Budhraj Tandon vs State Of Chhattisgarh

The two writ petitions were heard on 24.02.2022 and the cases are posted today for delivery of order. Accordingly, the order is dictated  in open Court today.

Heard Mr. Parag Kotecha, learned counsel for the petitioners as well as Mr. Vikram Sharma, learned Deputy Government Advocate for the respondents No. 1 to 3, Mr. Keshav Prasad Gupta, learned Central Government counsel, Mr. Venkatesh Pandey and Mr. Rishabh Bisen, learned counsel for the respondent No. 5 and Mr. Rahul Tamaskar, learned counsel for the intervenors, in WPC No. 889 of 2022. We have also heard Mr. Shailesh Tiwari, learned counsel for the petitioner, Mr. Vikram Sharma, learned Deputy Government Advocate for the respondent No. 1 and 2, Mr. Venkatesh Pandey and Mr. Rishabh Bisen, learned counsel for the respondent No. 3 and Mr. Keshav Prasad Gupta, learned Central Government counsel for the respondent No. 4, in WPC No. 897 of 2022.

The petitioner No. 1 in WPC No. 889/2022 belongs to Scheduled Caste (SC) category and the petitioner No. 2 belongs to Scheduled Tribe (ST) category. They have appeared in the National Entrance cum Eligibility Test (UG) 2021 (for short, NEET-2021). The petitioners have sought for the following reliefs:

“I. Quash/set aside the seat Matrix issued by the respondent No. 2 (Annexure P/2) and further please to direct the respondents to issue fresh seat matrix in view of the decision of the Hon’ble Supreme Court and in view of the notice issue by respondent No. 5 dated 20.11.2020.

II. Quash all allotment of seats to the candidates which was allotted as per illegal seat matrix (Annexure P/2).

III. Direct the respondents to implement the reservation for EWS quota by preparing the reservation roster as per the Board of Governors in supersession of Medical Council of India guidelines.

IV. Any other relief which this Hon’ble Court deems fit and proper under the facts and circumstances of the case and in the interest of justice.”

According to the petitioners in WPC No. 889/2022, the seat matrix was issued on 02.02.2022 but the same was uploaded in the official website only on 09.02.2022. The total number of seats of UG Medical course in the State of Chhattisgarh is 870.

The petitioners, essentially, question the principle adopted for determination of economically weaker section (EWS) quota as faulty and contrary to the order dated 07.01.2022 passed by the Hon’ble Supreme Court in Neil Aurelio Nunes & Others v. Union of India & Others, WP(C) No. 961/2021 and the notice dated 20.11.2020 issued by the respondent No. 5 wherein the manner of implementation of 10% of EWS quota is laid down.

In WPC No.889/2022, a short affidavit is filed by the State seeking to explain how the seat matrix is prepared.

In WPC No. 897/2022, the petitioner belongs to ST category and she also took part in the NEET-2021 for admission to the MBBS course. The petitioner had secured rank of 220 in the merit list in respect of ST candidates. It is stated that the seat matrix for the academic year 2021-22 was published on 02.02.2022 whereby the total number of seats made available under the State Medical Colleges was 920 with latest addition of Ambikapur and Kanker Medical Colleges. According to the petitioner, 238 seats should have been allotted for the ST candidates, whereas only 187 ST candidates were given allotment. In reference to Pt. Jawaharlal Nehru Memorial Medical College, Raipur, it is stated that while 18 candidates have been selected under the EWS quota, the quota in respect of EWS in respect of the said Medical College should have been 14. The petitioner has prayed for the following reliefs:

“10.1 That, this Hon’ble Court may kindly be pleased to issue a writ/writs, order/orders, direction/directions to the respondents to quash the allotment list dated 05/02/2022 and further be pleased to order for issuance of fresh allotment list as per the 2018 rules by the State of Chhattisgarh.

10.2 That, this Hon’ble Court may kindly be pleased to issue a writ/writs, order/orders, direction/directions to the respondents to quash the seat matrix as issued on 02.02.2022 and further be pleased to order for issuance of a new seat matrix as per the 2018 rules by the State of Chhattisgarh.

10.3 Any other relief as this Hon’ble Court may deems fit looking to the facts and circumstances of the case may also be awarded.”

