Kumari Rida Mustaquim vs Union Of India And Others

Ashis Kumar Chakraborty, J

The petitioner in this writ petition is a student who passed the class XII examination from Kendriya Vidyalaya No.2, Minnie Bay, Port Blair, Andaman & Nicobar and appeared in the National Eligibility cum Entrance Test (UG)-2019 conducted by the National Testing Agency, Ministry of Human Resource Development. The petitioner was placed in 3380173 in the NEET all India rank. Since the petitioner passed class XII examination conducted by the Central Board of Secondary Education from Kendriya Vidyalaya No.2, Minnie Bay, she obtained the Migration Certificate from the CBSE as well as the Transfer Certificate from the said school.

Being born and brought up in the Andaman and Nicobar Islands and as a permanent resident of these Islands the petitioner applied for admission in the MBBS course in the Andaman and Nicobar Islands Institute of Medical Sciences, Port Blair (hereinafter referred to as the "said college") for the academic session 2019-20 in the category III A as prescribed in the prospectus issued by the Andaman & Nicobar Administration (hereinafter referred to as "the A&N Administration) by submitting all the necessary documents. In the writ petition the petitioner has disclosed a copy of her application form no. 2019/13 submitted to the said college. The petitioner has also disclosed a copy of the prospectus for MBBS course 2019-20 of the said college published by the A&N Administration. From a reading of the prospectus (hereinafter referred to as "the said prospectus")

it is evident that the said college is established and administered by the Andaman & Nicobar Islands Medical Education and Research Society under the A&N Administration, which is in turn governed by the Lieutenant Governor of these Islands. The Executive Council the Andaman & Nicobar Islands Medical Education and Research Society is prescribed by Chief Secretary, A&N Administration. Admittedly, the setting up of the said college was as per the permission granted by the Medical Council of India (in short, "the MCI"). Clause 4.8 of the said prospectus provided that the category wise allocation of seats in the said " college shall be as follows:

Sl. No

Category

Percentage

No. of seats

1.

All India 15% Quota

15%

17

2

EWS Quota

10%

10

3.

Andaman & Nicobar Inhabitant reserve seats

85%

85

Category -I

20% out of 85 seats

17

5

Category-II

On Deputation and Central Government Employees with transfer liability to serve outside the Union Territory, provided the candidates in this category have studies the last two years in the Islands and passed the qualifying examination from a school in the islands.

Category III

Settlers who were settled prior to 1942 and those were settled under various rehabilitation schemes introduced after reoccupation of the islands. The seats in this category will be allocated as under:-

a. Pre-1942 Settlers 1/3rd

b. Other Settlers 1/3rd

c. Seats to be allocated on the basis of combined merit of (a) and (b) above 1/3rd

10% out of 85 seats.

50% out of 85. (42.5)

14

14

14

09

Note: The seats in fraction will be rounded off to next higher/previ ous lower whole number (9/8) alternative year.

42

Note: 42.5 seats will similarly be rounded off to the whole number alternatively based on the seats distribution of category II.

Category IV Other Locals who do not fall under Categories (I), (II) or (III) above and such Central Govt. Employees having no transfer liability to serve outside the Union Territory provided all their wards have had 10 years education in the islands leading to acquiring of the minimum eligibility criteria ie. Passing of XIIth in the islands (20% out of 85)

20% out of 85 seats

17

Category V General merit quota opens to all the residents of A&N Islands irrespective of any classification. This will be subjects to condition that the candidates must have studies the last two years in the islands and passed the qualifying the examination from a school in the islands

Unutilized seats of Categories I, II, III and IV above

Balance of seats, if any.

However, this may be subject to change as per the direction of the Govt. of India/Andaman and Nicobar Administration if any, which shall be notified on the ANIIMs website, (www.aniims.org) and institute notice board before the start of counselling/admission process." Clause 4.9 of the said prospectus further stated that the "Unutilised Seats of All India Quota and Economically Weaker Sections Quota shall be allotted to categories I, II, III, IV as per reservation criteria".

