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2020 DIGILAW 73 (RAJ)

Union of India v. Rahul Kumar Sharma

2020-01-07

NARENDRA SINGH DHADDHA, SABINA

body2020
ORDER : 1. Appellant has filed this appeal challenging the order dated 09.09.2019 passed by the learned Single Judge, whereby writ petition filed by the respondent No. 1 was allowed. 2. Learned counsel for the appellant has submitted that the respondent No. 1 had taken All India Ayurveda Post Graduation Entrance Test, 2019. Examination was conducted on 14.07.2019 and result was declared on 29.07.2019. Respondent No. 1 had filled in his form that he belonged to General Category. Since, respondent No. 1 could not get the seat in General Category as per his merit, thereafter, he filed the writ petition seeking admission in Economically Weaker Section (hereinafter referred to as "EWS") category. 3. Learned counsel for the appellant has further submitted that all admissions have already been completed by 30.11.2019. Learned Single Judge has erred in allowing the writ petition as the respondent No. 1 had taken the examination in General Category. Thereafter, on declaration of the result, respondent No. 1 could not change his category. Moreover, appellant had no infrastructure to create extra seats to accommodate the persons belonging to EWS category. Although, as per Annexure-R1, office memorandum had been issued by Government of India, Ministry of Human Resource Development Department of Higher Education on 17.01.2019 that scheme for implementing the reservation for the EWS shall be displayed on the website of the institution as soon as possible, but no later than 31.03.2019. However, in the absence of the requisite infrastructure and finances so far, it was not possible for the appellant to create extra seats to accommodate persons belonging to EWS category. 4. In support of his arguments, learned counsel has placed reliance on the judgment of the Hon'ble Supreme Court in (2010) 12 SCC 756 in case of Manish Kumar Shahi Vs. State of Bihar and Others, wherein it was held as under:- "16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the judgments in Madan Lal v. State of J & K, Marripati Nagaraja v. Govt. of A.P., Dhananjay Malik v. State of Uttaranchal, Amlan Jyoti Borooah v. State of Assam and K.A. Nagamani v. Indian Airlines." 5. Learned counsel for the appellant has next placed reliance on the judgment of the Hon'ble Supreme Court in Civil Appeal No. 6696/2019 (Arising out of SLP (Civil) No. 18973/2017) decided on 29.08.2019, wherein it was held as under:- "15. That apart, though it is contended by the private Respondent that it was a mistake in indicating "No" against the Column 3.1-'Person with Disability', what is necessary to be taken note is that against Column 2.4-'Category', it has been stated as "General". That apart the examination fee fixed for General candidates is Rs. 250/- while for the eligible disabled Applicant it is fixed at Rs. 50/-. The private Respondent in addition to indicating her category as 'General' has paid the fee of Rs. 250/- as applicable. Further, though the disability certificate dated 05.07.2010 is presently relied upon, there is no material to indicate that the same was enclosed along with the application or produced till the completion of interview. On this aspect, to contend that the private Respondent cannot make a contrary claim, the learned senior Counsel for the Appellants herein has relied on the decision in the case of J&K Public Service Commission v. Israr Ahmad (2005) 12 SCC 498 wherein it is held in para 5 as hereunder: 5. We have considered the rival contentions advanced by both the parties. The contention of the first Respondent cannot be accepted as he has not applied for selection as a candidate entitled to get reservation. He did not produce any certificate along with his application. We have considered the rival contentions advanced by both the parties. The contention of the first Respondent cannot be accepted as he has not applied for selection as a candidate entitled to get reservation. He did not produce any certificate along with his application. The fact that he has not availed of the benefit for the preliminary examination itself is sufficient to treat him as a candidate not entitled to get reservation. He passed the preliminary examination as a general candidate and at the subsequent stage of the main examination he cannot avail of reservation on the ground that he was successful in getting the required certificate only at a later stage. The nature and status of the candidate who was applying for the selection could only be treated alike and once a candidate has chosen to opt for the category to which he is entitled, he cannot later change the status and make fresh claim. The Division Bench was not correct in holding that as a candidate he had also had the qualification and the production of the certificate at a later stage would make him entitled to seek reservation. Therefore, we set aside the judgment of the Division Bench and allow the appeal. No costs. 16. Further the decision in the case of Registrars General, Calcutta High Court v. Shriniwas Prasad Shah and Ors. (2013) 12 SCC 364 is relied on, wherein this Court has disallowed the claim in a case where in the application the category of reservation was indicated but certificate was not produced and the fee applicable to general candidate was paid. In addition, the learned senior Counsel for the Appellants herein also refers to the inherent contradictions in the claim of the private Respondent apart from the fact that the claim for consideration under the category reserved for Differently Abled Persons is not made. 17. XXXXXXXXXX 18. Therefore, in a circumstance where the issue is whether the disability claimed is locomotor disability or visual impairment and the same itself being a question to be debated, it would not be possible for the Court to act as an expert and in such circumstance a mandamus to consider the same in a particular manner would not also be justified. Therefore, in a circumstance where the issue is whether the disability claimed is locomotor disability or visual impairment and the same itself being a question to be debated, it would not be possible for the Court to act as an expert and in such circumstance a mandamus to consider the same in a particular manner would not also be justified. It is no doubt true that the employment opportunities to the differently a bled persons is to be provided as a matter of right when a case is made out and there is no need for sympathetic consideration. However, in the instant facts when the claim was not made and there are debatable issues, though we could empathize with the cause of the private Respondent the nature of direction issued by the High Court in any event cannot be considered as justified. This is more so, in a circumstance where the Appellants had acted in terms of the Rajasthan Judicial Service Rules, 2010 when no other claim was available and had appointed a candidate from the other category and when such appointment has been made, disturbing such candidate at this juncture also will not be justified. Hence for all the afore stated reasons, we find the order dated 04.05.2017 passed by the High Court to be unsustainable and the same is accordingly set aside." 