Mr. Kotecha, learned counsel for the petitioner in WPC No. 889/2022, submits that the petitioners are aspiring candidates for admission in the Government Medical Colleges of the State of Chhattisgarh under the State Quota. He draws attention of this Court to paragraph 9.3 of the writ petition to submit that the seat matrix ought to have been prepared in the manner as indicated therein. According to him, only 14 seats ought to have been given to EWS category in the State Quota, whereas, 18 seats have been allotted to the EWS category. He submits that the total seats for Pt. Jawaharlal Nehru Memorial Medical College, Raipur being 180, (after EWS was introduced), 27 seats being 15% of the total seats will go to All India Quota (AIQ) including the EWS quota and 5 seats, being 3% of total 180 seats, would go towards the Central Nominee quota, totaling 32 seats, and, therefore, for the State Quota, there will be a total of 148 seats. It is his contention that 10% of 148 seats comes to 14.8 seats and the number after the decimal will go to general category and in this way, only 14 seats could have been earmarked under the EWS category. It is further submitted that AIQ Seat Matrix UG Counselling 2021 had been issued and it is evident from the aforesaid seat matrix that 02 seats under the EWS were reserved under the AIQ. According to him, in total, towards the EWS category, 18 seats is admissible and it is evident that so far as Pt. Jawaharlal Nehru Memorial Medical College is concerned, 20 seats have been earmarked and therefore, the seat matrix prepared by the State assigning 18 seats for EWS under the State Quota is not sustainable in law.

Mr. Shailesh Tiwari submits that the petitioner in WPC No. 897/2022 is also aspiring for admission under the State Quota under the ST category. Mr. Tiwari fully endorses and adopts the submission advanced by Mr. Kotecha.

At this juncture, it would be appropriate to quote paragraphs 2 to 10 of the reply of the State, which read as follows:

“2. At the very outset, it is most humbly submitted that, the calculation of seat matrix vide Annexure-P/2 has been made while taking into consideration various Circular issued by the Government of India, Ministry of Health & Family Welfare from time to time for the purpose of implementation of EWS Quota. It is most respectfully submitted that, on 29.01.2019, Under Secretary of Government of India, Ministry of Health & Family Welfare has written a letter to all Principal Secretaries of entire states of Medical Education Departments informing them about the reservation of Economical Weaker Section for admission in Central Education Institution etc. In which at Para-C of the letter, it was informed very categorically that “at any stage of implementation of EWS reservation, the number and percentage of reservation provided for SC/ST/OBC categorizes shall not be reduced.” The copy of the Circular dated 29.01.2019 is being annexed hereiwth as ANNEXURE-D/1.

Thereafter, vide Circular dated 04.06.2019 the Board of Governor in superession of Medical Council of Inida through their Secretary General has written the letter to all the Chief Secretaries/Principal Secretaries of Medical Education Department communicating the guidelines for increase of MBBS seats for implementing EWS Quota. It is pertinent to state here that, in this guideline, guideline no. 3 states very categorically that in order to implement 10% EWS reservation quota, the increasing seats have been effectively 25% of the current intake to ensure that the existing number of General and other quota seats are not affected. The letter dated 4.06.2019 along with the guidelines for the implementation of EWS is being annexed herewith as ANNEXRUE-D/2.

That, the Annexure-P/4 which is the Notice of NMC dated 20.11.2020 also says that 10% EWS quota will be part of the total MBBS seats available for admission and all the various quota like AIQ, State Quota (including EWS, SC, ST, OBC and other reservations) will apply to the total MBBS seats. After summarizing the circulars laid down by the NMC as above, the following proposition emerges:-

(i) That, the reservation of EWS is over and above the normal reservation and it has to be implemented in such a manner without disturbing the seats of General, unreserved as well as the other reserved categories.

(ii) To calculate the EWS as such ciruclar dated 20.11.2020 also it has to be done for 10% of entire seats available.

With this basic rules governing the field, the ansewring respondent has calculated the seat matrix which is Annexure-P/2. To state before this Hon’ble Court and to demonstrate the actual correct position, few charts are being prepared for the ready hand reference of this Court demonstrating the effect of pre-implementation of EWS as well as post-implementation of EWS by both the method, first, as per the calculation done by the department and second, as per the calculation done by the petitioner.

It is most humbly and respectfully submitted that, the pre-implementation of EWS is being reflected by TABLE-A which is prepared by the authorities prior to allotment of seat matrix and is being annexed herewith as ANNEXURE D/3. It is further respectfuly submitted that, the seat matrix as per the contention of the petitioner is being reflected by virtue of TABLE-B and marked as ANNEXURE D/4 for ready reference of this Hon’ble Court. In the similar manner, the seat matrix which is the part of Annexure-P/4 is being annexed herewith as Annexure D/5 in the name of Table-C.

