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2015 DIGILAW 432 (TRI)

Bidhan Bhowmik v. State of Tripura

2015-06-26

DEEPAK GUPTA, S.C.DAS

body2015
JUDGMENT : Deepak Gupta, .J. The Government of Tripura, Directorate of Medical Education issued an advertisement on 27th December, 2014 inviting applications for 12 seats in various post graduate courses as under: Sl. No. Subject/Discipline Category No. of seat Reserved for 01. MD(Forensic Medicine & Toxicology) SC 01 Open 02. MD(Community Medicine) UR 01 Open 03. MS(Surgery) ST 01 Open 04. MS(ENT) UR 01 Open 05. MD(Medicine) UR 01 Open 06. MS(Orthopaedic) ST 01 Open 07. MS(Obsteric & Gynecology) ST 01 Sponsored 08. MD(Padiatric) ST 01 Sponsored 09. MD(Anesthesiology) UR 01 Sponsored 10. MD(Medicine) UR 01 Sponsored 11. MD(Radio-diagnosis) UR 01 Sponsored 12. MS(Ophthalmology) UR 01 Sponsored There are two categories under which the posts are filled up. Open category and sponsored category. Open category is obviously means that any person who fulfills qualifications can apply whereas sponsored category refers to the in service candidates who are members of the Tripura Medical services. The in service candidates are called sponsored candidates. [2] The entrance examination for filling up the seats was held on 24th January, 2015. The petitioner and respondents Nos. 6 and 7 appeared as Scheduled Caste category candidates in the sponsored category. The petitioner, Dr. Bidhan Bhowmik scored 71 marks out of 100 and he held first position amongst Scheduled Caste sponsored category candidates and the 3rd position amongst all sponsored category candidates. Respondent No.6, Dr. Indrajit Mahishya Das obtained 55 marks and was at 16th position overall, 5th in the reserved category and 3rd amongst scheduled caste. Dr. Shimal Sarmar, respondent No.7 was 17th position overall, 6th in the reserved category and 4th amongst the scheduled caste. [3] The first round of counselling was held as per the schedule prescribed. The petitioner since he was number three in the overall merit chose to opt for the course of MS (Ophthalmology) seat which was meant for unreserved category candidates. Since he was higher in merit he was treated to be an unreserved category candidate and granted this seat. The petitioner duly submitted his joining report in the Department of Ophthalmology on 30.05.2015. [4] The second counselling was held but we are not concerned with the same. On 1st June, 2015 the Director of Medical Education, Government of Tripura issued another notification wherein it was mentioned that seats meant for Central quota were lying vacant and therefore, applications were invited for the following seats. Sl. [4] The second counselling was held but we are not concerned with the same. On 1st June, 2015 the Director of Medical Education, Government of Tripura issued another notification wherein it was mentioned that seats meant for Central quota were lying vacant and therefore, applications were invited for the following seats. Sl. No. Name of Discipline Number of seats Caste Category Sponsored/Open candidate 1. General Surgery 1(one) SC Sponsored 2. Community Medicine 1(one) UR Sponsored 3. Anesthesiology 1(one) ST Sponsored 4. ENT 1(one) UR Sponsored 5. Ophthalmology 1(one) ST Open 6. Psychiatry 1(one) UR Open 7. Microbiology 1(one) ST Open [5] According to the petitioner he appeared in the counselling at 11 am and submitted a written application that he was willing to give up his seat in the PG course in Ophthalmology and wanted to be treated as a Scheduled Caste candidate and opt for the General Surgery seat which was reserved for scheduled caste category candidate. The committee did not consider the case of the petitioner and the seat meant for general category was given to Dr. Indrajit Mahishya Das, respondent No.6. A note was added in the minutes of the 3rd round of counselling which reads as follows: “Note : After distribution of 1(one) PG seat in the discipline of MS(General Surgery) to 1(one) Sponsored Scheduled Caste(SC) candidate namely Dr. Indrajit Mahishya Das, Dr. Bidhan Bhowmik appeared in the Counselling and submitted orally that he is claiming the PG seat of MS(General Surgery) as a Scheduled Caste candidate and will surrender the PG seat of MS(Opthalmology) allotted to him in the 1st round of Counselling as an UR category of candidate. The Board considered his submission and observed that Dr. Bhowmik did not apply for change of his discipline well in time after publication of the advertisement for 3rd round of Counselling. As per MCI schedule fixed by the Hon’ble Supreme Court of India for admission in PG course for the academic year 2015-16 the last date of 3rd round Counselling is 4th June, 2015. In such circumstances if the claim of Drl. Bidhan Bhowmik is entertained there is no scope to fill up the PG seat of MS(Opthalmology) distributed in the 1st round Counselling. Ultimately 1(One) most valuable PG seat of MS(Opthalmology) of the State quota for Sponsored category will remain vacant and be lapsed for the academic year 2015-16. In such circumstances if the claim of Drl. Bidhan Bhowmik is entertained there is no scope to fill up the PG seat of MS(Opthalmology) distributed in the 1st round Counselling. Ultimately 1(One) most valuable PG seat of MS(Opthalmology) of the State quota for Sponsored category will remain vacant and be lapsed for the academic year 2015-16. This loss could not be compensated in any way, so, the Board could not accept the verbal claim of Dr. Bhowmik” [6] The petitioner by means of this writ petition