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Himachal Pradesh High Court · body

2018 DIGILAW 1759 (HP)

Tanuja Dogra v. National Institute of Technology

2018-10-01

CHANDER BHUSAN BAROWALIA, TARLOK SINGH CHAUHAN

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JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. The petitioner having been denied the seat in Full Time Institutional Fellowship (FTIP) in Ph.D. programme in the subject of Electronics and Communication Engineering has filed the instant petition for grant of following substantive reliefs: (i) Respondent No. 1 may kindly be directed to fill up all 8 seats allocated for Full Time institutional fellowship in Ph.D Programme in the subject of Electronics and Communication Engineering by dereserving the four sears, reserved of SC, ST and OBC candidates which are lying vacant for the current session or in alternatively treat the admission of Sh. Dilip Singh under reserved category, and allot the unreserved seat out of four to the petitioner. (ii) That further in alternative the respondent No. 1 may kindly be directed to admit the petitioner in Ph.D Programme in the subject of Electronics and Communication Engineering by settling and breaking the tie of marks between the petitioner and respondents No. 2 and 3 on the basis their respective age. 2. The information brochure with respect to Ph.D. admissions (Annexure P2) envisages three types of Ph.D. programmes (a) Full Time with Institutional Fellowship (FTIF), (b) Full Time Sponsored (FTS); and (c) Part Time Sponsored (PTS). The petitioner’s case falls under first category i.e. FTIF as per clause 3 of the information brochure. 3. In the information brochure, it is provided that the number of seats available in the Institute depends on the number of available research guides in the Institute, vacancies available with the guide and research infrastructure in the concerned Department/Centre. It is also provided that the admission of the candidates to Ph.D. programme would depend on the expertise available in a Department/Centre and the willingness of the candidate to work in the corresponding research areas. Lastly, it is provided that reservation would be as per the reservation policy of the Government of India. 4. It is not in dispute that there were eight seats available for Ph.D. under MHRD Fellowship Scheme out of which four seats were unreserved, whereas one seat each was reserved for Scheduled Castes and Scheduled Tribes respectively and the remaining two seats were reserved for OBC. 5. 4. It is not in dispute that there were eight seats available for Ph.D. under MHRD Fellowship Scheme out of which four seats were unreserved, whereas one seat each was reserved for Scheduled Castes and Scheduled Tribes respectively and the remaining two seats were reserved for OBC. 5. According to the respondent-Institute, the petitioner secured overall 6th position in the merit list and, therefore, could not be enrolled in the Ph.D. programme as one Dilip Singh who although belongs to the reserved category was alloted unreserved seat on the basis of his 1st position in the merit list. Further, according to the respondent-Institute, the petitioner was standing at 5th position in the merit list of unreserved category after excluding Ms. Amandeep Kaur, Ms.Anita Mudgal and Singh Maharana Pratap against the seat allocated for FTIF scheme and, therefore, could not have been appointed since only four seats were there in the open category. 6. Indubitably four seats falling in the reserved category are still available with the respondent Institution, but the justification for not filling up these seats by the respondent Institution is that as per the provisions of reservation policy of Government of India, the reserved category posts/seats whether it is in the recruitment process or in the admission process where sufficient number of candidates belonging to SC/ST/OBC are not available to fill up the vacancies reserved for them, the vacancies should not be filled by candidates belonging to other communities. This is so mentioned in para 21 of the reply, which reads as under: 21. That para No. 21 of writ petition is totally denied. As per the provisions of reservation policy of government of India the reserved category post/seats whether it is in the recruitment process or in the admission process, there is a well settled law that where sufficient number of candidates belonging to SC/ST/OBC are not available to fill up the vacancies reserved for them, the vacancies should not be filled by candidates not belonging to these communities. (Clause 6.5 of Annexure R7). In other words, there is a ban on dereservation of vacancies reserved for SCs, STs and OBCs in direct recruitment. 