Archana Thakur vs State of Himachal Pradesh and others

By way of this writ petition, the petitioner has prayed for the following reliefs:

(i) That a writ in the nature of mandamus may very kindly be issued and the respondents may very kindly be directed to grant admission to the

petitioner in M.Sc. Physics Course in Gobind Balabh Panth Memorial Government College, Rampur Bushahr, H.P. in the interest of law and

justice.

(ii) Any other relief as may be deemed just and proper keeping in view the facts and circumstances of the case may also be granted in favour of the

petitioner.

Case of the petitioner was that respondent No. 2 had invited applications from eligible candidates for admission to various courses for the

academic Session 2017-2018, which includes M.Sc. Physics course. According to the petitioner, she being eligible, applied for the said course

and roll number allotted to her to appear in the entrance examination was 16062. The entrance examination was held on 07.07.2017. She secured

30 marks in the same, which is evident from Annexure P-4. It was further the case of the petitioner that on the strength of marks so obtained by

her, she was not able to make it in the merit list. Further as per the petitioner, respondent No. 3-College, which had earlier issued a Prospectus for

admission of courses available with it for the Session 2017-18, was also later on permitted to admit candidates in MA and M.Sc. classes, including

an intake of 20 students in M.Sc. Physics, by respondent No. 2. Applications in this regard were invited and the petitioner submitted her

application well before the last date, i.e., 29.07.2017. Counselling took place on 1st and 2nd August and in furtherance of the same, 13 candidates

were admitted as per communication Annexure P-6, dated 03.08.2017, on the strength of entrance examination, which stood conducted by

respondent No. 2- University. Name of petitioner found mentioned at Sr. No. 2 in the waiting list (Annexure P-8). It was further the case of the

petitioner that out of three candidates, who had applied for admission against the seats reserved for SC category, two were able to gain admission

on the strength of their merit against open category seats. No candidate belonging to ST category had applied for the course. This resulted in seats

reserved for SC and ST categories remaining unfilled. Grievance of the petitioner was that despite the fact that candidates like the petitioner, who

were in the waiting list as per Annexure P-8 were available, respondents rather than offering vacant seats on merit to general category candidates,

were not making any efforts to fill the same. It was in this background that the present petition was filed.

During the pendency of the petition, on 12.09.2017, this Court passed the following order:

Let response be filed positively within two weeks. Rejoinder thereto, if any, within one week thereafter. In the meanwhile, we direct that the

seat(s) which are lying unfilled, be offered to the next meritorious candidate(s) and be filled up positively within two days from the open category

candidates. List on 10th of October, 2017, as prayed for.

We are informed that on the strength of order, dated 12.09.2017, the petitioner stands admitted to the course in issue.

Reply(s) to the writ petition stands filed by the respondents.

The moot issue involved in this writ petition is as to whether in the admission process, which is initiated by respondent No. 2, in case sufficient

number of candidates belonging to SC and ST categories are not available and the seats are lying vacant, whether these seats can be filled up from

amongst the candidates of general category, who otherwise are eligible for admission, as per the merit secured by them in the entrance examination

or the seats should be allowed to remain unfilled?

Before proceedings any further, we would like to clarify that herein it is not a case of appointment. The case is of admission to a particular

course and in each academic Session, fresh admissions are made to the 1st Year or the 1st Semester of the course, as the case may be, meaning

thereby that left over seats are not ""carried forward"". Any seat, which remains vacant, remains unfilled for the entire duration of that particular

course. In this background, in a given situation, where seats reserved for SC and ST candidates remain unfilled, in our considered view, it is both in

the interest of institution as well as the students that the said seats should not be allowed to go unfilled and they should be filled from amongst open

category candidates, in case eligible candidates are available, who can be given admission against the vacant seats, on the strength of merit so

secured by them in the entrance examination. In case this is done, the same will not at all affect the interests of SC and ST categories, for whom the

seats were otherwise reserved, because this exercise shall be undertaken by the institution only if after exhausting the list of eligible SC and SC

candidates, yet seats remain vacant. On the other hand, by offering the seats to eligible candidates from open category, this will not only facilitate

more candidates to gain education in the course in issue, it will also result in optimum utilization of the resources, because it is obvious that the

institution in issue has the infrastructure to impart education to number of students, it is permitted to admit.

It is common knowledge that seats available in various academic courses in colleges and universities are far below the number of applicants.

This obviously means that sears are at a premium and all efforts should be made to ensure that as far as possible, the seats are not wasted. It is

relevant to refer to the judgment of Hon''ble Supreme Court in Charles K. Skaria and others Vs. Dr. C. Mathew and others, (1980) 2 Supreme

Court Cases 752, in which Hon''ble Supreme Court has observed that welfare-oriented judicial process must be constructive in its objective, must

be geared to order as its goal and must pave the way for resultant contentment.

It is not a disputed factual position that vacant seats belonging to reserve category even in courses like MBBS, are not allowed to remain

unfilled. A seat which is reserved for Scheduled Caste category, is firstly offered to a candidate belonging to Scheduled Tribe category if it is not

filled up by a Scheduled Caste candidate and if the seat even after being offered to Scheduled Tribe candidate remains unfilled, same is thereafter

offered on merit to open category candidate. This factual position could not be disputed even by the State during the course of arguments.

At this stage, it is relevant to refer to a judgment of Hon''ble Supreme Court in Medical Council of India Vs. Madhu Singh and others, (2002)

7 Supreme Court Cases 258, in which case, Hon''ble Supreme Court was dealing with admissions to Medical College, has deprecated the

practice of directing mid-session admissions. Though, in the aforementioned case, the Hon''ble Supreme Court was dealing with the admission to

Medical Colleges, however, in our considered view, necessity of timely admissions and avoiding mid term admissions is required in other

educational streams also.

In Neelu Arora (Ms.) and another Vs. Union of India and others, (2003) 3 Supreme Court Cases 366, a three Judge Bench of Hon''ble

Supreme Court has held that if seats are unfilled, the same cannot be a ground for making mid-session admissions and there cannot be telescoping

of unfilled seats of one year with permitted seats of the subsequent year. Hon''ble Supreme Court was dealing with admissions to MBBS/BDS

courses. It is relevant to take note of the fact that above adjudications have been made by the Hon''ble Supreme Court because a time frame has

been put in place as to how admissions are made in MBBS/BDS courses and further in order to achieve the said time schedule, when the

counseling is to be conducted.

Therefore, the process of identifying such vacant seats which remains unfilled after exhausting the list of reserve category candidates should be

filled before the commencement of academic year so that there is no eventuality of mid-academic admissions, which stands deprecated by the

Hon''ble Supreme Court.

Accordingly, we dispose of this petition with the direction to respondents No. 1 and 2 that for academic Sessions necessary instructions be

imparted to the effect that vacant reserved seats meant for SC and ST categories in educational institutes including Schools, Colleges and

Universities, which remain unfilled after exhausting the list of available and eligible SC and ST candidates, should be thereafter offered and filled

from amongst eligible candidates from open category on the basis of merit. We clarify that in case any cut off limit has been fixed, then only those

candidates of open category should be admitted against the vacant seats, who have gained marks at par with the cut off limit. Petition stands

disposed of, so also miscellaneous applications, if any. No order as to costs.