Jaspal Singh vs State of Punjab

R.L. Anand, J.—By this judgment, I am disposing of Civil Writ Petition No. 11961 of 2000, titled Jaspal Singh and others v. State of Punjab and others and Civil Writ Petition No. 14195 of 2000, titled Dr. Kapil Dev v. State of Punjab and others, as in my opinion, both these writ petitioners can be disposed of by one judgment.

First of all, I may mention that Civil Writ Petition No. 11961 of 2000, was filed by 7 petitioners but before the start of the arguments, the learned counsel appearing on behalf of the petitioners, made a statement at the bar, that this writ petition qua Jaspal Singh and Urvashi Sharma, petitioners No. 1 and 2, may be dismissed as withdrawn because these petitioners have got the admission in the desired Postgraduate Medical/Dental Surgery Course for the year 2000-2001. Re- sultantly, Writ Petition No. 11961 of 2000, qua Jaspal Singh and Urbashi Sharma, petitioners No. 1 and 2, is hereby dismissed as withdrawn.

Now, I proceed with to decide the case of petitioners No. 3 to 7 vis-a-vis respondents No. 1 to 9.

The writ petition has been filed under Articles 226/227 of the Constitution of India for issuance of a writ of certiorari quashing the admission of respondents No 4 to 9 to Postgraduate Medical/Dental Surgery Course for the year 2000-2001 and it has been further prayed that directions be issued to the official respondents to admit the petitioners No. 3 to 7 in the Post Graduate Medical/Dental Course in place of respondents No. 4 to 9.

The case set up by the petitioners is that Guru Nanak Dev University conducted a competitive entrance test 2000 on behalf of Government of Punjab and respondent No. 3 for admission to Postgraduate medical/Dental Course. The petitioners and private respondents participated in the examination in accordance with the eligibility conditions laid down by the Punjab Government. The result was notified. Petitioner No. 3 got 844/11 marks, petitioner No. 4,828/13 marks, petitioner No. 5, 824/18 marks, petitioner No. 6, 824/19 marks and petitioner No. 7, 812/22 marks, whereas, respondent No. 4 got 708/1 marks, respondent No. 5,700/2 marks, respondent No.6, 684/3 marks, respondent No. 7,672/4 marks, respondent No. 8,620/7 and respondent No. 9 got 532/3 marks. It was also stated by the petitioners mat prospectus was issued. The distribution of the seats was that out of the total seats 25 percent will be filled on All India Basis, of the remaining seafs, 60% will be filled amongst the eligible PCMS/PCMS (Dental)/PDES in-service doctors while 40% will be filled amongst non-PCMS/PCMS (Dental) PDES (Dental Graduate). Further, the PCMS doctors were supposed to serve three years rural service which shall be computed as on 30.6.2000. It is also the case of the petitioners that as per the Note No. 2, appearing at page No. 2 of the Prospectus, it has been provided as follows :-

"After exhausting all the eligible candidates under 60% quota, the vacant seats due to non-availability of eligible candidates, if any, shall be offered to the eligible candidates under 40% quota and vice-versa".

Note 6 of the said prospectus further lays down as follows :-

"The above reservation -will be made in each subject/college separately subject to the availability of seats as per instruction issued by the Govt. of Punjab from time to time. The reservation in each institution shall not exceed 25% in case of SC candidates and 30% for SC/B.C. combined together. A hundred point roster shall be maintained category-wise, subject-wise and institution-wise with base year 1993".

The case set up by the petitioners can be summed up as follows. They want to come under 40% category which is open to the direct recruits. It is the case of pe- titioners that if under the category of 60%, some seats have fallen vacant, those are interchangeable, and these will go to 40% quota but a seat if it has become vacant on account of the non-occupation by a general candidate, it will go to a general candidate in the quota of 40% and not by roster point.