6. Learned counsel for the respondent No. 1 has opposed the appeal and has submitted that the respondent No. 1 had filled the form in General Category as there was no option for him to have sought admission in EWS category. Moreover, after the declaration of result, respondent No. 1 had sent an E-mail to the appellant on 19.08.2019 seeking clarification as to how his problem could be resolved. In response, he received an E-mail from the appellant that EWS quota seats were available in Round 1 of PG Counseling. Respondent No. 1 deposited the necessary fee but despite the said fact admission was not given to the respondent No. 1 to PG course in EWS category. In response, he received an E-mail from the appellant that EWS quota seats were available in Round 1 of PG Counseling. Respondent No. 1 deposited the necessary fee but despite the said fact admission was not given to the respondent No. 1 to PG course in EWS category. Learned counsel for the respondent No. 1 has further submitted that it has been specifically pleaded by respondent No. 1 in the writ petition that assurance had been given by the appellant that the respondent No. 1 would be considered in EWS quota, but no reply has been given by the appellant before the learned Single Judge in this regard. 7. In response to the arguments raised by learned counsel for the respondent No. 1, learned counsel for the appellant has submitted that although an E-mail was sent by the appellant to respondent No. 1 on 19.08.2019 that EWS quota seats were available in Round 1 of PG counselling, but the same had been inadvertently sent and another E-mail was sent to respondent No. 1 on 20.08.2019 clarifying that EWS quota seats were not available in Round 1 and the security amount to be deposited by respondent No. 1 would be refunded in the same account. 8. Thus, in the present case, respondent No. 1 after qualifying B.A.M.S. degree had applied for All India Ayurveda Post Graduation Entrance Test, 2019 vide Annexure-4. A perusal of Annexure-4 reveals that the appellant had applied in the General Category. Admit Card (Annexure-5) was issued to the respondent No. 1 and in the same also, he was described as belonging to the General Category. Result of the entrance test was declared on 29.07.2019. Admittedly, the respondent No. 1 could not get the seat in General Category, as he was lower in merit. Respondent No. 1 filed the writ petition on 19.08.2019 challenging the action of the appellant in not making reservation for EWS category. 9. Thus, in the present case, respondent No. 1 had not challenged the action of the appellant in not making reservation for EWS before filling the form or before the entrance test was conducted. Respondent No. 1 applied for admission in General Category and failed to get the seat as he was lower in merit. 9. Thus, in the present case, respondent No. 1 had not challenged the action of the appellant in not making reservation for EWS before filling the form or before the entrance test was conducted. Respondent No. 1 applied for admission in General Category and failed to get the seat as he was lower in merit. Respondent No. 1 approached this Court after he found that his name did not figure in the list of candidates who had been granted admission in the course in General Category. Hence, it was not open for respondent No. 1 to have invoked writ jurisdiction of this Court after he had taken the entrance test and had failed to make it in the merit list. Respondent No. 1 cannot derive any benefit from the E-mail received by him, wherein, it was communicated to him that EWS quota seats were available in Round 1 of PG Counseling. Since, in the application form itself there was no column showing reservation of seats for EWS quota, the mentioning of the fact that EWS quota seats were available in Round 1 of PG Counseling was without any basis. Realising the mistake, appellant had sent an another E-mail (copy placed on record during the course of arguments by learned counsel for the appellant) to respondent No. 1 on 20.08.2019 clarifying that EWS quota seats were not available in Round 1 of PG Counseling. It was also clarified that the security amount if deposited by respondent No. 1 would be refunded in the same account. 10. In the facts and circumstances of the present case, relief sought by the respondent No. 1 could not be granted to him. The argument raised by learned counsel for respondent No. 1 that as per office memorandum dated 17.01.2019 (Annexure-R1) scheme for implementing the reservation for EWS was to be displayed on the website on or before 31.03.2019 is concerned, the same is rendered academic for the purposes of this writ petition. Hence, we are not going into the controversy with regard to implementation of office memorandum dated 17.01.2019 (Annexure-R1). 11. In view of the facts and circumstances of the present case, we are of the considered opinion that the learned Single Judge fell in error in allowing the writ petition filed by the respondent No. 1. 12. Accordingly, the appeal is allowed. 11. In view of the facts and circumstances of the present case, we are of the considered opinion that the learned Single Judge fell in error in allowing the writ petition filed by the respondent No. 1. 12. Accordingly, the appeal is allowed. Impugned order passed by the learned Single Judge dated 09.09.2019 is set aside. Consequently, the writ petition filed by the respondent No. 1 is dismissed.