challenges this action of the respondents and had originally impleaded only respondent No.6. But later on he impleaded Dr. Shimal Sarkar, respondent No.7 also because if the petitioner is permitted to take the seat meant for scheduled caste there would be one extra post which will have to go to unreserve category candidates and then respondent No.7 may have to lose his seat. [7] Here we may make reference to certain provisions of the Information Booklet-2015 circulated by the Directorate of Medical Education laying down the regulations in this regard. “5.6 The Candidate will have the right to choose any one of the available seats at her/his rank at that point of time and the same will be allotted to her/him. 5.7 The allotment of seats, once made will be firm and final. Change of Course/discipline/Institution is not permitted. Therefore, request for the same will not be entertained by the AGMC. 5.8 There may be more than one round of allotment. In that case, personal appearance also is necessary. 5.8.1. In the second round of allotment, if any, candidate who has been allotted a seat in the first round and had join the allotted Institution will be permitted the change of course/discipline/ Institution on the basis of her/ his merit position. On such reallocation the allotment made during first round shall stand automatically cancelled with immediate effect and the Candidate shall have no claim what so ever on the earlier allotment. In case he/she does not opt for reallocation due to any reason her/his original seat shall remain undisturbed.” We may also refer at this stage Regulation 19 of the regulation since an objection has been raised by one of the respondents that the petitioner is not eligible being overage. Regulation 19 reads as follows: “19. In case he/she does not opt for reallocation due to any reason her/his original seat shall remain undisturbed.” We may also refer at this stage Regulation 19 of the regulation since an objection has been raised by one of the respondents that the petitioner is not eligible being overage. Regulation 19 reads as follows: “19. Upper age limit for admission for PG Courses is 45 years (relax able by 5 years for ST/SC category candidates as per provisions of sub-clause (d) of clause 4 of the Tripura Sch. Caste and Sch. Tribe reservation Act, 1991” [8] A perusal of aforesaid regulation makes it amply clear that a candidate at the stage of counselling has the right to choose any available seat in accordance with his merit. Therefore, a person who is at Sl. No.1 of the merit will get the first choice and the seat of his choice will go to him. The candidate number two in merit in that category will have a choice of remaining vacant seats and so on. No person is permitted to change his choice in that round of counselling. In case there is more than one round of counselling then personal appearance is necessary in each round of counselling. In the second and subsequent round of counselling the candidate who has been allotted a course/discipline/institution in the first round and who has joined the allotted institutions will be permitted to change the course/discipline/institution on the basis of his merit position. If he is allotted a seat of his choice in the subsequent round of counselling then his admission in the first round of counselling shall automatically stand cancelled and the candidate losses any right to claim the seat which was he originally granted in the first round of counselling. However, in case he does not opt for re-allocation due to any reason his original seat remains unaffected. Therefore, the rule is very clear that in the round of counselling in which the candidate is granted a seat he cannot change his course, his discipline or his institution. Only in case a second round or third round of counselling is held that such a candidate has a fresh right to claim a seat of his choice on the basis of his merit in his category. Only in case a second round or third round of counselling is held that such a candidate has a fresh right to claim a seat of his choice on the basis of his merit in his category. [9] In the present case the petitioner had chosen a seat in ophthalmology and now after the Central quota seats were not claimed and remained vacant, there was vacant seat of general surgery earmarked for scheduled caste candidates. The petitioner was the most meritorious scheduled caste candidate and opted to get the seat. We see no reason why his option should not have been accepted. In the note it is mentioned that after distribution of one post graduate seat in the discipline of MS(General Surgery) to Dr. Indrajit Mahishya Das the petitioner appeared for counselling and orally submitted that he is claiming PG seat of MS(General Surgery). We are constrained to observe that this note is factually incorrect. We have verified the record and we find that before counselling actually started attendance of the candidates was marked and the petitioner has marked his attendance. He also submitted a written application. Therefore, he being the most meritorious should have been called first for counselling and definitely before the respondent No.6, Dr. Indrajit Mahishya Das. The committee totally disobeyed the mandate of regulation 5.8.1 in this regard. [10] The Board also came to the conclusion that Dr. Bidhan Bhowmik had not applied for change of his discipline well in time. We have gone through the regulations, the advertisements and nobody has been able to point out to us any stipulation that the application should be made on or before