The second submission of the petitioners in this writ petition is that respondent No. 9 was not having the rural experience of 3 years on the cut off date, therefore, he was ineligible to be considered for postgraduate seaj which has been wrongly given to him. It is the stand of the petitioners that by adopting the roster point, the guide-line of Note 6, that the reservation in each institution shall not exceed 25% in the case of Scheduled Castes candidates and 30% for Scheduled Castes/Backward Classes combined candidates; stands disturbed. As per these petitioners, the admission given to respondents No. 4 to 9 is illegal and this should be struck down.

The case of Dr. Kapil Dev in C.W.p. No. 14195 of 2000 is that he is a candidate under 60% quota. As per Regulation 5A(d) of the Prospectus only those candidates, who secure atleast 40% marks in the competitive examination, are eligible for admission in clinical subjects viz : Medicine, Surgery, Opthalmplogy, E.N.T., Orthopaedics, Gynae, Paediatrics, Skin and V.D., Psychiatry, Radio-Diagnosis and Anaesthesia. This para does not indicate that 40% marks are also required to be taken by the petitioner. Therefore, his name has been wrongly ignored for consideration to the course. He submits that during the course of interview he has been orally refused admission on the ground that he has not secured minimum marks of 40% in the written test and this action on the part of the respondents is illegal.

Notice of both the writ petitions were given to the respondents. Separate written statements were filed.

First of all, I will take up the written statements of respondents No. 1 and 2 filed fey Dr. R.L. Jain in C.W.P. No. 11961/2000. According to him, the seats in pedodontics subject of Dental College, Patiala were allotted to General category under 40% quota whereas the seat under 60% quota was reserved for SC category in case the seats were to be filled as per 100 point roster with base year as 1993. It was further pleaded that during the extended date, both the seats at 100 point roster have been offered to open merit candidates, who happen to be petitioners Nos. 1 and 2 in this writ petition as there was no candidate available .under 60% quota. Also it is the stand of respondents No. 1 and 2 that respondent No. 9 was admitted on the basis of Punjab Government letter dated 9.2.2000 written by Special Secretary to Government of Punjab, vide which it was directed that a candidate who does not possess three years rural service may be admitted in the course but he will complete three years rural service after doing M.D.S. course. All the vacant seats of 60% were transferred to 40% quota and seats have been offered to the candidates according to 100 point roster maintained category-wise, subject-wise and institution-wise with base year of 1993. Thus, the short stand taken in the written statement by respondents No. 1 and 2 is that they have directly adopted Note No. 6 which is even being relied upon by the petitioners.

A separate written statement was also filed on behalf of respondents No. 4 to 8 in C.W.P. No. 11961 of 2000 and they have adopted the stand of respondents No. 1 and 2. Similarly a separate written statement was filed on behalf of respondent No. 9 who not only adopted the stand of respondent No. 4 to 8 but also stated that he was fulfilling the requisite experience of 3 years rural service and, therefore, he was eligible to appear in the entrance test.

The stand of respondents No. 1 and 2 vis-a-vis second writ of Dr. Kapil Dev is that this petitioner did not secure 40% marks in the test, therefore, he was ineligible to be considered for the post-graduate course.

Some documents were also placed by the parties in support of their case and I will deal with those documents in the subsequent portion of this judgment.

I have heard Shri Ashok Sharma Nabhewala Advocate appearing on behalf of the petitioners of Civil Writ Petition No. 11961 of 2009 and Shri C.L. Pawar, appearing on behalf of the petitioner of Civil Writ Petition No. 14195 of 2000 and Mrs. Charu Tuli, learned DAG, appearing on behalf of respondents No. 1 and 2 Shri R.D. Bawa on behalf of respondents No. 4 to 8, Shri P.S. Patwalia, on behalf of respondent No. 3 and Shri H.S. Sethi, appearing on behalf of respondent No. 9 and with their assistance have gone through the record of this case.

