JUDGMENT & ORDER : Heard Mr. A. Bhowmik, learned counsel appearing for the petitioner as well as Mr. B.C. Das, learned Advocate General assisted by Mr. D.C. Nath, learned counsel appearing for the respondents No.1, 2 & 3 and Mr. P. Dutta, learned counsel appearing for the respondent No.4. 2. By means of this writ petition, the petitioner who is an aspirant to have admission in a medical college under Physically Handicapped [PH] category has urged this court for directing the respondents No.1, 2 & 3 for admitting her in the MBBS course in terms of the educational notification dated 28.06.2017 against the State quota seat. Earlier the petitioner filed a writ petition being W.P.(C) No.829 of 2017 which was disposed of, by the judgment and order dated 18.08.2017. Even though the said writ petition was dismissed observing that the petitioner could not confirm the eligibility criteria as she was unsuccessful to secure minimum qualifying marks 40th Percentile in the NEET, 2017. The eligibility criteria are admittedly as under: “1 Eligibility Criteria: The Central Board of Secondary Education will prepare an All India Merit List of successful candidates of NEET – 2017 on the basis of the eligibility criteria provided by the Medical Council of India and Dental Council of India as given in Graduate Medical Education Regulations-1997 issued under Indian Medical Council Act-1956 and BDS Course Regulations, 2007 under the Dentists Act, 1948. The eligibility criteria are as follows: (a) In order to be eligible for admission to MBBS/BDS Courses for a particular academic year, it shall be necessary for a candidate to obtain minimum of marks at 50th percentile in National Eligibility Cum Entrance Test to MBBS/BDS Courses held for the said academic year. However, in respect of candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, the minimum marks shall be at 40th percentile. In respect of candidates with locomotor disability of lower limbs terms of Clause 4(a) iv (of regulations), the minimum marks shall be at 45th percentile for UR-PH and 40th percentile for SC-PH, ST-PH & OBC-PH candidates. The percentile shall be determined on the basis of highest marks secured in the All India common merit list in National Eligibility Cum Entrance Test for admission to MBBS/BDS courses. The percentile shall be determined on the basis of highest marks secured in the All India common merit list in National Eligibility Cum Entrance Test for admission to MBBS/BDS courses. (b) Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility Cum Entrance Test held for any academic year for admission to MBBS/BDS Courses, the Central Government in consultation with Medical Council of India and Dental Council of India may at its discretion lower the minimum marks required for admission to MBBS/BDS Courses for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the said academic year only. (c) To be eligible for the admission to MBBS/BDS Courses, 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, Biology/Bio-technology at the Qualifying Examination as mentioned in Graduate Medical Education Regulations-1997 and BDS Course Regulations, 2007 and in addition must have come in the merit list of National Eligibility Cum Entrance Test for admission to MBBS/BDS Courses. In respect of the candidates belonging to the SC, ST and OBC category the marks obtained in Physics, Chemistry, Biology/Bio-technology taken in qualifying examination and competitive examination (Physics, Chemistry, Biology) be 40% marks instead of 50%. In respect of candidates with locomotor disability of lower limbs, the minimum of 45% marks for Gen-PH and 40% marks for SC-PH/ ST-PH/OBCPH are required. 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/BDS courses, he shall not be admitted to that course until he fulfils the eligibility criteria as specified above.” [Emphasis added] 3. It has been unambiguously observed in the said judgment and order dated 18.08.2017 [Annexure-12 to the writ petition] that the eligibility criteria as laid down in Chapter-6 of Information Bulletin is both for 15% of All India quota as well as for 85% of the State quota. It has been observed in the said judgment as under: “The State does not have any role or authority to lay down the eligibility criteria so far the admission of MBBS/BDS courses is concerned. It has been observed in the said judgment as under: “The State does not have any role or authority to lay down the eligibility criteria so far the admission of MBBS/BDS courses is concerned. The National Eligibility cum Entrance Test (UG)-2017 was visualized for the purpose that there shall not be any compromise regarding the eligibility criteria in any part of the country either by the Government Colleges or by the Private Colleges. Therefore, the contention of Mr. Bhowmik, learned counsel does not hold any substance and accordingly the same is rejected.” It has been further observed that the petitioner cannot be treated eligible for admission to MBBS/BDS courses as PH-SC as she did not get the minimum eligibility marks in the said NEET, 2017. Since the petitioner did not secure the eligibility criteria it was held by this court that the said writ petition was ‘devoid of merit’ and accordingly, the same was dismissed. But this court, before parting with the records, referred to a Clause in the Information Bulletin relating to relaxation of the eligibility criteria and observed that „if it is found that the candidates were not available in the category of the Physically Handicapped quota, the State Government shall not leave any seat unfilled and for that purpose the State may take steps to get relaxation of the Eligibility Criteria. If found, the petitioner was in the relaxed eligibility zone, her case, needless to say be considered for admission to the PH-HC category in the MBBS course.” It is the admitted position that no eligible PH-SC category or PH category candidate was found to allot seats from the State quota. 