Ivanpreet Kaur vs Baba Farid University of Health Sciences

G.S. Sandhawalia, J.—The petitioner in the present writ petition is praying for the relief of admission in M.S. (Orthopaedics) in the Government Medical College, Patiala against category No. 17, ''Wards of Terrorism or Riot Affected or Displaced Persons''. The admission of respondent No. 4-Gunvinder Singh against the said seat is sought to be cancelled on account of the fact that he had never applied in the said category.

The case of the petitioner is that after obtaining his MBBS degree from Baba Farid University of Health Sciences, Faridkot (its acronym, ''BFUHS'') and wanting to seek admission in the MD/MS course and appeared in the All India Post-Graduate Medical Entrance Examination, 2014 (its acronym, ''AIPGMEE'') conducted by the National Board of Examinations. She secured 874.8509 out of 1500 marks and was placed at rank No. 912 in the State list of Punjab. Respondent No. 1-University issued the prospectus wherein, against General seats, there was category No. 17 for admission to ''Wards of Terrorism or Riots Affected or Displaced Persons''. The petitioner fulfilled all the eligibility criteria prescribed for admission against the said category and sought admission on 20.03.2013 in the said category and appended the relevant certificate, issued by the Deputy Commissioner, Patiala dated 23.01.2014 (Annexure P5), which showed that she was a riot affected Sikh migrant and holder of Red Card. Counselling was held on 28.03.2014 and the category-wise list was published in the notice board and the name of respondent No. 4 was shown in category No. 16, in the order of merit.

As per the Punjab Government notification dated 23.12.2013, only two seats were allocated for Riot/Terrorist affected category and one seat was at M.D. Obst. & Gynae at GMC, Amritsar and other in M.S. Orthopaedics at GMC, Patiala. As per Clause 26-V(v), under the category ''Wards of Terrorism/Riot Affected Persons, preference was to be given to ''Persons killed in terrorist activities in Punjab or in 1984 riots, outside Punjab''. Thereafter, ''Terrorism/Riot Affected/Displaced Persons of Punjab Origin'' were to be given preference and accordingly, it was found that none of the candidates from category No. 16 was eligible but for reasons best known to the respondent-University, admission was granted to respondent No. 4 under category No. 17 in blatant violation of Clause 3.9 of the prospectus. The judgment passed by this Court in CWP No. 13280 of 2010 titled Manbir Kaur & others Vs. State of Punjab & another was also brought to the notice of the Admission Committee that a candidate who had not applied under a particular category, could not be considered against the said category. Resultantly, the present writ petition is filed on the ground that respondent No. 4 applied against category No. 16 and therefore, could not have been given admission against category No. 17.

Respondents No. 1 & 2, in their reply, submitted that respondent No. 4 had secured 875.1654 marks and had applied for admission in the ''Terrorist/Riot Affected Category'' and was placed at merit No. 1 of the provisional merit list. 2% seats were reserved for the wards of different categories in the order of preference to the exclusion of the next category. Respondent No. 4 had applied in the Riot Affected Categories, claiming preference in Category No. 1 of the said clause of taking benefit of the ''Persons killed in terrorist activities in Punjab or in 1984 riots outside Punjab'', bearing category No. 16 but he could not be given the said preference as no one was killed in the Riot/Terrorist Activities. He belongs to category code No. 17 of ''Terrorism/Riot Affected/Displaced Persons'', who could be given the said preference and therefore, the Selection Committee had unanimously decided to make a common merit for the riot affected candidates and respondent No. 4 being higher in merit and having secured more marks in the AIPGMEE, 2013, was selected in the M.S. (Orthopaedics).

Respondent No. 4, in his reply, submitted that as per the on-line application form, the category of ''Wards of Riot Affected Persons in Punjab or in 1984 Riots'' was categorized under Clause 16 and accordingly, he had applied for the same under the said category. Photocopy of the on-line form showing the categorization of Wards of Riot Affected Persons in Punjab or in 1984 Riots, is appended as R4/1. It was submitted that the petitioner was more meritorious in the entrance test and therefore, has rightly been granted admission against the said seat. It is submitted that the petitioner is trying to take benefit of the sub-categorization of the said clause though it was not in the said performa of the online application. The answering respondent had, from day one, applied for the post-graduation course for the ''Riot Affected Persons or in 1984'', which is reflected in the on-line form and therefore, both of them had applied in the same category and being more meritorious, respondent No. 4 had been selected.