Let us first take the case of the clients of Shri Ashok Sharma Nabhewala who tried to convince me with the help of document Annexure P-3 and submitted that under 60% quota there were 5 seats; one seat was meant for open merit against the speciality of Pe-riodontplogy, two seats were in open merit against the speciality of Conservative Dentistry; one seat was available to Scheduled Castes candidate against the speciality of Pedodontia and one seat was available for Scheduled Castes in Oral Surgery. In all five seats were there. These seats under 60% quota became vacant and according to the conditions of the prospectus these were inter-changeable and came to 40% quota. The grouse of Mr. Nabehwala is that a seat meant for open candidate should have been offered to the open candidate in 40% quota, and the seat meant for scheduled castes candidates under 60% if becomes vacant, should go to a scheduled castes candidate under 40% quota and this has not been done. Rather it has been given to all the scheduled castes candidates and by dp-ing so it has disturbed the ratio of percentage as contained in Note 6, which I have already quoted above. He wanted to say that conversion is permissible but it cannot break the ratio of percentage as is envisaged in Note 6.

On the contrary learned counsel appearing on behalf of the respondents submitted that conversion has to go institution-wise, subject-wise and roster-wise by making 1993 as a base year. All the vacant seats have been filled according to roster point. Respondents No. 1 and 2 are the selection committee and they have to frame a roster in such a manner that the percentage prescribed in Note 6 should not be disturbed but, if on account of conversion, the ratio of the roster is disturbed, that is not violative because it is just possible that at particular point of time, a general candidate may take the advantage of conversion and occupy a seat of a roster point, if vacant, which seat otherwise was to go to a reserved candidate.

The learned counsel appearing on behalf of Dr. Kapil Dev submitted that as per Regulation 5(A)(d) of the prospectus, there is no condition precedent that a candidate desirous to get a seat in the dentistry was required to take 40% marks in the competitive examination, therefore, the petitioner is entitled to the seat.

Meeting the argument of Mr. C.L. Pawar, it was argued by respondents that subject of Dentistry is a clinical subject. The specialities mentioned in the regulation are only illustrative and not exhaustive. Since the petitioner has not got the 40% marks, therefore, he has been rightly declined the seat.

After considering the rival contentions of the parties this Court is of the opinion that both the writ petitions are bound to fail.

Note 2 which I have quoted above in commas and Note 6 which I have also quoted in commas above, are the subject matter of interpretation. By virtue of Note 2, a conversion is permissible. It has been clearly stipulated in Note 2 that after exhausting all the eligible candidates under 60% quota, the vacant seat due to non-availability of eligible candidates, if any, shall be offered to the eligible candidates under 40% quota and vice versa. Meaning thereby, that any seat falling vacant under 60% quota shall go to the category of 40% quota. Note 6 is important for our purposes. This clearly spells out that reservation in each institution shall not exceed 25% in the case of Scheduled Castes and 30% for Scheduled Castes/Backward Classes combined, together. Let us have a pause here. The reading of these lines would show that reservation is permissible institution-wise and this reservation should not exceed 25% for scheduled castes category and 30% Scheduled Castes/Backward Classes combined. There are two institutions imparting postgraduate courses; one is at Patiala and the other at Am-ritsar. We are concerned with the institution of Amrit-sar. The object of reservation is that in a surrender point roster the seats of Scheduled Castes should not exceed 25% at the time of the preparation of the roster and this reservation should not exceed 30% for SC/BC combined at the time of the preparation of the initial roster. Note 6 further provided that a surrender point roster shall be maintained category wise, subject-wise and institution-wise with a base year of 1993. Meaning thereby that for each speciality again there will be surrender point roster, which shall be maintained institution wise also. We all know that the roster point is run- ning and each point has to be consumed. Once it is consumed, it loses its significance from the roster. Smt. Charu Tuli has convinced me from the document Annexure R-9 that the selection committee has strictly adhered to the running roster point and has not violated it. In the Periodontology speciality there was one seat under 60% quota and it was reserved for open merit. It was to go to serial No. 2 of the roster point as is evident from Annexure R-9 page 72 of the paper book but it could not go to the open merit and it was transferred to 40% quota. In this quota there was one seat of open merit. It has gone to serial No. 16. The conversion seat has gone to serial No. 17. This running Roster point 17 was meant for Scheduled Castes candidate. Therefore, naturally it has to go to Scheduled castes candidate but could not go to a candidate of open merit on the ground that it has come from open merit. It is equally possible that a seat is made available by a Scheduled Castes candidate under his own right but it may go to general category because of the non-availability of a Scheduled Castes candidate. This ratio, of pourse, at one point of time may be disturbed but it cannot be said that the procedure of conversion is bad. Reserved points are fixed points and it is a matter of chance that if a seat of general category goes to a Scheduled Castes candi-date who gets benefit on account of fixed roster point.

