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2021 DIGILAW 96 (RAJ)

Parth Swami v. State of Rajasthan

2021-01-13

ASHOK KUMAR GAUR

body2021
JUDGMENT : Ashok Kumar Gaur, J. 1. The present writ petition has been filed by the petitioner for considering his case under OBC Category for the purpose of admission in Under Graduate Medical Course, conducted by NEET UG - 2020. 2. The case set-up by the petitioner is that after passing Senior Secondary School Examination from CBSE in the year 2018, he applied for participating in National Eligibility-cum-Entrance Test (NEET) UG - 2020 for admission in Under Graduate Medical Courses and online application forms were to be submitted from 02nd December, 2019 to 31st December, 2019. 3. The petitioner has pleaded that he filled the application form in due time and before the examination was conducted, the admission cards were also issued to the candidates, including the petitioner, on 01st September, 2020 and the examination was fixed on 13th September, 2020. 4. The petitioner has pleaded that after participating successfully in the examination, his result was declared and he was shown as securing NEET All India Rank of 888404. 5. The petitioner has pleaded that he was shocked and surprised that his category was indicated in the score card as Unreserved Category, i.e., UR, which brings him under general category. 6. The petitioner has pleaded that he belongs to Swami Community, which is covered under the Backward Community due to which, the petitioner is entitled to be treated as an OBC candidate. 7. The petitioner has placed on record the caste certificate, issued by the State Government as well as Central Government, showing his caste of Swami falling in Backward Classes. 8. The petitioner has pleaded that due to inadvertent mistake, committed while filling the form, he has been considered under the General Category and as such, mandamus is sought from this Court to consider his category as reserved for the purpose of allotment of seat to admission in Under Graduate Courses. 9. Learned counsel for the petitioner, while making submissions, submitted that an inadvertent error, which was committed by the petitioner while filling the examination form, should not result into depriving him from considering his case as OBC category. 10. Learned counsel submitted that fact of the petitioner belonging to Swami Community is not disputed by any of the respondents and yet he has been treated as candidate of Unreserved Category. 11. 10. Learned counsel submitted that fact of the petitioner belonging to Swami Community is not disputed by any of the respondents and yet he has been treated as candidate of Unreserved Category. 11. Learned counsel submitted that the Division Bench of this Court in DB Civil Special Appeal (Writ) No. 1700/2017 (Kavita Choudhary vs. The Registrar (Examination) & Anr., decided vide order dated 1st November, 2017 considered similar controversy and held that if there is an inadvertent error, not resulting into infringement of third party right, such error should be allowed to be rectified/corrected and category of the candidate is required to be changed. 12. Learned counsel also submitted that the Coordinate Bench of this Court in SB Civil Writ Petition No. 4695/2018 (Harish Patidar vs. State & Ors.), decided vide order dated 19th April, 2018, has also considered the Division Bench's judgment passed in the case of Kavita Choudhary (supra) and has again permitted change of category of a candidate, if inadvertent error is committed by such candidate. 13. Learned counsel Mr. M.S. Raghav, appearing for the respondent - National Testing Agency, submitted that the prayer, sought by the petitioner, may not be granted by this Court. 14. Learned counsel submitted that Revised Schedule was issued in respect of conducting NEET (UG) 2020 and correction facility was afforded to all the aspiring candidates in their online application form, including category change and as such, he refers to different Public Notices issued on 03rd December, 2019, 13th March, 2020, 01st April, 2020, 14th April, 2020, 15th May, 2020, 04th July, 2020, 15th July, 2020 and 23rd September, 2020. 15. Learned counsel submitted that having afforded various opportunities to such candidates for necessary corrections, if candidate did not avail such, the same may not be granted by this Court. 16. Learned counsel further submitted that if the petitioner had filled wrong category while submitting the application form, he ought to have immediately taken steps and the petitioner having got his result declared, showing him to be in Unreserved Category Candidate, cannot be permitted to change his category from Unreserved to OBC Category. 17. 16. Learned counsel further submitted that if the petitioner had filled wrong category while submitting the application form, he ought to have immediately taken steps and the petitioner having got his result declared, showing him to be in Unreserved Category Candidate, cannot be permitted to change his category from Unreserved to OBC Category. 17. Learned counsel further submitted that the persons, who are eligible in OBC Category, have been given admission and if such kind of change is permitted, right of the other candidates, who have already been given admission in OBC Category, will be affected and as such, this Court may not entertain claim of the petitioner. 18. Learned counsel Mr. M.S. Raghav also places reliance on the judgment passed by Madras High Court on 13th November, 2020 in the case of Minor S. Sivakumar vs. Secretary to Government & Ors. (W.P. No. 16679/2020) along with other connected writ petitions. 19. On the strength of said judgment, learned counsel submitted that Madras High Court has taken into account the various opportunities, which have been afforded to the candidates for correction in NEET (UG) 2020 and the Court has found that no relief can be granted for the mistake committed by the candidate. Learned counsel for the petitioner - Mr. Sandeep Singh Shekhawat submitted that the order passed by Madras High Court was put to challenge before Division Bench of Madras High Court and Madras High Court, by an order dated 15th December, 2020, has passed an interim order permitting the candidates to be considered from Unreserved to OBC subject to outcome of the petition. 20. Learned counsel for the respondent State Mr. Harshal Tholia, appearing on behalf of Dr. V.B. Sharma, AAG, had informed this Court on earlier occasion that the respondent State - Counselling Board has already conducted second round of counselling and after second round of counselling, Mop-up round has also been conducted on 3rd January, 2021. 