That by reading of Table-A (Annexure-D/3), it appears that prior to the implementation of EWS Quota in the State of CG, when the total MBBS seats were 100 then the seats of unreserved category is 37, ST is 24, Special ST is 1, SC is 9 and OBC is 11. And if the total seats were 150 then the seats available for unreserved category would be 54, ST would be 37, Special ST would be 2, SC would be 14 and OBC would be 17. It would be pertinent to state here that, as per the NMC guidelines, the implementation of EWS has to be done, in such a manner, that the overall seats which was shown by way of Table-A (Annexure-D/3) is not to be reduced under individual categories, and the seat has to be prepared in such a manner giving the effect of implementation of EWS also without reducing the seats of required category as per Table-A.

That, when the committee calculated the seat matrix as per Table-B and C the following conclusion arrived:-

(i) As per Table-B which is the part of Annexure-D/4, which is also the contention of the petitioner, if after the increase of 30 seats from 150 to 180, the calculation as per the petitioner contention was calculated then, the overall seats of unreserved category stands reduced from earlier 54 (as per Table-A) to 51 (as per Table-B) which is not permissible as per the NMC Circular dated 04.06.2019 annexed above. Although, the seats for ST category as well as OBC category would increase to certain level but the seats of unreserved category will be reduced and the overall effect, if compare to Table-A is that, the unreserved category seats will be reduced.

(ii) Therefore, the committee has calculated the seat matrix as per Table-C which is annexes as Annexure-D/5 by virtue of which if it compared with Table-A, it appears that under this chart the seats are allotted in such a manner by taking 10% of 180 which is as per Notice dated 20.11.2020 (Annexure-P/4) which comes around 18 as EWS seats out of which 18 seats have been carved out of total intake Capacity as EWS seats, and remaining seats have been distributed as per the reservation roster. The net result of which is that, if compared with Table-A, the seats of unreserved category as per Table-A is 54 which is now increased to 56, the ST category has been increased from 37 to 39, Special ST has been remained the same and SC seats has been increased from 14 to 15 and OBC seats increased from 17 to 18.

It is most respectfully submitted that if the contention of the petitioner (which is reflected as per Table-B, Annexure-D/4), is taken into consideration, then the number of seats of unreserved would be reduced from 54 to 51, after implementation of EWS, therefore the committee has taken and calculated the seats as per Table-C which is the Part of Annexure D/5 which is well justified the keeping in mind the relevant circulars of NMC.

It is respectfully submitted that, so far as the calculation of all India Quota, seats is concerned, the State has no role to play for the purpose of implementation of 10% EWS quota seats under All India Quota. The State has separately earmarked the All India Quota seats as 15% + 3% and it is for the MCC i.e. Medical counseling committee to distribute these 18% seats as per their own reservation roster which includes EWS also.”

Abiding by the stand taken in the reply filed, Mr. Sharma submits that though the writ petitioner in WPC No. 889/2022 has stated that the seat matrix was published in the website on 09.02.2022, the same is not correct. He submits that notice for online application for registration was issued on 19.01.2022 fixing the date of registration from 20.01.2022 to 28.01.2022; seat allotment for the first round of counselling was published on 05.02.2022 and issuance of allotment letter, scrutiny and admission process in respect of first round of counselling were started from 08.02.2022 to 12.02.2022; registration for the second round of counselling began from 09.02.2022 to 14.02.2022. He submits that seat matrix is prepared with due care and the contention of the petitioners that the same is faulty, is not correct. As admission process has progressed considerably and large number of students have already taken admission based on the aforesaid seat matrix, he contends that having regard to the prayer made by the petitioners for quashing of allotment of seats, no interference is called for at this belated stage, more so, in view of the fact that none of the candidates, who have taken admission and who are likely to suffer prejudice, are made parties to the proceedings.

Mr. Keshav Prasad Gupta, learned Central Government counsel for the respondent-Union of India and Mr. Venkatesh Pandey as well as Mr. Rishabh Bisen, learned counsel for the respondent-National Medical Council submit that the seat matrix is correctly prepared and no interference is called for.

Mr. Rahul Tamaskar, learned counsel who is appearing for the intervenor-Sanskar Sharma, who is an EWS category candidate, supports the stand taken by the State and submits that the seat matrix formulated by the State may be affirmed. Mr. Tamaskar submits that 10% of seats towards EWS category out of total 180 seats works out to 18 and the contention of the petitioners deserve to be rejected outright as according to the calculation adopted by the petitioners, the total number of seats in EWS category gets reduced to 16 and number of unreserved category seats gets reduced to 51 from the earlier 54 seats, which is not permissible in law.