Proceeding further, two seats were available against, Conservative Dentistry in the open market. If those are not filled in that quota, it will switch over to 40% quota and would be adjusted against those points in the running roster. This has been exactly done by the selection committee. I do not agree with the contention of Shri Nabhewala that a seat of general category must go to the general quota or that the seat of Scheduled Castes must go to scheduled castes on conversion. This is against the principle of running roster.

Similarly, the client of Shri Pawar has no case. Admittedly, he did not secure 40% marks. If Regulation 5(A)(d) of the prospectus is read it is the clear intention of the authority that the candidates are supposed to secure 40% marks in the competitive examination. Of course, there is a mistake in the printing of this prospectus when it is not clearly written that Dentistry will also be covered by 40% marks rule but nothing can be gathered clearly because it is a clinical subject. The petitioner is a doctor and he is fully aware about the nature of this job.

Now, I will deal whether respondent No. 9 was eligible or not and whether he was having the requisite rural experience of three years service.

This aspect of the case can be examined from two angles. The learned counsel for the petitioners Shri Ashok Nabhewala refers to a telegram Annexure P-8 issued by the Civil Surgeon, Jalandhar in the name of the Principal, Dental College, Amritsar by stating that Dr. Amarjit Singh Riar has only completed two years and 9 months rural service and action be taken accordingly. This telegram is dated 4.9.2000. On 1.9.2000 Civil Surgeon, Jalandhar has certified that Dr. Riar''s service record has been checked and he com- pletes three years of rural service including the period from 5.5.1998 to 31.8.2000 when this respondent No. 9 was posted as Goraya which is a Mini Primary Health Centre under Primary Health Centre, Jandiala, District Jalandhar. The grouse of the petitioner is that Goraya is not a rural area.

Be that as it may, this Court is not in a position to give much importance to the argument of the learned counsel for the petitioners in view of the certificate Annexure R-9/2 dated 1.9.2000. Before issuing the telegram Dr. Riar was never given opportunity to explain. Assuming for the sake of arguments that Dr. Riar was not having three years rural service still the letter dated 9.2.2000 protects respondent No. 9. This letter has been issued by the Government of Punjab and it has been inter alia written that the doctors who have less than three years rural service, can still be given admission in post-graduate course but they will have to give an undertaking that after completion of the course they will complete their remaining rural service so as to complete three years in PCMS cadre. The stand of respondent No. 9 is that Goraya falls within the jurisdiction of Primary Health Centre, Jandiala which is a rural area. He has completed 3 years of rural service. It has been so certified by the Civil Surgeon on 1.9.2000. The subsequent telegram is of no use and loses its significance in view of the revised instructions of the Government.

The net result of my above discussion is that both the writ petitions are liable to be dismissed as the conversion is permissible and the vacant seats have to be filled on a running roster system and not seat for seat. In a running roster system the ratio of reservation is likely to be disturbed or it may not be disturbed but it will not affect the process of admission if the roster prepared at the first stage does not transgress the outer limit of reservation of 25% for Scheduled Castes and 30% for Scheduled Castes/Backward Class combined.

Consequently, both the aforesaid writ petitions are hereby dismissed with no order as to costs.

Writ petitions dismissed.