4. Mr. A. Bhowmik, learned counsel appearing for the petitioner has succinctly submitted that in the first round of counselling, 1(one) medical seat was available for ST-PH seat and the petitioner could not considered for admission against the said PH category seat as she is a SC-PH candidate. According to the petitioner, there were 4(four) PH seats in the first counselling. Out of those 4(four) seats, 2(two) were earmarked for UR-PH and 2(two) were earmarked for ST-PH as available from the seat matrix. According to the petitioner, there cannot be any reservation like ST-PH inasmuch as such reservation is not contemplated in the Rights of Persons with Disabilities Act, 2016. Mr. Out of those 4(four) seats, 2(two) were earmarked for UR-PH and 2(two) were earmarked for ST-PH as available from the seat matrix. According to the petitioner, there cannot be any reservation like ST-PH inasmuch as such reservation is not contemplated in the Rights of Persons with Disabilities Act, 2016. Mr. Bhowmik, learned counsel has submitted that Article 16(1) of the Constitution provides for reservation of the backward classes whereas the Article 16(4) of the Constitution enables the State to make necessary provision for such reservation. Thus, there is no statutory provision for making an amalgam of the reservation for PH with the reservation for backward classes, namely Scheduled Caste [ST] and Scheduled Tribe [ST] etc. On 28.08.2017, the petitioner appeared in the mop-up counselling and according to her, she had referred to the said observation of this court but the respondents No.1, 2 & 3 did not make any positive response. In this background, the petitioner has filed this writ petition for securing the relief as described above. Mr. Bhowmik, learned counsel appearing for the petitioner having referred to Section 34(2) of the Rights of Persons with Disabilities Act, 2016 has contended that where in any recruitment year any vacancy cannot be filled up due to non-availability of the suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled up by interchange among the 5(five) categories as provided under Section 34(1) of the said Act and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointing of a person, other than a person with disability. Mr. Bhowmik, learned counsel has submitted that even if no candidate from the PH category was found for admission on the basis of NEET-2017, such ‘seat’ shall be carried to the next admission year. According to Mr. Bhowmik, learned counsel that the respondents have followed an inherently flawed procedure causing serious detriment to the petitioner. In Para-20 of the writ petition, the petitioner has asserted that- “on 19.08.2017, the 2nd round counselling was held and thereafter on 26.08.2017 the respondents issued seat matrix for mop round counselling to be held on 28.08.2017. According to Mr. Bhowmik, learned counsel that the respondents have followed an inherently flawed procedure causing serious detriment to the petitioner. In Para-20 of the writ petition, the petitioner has asserted that- “on 19.08.2017, the 2nd round counselling was held and thereafter on 26.08.2017 the respondents issued seat matrix for mop round counselling to be held on 28.08.2017. In the seat matrix dated 26.08.2017 for mop round counselling it is clear that, the respondents again did not show any PH-category seats whereas as per the Para-8 of the judgment of this Hon’ble Court, the respondents were to wait for the availability of the eligible PH-category candidates in the mop-round of counselling. But, the same was not done.’ In the said backdrop, the present writ petition has been filed by the petitioner. 5. None of the respondents has filed the reply but they have urged this court to consider their submission on the basis of the records. True it is that Mr. D.C. Nath, learned counsel appearing for the respondents No.1,2 & 3 had submitted on 14.09.2017 that on the next date the respondents would categorically state why the respondents have not gone for relaxation of the eligibility criteria as mentioned in the Chapter-6 of Information Bulletin issued by the Secretary, National Eligibility-cum-Entrance Test Unit when the candidates in the Physically Handicapped [PH] category were not found eligible. The Information Bulletin provides as under: “(b) Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility Cum Entrance Test held for any academic year for admission to MBBS/BDS Courses, the Central Government in consultation