In the merit list published for admission in the MBBS course of the said college for the year 2019-20, the name of the petitioner was placed in the waiting list candidate in the category III A at serial number 02 and in category III C at serial number 01. The first round of counselling of the qualified candidates was held by the said college on August 03, 2019 and the second round of counselling was held on August 06, 2019. Thereafter, on August 10, 2019 the said college issued a circular declaring that total 23 seats are available for third round counselling, out of which 14 seats of category I (leftover from First Round) and 1 seat of category II (leftover from Second Round) are available in the State Quota and out of the 8 seats reverted from All India Quota, 2 seats was allotted in EWSs category and only 6 seats were allotted in categories I, II, III, IV. The respondent no. 6, the Director of the said college fixed the date of third round of counselling on August 13, 2019. The petitioner claims that allotment of 2 seats out of the unutilised 8 seats of All India Quota to EWSs category by the respondent authorities is in violation of the their own norms and due to illegal allotment of 2 seats to EWSs category she has been wrongfully debarred from getting admission in the MBBS course of the said medical for the session 2019-20. According to the petitioner, since her name appeared at serial number 01 in the category III C if, the 2 seats out of the unutilised 8 seats of the All India Quota were not allotted to EWSs she would have got the said MBBS seat of the said college. After the first unutilised seat in category A was given to Mr. Varsha Venkatashwar, Kumari A.K.Hairun Nisha was relegated to the first waitlisted slot in category A. The second unutilised seat was allotted to a candidate in category B, which is not in dispute. The third unutilised seat, in category C, was allotted to Kumari A.K.Hairun Nisha, being the first candidate in the combined category C, which the writ petitioner was relegated to the first waitlisted slot in category C, and as such, the petitioner now stands at second waitlisted position in category A and first waitlisted position in category C. According to the petitioner, as per clause 4.8 of the said prospectus issued by the A&N Administration the category wise allocation of seats in the said college is stipulated in the table mentioned therein. Such table might, however, be subjected to any change as per direction of the Government of India/ A&N Administration, if any, which should be notified in the website of the medical college as well as the notice board before the start of counselling/admission process. It has been asserted that the respondent authorities on their own, illegally allotted the 2 of the unutilised 10 seats of the All India Quota under EWSs category resulting in deprivation of the petitioner's lawful right to have admission in the said college for the academic year 2019-20. The petitioner, therefore, on August 13, 2019 filed the present writ petition praying for issuance of Writ of Mandamus for setting aside and quashing of the said circular dated August 10, 2019 in so far as the same allotted 2 of the 8 unutilised seats of All India Quota in the EWSs Quota. The petitioner has also prayed for issuance of a writ of certiorari commanding the respondents to transmit all the records relating to the case for giving conscionable justice to her and also for the purpose of passing appropriate order in her favour. An interim order of injunction has also been prayed restraining the respondent authorities from giving any admission to the private respondents nos. 8 and 9 who have been allowed to be admitted in MBBS course of the said college for the academic session 2019-20, under the category EWSs with respect to 2 seats out of 8 unutilised seats of All India Quota till disposal of the writ petition.

On August 16, 2019 a learned Single Judge of this Court passed an order in the writ petition directing, qua the petitioner alone the steps taken in the MBBS admission course 2019-20, as mentioned in the writ petition, shall abide by the ultimate result of the writ petition. The respondents in the writ petition were allowed to file their affidavit-in-opposition within a week from that date and the petitioner was allowed to file her affidavit-in-reply within a week thereafter. Since the address of the private respondent nos. 8 and 9 were not known to the petitioner, she was permitted to serve a notice of the order to the private respondents through the respondent no.6, the Director of the said college. The respondent nos. 3 to 6 namely the Lieutenant Governor, Andaman & Nicobar Islands, the Principal Secretary (Health), A&N Administration, the Principal Secretary (Education), A&N Administration and the Director of the said college jointly filed an affidavit-in-opposition. The petitioner also filed her affidavit-in-reply. Even thereafter, a supplementary affidavit was filed on behalf of the respondent nos. 3 to 6. On September 18, 2019 the petitioner was granted an opportunity to file any counter to the supplementary affidavit-in-opposition filed by the respondent nos. 3 to 6 and the hearing of the writ petition was fixed on September 20, 2019.

In their affidavit-in-opposition and the supplementary affidavit the respondent nos. 3 to 6 alleged that as would be evident from the records disclosed by them the various authorities of the A&N Administration, the entire process of the admission of students in the MBBS course of the said college for the academic year 2019-20 has already been completed by admitting the private respondent nos. 8 and 9 being members of the EWSs. It has been alleged that as per the directions of A&N Administration 02 unutilised seats against EWSs were allowed to the waitlisted candidates in EWSs scheme as per clause 4.8 and 4.9 of the said prospectus. According to the said respondents, as provided in clause 4.8 of the said prospectus, the said college had made allotment of 02 seats after the approval of the competent authority and accordingly, necessary circular was uploaded in the website of the said college. In support of their contention in the affidavit-in-opposition as well as the supplementary affidavit, the respondent nos. 3 to 6, being A&N Administration and the said college have disclosed copies of various records of the case containing the notes of the various authorities.

On September 20, 2019 when the writ petition was taken up for hearing learned counsel appearing for the petitioner submitted that the records disclosed by the respondent nos. 3 to 6 in their affidavit-in-opposition as well as supplementary affidavit render credence to the petitioner's assertion that the decision for allotting the 2 of the 8 unutilised seats of All India Quota to the EWSs category is vitiated by arbitrary and capricious exercise of powers by the concerned respondents and patent illegality. Thus, the petitioner chose not to file any counter to the supplementary affidavit filed by the respondent nos. 3 to 6. The private respondent no. 8, namely Kumari Supria Panday was represented by her advocate Mr. V.D. Sivabalan. However, the respondent no. 8 did not file any affidavit in the writ petition. Mr. Sivabalan submitted that respondent no. 8 supports the case of the respondent nos. 3 to 6 as well as the documents disclosed in the affidavit-in-opposition and supplementary affidavit filed by the respondent nos. 3 to 6. The private respondent no. 9, however, did not contest the writ petition. Respondent no.7, Medical Council of India (in short "the MCI") was also represented by their advocate, Ms. Tasneem.