a particular time. It is for the State to decide whether in future in would be more advisable to fix a date and time in this regard. It appears to us that the Board was influenced by the fact that since the last date for counselling was 4th June, 2015 if claim of Dr. Bidhan Bhowmik was entertained the seat of MS(Ophthalmology) may lie vacant. We are not at all in agreement with the board in this regard. First of all in the advertisement for the counselling it should have been clearly mentioned that in case any candidate from the first two rounds of counselling gives up his seat then his seat would also be considered to be vacant for the purpose of counselling. We are not at all in agreement with the board in this regard. First of all in the advertisement for the counselling it should have been clearly mentioned that in case any candidate from the first two rounds of counselling gives up his seat then his seat would also be considered to be vacant for the purpose of counselling. We may also note that in the sponsored category one seat in community medicine was meant for unreserved category candidate. More than one candidate could have appeared for counselling and in case there was any other candidate from the open category he may have taken the seat in MS(Ophthalmology). [11] We are constrained to observe that senior Government officials who were members of the Board have made two false averments. (1) that Dr. Bidhan Bhowmik appeared after the seat had been allotted to Dr. Indrajit Mahishya Das and (2) that Dr. Bidhan Bhowmik has only made a oral request and not a written request. From the record both these statements are found to be factually incorrect. [12] On merits we are clearly of the view that the petitioner was entitled to change his seat and was entitled to claim the seat in General Surgery. On behalf of Dr. Indrajit Mahishya Das it has been contended that he will have no objection if he is given the seat in MS(Ophthalmology) or any other seat or even the seat in MD(Anesthesiology) which has been given to Dr. Shimal Sarkar, respondent No.7. [13] A preliminary objection has been raised by Sri J. Majunder that the petitioner is over age on the ground that he is more than 45 years of age. The petitioner belongs to the scheduled caste and as per regulation 19 quoted hereinabove there is relaxation of five years for reserved category candidates. We may point out that last year this very Bench had decided W.P(C) No.124 of 2014 and W.P(c) No. 125 of 2014 in which the petitioner herein was a private respondent. At that time also it was urged that the maximum age limit was 42 years. We may point out that last year this very Bench had decided W.P(C) No.124 of 2014 and W.P(c) No. 125 of 2014 in which the petitioner herein was a private respondent. At that time also it was urged that the maximum age limit was 42 years. We had referred to Section 4(1)(d) of the Tripura Scheduled Caste and Scheduled Tribes Reservation Act, 1991 and we had held as follows: “[8] On the other hand, Sri Somik Deb submits that in case of the candidates belong to the Scheduled Caste and Scheduled Tribe in terms of Section 4(1)(d) of the Tripura Scheduled Castes and Scheduled Tribes Reservation Act, 1991 there has to be a concession of 5(five) years over the prescribed maximum age limit for appointment to any service or post. Section 4(1)(d) of the Act reads as follows: “4.(1)(d). The members of the Scheduled Castes and the Scheduled Tribes shall be entitled to a concession of fine years over the prescribed maximum age limit for appointment to any service or post. [and also for admission to educational institutions and undergoing any kind of training]” The Act clearly provides that the member of Scheduled Castes and Scheduled Tribes shall be entitled to concession of five years over the maximum age limit for appointment to any service or post and also for admission to educational institutions and undergoing any kind of training. We are dealing here with the admission to the MD courses in the AGMC which is an educational institution and, therefore, Section 4(1)(d) would apply in the present case. This view is also supported by the last line of the corrigendum issued which clearly indicates that the State was conscious of this section and it was mentioned that the reserved category candidate would get relaxation in age. Therefore, we are of the view that the age limit would be 50 years under the open category for Scheduled Castes and Scheduled Tribe candidates and 47 years under the sponsored category for Scheduled Castes and Scheduled Tribes in service candidates.” This year the upper age limit has been changed from 42 to 45 and therefore, reserved category candidates up to the age of 50 can apply. [14] Another submission has been raised that the petitioner having taken admission as an open category candidate cannot revert back to the reserved category. This contention is also without any merit. [14] Another submission has been raised that the petitioner having taken admission as an open category candidate cannot revert back to the reserved category. This contention is also without any merit. We may point out that similar issue had been raised before us in W.P(C) No.237 of 2013 and W.P(c) No. 238 of 2013 where this very Bench on 31.07.2014 and 13.08.2014 as well as on 21.08.2013 had held as follows: “15. Whether candidates who belong to the reserved category, but get selected on their own merit should be deprived of their right to get a better choice of subject or college than their brethren who are less