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2013 DIGILAW 179 (GAU)

Ayush Simon Choudhury (Minor) v. State of Tripura

2013-03-13

SUBHASIS TALAPATRA

body2013
JUDGMENT Subhasis Talapatra, J. 1. In response to the Notification dated 23.12.2011 as published in Dainik Sambad dated 24.12.2011 inviting application for admission through lottery if required for Class-I for both girls and boys for the academic year 2012-2013. In continuation to the said notification dated 23.11.2012 another notice under reference No. F. SB/2/Adm/2007-2008 was published in the notice board of Sishu Bihar H.S. School (Primary), the School concerned in this proceeding, on 24.12.2011. By the said notification dated 24.12.2011 it was informed that there would be intake of 72 (seventy two) students in Class-I and out of that 72 (seventy two) seats, 22 (twenty two) seats were reserved for Schedule Tribe candidates, 12 (twelve) seats for the Scheduled Caste candidates and 2 (two) seats were kept reserved for the physically handicapped candidates. The remaining 36 seats were earmarked for the Un-reserved category. The father of the petitioner in response to the said notice deposited the filed up application within the stipulated time and participated in the lottery on 31.01.2012. However, the petitioner was not given berth by way of lottery against the said 36 seats earmarked for the Un-reserved category. It is admitted that all the 12 (twelve) seats earmarked for the Scheduled Caste boys and girls were dully filled up but by the Notification dated 20.06.2012 under No. F. 2(26)-HM/SBHS/2010-2011 (Annexure-P3 to the writ petition) it was informed that 06 seats which were earmarked for the Scheduled Tribe boys and girls could not be filled up. A fresh lottery, therefore, would be conducted to fill up those seats. However, it was also informed that out of those 6 (six) seats 2 (two) seats would be filled up from the students belonging to the Scheduled Caste boys and girls. Later on, by the Notification dated 23.06.2012 under No. No. F. 2(26)-HM/SBHS/2010-2011 (Annexure-P4 to the writ petition) it was informed that the 3 boys and girls from the Un-reserved category and 2 (two) boys and girls from Scheduled Caste category had been selected for admission to Class-I against the seats initially reserved for boys and girls belonging to Scheduled Tribe category. 2. Being aggrieved by the said process of admission, the petitioner, a minor represented by his father approached this Court for interference and for ensuring his admission in Class-I in the academic year 2012-2013. 2. Being aggrieved by the said process of admission, the petitioner, a minor represented by his father approached this Court for interference and for ensuring his admission in Class-I in the academic year 2012-2013. As per Section 5 of the Tripura Scheduled Castes and Scheduled Tribes Reservation Act, 1991 (as amended) for admission in educational institution, 17% seats are to be reserved for the Scheduled Caste and in terms thereof out of 72 (seventy two) seats 12 (twelve) seats were reserved for the Scheduled Caste boys and girls for admission to Class-I of the said school. The 'quota' has been achieved inasmuch as the seats reserved for the Scheduled Caste boys and girls were filled up at the first phase of the admission. Therefore, the writ petition questioned whether, by earmarking another 2 (two) seats for the Scheduled Caste candidates, the respondents No. 1 to 4, the respondent No. 4 in particular has acted illegally as such action, according to the petitioner, trampled the constitutional vouchsafe. 3. Mr. A. Paul, learned counsel appearing for the petitioner emphatically submitted that by keeping 2 additional seats reserved for Scheduled Caste boys and girls for admission to Class-I the respondents No. 1 to 4 have exercised the purported 'exchange method' which has been declared by this Court as unsustainable within the constitutional scheme and thus the said action of the respondents is per se illegal and that resulted in deprivation of the petitioner in getting the admission to Class-I of that school. 4. Ms. A.S. Lodh, learned Addl. GA on instruction of the respondents No. 1 to 4 categorically stated that the 'exchange method' has not at all been applied in earmarking 2 additional seats for the Scheduled Caste boys and girls for admission to Class-I of the said school when the adequate number of boys and girls from the Scheduled Tribe community were not found. 5. Considering the nature of the dispute and the urgency attached thereto this Court has taken up this matter for final disposal at this stage. In Jagdish Singh Vs. Punjab Engineering College as reported in (2009) 7 SCC 300 the Apex Court in a similar situation directed as under: 3. We are told that in many of the Central educational institutions the seats, which are to be filled up by OBC candidates, are still remaining vacant. In Jagdish Singh Vs. Punjab Engineering College as reported in (2009) 7 SCC 300 the Apex Court in a similar situation directed as under: 3. We are told that in many of the Central educational institutions the seats, which are to be filled up by OBC candidates, are still remaining vacant. These institutions may endeavour to fill up these vacant seats by other eligible students at the earliest i.e. at least by the end of October, 2008, observing inter se merit of the candidates. All other rules and regulations regarding admissions shall be strictly followed. The application is disposed of accordingly. 