We have considered the submissions of the learned counsel for the parties and have perused the materials on record.

Notice dated 20.11.2020 provides for certain clarifications regarding available seats for counseling for implementation of EWS quota in MBBS course. Paragraph 2 of the said notice reads as under:

“2. It is further clarified that the increase in seats granted to implement 10% EWS quota will be part of the total MBBS seats available for admission and all the various quota like AIQ, State Quota (including EWS, SC, ST, OBC and other reservations) will apply to the total MBBS seats.

Paragraphs (b) and (c) of the circular dated 29.01.2019, which is on the subject of reservation for economically weaker sections (EWSs) for admission in Central Education Institutions, provides as follows:

“b) Every Central Educational Institution shall, with the prior approval of the appropriate authority as defined in clause (c) of section 2 of the Act, 2006, increase the number of seats over and above its annual permitted strength in each branch of study or faculty so that the number of seats available, excluding those reserved for the persons belonging to the EWSs, is not less than the number of such seats available, in each category for the academic session immediately preceding the date of coming into force of these guidelines.

c) The applicability of this Amendment Act , 2019 for the increase of annual permitted strength need to be implemented from the academic year following the commencement of the Amendment Act but in case the annual permitted strength cannot be implemented for reasons of financial, physical or academic limitation or in order to maintain the standards of education, such increase can be implemented over a period of two years beginning with the academic session 2019-20, after the representation by the Central Education Institution to the appropriate authority and subject to its satisfaction on the grounds as stated above. At any stage of implementation of EWS reservation, the number and percentage of reservation provided for SC/ST/OBC categories shall not be reduced.”

(emphasis supplied by Court)

The Act 2006, mentioned therein, refers to the Central Educational Institutions (Reservation in Admission) Act, 2006 and the Amendment Act, 2019 refers to Constitution (One Hundred and Third Amendment) Act, 2019. A perusal of the above goes to show, amongst others, that it has to be ensured that the number of seats available, excluding those reserved for the persons belonging to the EWSs, is not less than the number of such seats available, in each category for the academic session immediately preceding the date of coming into force of the aforesaid guidelines relating to reservation for EWS. It is also noticed that at any stage of implementation of EWS reservation, the number and percentage of reservation provided for SC/ST/OBC categories shall not be reduced.

By the said circular dated 29.01.2019, all the State Governments/Union Territories had been requested to give effect to the provisions of the said Constitution Amendment Act in respect of all higher education institutions funded/aided, directly or indirectly, by the State Government starting from the academic year 2019-20. All the States/UTs were requested to take appropriate action for implementing the provisions of the Constitution Amendment Act in the Medical/ Dental/ Nursing/ Pharmacy Institutions/ Bodies etc. in their control.

It is also relevant to take note of an e-mail dated 04/06.06.2019 issued by the Board of Governors in supersession of Medical Council of India, on the subject of extension of last date for receiving application for increase of MBBS seats to implement EWS quota, wherein a guidance note to implement EWS quota was enclosed. Clause (3) of the guidelines, which is relevant, reads as follows:

“GUIDELINES FOR CALCULATING ADDITIONAL SEATS FOR IMPLEMENTING 10% EWS QUOTA FOR MBBS COURSE

For 10% increase in seats for EWS quota, following are the guidelines to facilitate its implementation:

xxx xxx xxx

(3) In order to implement the 10% EWS reservation quota, the increase in seats has to be effectively 25% of the current intake to ensure that the existing number of general and other quota seats are not affected. Thus a college with current intake of 100 seats would need to add 25% additional seats i.e. 25.”

(emphasis supplied by Court).

Clause (3) of the aforesaid guidelines makes it abundantly clear that the existing number of general and other quota seats are not to be affected while implementing 10% EWS reservation quota.

In the order dated 07.01.2022 passed by the Hon’ble Supreme Court in Neil Aurelio Nunes & Others v. Union of India & Others, WP(C) No. 961/2021, while dealing with the challenge made to a notice issued by the Director General of Health Services in the Union Ministry of Health and Family Welfare dated 29.07.2021 whereby 27% reservation for OBC (non-creamy layer) and 10% reservation for EWS, while filling up 15% UG and 50% PG AIQ seats for the academic session of 2021-22 was sought to be implemented, the Hon’ble Supreme Court at paragraph 7(ii) provided that counselling on the basis of NEET-UG 2021 and NEET-PG 2021 shall be conducted by giving effect to the reservation as provided by the notice dated 29.07.2021 including 27% reservation for OBC category and 10% reservation for EWS category in the AIQ seats.

