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2013 DIGILAW 534 (GAU)

Miss Vidya S. v. State of Arunachal Pradesh

2013-08-06

A.K.GOEL, A.K.GOSWAMI

body2013
JUDGMENT A.K. Goswami, J 1. This Writ Appeal is presented against the Judgment and Order dated 31.08.2012 passed by the learned Single Judge dismissing the writ petition as not maintainable for not impleading all the 22 candidates who were in Category- 1 for being admitted to Medical Colleges in the MBBS course in respect of seats allotted by Government of India, for short, GOI seats. The appellant's father is an employee of the Government of Arunachal Pradesh. The appellant had passed Class-X and Class-XII examinations from Kerala. An Information Brochure was issued in respect of holding of Arunachal Pradesh Joint Entrance Examination (APJEE) to select candidates for nomination to the various technical and professional courses against the seats made available to the State of Arunachal Pradesh by the Government of India, the North Eastern Council, etc. The brochure lays down eligibility criteria and also contains instructions for filling up of the application form as well as distribution of seats for selection and nomination of candidates. On fulfilling the eligibility criteria, the candidates are to be placed in four categories- Category-I, Category -II, Category-III and Category-IV, on the criteria laid down in the brochure. Arunachal Pradesh Scheduled Tribe (APST) candidates including children of IAS/Central Government/State Government employees belonging to APST are placed in Category-I; children of non-APST State Government employees are placed in Category-II; children of employees of the all India Services, Central Government Organizations and Central Public Undertakings serving within the territory of Arunachal Pradesh are placed in Category-III and all others, not included in any of the above three categories with the condition that the candidate should have appeared/passed Class-X/XII or equivalent from any of the schools within Arunachal Pradesh and his/her parent(s) should have been residing in Arunachal Pradesh for the last three years or more are placed in Category-IV. The petitioner fulfilled the eligibility criteria and her father being a non-APST State Government employee, she was in Category-II. She applied for admission to the MBBS course and appeared in APJEE 2012. The examination was held on 02.06.2012 and the results were declared category-wise on 04.06.2012. She secured 7th rank amongst Category-II candidates, securing 338 marks. 2. On 15.06.2012 (Annexure-8 of the writ petition), the respondent no. 2 issued a notice inviting candidates only from Category-I from serial no. She applied for admission to the MBBS course and appeared in APJEE 2012. The examination was held on 02.06.2012 and the results were declared category-wise on 04.06.2012. She secured 7th rank amongst Category-II candidates, securing 338 marks. 2. On 15.06.2012 (Annexure-8 of the writ petition), the respondent no. 2 issued a notice inviting candidates only from Category-I from serial no. 1 to 34 for allotment of MBBS seats and inviting applications from them indicating their preference of colleges as per seats made available to the State during the last year. On 18.06.2012 (Annexure-9 of the writ petition), a list was published in the web site of the Directorate of Higher and Technical Education indicating number of seats already received/yet to be received in the different colleges in the country from the Government of India and the regional institutions. In the said list, it was mentioned that GOI seats are shared with all Categories as per reservation policy of the State Government and the regional seats are reserved for Category-I. Thereafter, another list (Annexure-10 of the writ petition) was published showing allotment of PCB group seats as per the minutes of the meeting held on 02.07.2012 which shows that 34 MBBS seats were allotted to 34 Category-I candidates. 3. It was pleaded in the writ petition that as per the Information Brochure, 80% of the seats could have been reserved in Category-I. However, instead of permissible 21 seats in respect of seats allotted by GOI, 22 seats have been illegally allotted to Category-I candidates resulting in one excess seat being given to Category-I. It was also pleaded that there was no mention in the Information Brochure that seats allotted by regional bodies and institutes could be allotted only to Category-I candidates and it was only on 18.06.2012, it came to be indicated that such seats would be reserved for Category-I candidates, and therefore, allotment of seats only to Category-I candidates in seats allotted by regional bodies and institutions numbering 14 is wholly impermissible in law. 4. Writ petition was filed by the petitioner impleading the candidates who were allotted seats in the regional colleges and institutions as respondent nos. 8 to 19 and the last candidate who was allotted GOI seat as respondent no. 7. All of them secured lesser marks than the writ petitioner. 5. In the affidavit filed on behalf of the respondent nos. Writ petition was filed by the petitioner impleading the candidates who were allotted seats in the regional colleges and institutions as respondent nos. 8 to 19 and the last candidate who was allotted GOI seat as respondent no. 7. All of them secured lesser marks than the writ petitioner. 