21. Learned counsel further submitted that the petitioner is otherwise not eligible even for OBC Category, as cut-off, which has been declared for OBC Candidates, is 40th percentile and the petitioner has secured 34.6898383 percentile. 22. Learned counsel submitted that once cut-off for OBC candidate is 40th percentile with cut-off marks 146.113 and the petitioner, having secured only 98 marks, he cannot be even considered to be eligible in OBC category. 23. 22. Learned counsel submitted that once cut-off for OBC candidate is 40th percentile with cut-off marks 146.113 and the petitioner, having secured only 98 marks, he cannot be even considered to be eligible in OBC category. 23. Learned counsel further submitted that eligibility of the petitioner to treat him as OBC candidate, solely lies with the National Testing Agency and as such, no relief can be granted by the State Government for considering the petitioner eligible. 24. This Court, on earlier occasion had directed learned counsel for the State Government to verify the fact of conducting second round of counselling and further, what procedure is adopted in Mop-up round or the seats, which are left vacant after Mop-up round and in what manner, these seats are filled. 25. Learned counsel Mr. Harshal Tholia has filed reply to the writ petition and submitted that the candidates, who are allotted seats in second round of counselling and if they do not join the same, such seats are brought forwarded to the Mop-up round in the same category, from which, these candidates belonged to. 26. Learned counsel further refers to reply and submitted that vacant seats in second round of counselling, after calling all the eligible candidates, are forwarded to the Mop-up round in Unreserved category. 27. Learned counsel further submitted that after Mop-up round, the seats, which are vacant, are sent to the respective colleges and these seats are treated as Unreserved and the colleges, at their own level, fill these seats, as per merit. 28. Learned counsel for the respondent-State, on instructions, further submitted that list of such available seats/unreserved seats will be sent by the State Authorities to the different colleges to be filled by them at their own level by keeping in mind the merit, which is allotted to the candidates. 29. Learned counsel has taken specific stand that no further reservation is provided category-wise for leftover seats and as such, the relief, claimed by the petitioner, may not be possible in the facts of the present case. 30. I have considered the submissions made by learned counsel for the parties and scanned the matter carefully. 31. 29. Learned counsel has taken specific stand that no further reservation is provided category-wise for leftover seats and as such, the relief, claimed by the petitioner, may not be possible in the facts of the present case. 30. I have considered the submissions made by learned counsel for the parties and scanned the matter carefully. 31. This Court finds that cut-off marks for OBC Category in NEET (UG) - 2020 has been fixed at 40th percentile as cut-off percentile and further, cut-off score is 146.113 and the petitioner has secured 98 marks with 34.6898383 percentile and as such, the petitioner is not eligible, as per the result declared by the respondents. 32. This Court further finds that the Authorities concerned have not lowered down the percentile or cut-off marks for OBC category and as such, the petitioner cannot be treated as eligible even to participate as an OBC candidate. 33. Learned counsel for the petitioner Mr. Sandeep Singh Shekhawat submitted that the Authorities are to decide whether these OBC seats are to be filled by lowering down percentile or cut-off marks and if the same is done, the petitioner can have chance to participate as an OBC candidate, this Court is afraid to accept the submission made by learned counsel for the petitioner as on today, the required percentile to be an OBC candidate is 40th with 146.113 cut-off score and as such, the petitioner is not eligible to get the same. 34. Learned counsel for the petitioner submitted that the seats, which are left after Mop-up round, are required to be allotted category-wise and as such, the petitioner, belonging to OBC category, needs to be considered against such vacancies. 35. I have seen the affidavit and reply filed on behalf of the respondent State and heard learned counsel Mr. Harshal Tholia, who has taken specific stand that after Mop-up round, the seats are treated as unreserved and sent to respective colleges and such vacant seats are filled as per merit. There is no occasion for this Court to disbelieve the statement, which has been given by learned counsel for the respondent-State before this Court. 36. Accordingly, this Court finds that if now there is no occasion for any Authority to treat the seats as reserved, the direction to treat the petitioner eligible in OBC category will not be justified by any stretch of imagination. 37. 36. Accordingly, this Court finds that if now there is no occasion for any Authority to treat the seats as reserved, the direction to treat the petitioner eligible in OBC category will not be justified by any stretch of imagination. 37. The submission of learned counsel for the petitioner that Madras High Court has passed an interim order and as such, this Court may be persuaded to pass the same order, I have gone through the order passed by the Division Bench of Madras High Court and the Division Bench, while passing the order, has specifically recorded statement given from the side of the respondents that third party right will not be affected, if the order is passed and further, the Division Bench has also mentioned that the findings, which are recorded by the Single Bench, have not been stayed or disturbed. 38. This Court is afraid to accept the submission of learned counsel for the petitioner that this Court may also pass the order in view of the order passed by the Division Bench of Madras High Court as an interim order. 39. Learned counsel for the petitioner submitted that reply filed by the respondents shows that category-wise tentative seat matrix has been prepared after Mop-up round and seat matrix shows that vacant seats are earmarked for each category, including reserved seats. 40. Learned counsel for the petitioner, on the strength of such availability of seat in reserved category, submitted that the State Government is required to follow the same allotment system against reserved seats even after Mop-up around. 41. This Court finds that if the State Government has taken a stand that there will be no reservation after Mop-up round, this Court cannot pass any order against such stand taken by the State Government. This Court does not find any force in the writ petition, hence, it is dismissed.