In the replication filed, plea taken is that once respondent No. 4 had not applied in the category code and applied under category code No. 16, the Admission Committee had no power or authority to grant admission by considering his candidature under category code No. 17. Reliance was placed upon Full Bench judgments of this Court in Amardeep Singh Sahota Vs. The State of Punjab etc., and Rahul Prabhakar Vs. Punjab Technical University and Others, to submit that the prospectus had the force of law and therefore, respondent No. 4 had been wrongly considered against category No. 17. Reliance was placed upon Clause 3.9 to submit that categories have to be filled carefully in on-line application forms and claim could not be changed, in any case, after submitting the form with the University. Candidates who had not filled in any claim against a category code other than mentioned in the prospectus would be treated as General Category candidate and no claim could be entertained in this regard. Similarly, reliance is also placed upon the terms of the prospectus that the last date for submitting the print-out copy of the on-line application form had to be submitted and the candidates have to read carefully the instructions and the rules, to submit that the Committee had wrongly entertained the application of respondent No. 4.

At first blush, the argument of counsel for the petitioner is very attractive but on a closure scrutiny of the record, including the original application form of respondent No. 4, which has been summoned, this Court is of the opinion that the said argument is not liable to be accepted. The categories No. 16 & 17, which are the subject matter of dispute, give benefit to the wards of various persons who are either ''Killed in the terrorist action in Punjab or in 1984 riots'' whereas, under Sub-clause (a) & (b) of Clause (viii) of Clause 3.9. Wards of persons killed in terrorist action in Punjab or in 1984 riots outside Punjab and terrorism or riot affected or displaced persons have to be given benefits. The said categories read as under:

As per sub-clause (v) of Clause 26(V), reservation is provided in Government colleges to wards of the abovesaid persons but in order of preference to the exclusion of the next category and 2% seats are reserved. Clause 26V(v) reads as under:

v. Wards of terrorism/riot affected persons (in order of preference to the exclusion of the next category)

i. Persons killed in terrorist activities in Punjab or in 1984 riots outside Punjab

ii. Terrorism or riot affected or displaced person of Punjab origin.

Preference will be given to a candidate whose parent or guardian is killed in such situation (Guardian to be considered only in case neither parent was alive at the relevant time)

Thus, a perusal of the above would go on to show that preference has to be given to wards of the persons killed in terrorist activities etc. who would be falling in Category 16. The preference is but natural since wards whose parents had been killed, are placed at a higher pedestal than a person who is merely terrorism or riot affected or displaced person. The prospectus further provides that the certificate is to be given as per Annexure H and Annexure I, which read as under:

Annexure-H

Certificate in respect of wards of persons killed in terrorist action in punjab or in 1984 riots outside punjab

CATEGORY CODE-16

No. _______ Date ___________

This is to certify that ____________(Name of Parent/Guardian*) son/daughter of Sh. ____________ was killed in terrorist activities in Punjab/in 1984 riots outside Punjab. He is Father/Guardian* of _____________(Name of candidate)

(*Guardian will be considered only in case neither parent was alive at the relevant time).

Date__________ D.C./G.A. to D.C. of the respective District

(With seal)

(The applicant will have to fulfill the basic qualifications and any criteria prescribed by the concerned University).

Annexure-I

certificate in respect of wards of terrorism or riots affected or displaced persons of punjab origin

CATEGORY CODE-17

No.______ Date__________

This is to certify that ___________(Name of Parent/Guardian*) son/daughter of Sh.___________was displaced due to the riots/terrorism. He/she originally belongs to Punjab. He is Father/Guardian* of_____________(Name of candidate)

(*Guardian will be considered only in case neither parent was alive at the relevant time).

Date__________ D.C./G.A. to D.C. of the respective District

(With seal)

(The applicant will have to fulfill the basic qualifications and any criteria prescribed by the concerned University).

Reading of the said annexures would show that a person has to apply under Category No. 16, i.e., of persons killed in terrorist action or 1984 riots, the name of that person will have to be mentioned and therefore, the certificate is very categorical in Annexure H. The certificate in Annexure I has to mention the name of the parent/guardian of the displaced person due to the riots and terrorism and the fact that he originally belongs to Punjab. There is no dispute with the fact that the petitioner applied under Category Code No. 17, as per Annexure I, issued by the Deputy Commissioner, Patiala. A perusal of the application form submitted by respondent No. 4 also, however, goes on to show that he never applied under Category No. 16 since his certificate, which has been issued by the Additional Deputy Commissioner, Ludhiana dated 20.07.2007 also shows that he is a 1984 riot affected person. The certificate submitted reads as under:

certificate in respect of wards of persons of 1984 riots affected & displaced persons

No. 1017.RRA

Date: 20/7/07

Certified that BAJINDER SINGH S/O. BAL SINGH R/o. Satjot Nagar, Block-B, Dugri Dhandra Road, Ludhiana belongs to November 1984 affected family. Red card No. is LDH (L) BHR-152 is in the name of Bajinder Singh as per office record.