5. In the affidavit filed on behalf of the respondent nos. 1 to 6, it was stated that Arunachal Pradesh is a 100% tribal State and an educationally backward State in comparison to other States of the country and even today, not a single Medical or Engineering College has been established in the State. The State receives seats for MBBS from the Government of India and also regional seats from Regional Institute of Medical Science, Imphal (RIMS, Imphal), North Eastern Indira Gandhi Regional Institute of Health and Medical Sciences, Shillong (NEIGRIHMS, Shillong), Assam Medical College, Dibrugarh, Assam, Agartala Government Medical College, Tripura and Regional Dental College, Guwahati. 14 MBBS and 3 BDS seats being regional seats are exclusively reserved for APST candidates. It is stated that till 02.07.2012, GOI seats had not been received and there was a prospect of regional seats having to be surrendered as date of admission was coming to a close and therefore, it was decided that candidates who opted for regional quota seats for MBBS under Category-I should be allotted such seats. 6. In the reply-affidavit filed by the petitioner, it is stated that to her knowledge there is no Rule reserving regional seats for APST candidates and that Arunachal Pradesh is not a 100% tribal State. It is reiterated that while 1 excess seat was allotted to Category-I candidate, instead of 3 seats, only 2 seats in respect of GOI seats were allotted to Category-II candidates. 7. An additional affidavit was filed by the respondent nos. 1 to 6 on 24.08.2012 stating that on 23.08.2012, the State received 24 seats for MBBS and 2 seats from BDS as GOI seats. In effect, there was reduction of 2 MBBS seats as earlier the said State used to receive 26 seats for MBBS. It is stated that regional seats are allotted by the States of Nagaland and Mizoram only to candidates of their States. In effect, there was reduction of 2 MBBS seats as earlier the said State used to receive 26 seats for MBBS. It is stated that regional seats are allotted by the States of Nagaland and Mizoram only to candidates of their States. Statements are also made that even in previous years, namely, 2010, 2011, it was published in the web site of the Directorate that regional seats are only meant for Category-I candidates and GOI seats are shared with all other categories. The State also disputed calculations made by the writ petitioner regarding excess allotment to Category-I and reduced allotment to Category-II. 8. In the affidavit filed by the respondent nos. 7 to 19, it is pleaded that as the writ petitioner did not pass Class-X and Class-XII examinations from any of the schools in Arunachal Pradesh, she was not even eligible to appear in APJEE. It is widely circulated in the web site of the Directorate that regional seats are exclusively reserved for Category-I giving details of allotment of seats for last three consecutive years beginning from 2010 to 2012. It is also stated that from the instruction of JEE in the State, only APST candidates were nominated for regional seats. 9. It is widely circulated in the web site of the Directorate that regional seats are exclusively reserved for Category-I giving details of allotment of seats for last three consecutive years beginning from 2010 to 2012. It is also stated that from the instruction of JEE in the State, only APST candidates were nominated for regional seats. 9. On the basis of the pleadings, the learned Single Judge framed the following questions for determination: (i) Whether there is any order reserving all the seats offered by the Regional bodies and Institutions in favour of AOST candidates in Category-I; (ii) If so, whether such order has been in consonant with constitutional dictum as well as directions rendered in that regard by the Apex Court of the country; (iii) Whether the Information Brochure indicates that seats offered by Regional Bodies are institutions would be reserved for APST candidates alone; (iv) If not, whether the petitioner was justified to concluding that all the regional seats would be filled up on the merit basis alone; (v) If the Information Brochure did not indicate that regional seats would be reserved, whether subsequent attempt has been made to clarify/add new conditions to the aforesaid Information Brochure regarding allocation of seats offered by Regional Bodies/ Institutions; (vi) Whether 100% reservation of regional seats in favour of APST candidates is permissible; (Vii) Whether there is violation of seats sharing arrangement in respect of seats, offered by GOI; (viii) Whether reservation of some of seats, offered by Regional Bodies and Institutions, in favour of APST candidates, could have been made on the facts and circumstances of the present case. Additionally, the following question was also formulated by the learned Single Judge: (a) Whether the proceeding in hand is bad for non-joinder of all the selected candidates, their number being 21 only." 10. The learned Single Judge, while dealing with question no. (i), opined that there was nothing on record to suggest that the regional seats are meant