Harmehar Singha vs Punjab University and Others

Rakesh Kumar Jain, J.—As per the case of the petitioner, the respondent/University has offered B.A. (Hons. School) course followed by MA. (Hons. School) 5 year integrated programme having 29 seats. The eligibility for admission is on the basis of merit determined in the 10+2 examination. There is 5% reservation for the Defence Personnel as per the Handbook of Information 2013. The petitioner vide reference No. 106 applied for admission under the Defence category. The first counselling was held on 10.7.2013 and the second on 15.7.2013. The last General category candidate got admission with 93.6% marks and the Defence category student against the single reserved seat got admission with 92.6% marks. In the waiting list, the petitioner was at serial No. 46. The Handbook of Information provides for another counselling for seats falling vacant on account of various reasons like non-joining of the candidates, non-fulfilment of minimum attendance in the 1st two weeks of the classes, conversion of reserved category seat to the general category quota etc. The case of the petitioner is that in the last counselling held on 19.8.2013 for 5 seats, 3 students were admitted, who were having percentage of 91.4, 91.9 and 90.8, respectively. The General category candidates were having lower percentage marks than the Defence category candidate who got the admission with 92.6% marks.

Learned counsel for the petitioner has submitted that since the marks of the Defence category candidate, who got admission with 92.6% marks, were higher than the General Category candidates, who are having 91.4, 91.9 and 90.8, respectively, he should have been shifted to general seat and the Defence seat should have been offered to the candidates like the petitioner who has applied under the Defence quota with 85% marks. In this regard, he has referred to the provisions of the Handbook of Information 2013 with regard to interchangeability and transfer of seats but has been candid enough to submit that there is no provision in the Handbook with regard to interchangeability of seats of the quota meant for Defence personnel. In this regard, Clause 4 of the Handbook of Information 2013 with regard to inter-changeability and transfer of seats is reproduced as under:

The implementation of the present policy of the State Government would mean that a candidate belonging to the reserved category is not allowed to seek admission against the seats meant for General categories and the reservation instead of working to the benefit of the reserved categories would work to their detriment. The effect of such instructions would be that students falling in the reserved categories can only claim the reserved seats and even if they fair better than others in the open competition they will not be allowed to occupy any unreserved seat. In other words, it means that only such number of candidates form the reserved category would be allowed admission as are equal to the number of reserved seats even though larger number from that class may have secured more marks than the candidates in the general category. This, in our opinion, is arbitrary and violative of Article 14 of the Constitution.

Inter-Changeability and transfer of seats

(a) In the Reserved categories given at (i) and (ii) under paragraph 2(B), i.e. Scheduled Castes and Scheduled Tribes, the seats shall be regarded as interchangeable. That is to say, if a sufficient number of eligible candidates are not available to fill up the seats reserved for Scheduled Tribes, seats may be filled upfront among the eligible candidates belonging to the Scheduled Castes, and vice-versa.

(b) The seats in the reserved categories as remain unfilled shall be transferred to the Open category on 14-8-2013 (Wednesday) by 5.00 p.m. Any additional seat/s, if created for the reserved category, shall stand cancelled in such a case.

Note: The Departments where admission is based on Entrance Test/Aptitude Test, seats in reserved categories be included in the General Category right from the beginning of admission in case there were no candidate belonging to these categories having qualified the Entrance Test were available.

The aforesaid provision reflects that the inter-changeability is allowed with regard to the seats of the Scheduled Castes and Scheduled Tribes in terms of Clause 2(b)(i)(ii) which provides that 15% seats are reserved for candidates belonging to the Scheduled Castes and 7.5% for the candidates belonging to Scheduled Tribes.

However, learned counsel for the petitioner has argued that it is a settled law that if a candidate belonging to reserved category has more marks then he has to be transferred to General category and the seat of the reserved category has to be offered to the next incumbent. In this regard, he has relied upon a Division Bench judgment of this Court in the case of Jaskaran Singh Vs. State of Punjab, .

I have heard learned counsel for the petitioner and perused the record.

Insofar, the judgment in the case of Jaskaran Singh (Supra) is concerned, in that case the grievance of the petitioner was that the candidates belonging to the reserved category, who have been selected and have obtained more marks than the candidates of the unreserved seats should be admitted against the seats meant for the un-reserved candidates. The stand of the State in that case was that even if a candidate belonging to a reserved category secures more marks than the one belonging to the unreserved category, he/she cannot be allotted seats from the open category. He/she has to be given a seat against which they sought admission no matter that they secured more marks than some admitted in the unreserved category. In this regard, the State had relied upon, instructions dated 19.10.1983 issued regarding admissions to MBBS/BDS Courses, which reads as under:--

According to the existing system, admissions are first made against the open category seats and reserved category seats are filled from the candidates not admitted against general category seats. Government received some representations pointing out anomalies in the admissions as a result of this. The matter also come up for discussion in one of the meetings of the Directors Research and Medical Education and the Principals of the three Medical Colleges held with the Secretary Health, Punjab.

The matter has been considered by the Government and it has been decided that from the next academic session i.e. 1984-85 admissions shall first be made against reserved category seats and thereafter against open merit seats.

The above decision may be brought to the notice of all concerned, under intimation to Government.

However, the instructions have been held to be violative of Article 14 of the Constitution of India in the aforesaid case, in which it was observed as under:--

The implementation of the present policy of the State Government would mean that a candidate belonging to the reserved category is not allowed to seek admission against the seats meant for General categories and the reservation instead of working to the benefit of the reserved categories would work to their detriment. The effect of such instructions would be that students falling in the reserved categories can only claim the reserved seats and even if they fair better than others in the open competition they will not be allowed to occupy any unreserved seat in other words, it means that only such number of candidates form the reserved category would be allowed admission as are equal to the number of reserved seats even though larger number from that class may have secured more marks than the candidates in the general category. This, in our opinion, is arbitrary and violative of Article 14 of the Constitution.

Thus, while allowing the writ petition, direction was given to admit in the General category, candidates in the reserved categories, who have secured more marks than the candidates in the General category and then fill up the seats that may fell vacant in the reserved categories from amongst candidates in these categories according to their merit.

Admittedly, the petitioner has secured 85% marks in 10+2 examination. He has applied in Defence category in which there is only one seat which has already been offered to the student who has secured 92.6% marks. Meaning thereby, the only Defence quota seat has already been consumed. It is also not disputed that the candidates in General category having marks 91.4%, 91.9% and 90.8% have also got admission against the General category seats. The question thus arises is "as to whether in the absence of any provision with regard to inter-changeability and transfer of seats in the Handbook of Information 2013 which categorically provides for interchangeability of seats in respect of Scheduled Castes and Scheduled Tribes quota and not with regard to Defence quota, the student who has got admission with 92.6% marks in Defence quota can be shifted and transferred to General category resulting into loss of seat to General category candidate who is at the tail end having 91.4% marks and the petitioner could be adjusted in the Defence quota seat with 85% marks?" In my considered opinion, it is also a settled law that the Court cannot rewrite the prospectus much less the Handbook of Information 2013 which has a force of law not providing the interchangeability or transfer of seat is not provided for particular reserved quota, it cannot be ordered. Thus, the present writ petition is hereby dismissed.