meritorious and get selected only on the basis of reservation is an issue which has been time and again argued before the Apex Court. This question has been repeatedly answered by the Apex Court by holding that a system has to be evolved whereby the merit inter se the reserved category candidates is also respected and those reserved category candidates who are lower in merit should not steal a march over the more meritorious reserved category candidates only for the reason that the more meritorious candidates have been adjusted against the general category seats. This principle has virtually evolved into a rule of law. 20. we are of the considered view that even if a meritorious reserved category candidate gets a preferred college on the basis of his being a reserved category candidate, no seat can be reduced from the quota of the concerned reserved category.” Therefore, this objection is also rejected. [15] Lastly, on behalf of the respondents it has been submitted that the Apex Court is seized of the matter and the Apex Court has fixed the schedule of admissions and the 3rd counseling is to end of 4th June, 2015 and last date of admission is on 10th June, 2015. The Apex Court after framing the time schedule held as follows: “ This chart is accepted by all. In view of the aforesaid, it is directed that it shall be treated as order of this Court fixing the time schedule and all the States shall obey it in letter and spirit. Learned counsel who are appearing for the States are requested to send a copy of the same to the concerned authorities of the State. Mr. In view of the aforesaid, it is directed that it shall be treated as order of this Court fixing the time schedule and all the States shall obey it in letter and spirit. Learned counsel who are appearing for the States are requested to send a copy of the same to the concerned authorities of the State. Mr. Gaurav Sharma, learned counsel appearing for the Medical Council of India, shall also send a copy of the order passed today by the appropriate process to the concerned authorities of the States by a forwarding letter so that there should be no deviation by any authority.” Thereafter another order has been passed by the Apex Court calling upon certain States to explain why the schedule has not been followed. It is urged on behalf of the respondents 6 and 7 that after 10th June, 2015 the petitioner cannot be permitted to change his course and the writ petition should therefore be rejected. [16] We have carefully considered the submission and have gone through the order of the Apex Court very carefully. We are aware that the order of the Apex Court is law and binding on all. However, what we find is that the Apex Court while treating this chart to be an order had directed all the States to obey it in letter and spirit. In the later part of the order it has been stated that there should be no deviation by any authority. We do not find anything in the order which in any manner affects the writ jurisdiction of the High Court. [17] Indeed, it would be travesty of justice if there is total violation of the law and regulations and the Court finds, as in the present case that the petitioner has been denied what was legally due to him but no relief can be granted because the final order is passed after 10th June, 2015. The power of judicial review of administrative action is part of the basic structure of the Constitution. Where there is a total illegality it is the duty of the Court to set it right. In the present case as we observed above the Board did not only act in violation of Regulation 5.8.1 but misstated facts in its minutes. The petitioner approached this Court at the earliest on 6th June, 2015 i.e. much before 10th June, 2015. Where there is a total illegality it is the duty of the Court to set it right. In the present case as we observed above the Board did not only act in violation of Regulation 5.8.1 but misstated facts in its minutes. The petitioner approached this Court at the earliest on 6th June, 2015 i.e. much before 10th June, 2015. Obviously, notice had to be issued to the affected parties and the matter is being decided within 20(twenty) days. We are of the considered view that the judgment of the Apex Court referred to by the respondents does not in any way take away the power of this Court to do justice to the citizens of the country and to ensure that the fundamental rights of any citizen are not violated. [18] In this view of the matter we are of the considered view that the petitioner would be entitled to the seat in General Surgery under the scheduled caste category and the respondent No.6 if he so chooses can take up the seat in Anesthesiology. As far as the seat in Ophthalmology is concerned that cannot be given to respondent No.7 because that seat now has to go to a open category candidate from the sponsored category since the petitioner has exercised his right as a scheduled caste category candidate. [19] In this view of the matter, we further direct that after giving the petitioner a seat in General Surgery and in case respondent no.6 takes a seat in Anesthesiology then the admission of respondent No.7 shall be cancelled and the seat in Ophthalmology may be offered to the next candidate in merit in the unreserved sponsored category. This be done on or before 30th June, 2015 failing which the seat shall remain vacant. In case, respondent No.6 does not accept the seat in Anesthesiology then respondent No.7 may be offered that seat. [20] Writ petition is disposed of in the aforesaid terms. No order as to costs.