It is on the basis thereof, 02 seats towards EWS category out of the 27 seats allotted under the AIQ quota had been earmarked in the final AIQ Seat Matrix UG Counselling 2021 (MBBS).

At this juncture, it will be relevant to take note of the four charts furnished by the State alongwith their affidavit in respect of Pt. Jawaharlal Nehru Memorial Medical College : two charts relating to the total number of seats under the Central Quota and the State Quota before EWS was introduced and two other charts after introduction of the EWS quota.

Before EWS

“MBBS

Seat

Cal.

CAT

SEAT

150

22.5

AIQ 15%

22

EWS Nil

4.5

Central Nominee 03%

4

EWS NIL

0

Total

26

Available Seats

Cal.

CAT

SEAT

124

UR

54

37.2

ST 30%

37

2.48

Special ST 02%

2

14.88

SC 12%

14

17.36

OBC 14%

17

GTotal

124”

After EWS

“MBBS

Seat

Cal.

CAT

SEAT

180

2.7

AIQ 15%

27

(150+30) EWS

5.4

Central Nominee 03%

5

1.8

EWS 10%

18

Total

50

Available for STATE QUOTA

Available Seats

Cal.

CAT

SEAT

130

UR

56

39

ST  30%

39

2.6

Special ST 02%

2

15.6

SC 12%

15

18.2

OBC 14%

18

G Total

130”

It is not understood why “EWS 10%”, totaling 18 seats is placed under “AIQ 15%” and “Central Nominee 3%”, leaving a balance of 130 seats for the State. Total number of seats under 15% AIQ and 3% Central Nominee quota represent a total of 32 seats and therefore, available seats with the State is 148 seats. Clause (2) of the notice dated 20.11.2020 makes it abundantly clear that 10% EWS quota will be part of the total MBBS seats available for admission. So far as Pt. Jawaharlal Nehru Memorial Medical College, Raipur is concerned, there are in total 180 seats. 10% of 180 is 18. When 02 seats of EWS is already assigned under the 15% AIQ, 02 seats ought to have been deducted from the total of 18 and thereby, 16 seats would have been available for EWS category under the State Quota to fulfill the mandate of allotting total of 18 seats for EWS category and correspondingly, the total number of available seats for allotment to the other categories would have been 132.

In our considered opinion, therefore, 18 seats towards the EWS category from the State Quota so far as Pt. Jawaharlal Nehru Memorial Medical College is concerned, is not correct. As the same principle has been adopted for all the medical colleges, it is apparent that in excess of percentage prescribed, seats have been allotted under the EWS category.

But the question is whether at this juncture, it will be appropriate for this Court to interfere with the entire process.

Though, a contention is raised by Mr. Kotecha that the seat matrix was not published on the date of issuance on 02.02.2022 and was, in fact, published on 09.02.2022, the petitioner in WPC No. 897/2022, has stated that the seat matrix was published on 02.02.2022, thereby belying the contention of petitioner in WPC No. 889/2022. Even assuming for the time being that the contention advanced that the seat matrix was not published on 02.02.2022, it goes without saying that the seat matrix is the foundation on the basis of which counselling and admission process take place. It is admitted by all the parties that seat allotment for the first round of counselling was published on 05.02.2022. If that be the position, a question would have naturally arisen as to on what basis without there being any seat matrix, admission process could have started. The petitioners in WPC No. 889/2022, in that event, ought to have approached this Court contending that without there being any seat matrix, the respondent authorities are going ahead with the admission process in an opaque manner. The petitioners in WPC No.889/2022 filed the writ petition on 11.02.2022, i.e., one day before last date of completion of first round of counselling and two days after registration for second round of counselling that began on 09.02.2022. The petitioner in WPC No.897/2022 filed the writ petition on 10.02.2022.

It is pointed out that the total number of EWS seats allotted in the medical colleges is 66 and Mr. Sharma, on instructions, submits that 62 candidates have already taken admission, and there are only 4 seats to be filled up including one at Raipur. None of students who had been appointed under EWS category has been impleaded as party to these proceedings.

In such circumstances, at this juncture, we are not inclined to grant the reliefs, as prayed for, in these two writ petitions.

The writ petitions, accordingly, stand disposed of.