7. To say the least, the stand taken by the respondent Institution is fallacious for, it is more than settled that principles of reservation in matter of admissions to educational institutions is entirely different from those applicable to reservations in recruitment process. 8. 7. To say the least, the stand taken by the respondent Institution is fallacious for, it is more than settled that principles of reservation in matter of admissions to educational institutions is entirely different from those applicable to reservations in recruitment process. 8. With regards to admissions, an endeavour has always to be made to fill up seats at the earliest from the other eligible students especially when the candidates from the reserved category are not available. (Refer: P.V. Indiresan and others vs. Union of India, (2009) 7 SCC 300 ) 9. That apart, while the carry forward principle that is applicable in the matters of recruitment, the said principle is unknown to admission in the professional courses like medical, engineering, etc. as has been clearly held by the Hon’ble Supreme Court in Faiza Choudhary vs. State of Jammu and Kashmir and another, (2012) 10 SCC 149 , which reads thus: 14. A medical seat has life only in the year it falls, that too only till the cutoff date fixed by this Court i.e. 30th September in the respective year. Carry forward principle is unknown to the professional courses like medical, engineering, dental, etc. No rule or regulation has been brought to our knowledge conferring power on the Board to carry forward a vacant seat to a succeeding year. If the Board or the Court indulges in such an exercise, in the absence of any rule or regulation, that will be at the expense of other meritorious candidates waiting for admission in the succeeding years. 10. Above all, as per office memorandum dated 25.5.2012 (Annexure R6) annexed by the respondent Institution itself with the reply, it is clearly provided that only when OBC candidates (including Minorities covered within the quota) possessing the minimum eligibility marks/qualifying marks are not available in the OBC merit list, the OBC seats shall be converted into general category seats. The relevant observation reads thus: “(d) CEIs will have the discretion to fix minimum eligibility marks/qualifying marks separately for OBC Candidates eligible under 4.5% subquota (in case sufficient candidates are not available) and for the remaining 22.5% quota (i.e. 27% 4.5%) subject to the limits on the differential already mentioned above, and which are somewhere midway between those for SC/ST and the unreserved category. The minimum eligibility marks refers to the minimum marks a candidate is required to have in the last qualifying examination (for example,10+2 examination for admissions to a Bachelor’s degree programme or the graduation examination for admissions to a postgraduate programme). The qualifying marks refer to the minimum marks in an entrance examination. The seats for the Candidates belonging to the Central lists of SEBCs/OBCs are to be filled up on the basis of interse merit amongst them. The definition of interse merit is very clear and therefore, any attempt to determine the merit of SC/ST/OBC with reference to general merit list would go against the spirit of Hon’ble Supreme Court order. Only when OBC candidates (including Minorities covered within the quota) possessing the minimum eligibility marks/qualifying marks are not available in the OBC merit list the OBC seats shall be converted into general category seats. Similarly, the seats meant for OBC (Minority noncreamy layer) should not be diverted to other categories if eligible candidates are available.” 11. Therefore, once seat, even though falling to the share of the reserved category of OBC is available with the respondent Institution and candidate of the said category(ies) is not available, then obviously the respondent Institution was required to fill up the seats on the basis of merit from the open category in accordance with the aforesaid memorandum/ instructions as the principle of carry forward is not applicable to admission case. 12. The view taken by us is otherwise supported by the judgment rendered by the Division Bench of Tripura High Court in Bikash Sarkar vs. State of Tripura, 2015 SCC Online Tri 827 : AIR 2016 (NOC 548) 266. 13. For all the reasons stated above, the petition is allowed and the respondent Institution is directed to admit the petitioner in FTIF in Ph.D. programme in the subject of Electronics and Communication Engineering. 14. Since, the petitioner has now been directed to be admitted as aforesaid, therefore, all the other contentions and issues raised in the petition are only academic and, therefore, need not be adverted to. 15. The writ petition is disposed of in the aforesaid terms, leaving the parties to bear their own costs. Pending application(s), if any, also stands disposed of.