for APST candidates alone and at the same time, held that there was an order reserving all regional seats in favour of Category-I to the total exclusion of all other students in the State of Arunachal Pradesh. (i), opined that there was nothing on record to suggest that the regional seats are meant for APST candidates alone and at the same time, held that there was an order reserving all regional seats in favour of Category-I to the total exclusion of all other students in the State of Arunachal Pradesh. Holding that State needs to make a law in order to reserve certain percentage of seats in any educational institution in favour of students from particular community/communities and is required to make necessary order in terms of requirement of Articles 77 and 166 of the Constitution of India, the learned Single Judge decided question no. (ii) holding that there being no law in terms of Article 15(5) of the Constitution, Annexure-9 to the writ petition reserving all regional seats for APST candidates is a mere administrative fiat and it does not satisfy the constitutional requirement. Question no. (iii) was answered by holding that there is nothing in the Brochure to suggest that regional seats would be reserved only in favour of APST candidates and consequently, rendered a finding in question no. (iv) that the petitioner was justified in entertaining an impression that regional seats would be filled up on the basis of merit alone. Question no. (v) was answered by the learned Single Judge by holding that rules of the game had been changed by the order dated 18.06.2012 as the same had altered the terms and conditions of the Information Brochure. Question no. (vi) was not decided in terms of the question framed but it was recorded that the order reserving all regional seats in favour of APST candidates does not meet the constitutional requirements. According to the learned Single Judge, as only 21 seats could have been reserved for Category-I candidates in respect of GOI seats, there was violation of seat sharing arrangement and accordingly, question no. (vii) was decided in the affirmative. Considering the backwardness in all fronts and acknowledging that in the circumstances, the APST candidates of the State of Arunachal Pradesh would not be in a position to compete with their counterpart of the rest of the country, the learned Single Judge in question no. (viii) held that all the regional seats cannot be filled up on the basis of merit alone disregarding the interest of tribal students of the State and noting that the Supreme Court in Dr. (viii) held that all the regional seats cannot be filled up on the basis of merit alone disregarding the interest of tribal students of the State and noting that the Supreme Court in Dr. Pradeep Jain and Ors Vs. Union of India and Ors, reported in (1984) 3 SCC 654 had permitted reservation of 70% of seats, held that State could have enacted a law to accommodate 11 APST candidates against the regional seats. As out of 14 regional seats, 12 had already been allocated, the learned Single Judge expressed the view that the remaining 2 seats could be filled up from amongst the candidates in the other 3 categories as mentioned in the Information Brochure. 11. Taking note of the prayers as made in the writ petition, the learned Single Judge held that all the Category-I candidates numbering 34 were necessary parties to the proceeding whereas the writ petitioner had made only 21 out of them, who are allotted regional seats and the last amongst the candidate who was allotted GOI seat, as parties and as such the writ petition was not maintainable. Question no. (ix) was answered accordingly and the writ petition was dismissed. 12. We have heard Mr. P.D. Nair, learned counsel for the petitioner and Mr. A.M. Buzarbaruah, learned State Counsel appearing for respondent nos. 1 to 6. This Court by an order dated 17.09.2012 had granted liberty to the petitioner to take steps for service of notice upon respondent nos. 7 to 19 through the Controller of Examinations, Arunachal Pradesh State Council for Technical Education (Office of the Directorate of Higher and Technical Education) as well as through learned counsel, who appeared before the learned Single Judge. An affidavit dated 21.09.2012 was filed by the petitioner to demonstrate that steps were taken by the petitioner in accordance with the order dated 17.09.2012. There is no representation on behalf of the respondent nos. 7 to 19. 13. Mr. P.D. Nair, learned counsel for the appellant submits that the learned single Judge, while holding that the State of Arunachal Pradesh having not made any law for reservation of seats in favour of students from particular community/communities and that such reservation made by it in favour of APST candidates was clearly unconstitutional, erred in law in dismissing the writ petition on the ground of non-joinder of necessary parties. Learned counsel submits that the petitioner did not have any grievance with regard to 22 candidates who were selected for admission to GOI seats save and except respondent no. 7 who was given a GOI seat in excess of quota earmarked for GOI seats and therefore, when the writ appellant had made respondent no. 7 a party along with respondent nos. 8 to 