with Medical Council of India and Dental Council of India may at its discretion lower the minimum marks required for admission to MBBS/BDS Courses for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the said academic year only.” In the order dated 14.09.2017, it has been recorded as under: “However, Mr. Nath, learned counsel by producing the records has submitted that immediately after the first counselling, the respondents had filled up all the posts earmarked for PH category candidates by way of exchange method. Nath, learned counsel by producing the records has submitted that immediately after the first counselling, the respondents had filled up all the posts earmarked for PH category candidates by way of exchange method. This Court by the judgment dated 18.08.2017 delivered in W.P.(C) No.892 of 2017 had occasion to observe as under: ‘....if it is found that the candidates were not available in the category of the Physically Handicapped quota, the State government shall not leave any seat unfilled and for that purpose the State may take steps to get relaxation of the Eligibility Criteria. If found, the petitioner was in the relaxed eligibility zone, her case, needless to say be considered for admission to the PH-SC category in the MBBS course.’ On the next date, Mr. Nath, learned counsel by obtaining a written instruction shall clarify the step taken by the respondents.” 6. The respondents produced the records along with a written instruction under File No.26(24)-DME/ESTT/LAW/2017. The written instruction under Note No.1 reads as under: “NOTE No.1 As per verbal instruction of the Ld. Addl. G.A., Sri Dilip Chandra Nath, the following short comments are given below for his kind perusal and take necessary action. The 1st Round Counselling was conducted on 20th & 21st July, 2017 for the State quota seats for MBBS/BDS course in RIMS, AGMC and TMC for the academic session 2017-18,. In the 1st round counselling 4(four) Nos. of seats were earmarked as PH of which 2 Nos. for UR category and 2 Nos. for S.T. category respectively for medical seats in AGMC & TMC. These counselling was conducted as per stipulated time laid down by the MCI. This is annexed hereto. In the 1st Round Counselling no eligible PH candidates were found so these seats remain vacant. But as per MCI guideline the last date for 2nd round counselling for the State quota seats of MBBS/BDS course are fixed on 19.08.2017 laid down by the MCI. In between both the round of counselling this department did not receive the verdict of the Hon’ble High Court of Tripura dated 18.08.2017 which was received on 28.08.2017. In this court order, it is mentioned that the Information Bulletin contains a clause relating to relaxation of the Eligibility Criteria. If it is found during the mopping up counselling, if it is found that the candidates were not available in the category of the Physically Handicapped quota. In this court order, it is mentioned that the Information Bulletin contains a clause relating to relaxation of the Eligibility Criteria. If it is found during the mopping up counselling, if it is found that the candidates were not available in the category of the Physically Handicapped quota. The State Government shall not leave any seat unfilled and for that purpose, the State may take steps to get relaxation of the Eligibility Criteria. If found, the petitioner was in the relaxed eligibility zone, her case, needless to say be considered for admission to the PH-SC category in the MBBS course. Due to late receipt of the order of the Hon’ble High Court on 28.08.2017 and the 2nd round counselling fixed on 19.08.2017 as per MCI guideline no time is left to take step by the Department and also considering the zone of consideration is not below the 40th percentile or 107 for reserved PH category candidate laid down by the CBSE, through NEET bulletin. As the last date of 2nd round counselling conducted on 19.08.2017 as per MCI guideline regarding the vacant seats for the PH candidates for different category, a file was processed to the competent authority for decision regarding distribution of vacant seats. The Director of S.T. Welfare Department had opined that 2(two) seats reserved for ST(PH) and 1 for ST (Ex-serviceman) may be distributed to the normal ST category candidates that is to in the parent category of seats as per merit list. Which may indicate in UR seats also and was done before receipt of the Court’s order as to complete the 2nd round counselling and there was no PH category was earmarked in that counselling and the subsequent Mop up round counselling. In fact in the Notification dated 16.07.2017 the qualification marks was not mentioned in details but it has clearly be mentioned in Para(A) of the said Notification that the eligibility and guideline for admission to MBBS/BDS courses would be available at the website of agmc.nin.in and tmc.nic.in the Educational Notification is annexed as Annexure-7 of the writ petition. It is fact that 4(four) PH seats were available in the counselling on 20.07.2017 and 21.07.2017 in both the medical college of the State but these 4 PH seats were reserved as UR(PH) & ST(PH) candidates. So, the petitioner belong to SC(PH) category where there was no seat