. Priority-II Children of Ex-Servicemen disabled in action. Priority-III Children/widows of Ex-Servicemen who died in peace time with death attributable to military service, Priority-IV Children of Ex-Servicemen disabled in peace time with disability attributable to military service. Priority-V Children of Ex-Servicemen who are in receipt of Nerve Gallantry Awards. (1) Param Vir Chakra (2) Ashok Chakra (3) Sarvottam Yudh Seva Medal (4) Maha Vir Chakra (5) Kirti Chakra (6) Uttam Yudh Seva Medal (7) Vir Chakra (8) Shaurya Chakra (9) Yudh Seva Medal (10) Sena, Nau Sena, Vayu Sena Medal (11) Mention-in-Des Priority-VI Children of Ex-Servicemen." 7. In view of that prioritization, the present petitioner's rank is 12 amongst the candidates of Priority-VI and admission has been given as per the priority basis and above the petitioner. More than four candidates in priority-VI are waiting for admission. Therefore, the allegation made by the petitioner is not correct. The candidates, who got higher priority, have been admitted first as per the procedure prescribed by the Ministry of Defence and the Government order dated 8.7.2009. Petitioner is very much aware about that and has also not impleaded the Rajya Sainik Board, Odisha, which is the necessary party and as such the writ petition has no merit. 8. Learned counsel for the opposite party No.2 submitted that as per the Information Brochure, in Clause-2.1.5 under the heading of General Information it was categorically stipulated that the candidates applying under Ex-Serviceman reserved category shall furnish a certificate in the prescribed format provided in this brochure as Appendix-IV at the time of document verification. The candidates have to report to Rajya Sainik Board on the schedule date for prioritization. The priorities will be notified in the OJEE-2012 website. The decision of this Board will be final and binding. In view of said information brochure, the petitioner is not entitled to take admission. 9. Learned counsel for the petitioner in reply to the stand taken by the opposite parties submitted that the apex Court in the case of ASHA v. PT. B.D. SHARMA UNIVERSITY OF HEALTH SCIENCES AND OTHERS, (2012) 7 Supreme Court Cases 389, while considering the admission into Medical Colleges/Education held that the criteria for selection has to be merit alone. Merit, fairness and transparency are the ethos of the process for admission to such courses. B.D. SHARMA UNIVERSITY OF HEALTH SCIENCES AND OTHERS, (2012) 7 Supreme Court Cases 389, while considering the admission into Medical Colleges/Education held that the criteria for selection has to be merit alone. Merit, fairness and transparency are the ethos of the process for admission to such courses. It will be travesty of the scheme formulated by the Supreme Court and duly notified by the States, if the Rule of Merit is defeated by inefficiency, inaccuracy or improper methods of admission. There cannot be any circumstance where the rule of merit can be compromised. From the facts of the present case, it is evident that merit has been a casualty. It is one of their primary obligations to see that a candidate of higher merit is not denied seat to the appropriate course and' college, as per his preference. No doubt the process of admissions is a cumbersome task for the authorities but that per se cannot be a ground for compromising merit. The authorities concerned are expected to perform certain functions, which must be performed in a fair and proper manner i.e. strictly in consonance with the relevant rules and regulations. Further, it was also held that admission after cut-off date of 30th September, the exceptional relief of, only in rarest of rare case and after 30th September can be given if (a) no fault is attributable to candidate in respect of the admission, (b) there is fault on the part of authorities and, (c) there is violation of the principles of equality and rule of merit. All these conditions are satisfied in present case except that candidate was at fault to a limited extent in the sense that she did not have required attendance in first year of non-preferred course (to which she was admitted), benefit o9f which she wanted transferred. Therefore, due to said default in attending required number of classes in her non-preferred course. The Court has allowed her to take admission in preferred course in the succeeding academic year, as she was wrongly denied admission under MBBS course. 10. Taking into consideration the facts and circumstances of the case, as narrated, it appears that the petitioner is the meritorious student and her rank is much higher than the candidates, who have taken admission in the MBBS course. 10. Taking into consideration the facts and circumstances of the case, as narrated, it appears that the petitioner is the meritorious student and her rank is much higher than the candidates, who have taken admission in the MBBS course. On the ground of prioritization, the Act and Regulation and the: stand of the Medical Council of India reveals that admission to MBBS/SDS, courses, the authority has to strictly adhere to rule of merit, inaccuracy, inefficiency and improper admissions process defeating Rule of Merit, the, candidate is only to prove illegal denial of admission. It is enough to prove that there has been an, error (intentional or otherwise). and-that consequently a candidate merit has been denied admission, It is not necessary to prove mala fides, misconduct and favouritism as strictly required in criminal cases., The apex Court further, reclarified the admission after closing date of, 15th September are not permissible and only Courts of contempt jurisdiction in rare and exceptional circumstances can permit the same by stating the reason thereof. Where admissions are arbitrary, contrary to judgments and illegal, disciplinary action should be initiated against erring officers. Students resorting to malpractice should pay compensation to students of merit, who were denied admission and students not entitled to such admission cannot continue on mere ground that they have put in a year or so. Such students cannot claim equity just because they have admitted on basis of interim orders of Court. Therefore, in case of admission disputer High Court directed to avoid giving interim orders. 11. In view of the above principles as settled by the apex Court, the present case is coming squarely under the said principle. The petitioner’s rank was 11 in the merit list under the Ex-Servicemen category. However, ignoring such merit list, the authorities have adopted a policy on the basis of prioritization procedure prescribed by the Ministry of Defence, Government of India for Ex-Servicemen, which was communicated vide D.O. No. 3547 AS (R) 94 dated 3.6.1994. The petitioner’s rank was 11 in the merit list under the Ex-Servicemen category. However, ignoring such merit list, the authorities have adopted a policy on the basis of prioritization procedure prescribed by the Ministry of Defence, Government of India for Ex-Servicemen, which was communicated vide D.O. No. 3547 AS (R) 94 dated 3.6.1994. The opposite parties have not produced the aforesaid D.O. No. 3547 AS (R) 94 dated 3.6.1994 which prescribed the procedure to be adopted in admission to Medical Courses ignoring the merit list, Since the Medical council of India Act and Regulation and the decision of the apex Court strictly directed the Authoritative to follow up and adhere the merit list while giving admission into MBBS/BDS Courses only and reservation within the reserved seat are also not permissible. Therefore, adopting another procedure ignoring the merit list by the opposite party Nos.2 and 3 is illegal and violative of the rules of merit for admission into MBBS Course. 12. Accordingly, the writ petition is allowed. The Chairman, Joint Entrance Examination, 2012, Odisha arid Director, Medical, Education and Training, Odisha-opposite party Nos.2 and 3 respectively are directed to give admission to the petitioner in MBBS course as per her rank under the category of Ex-Serviceman quota seat forthwith. Petition allowed.