6. As relied by Mr. A. Paul, learned counsel appearing for the petitioner in Suman Kr. Banik & Ors. Vs. State of Tripura in W.P. (C) No. 144 of 2011 this Court held that: 46. As the respondents failed, and failed miserably, to show that it is permissible, under the scheme of the sovereign legislation, i.e. SC and ST Reservation Act, to resort to exchange method and thereby allow admission of the candidates Scheduled Castes in the seats, which have been left vacant, from the reserved quota of the Scheduled Tribe candidates, there can be no escape from the conclusion, and this Court unhesitatingly holds, that the children of the writ petitioners are, under the law, entitled to be admitted into the schools, in question, in terms of the prayers made in this regard. 7. Following the said judgment, in Srija Saha Vs. State of Tripura as passed in W.P.(C) No. 348 of 2012 this Court further held by the order dated 23.11.2012 that: This Court has gone through the common judgment and order of this Court dated 03.02.2012, passed in W.P.(C) No. 144 of 2011, W.P.(C) No. 195 of 2011 and W.P.(C) No. 205 of 2011. According to this Court, the case in hand is fully covered by the earlier common judgment of this Court dated 03.02.2012. Thus, it is not necessary to discuss in details the points in issue in this case, as in earlier decision this Court has given the reasons for setting aside the Notifications impugned therein. Thus, it would be proper for this Court to pass a similar order. Thus, it is not necessary to discuss in details the points in issue in this case, as in earlier decision this Court has given the reasons for setting aside the Notifications impugned therein. Thus, it would be proper for this Court to pass a similar order. Accordingly, the instant writ petition is disposed of with a direction to the State-respondents to admit the present petitioner in the appropriate class for which she applied for, subject to she is otherwise entitled to be admitted. The entire exercise shall be completed within a period of 15 (fifteen) days form today. This Court is also of the view that admission by way of exchange method is not permissible. Considering the entire facts and circumstances, this Court is not quashing the admission of the private respondents so that their future academic career do not get disturbed. 8. It is not disputed that the respondents No. 1 to 4 in compliance to the said order dated 23.11.2012 as passed in W.P.(C) 348 of 2012 admitted the petitioner namely, Srija Saha in the said school. 9. Ms. A.S. Lodh, learned Addl. GA submitted that the academic session is coming to close and no further admission may be directed even on considering the welfare of the petitioner as a whole. 10. Mr. A. Paul, learned counsel appearing for the petitioner however, did not agree to such proposition and submitted that the petitioner is capable of adjusting the disadvantage that might follow for such belated admission. His right cannot be denied on that pretext. 11. While appreciating the rival contentions as projected for the parties, it appears that the 'exchange method' was not entirely applied for reserving 2 (two) seats out of the 6 (six) seats for the Scheduled Caste boys and girls for admission to Class-I but the respondents No. 1 to 4 in defiance to the provision of the said Reservation Act have earmarked 2 (two) seats for Scheduled Caste boys and girls for admission to Class-I and thus they have defied the constitutional scheme of the reservation. No reservation is permitted beyond its limit as prescribed. Reservation for appointment and admission is permissible in terms of the provisions as enabled by Article 16(4) of the Constitution of India which is exception to the equality clause for achieving the equitious equilibrium by providing special privilege to the disadvantaged class. No reservation is permitted beyond its limit as prescribed. Reservation for appointment and admission is permissible in terms of the provisions as enabled by Article 16(4) of the Constitution of India which is exception to the equality clause for achieving the equitious equilibrium by providing special privilege to the disadvantaged class. The respondents No. 1 to 4, the respondent No. 4 in particular by reserving additional 2 (two) seats for the Scheduled Caste boys and girls for admission to Class-I have definitely acted per contra the said constitutional scheme and the provisions of Section 5 of the said Reservation Act as stated. Therefore, admission of the Scheduled Caste boys and girls including the respondent No. 5 against the said 2 (two) additional reserved seats for the Scheduled Caste boys and girls for admission to Class-I of the said school cannot be sustained. However, considering the fact and circumstances, as unfolded in this petition, this Court is not inclined to quash the admission of the respondent No. 5 at the fag end of the academic session. Since no adverse decision against the respondent No. 5 has been taken, no formal notice is required to be issued. 12. As corollary to what has been observed and pointed out above, this Court is inclined to direct the respondents No. 1 to 4, the respondent No. 4 in particular, to admit the petitioner to Class-I in the academic session of 2012-2013 within a period 7 (seven) days from today if he is otherwise entitled to be admitted, in the said class. It is directed accordingly. The writ petition stands allowed to the extent as stated. A note of appreciation is required to be placed for Ms. A.S. Lodh, Addl. G.A. for initiative and assistance in disposing the writ petition. Petition dismissed