earmarked for SC(PH) category. It is fact that 4(four) PH seats were available in the counselling on 20.07.2017 and 21.07.2017 in both the medical college of the State but these 4 PH seats were reserved as UR(PH) & ST(PH) candidates. So, the petitioner belong to SC(PH) category where there was no seat earmarked for SC(PH) category. It is necessary to mention here that in non-availability of ST/SC candidate in PG course the left out vacant reserved seats shall be filled up by the candidates form the common merit list, as per the decision form the Tribal Welfare Department, Govt. of Tripura. The copy of Note Sheet is annexed hereto. It is also mentioned here that the petitioner is not eligible for admission to MBBS/BDS seat as per eligibility criteria of NEET-UG-2017 published by CBSE and the last date of admission is 31st August, 2017 as per MCI guideline. Considering all the above statement the case of the petitioner may be dismissed.” 7. Mr. B.C. Das, learned Advocate General appearing for the respondents No.1,2 & 3 having referred to the communication under No.F.5(6)-DME/UG/Counseling/2017-18/Sub-I/3898-902 dated 14.09.2017 addressed to the Assistant Director General (Medical Education), Directorate General of Health Services, Government of India, Nirman Bhawan, New Delhi-110 108 has made an unequivocal statement that the State Government in terms of the judgment and order dated 18.08.2017 has requested the appropriate authority for taking the necessary steps for the SC-PH category for admission in the MBBS course and one number MBBS seat may be allotted in Agartala Government Medical College [AGMC in short] for admission in respect of Smt. Amrita Das. Mr. Das, learned Advocate General has further submitted that no infirmity could be shown by the petitioner and the petitioner does not have any substantive right to assert or to complain of any infringement. Moreover, as she could not secure the minimum eligibility criteria, she cannot complain of any infringement of right. On the contrary, in view of the earlier judgment she does not have any locus-standi to approach this court again. 8. Having appreciated the submissions made by the learned counsel appearing for the parties as well as on scrutinising the records so produced what has surfaced is that there were 13[thirteen] numbers MBBS seats at Regional Institute of Medical Sciences [RIMS in short] and 75 [seventy five] MBBS seats at AGMC available in the State quota. 8. Having appreciated the submissions made by the learned counsel appearing for the parties as well as on scrutinising the records so produced what has surfaced is that there were 13[thirteen] numbers MBBS seats at Regional Institute of Medical Sciences [RIMS in short] and 75 [seventy five] MBBS seats at AGMC available in the State quota. All those seats were verified to allow the seat in terms of the reservation rules to the various categories including the PH category and Ex-serviceman category. Thus, there were 46[forty six] seats under UR category [including 1(one) PH and 1(one) Ex-serviceman seats], 15 seats under SC category and 27 MBBS seats under ST category [including 1(one) PH and 1(one) Ex-serviceman] but there were no SC-PH seat available when the roster verification was carried out. In the first round of counselling conducted on 20th and 21st July, 2017 and in the 2nd round of counselling for distribution of vacant MBBS/BDS seats conducted on 19.08.2017 in terms of the Medical Council of India [the MCI in short] guidelines, 2 [two] numbers of MBBS seats [1(one) SC and 1 (one) ST] remained vacant in Tripura Medical College due to non-admission of the selected candidates and in mop-up round counselling on 28.08.2017, the last day as set up by the MCI those seats were considered and allotted. The respondents have candidly submitted that in view of the last date of admission set up by the MCI there was no scope for the State Government to take up further steps for relaxation of the eligibility criteria. The respondents have submitted that after the first round of counselling, it was observed that there was no UR-PH category and ST-PH candidate eligible for admission in the AGMC. Situated thus, for purpose of filling of those seats, there was consultation with the competent authority and it was decided that 2[two] seats, 1(one) reserved for ST-PH category and another for ST [Ex-serviceman category] may be allotted to the normal ST candidates as per the merit list. Accordingly, at the time of the 2nd round of counselling there was no PH seat available. The respondents have emphasised that as the petitioner was not an eligible candidate even under PH category, she could not be accommodated with admission for the MBBS course. They have reiterated that the petitioner was not called for the first counselling as she was not eligible for admission. The respondents have emphasised that as the petitioner was not an eligible candidate even under PH category, she could not be accommodated with admission for the MBBS course. They have reiterated that the petitioner was not called for the first counselling as she was not eligible for admission. This aspect of the matter has been observed in the judgment and order dated 18.08.2017 delivered in W.P.