19 who were given regional seats, dismissal of the writ petition on the ground of non-joinder of necessary parties, is bad in law. It is also submitted by him that there was no indication whatsoever in the Brochure that regional seats are reserved for Category-I candidates and in any view of the matter, even if it is held that State could have validly reserved such seats in favour of Category-I candidates, such reservation could not have been made without there being any disclosure to that effect in the Brochure and that too, after publication of the result. He submits that in absence of any stipulation in the Brochure that regional seats are reserved for Category-I candidates, necessarily it has to follow that the authorities were legally bound to allot the seats on the basis of merit. If seats had been allotted on the basis of merit, the petitioner would have secured admission, he contends. Accordingly, he submits that appropriate direction may be issued by this Court for admission of the petitioner in the 2012-2013 session, where, according to his instructions, two seats are available and in case such seat is not available, admission may be directed to be given for 2013-2014 session. He relies on the judgment rendered in the case of Bhawna Garg and Anr. Vs. University of Delhi and Ors., reported in AIR 2012 SC 3299 . 14. Mr. A. M. Buzarbaruah, learned State Counsel submits that though the writ petition was dismissed on the ground of non-joinder of necessary parties, findings and conclusions recorded by the learned Single Judge in question (i) to (viii) are not sustainable in law. He has contended that Article 15(5) of the Constitution has no application in the facts and circumstances of the case and the learned Single Judge was not correct in holding that in absence of a law reserving all regional seats for APST candidates, reservation and/or distribution of regional seats to APST candidates does not meet the requirement of Article 15(5) of the Constitution of India. Relying upon Pradeep Jain (Supra) it is contended by him that residence requirement for admission to a medical college cannot be construed to be unconstitutional. Placing reliance upon paragraph 5 of Dr. Dinesh Kumar and Ors. (II) Vs. Motilal Nehru Medical College and Ors., reported in (1986) 3 SCC 727 , it is submitted that it is permissible, in the facts and circumstances of the case, to allocate even more than 85% of the seats available to APST candidates. 15. He has submitted that in earlier years also regional seats were reserved for Category-I candidates and GOI seats were shared with the four categories and it is not that for the first time such scheme of allocation of seats was resorted to. The State of Nagaland and the State of Mizoram also follow the same norm in respect of allocation of regional seats. Referring to a note on the first page of the Information Brochure, learned counsel submits that it was specifically mentioned that all information and updates about the APJEE would be made available at the above-mentioned official website and the candidates were advised to visit the notified website for getting the updated information. Placing reliance on the Additional Affidavit-in-Opposition, the learned counsel submits that it was published in the website that regional seats are meant for Category-I and the GOI seats are shared with all categories and a wrong statement was made by the writ petitioner that such disclosure was made only on 18.06.2012. It is strenuously urged by him that only because criteria of allocation of regional seats was not mentioned in the Brochure, cannot lead to the conclusion that the regional seats would have to be allotted on the basis of merit, as had been contended by the learned counsel for the petitioner. The Brochure has to be read along with the updates in the website and not in isolation. 16. The learned counsel submits that the backwardness of the residents of the State of Arunachal Pradesh is both social and educational. The candidates belonging to States of North-eastern region including State of Arunachal Pradesh where there is no medical college form a separate class and reserving seats for such candidates will not violate any provision of the Constitution. 16. The learned counsel submits that the backwardness of the residents of the State of Arunachal Pradesh is both social and educational. The candidates belonging to States of North-eastern region including State of Arunachal Pradesh where there is no medical college form a separate class and reserving seats for such candidates will not violate any provision of the Constitution. It is legitimately expected by the State that there is a much higher degree of possibility of local Scheduled Tribe tribal candidates of the State of Arunachal Pradesh, after completing their medical education, coming back and serving the people than someone who has no roots in the soil of the State of Arunachal Pradesh. In absence of a medical college, the State has to make do with the few limited seats made available to it by the Central Government and some of the State Governments of the North-eastern region. The tribal Scheduled Tribe students of the State of Arunachal Pradesh, because of lack of exposure and woefully low level of educational development, cannot be expected to match their counterparts in the rest of the country to vie and complete in All India Entrance Examination. There is always the growing need of more doctors to improve the health-care sector and the State has to remain alive to the stark reality. It is also submitted by him that such allotment of seats was earlier made on the basis of decision taken by the selection committee. However, on 26.11.2012, a decision was taken by the State Cabinet that all seats of MBBS/BDS under NEC/Regional quota shall be reserved exclusively for the APST candidates only and such decision was published in the form of an order dated 26.11.2012. 