Sd/- Addl. Deputy Commissioner, Ludhiana

There is no doubt that in the on-line form which was filled by respondent No. 4, instead of category No. 17, which he was wanting to apply, he has filled category No. 16, ''Wards of Riot Affected in Punjab or in 1984 Riots'' and printed the same on-line form and submitted the same for admission. In the said form also, in his category, he has written ''Riot'' and it has been explained by him in his written statement that this mistake had occurred on account of the wrong options which were available in the on-line form, photocopy of which has been appended as R4/1. The said option at Sr. Nos. 16 & 17 were confusing in this aspect that the wards of riot affected in Punjab or in 1984 was also shown at Sr. No. 16 whereas only wards of persons killed should have been shown at Sr. No. 16. Relevant portion of Annexure R4/1 reads as under:

Wards of Riot Affected in Punjab or in 1984

Ward of Terrorism or Riot Affected or Displaced

In such circumstances, this Court is of the opinion that respondent No. 3 has rightly submitted that his category was wrongly filled under Sr. No. 16 on account of an ambiguity being there in the on-line form, as noticed above. His application, all along, was under Category No. 17 and the Committee has rightly considered him in the said category and given him admission on the basis of higher in merit. The relevant portion of the minutes of meeting of the Committee which has scrutinized the forms and given the benefit, read as under:

One candidate S. Gunviner Singh S/o. S. Bajinder Singh, AIPGMEE Roll No. 9551765, marks 875.1654 had applied in Riot affected category claiming preference as "a) persons killed in terrorist activities in Punjab or in 1984 Riots outside Punjab. This preference could not be given to him as no one was killed in riots or terrorist activities rather he belongs to "b) Terrorism or Riot affected or displaced person of Punjab origin". Being there is no other candidate present for the first preference. As such committee unanimously decided to make common merit for all riot affected candidates according to clause 27V v. of Punjab Govt. notification and candidates were selected according to the marks secured in AIPGMEE-2014 under riot affected category.

This positive action of the Committee is, thus, being challenged on a technical ground by the petitioner that once a candidate who had not applied against a particular category, he could not be considered against the same and the clauses of the prospectus had to be read strictly and having the force of law, the benefit could not be granted to respondent No. 4. A three Judges Bench of the Apex Court in similar circumstances, in Dolly Chhanda Vs. Chairman, JEE and Others, held that procedural provisions and mistakes in eligibility certificates for reserved categories can be corrected even after due dates and during the last counselling. In the said case, the candidate was a daughter of an Ex-serviceman and her candidature had been rejected despite the fact that she was higher in merit, on the ground that her certificate did not fulfill the requirement of the reserved MI Category. The candidate had approached the respondents with correct certificate, thereafter, but no action had been taken. The writ petition was dismissed by the High Court on the ground that she did not belong to the reserved MI Category, as per the requirement of the information brochure. It was noticed that the general rule is that while applying for the course, a person must possess the eligibility condition, on the last date and there can be no relaxation in this regard. However, it was held that technicalities in the nature of proof on holding a particular qualification or percentage of marks secured, the entitlement of reservation can be supplied depending upon the facts of the case and there can be relaxation and it would not be proper to apply any rigid principle in the matter of submission of proof. Accordingly, the appeal was allowed and the respondents were directed to give admission to the appellant in the next academic year while granting the necessary relief. It was held that the fault lay with the respondents who had adopted highly technical and rigid attitude. Relevant observations read as under:

The general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in application form, as the case may be, unless there is an express provision to the contrary. There can be no relaxation in this regard i.e. in the matter of holding the requisite eligibility qualification by the date fixed. This has to be established by producing the necessary certificates, degrees or marksheets. Similarly, in order to avail of the benefit of reservation or weightage etc. necessary certificates have to be produced. These are documents in the nature of proof of holding of particular qualification or percentage of marks secured or entitlement for benefit of reservation. Depending upon the facts of a case, there can be some relaxation in the matter of submission of proof and it will not be proper to apply any rigid principle as it pertains in the domain of procedure. Every infraction of the rule relating to submission of proof need not necessarily result in rejection of candidature.

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The appellant had qualified in the JEE-2003 but the said academic year is already over. But for this situation the fault lies with the respondents, who adopted a highly technical and rigid attitude and not with the appellant. We are, therefore, of the opinion that the appellant should be given admission in MBBS course in any of the State medical colleges in the current academic year.