(C) No.897 of 2017. Since the petitioner did not have the minimum eligibility in terms of the Chapter-6 of the Information Bulletin issued by the Secretary, National Eligibility-cum-Entrance Test Unit for admission to MBBS/BDS course during the session 2017-2018, she cannot have any claim over those seats. There is no dispute that in Chapter-6, clause-1(b) of the Information Bulletin there is a provision that when the sufficient number of candidates in the respective categories failed to secure minimum marks as prescribed in the National Eligibility-cum-Entrance Test held for any academic year for admission to MBBS/BDS Courses, the Central Government in consultation with the Medical Council of India and Dental Council of India may in its discretion lower the minimum marks required for admission to MBBS/BDS Courses for candidates belonging to the respective categories and the criterion so lowered by the Central Government shall be applicable for the said academic year only. 9. Having regard to that clause, this court had observed that if no candidates from the PH category are available having the minimum eligibility criteria, the State Government shall take an initiative for relaxation of the minimum eligibility criteria. By the communication dated 14.09.2017 as placed in the File No.26(24)-DME/ESTT/LAW/2017, it appears that the State Government has taken the initiative much after the last date of admission. It is pertinent to observe that whether an initiative for relaxation would be made or not falls within the discretion of the Central Government and the Medical Council of India [MCI]. 10. Mr. Das, learned Advocate General has stated in response to a query from this court that no response from the Central Government has been received by the State as yet. Therefore, the petitioner cannot be admitted in the MBBS course as she could not secure the minimum eligibility criteria. 10. Mr. Das, learned Advocate General has stated in response to a query from this court that no response from the Central Government has been received by the State as yet. Therefore, the petitioner cannot be admitted in the MBBS course as she could not secure the minimum eligibility criteria. Notwithstanding what has been observed above by this court, this court is constrained to observe that the procedure that has been adopted by the State Government for reserving the seats for the physically handicapped category is wholly erroneous. There cannot be reservation within reservation. In future, the State Government shall follow the guidelines as laid down hereinafter: (i) By roster verification, the seats which are to be allotted for the PH category shall not be further categorized under ST, SC or the Ex-serviceman. There shall be a separate list for the eligible Physically Handicapped [PH] candidates and those candidates shall be adjusted against those available seats. If the persons who after the counselling is allotted for MBBS/BDS or any seats from the other courses against his/her category, the seats shall be adjusted from the seats allotted for UR, ST and SC category and for that purpose, candidates from the said categories shall be counselled and allotted first, subject to conforming the eligibility criteria. (ii) If it is found at the first counselling that no candidate has secured the eligibility criteria then the procedure, if permitted, shall be taken for relaxation of the minimum eligibility criteria. When the relaxation is denied or decided not to provide for the reasons as should be laid down in the records, then only the exchange method shall be applied. However, the petitioner did not challenge the allotment of seats in the appropriate time and now it is too late to reopen the entire controversy again for this purpose when all the seats are allotted following the method as reflected in the Note No.1 of the said file as produced before this court by the respondents No.1, 2 &3. But these guidelines are for future guidance so that the reservation for the PH candidates is not squandered in the manner as it has occurred this time. However, this court does not agree with Mr. Bhowmik, learned counsel appearing for the petitioner that Section 34(2) of the Rights of Persons with Disabilities Act, 2016 has any application for purpose of admission in the educational courses. However, this court does not agree with Mr. Bhowmik, learned counsel appearing for the petitioner that Section 34(2) of the Rights of Persons with Disabilities Act, 2016 has any application for purpose of admission in the educational courses. Hence, this court does not find any merit in this writ petition and accordingly, the same is dismissed. However, if the Central Government allotted an MBBS seat in terms of the communication dated 14.09.2017, the State Government may allot the said seat to the petitioner, if she is found eligible to have that seat in terms of the decision as contemplated. Needless to say that such consideration shall entirely depend on the decision taken of the Central Government in consultation with the MCI. Hence, this court does not venture to make any further observation in this regard. In terms of the above, the writ petition is dismissed. There shall be no order as to costs.