17. The learned counsel, while contending that the writ petition was rightly dismissed for want of necessary parties, also submits that all the seats allotted for 2012 were filled-up. 18. We have heard the learned counsel for the parties and considered the materials on record. 19. There are number of States/Union Territories which do not have Medical/Dental Colleges of their own and in order to meet the requirements of these States/Union Territories, Central Government has created a central pool of MBBS/BDS seats for being allotted to such States/Union Territories. 18. We have heard the learned counsel for the parties and considered the materials on record. 19. There are number of States/Union Territories which do not have Medical/Dental Colleges of their own and in order to meet the requirements of these States/Union Territories, Central Government has created a central pool of MBBS/BDS seats for being allotted to such States/Union Territories. Many of the North-eastern States including State of Arunachal Pradesh do not have Medical/Dental Colleges and as such the Government of India makes available specified number of seats out of such pool to the State of Arunachal Pradesh. It also receives certain number of regional seats from the North-eastern States where there is Medical College/Dental College. The State of Arunachal Pradesh suffers from large scale social and economic backwardness and there is hardly scope for any dispute that the State lags behind most of the States of the country. It is in the background of the above considerations, in the Brochure, it is laid down that 80% of the GOI seats are to be distributed to Category-I candidates. It is also laid down that 12%, 4% and 4% of GOI seats are meant for Category-II, Category-III and Category-IV, respectively. The petitioner has not raised any issue with regard to distribution of GOI seats in the above manner. 20. Father of the writ appellant is a non-APST employee of the State of Arunachal Pradesh and she had passed her Class-X and Class-XII examinations from Kerala. She was eligible to apply for the seats allotted to the State of Arunachal Pradesh only because of her father being an employee of the Government of Arunachal Pradesh. 21. The Information Brochure did not indicate how the regional seats would be allocated. It is equally true that there was also no indication therein that such seats would be open seats to be filled only on the basis of merit. It is also to be noted that result of APJEE was to be declared Category-wise and not in the form of a common merit list. There is no dispute that in the previous years, regional seats were allotted to APST candidates. In the writ petition, there was no specific plea with regard to alleged violation of Article 15(5) emanating from such allotment and/or reservation in absence of any law. There is no dispute that in the previous years, regional seats were allotted to APST candidates. In the writ petition, there was no specific plea with regard to alleged violation of Article 15(5) emanating from such allotment and/or reservation in absence of any law. That the Information Brochure is not wholly exhaustive can be seen from the fact that the same required the candidates to visit the notified website at regular intervals for getting the updated information. It is the specific stand of the respondent nos. 1 to 6 in the Additional Affidavit-in-Opposition that in the official website it was displayed that the regional seats are meant for Category-I candidates and the writ petitioner had made a misleading statement that, for the first time, only on 18.06.2012, it was indicated that regional seats are for Category-I candidates. There is no denial to the said stand. In view of the above, we are of the opinion that the authorities had made it known well in advance that the regional seats are reserved for Category-I candidates. There is no basis, bearing in mind the purpose for which the seats are allotted to the State of Arunachal Pradesh, for the petitioner to harbour the notion that regional seats are open seats and would be allotted on the basis of merit, more so, when there is no combined merit list of all Categories. Allotment of all the regional seats on the basis of merit would have the effect of causing injustice to and disregarding interest of tribal student community of the State of Arunachal Pradesh. Assuming that the norm of distribution of GOI seats, which is not challenged by the petitioner, would also be applicable in respect of regional seats, 2(two) seats would have fallen in the share of Category-II. The