The appeal is accordingly allowed with costs. The judgment and order dated 31.10.2003 of the High Court is set aside. The respondents are directed to give admission to the appellant in any one of the State medical colleges forthwith. In case the State seats have already been filled up, one extra seat shall be created for her.

Appeal allowed.

The abovesaid observations of the Apex Court are directly applicable to the facts and circumstances of the present case. Admittedly, the Committee has examined, in detail, the application of respondent No. 4 and granted him necessary adjustment. Respondent No. 4 has validly shown the reason for submitting the application form in the wrong category, as noticed above. There is no dispute that inter se both the petitioner and respondent No. 4, respondent No. 4 is having higher merit though in view of the tough competition in professional courses, is just marginally ahead. The Apex Court in Asha Vs. Pt. B.D. Sharma University of Health Sciences and Others, has held that merit is the only consideration which is to be taken for admissions in medical courses. It was also held that the benefit of merit should not be defeated due to the insufficient inaccuracy or improper method of admission and on account of no fault attributable to the candidate, in respect of admissions. Accordingly, the petitioners were granted the admission in the next academic session on account of being denied admission, having been present at the time of counselling. Relevant observations read as under:

At this stage, we may refer to certain judgments of the Court where it has clearly spelt out that the criteria for selection has to be merit alone. In fact, merit, fairness and transparency are the ethos of the process for admission to such courses. It will be travesty of the scheme formulated by this Court and duly notified by the states, if the Rule of Merit is defeated by inefficiency, inaccuracy or improper methods of admission. There cannot be any circumstance where the Rule of merit can be compromised. From the facts of the present case, it is evident that merit has been a casualty. It will be useful to refer to the view consistently taken by this Court that merit alone is the criteria for such admissions and circumvention of merit is not only impermissible but is also abuse of the process of law. (Ref. Priya Gupta v. State of Chhatisgarh, Harshali v. State of Maharashtra, Pradeep Jain v. Union of India, Sharwan Kumar v. DG of Health Services, Preeti Srivastava v. State of M.P., Guru Nanak Dev University v. Saumil Garg and AIIMS Students'' Union v. AIIMS and Others).

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The Court cannot ignore the fact that these admissions relate to professional courses and the entire life of a student depends upon his admission to a particular course. Every candidate of higher merit would always aspire admission to the course which is more promising. Undoubtedly, any candidate would prefer course of MBBS over BDS given the high-competitiveness in the present times, where on a fraction of a mark, the admission to course could vary. Higher the competition, greater is the duty on the part of the concerned authorities to act with utmost caution to ensure transparency and fairness. It is one of their primary obligations to see that a candidate of higher merit is not denied seat to the appropriate course and college, as per his preference. We are not oblivious of the fact that the process of admissions is a cumbersome task for the authorities but that per se cannot be a ground for compromising merit. The concerned authorities are expected to perform certain functions, which must be performed in a fair and proper manner i.e. strictly in consonance with the relevant rules and regulations.

In such circumstances, reliance upon the judgment of this Court in the case of Manbir Kaur (supra), relied upon by counsel for the petitioner, is not justified. A perusal of the said case would go on to show that the petitioners therein were unsuccessful in getting admission in MBBS course and had initially filed writ petitions to claim admission in the category of wards of terrorist affected persons and whether they could be validly considered in the category of wards of those killed in terrorist action as they were grandchildren of persons who were killed in terrorist action in Punjab or in riots outside Punjab. The matter was referred to the Division Bench, which was further referred to a Full Bench and answered against the petitioners. An amended writ petition came to be filed by the petitioners for grant of admission as grandchildren of terrorist affected families. The writ petition was then dismissed on the ground that the petitioner had never applied for being considered as wards of riot affected/displaced persons and could not be considered in that category. They had amended their claim once they were unsuccessful and therefore, on that account, it was observed that it is settled principle of law that a person could not be considered for a category in which he had not applied.

Thus, in the facts and circumstances of the present case and after perusing the original record, as noticed above, it transpires that it is on account of an ambiguity in the clause in the on-line application form of respondent No. 4, the fault has occurred. The option was registered under category code No. 16 whereas the record clearly depicted that he had applied under category code No. 17 and the respondents have rightly considered him in the said category and being higher in merit, given admission over and above the petitioner. Accordingly, the petitioner cannot be granted any relief in the present writ petition and the same is hereby dismissed. Order dated 04.06.2014 stands vacated. Record retained by this court vide order dated 17.07.2014, be returned against proper receipt.