Anil Kumar Verma vs The Controller Professional Examination Board

Arun Mishra, J.

In this writ petition the petitioner seeks direction to the respondents to give him admission in the IInd year course in B.E. Chemical Engineering. Petitioner belongs to scheduled caste category.

A per schedule II of the advertisement information branch wise and category wise for the seats was given. For the branch of Chemical Engineering one seat of scheduled caste candidate from the female quota was reserved and two seats were reserved for scheduled tribe candidate against the open quota; that means female as well as male candidate. After second counselling two seats of scheduled tribe open category remained vacant and also one seat of scheduled caste female candidate. They were required to be filled in third counselling by offering the seats of female to the male candidate of the scheduled caste category and as no scheduled tribe candidate was available as it was required to be filled by scheduled caste candidate as per Rule 2.6.6 of Rules called Conduct of Examination and Admission Rules, 2001 framed by M.P. Professional Examination Board, Bhopal.

Petitioner passed his Diploma in Cement Technology in the year 2001. Publication was made in Rojgar and Nirman dated 18.10.2001 wherein information pertaining to the first round of counselling for admission to IInd year B.E./B. Pharm course for the year 2001-02 was given. The said advertisement was for the candidates who had completed their diploma course. The eligibility for the purposes of counselling was that a candidate should have obtained 60% marks in the final year of the diploma course. The eligibility criteria for counselling of the scheduled caste candidate for admission to Chemical Engineering was laid down as 50% and for scheduled tribe candidates 45% of marks. Petitioner participated in first and second counselling. He was offered admission against paid seat but he was not in a financial position to take admission in paid seat. First counselling was held on 22/23.10.2001. Second counselling was held on 10/11.11.2001. However, no third counselling was held in which seats were to be converted as per common case of the parties applying Rule 2.6.6. of the Rules. Petitioner submits that on the basis of merit he was entitled to be given admission either at Gwalior or at Ujjain in the Govt. Engineering College.

A return has been filed by the respondents in which it has been contended that petitioner was considered under reserved open category in first counselling held on 22.10.2001 and was placed at serial no. 1 in the merit list and in second counselling he was placed at serial no. 2 in the merit list but petitioner refused to take admission on the available paid seats at the time of counselling. No seat was available under scheduled caste open category. Third counselling was not held because the examinations were to be held in December, 2001. In the second counselling the seat remained vacant for ST candidate. The petitioner was to be considered in the reserved category seat to the converted in third counselling but third counselling was not possible for the aforesaid reason.

Shri Anil Khare, learned counsel for the petitioner, submits that action of the respondents is arbitrary. The petitioner has been wrongly deprived of the benefit on converting the seat under rule 2.6.6. of the Rules. Such seats of professional college are national wealth and cannot be allowed to go waste. The petitioner as per his merit was entitled as per Rule 2.6.6 out of the seat of scheduled caste and scheduled tribe which were lying vacant of open category. Three seats were lying vacant, one of SC candidate and two of ST candidates. These seats were to be converted as per rule 2.6.6 into open scheduled caste category. Thus, petitioner ought to have been admitted who has been unduly and wrongfully deprived of admission to professional course in breach of fundamental right to obtain education eshrined in Article 21 of Constitution.

Shri B.N. Mishra, learned G.A. for the respondents, submits that there is no illegality in the action of respondents as examination of IInd year was to commence in December, 2001. third counselling was not held in which seats were to be converted for being filled as per rule 2.6.6 of the Rules. He further submits that after the prescribed date no admission can be made. He is unable to state what was the prescribed date in the instant case.

It is not in dispute in the instant case that two seats of scheduled tribe open category were to be offered to the scheduled caste candidates in open category. Similarly one seat of scheduled caste female was lying vacant which was also to be filled by scheduled caste male candidate in third counselling on conversion as per Rule 2.6.6. It was very well known to the respondents that examination was to the held in December, however, they held the first counselling on 22/33 October, 2000 and second counselling on 10/11th November, 2001. I find absolutely no reason why third counselling should not have been held in the month of November when seats remained vacant and candidates were available. Advertisement was issued on 18.10.2000. It was incumbent upon the respondents to have held third counselling immediately after the second counselling was held in November, 2000. Petitioner''s entitlement as per merit is not in dispute. It is held that by not conducting third counselling the respondents have acted arbitrarily.

Learned counsel for the respondents has relied upon the decision of Dr. Subodh Nautiyal Vs. State of U.P. and others, wherein it was held that practice of mid term admission should be deprecated. Admission must be over by the prescribed date. Petition for admission four month''s after the start of the course to be rejected. Another decision has also been relied upon by learned counsel for the respondents in State of Uttar Pradesh and others Vs. Dr. Anupam Gupta, etc., , wherein their Lordships in para-7 have observed in the light of the decision of Dr Dinesh Kumar and Others Vs. Motilal Nehru Medical College, Allahabad and Others, , that admission should be expeditiously given in the professional course.

In the instant case the facts are totally different. In this case first counselling was held on 22/23.10.2001 and the second counselling was held on 10/11.11.2001, thereafter it was incumbent upon the respondents to have made endeavor to conduct third counselling. The present petition has been filed in the month of December, 2001 (sic) two months of Advertisement. Counsel for the respondents is also not in a position to state that when as a matter of fact the examination of B.E. second year was held. In no case examination for the admissions made in October and November, 2001 could be allowed to be held in the month of December, 2001 before completion of the requisite attendance. Thus, the only ground taken by the respondents that examination was proposed to be held in December, 2001 is also not of any consequence. Petitioner cannot be made to suffer for inaction of respondents in not converting seat as per Rule 2.6.6 and deprived of right to education which is a fundamental right.

Writ petition is allowed. On merit entitlement of petitioner t6 obtain seat is not in dispute. Hence, the respondents are directed to give one of the seat which remained vacant of B.E. IInd Year in Chemical Engineering to the petitioner expeditiously. Costs on the parties.