petitioner's rank being 7th amongst Category-II candidates, she would have been out of contention for a seat. 22. Assuming that the norm of distribution of GOI seats, which is not challenged by the petitioner, would also be applicable in respect of regional seats, 2(two) seats would have fallen in the share of Category-II. The petitioner's rank being 7th amongst Category-II candidates, she would have been out of contention for a seat. 22. By the Constitution (Ninety-third Amendment) Act, 2005, Clause (5) was inserted in Article 15 of the Constitution which reads as under: 15(5) Nothing in this article or in sub-clause (g) of Clause (1) of Article 19 shall prevent the State for making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes insofar as such special provisions relate to their admission to the educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in Clause (1) of Article 30. 23. Article 15(5) of the Constitution makes reservation by the State for socially and educationally backward classes without the creamy year and for the Scheduled Castes and Scheduled Tribes permissible and thus removes the basis for finding reservations to be an unreasonable restriction in the freedom to select students only on the basis of merit with respect to all the seats in any educational institution including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions and such educational institutions would have to comply with the State mandated reservations through law. In the factual matrix of the case, when there is no Medical/Dental College in the State of Arunachal Pradesh, we are of the opinion that Article 15(5) is not attracted in the matter of allocation of GOI seats or regional seats. 24. In Pradeep Jain (Supra), the Apex Court had held that so far as admission to MBBS course is concerned, residence requirement in a State can be introduced as a condition for admission to the MBBS course. In Dinesh Kumar (II) (Supra), albeit in a different context, the Apex Court had directed that not less than 15% of the total number of seats in each Medical College or institution, without taking into account any reservation validly made, shall be filled on the basis of All India Entrance Examination. 25. In Dinesh Kumar (II) (Supra), albeit in a different context, the Apex Court had directed that not less than 15% of the total number of seats in each Medical College or institution, without taking into account any reservation validly made, shall be filled on the basis of All India Entrance Examination. 25. In this case, no issue was directly or even remotely raised with regard to the maximum number of seats that could have been allotted to APST candidates out of total number of seats received, i.e. the combined pool of GOI seats and regional seats and therefore, this Court refrains from expressing any opinion on this aspect of the matter. 26. A comparison of Annexure-6 (result-sheet) and Annexure-10 (allotment of seat) will go to show that the respondents 8 to 19 had secured more marks than Sonam Tsomu, Kimo Ori, Tao Pari, Subu Kobing, Kezang Dekey Kharma and Mom Hinda, who were allotted GOI Seat. Apart from that, respondent no. 8 had secured more marks than Dani Yakang, Pagi Ngomdir, Hage Duniya, Nyaba Jini and Tarak Chachu, who were allotted GOI Seat; respondent no. 9 had secured more marks than Hage Duniya, Nyaba Jini and Tarak Chachu; respondent nos. 10, 11 and 12 had secured more marks than Nyaba Jini; respondent nos. 13, 14 and 15 had secured more marks than Tarak Chachu. 27. It may be that allotment of regional seats was on the basis of notice dated 15.06.2012 (Annexure-8), which is also impugned in the writ petition. If the argument of the writ appellant is accepted and allocation of regional seats are set aside, the same will result in a situation where many less meritorious candidates in Category-I will be privileged to pursue MBBS course just because they were allotted GOI seats while more meritorious candidates who had opted for regional seats would be deprived of the same merely because of a fortuitous event, namely, choice or preference for a regional seat. In absence of such less meritorious candidates as party respondents, granting opportunity to them to have their say, in exercise of the powers under Article 226 of the Constitution of India, this Court could not have moulded the relief by cancelling their admissions to ensure that no injustice was caused to the more meritorious candidates. In absence of such less meritorious candidates as party respondents, granting opportunity to them to have their say, in exercise of the powers under Article 226 of the Constitution of India, this Court could not have moulded the relief by cancelling their admissions to ensure that no injustice was caused to the more meritorious candidates. That apart, having regard to the prayer made in the writ petition for setting aside the allotment list for admission to the 1st year MBBS course (Annexure-10 of the writ petition) containing the names of 34 candidates, we are in agreement with the learned Single Judge that all the 34 candidates are necessary parties. In view of the discussions above, we find no merit in this writ appeal and accordingly, the writ appeal is dismissed. No cost. Appeal dismissed