Learned counsel appearing for the petitioner started his submissions by referring to the various documents disclosed by the respondent nos. 3 to 6 in their affidavit-in-opposition as well as the supplementary affidavit. It was submitted that from a copy of the memorandum dated January 17, 2019 issued by Ministry of Human Resource Development, Department of Higher Education, Government of India it is evident that in accordance with the provisions of the Constitution (One Hundred and Third Amendment) Act, 2019 and the reference of Ministry of Social Justice and Empowerment dated January 17, 2019, the enabling provision of reservation of the Economically Weaker Sections (EWSs) who are not covered by existing scheme of reservation for the Schedule Cast, Scheduled Tribe and the Socially and Educationally Backward Classes, the Government of India has decided to provide reservation for the EWSs in admission to various educational institutions, subject to a maximum of 10% of the total seats in each category. It was pointed out that by the said office memorandum every Central Educational Institution was directed to increase the number of seats over and above its annual permitted strength in each branch of study of faculty so that the number of seats available, excluding those reserved for the EWSs category, 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 said memorandum. Such increase of the number of seats by the central educational institution shall be made with prior approval of the appropriate authority, which in the present case is the MCI, the respondent no.7 herein. It was further submitted that by the communication dated May 05, 2019 the Deputy Secretary (Higher Education) of the A&N Administration represented to the Government of India, Ministry of Home Affairs that for the purpose of implementation of the 10% reservation to EWSs in the local professional colleges the Administration proposes to provide exclusive reservation to EWSs by increasing the existing intake without reducing the number of present seats already available to the existing categories of students. As per the enclosures to the said communication dated May 05, 2019 the Administration proposed to increase the intake capacity of the said college for the MBBS course from 100 to 112 out of which 10 seats would be reserved for EWSs. According to the petitioner, from the communication dated May 25, 2019 issued by the respondent no. 7, it is evident that the MCI gave permission/ approval to the Dean/Principal of the said college to admit only one batch of 100 students during the academic year 2019-20 and the said college would be entitled to admit next batch of students in MBBS course only after permission of the MCI. Thus, for admitting any student in MBBS course for any academic year the said college has to obtain a prior permission/approval of the MCI. By an electronic mail dated June 4, 2019 the MCI forwarded to the A&N Administration their "guideline notes" about the process to be followed for admitting students in any medical college so that the 10% EWSs Quota can be provided by the respective state, UTs. It was pointed out by the petitioner that as per clause 3 of the guidelines issued by the MCI in order to implement the 10% EWSs reservations quota in the medical colleges, 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, that is, 25. Clause 8 of the said guidelines further provided that the application for consent to increase the seats will be received from the State Government to the MCI latest by June 11, 2019 so that the concerned medical college can be informed by June 15, 2019 for inclusion of the increase seats for counselling during the current admission year 2019-20. Thereafter, on June 7, 2019 the respondent no.6, the Director of the said college informed the MCI that the proposed distribution of seats for admitting students in the said college, after vetting by the Personnel Department and with concurrence of the Lieutenant Governor, A&N Islands, by incorporating 10% reservation to EWSs students for the academic session 2019-20 is to the effect that the total seats have been increased from 100 to 112, the All India Quota would be 17, 10 seats would be allotted to EWSs, 17 seats for category I, 9 seats for category II, 42 seats for category III and 17 seats for category IV. The A&N Administration reiterated the proposed enhancement of total seats of the said college for the academic year 2019-20 from 100 to 112 out of which only 10 would be allotted for the 10% EWSs category. By a further communication dated June 29, 2019 addressed to the MCI, the Assistant Secretary (Health), A&N Administration applied for increase of MBBS seats of the said college for the academic session 2020-21 by 13 seats, that is, a total of 125 in the next academic session 2020-21. The next document which was referred to by the petitioner is dated August 01, 2019, which is the merit list of the qualified candidates from A&N Islands for the MBBS course of the said college for the academic year 2019-20. According to the petitioner, even the said merit list dated August 01, 2019 discloses the available seats for the EWSs category was on 10. Thereafter, the first counselling of the successful candidates all the categories including EWSs was held by the said college on August 03, 2019 and the second round of counselling of the category II, III B and IV took place on August 6, 2019.

Relying upon the aforementioned and other documents disclosed by the respondent nos. 3 to 6 in their affidavit-in-opposition as well as supplementary affidavit, learned counsel appearing for the petitioner submitted that from the letter dated June 25, 2019 issued by the MCI to the A&N Administration it is evident that in order to admit the MBBS student at the sail medical college for any year the A&N Administration and the college has to obtain prior approval of the, MCI under Section 10A of the Indian Medical Council Act, 1956. By the said letter the MCI expressly mentioned that the next batch in MBBS may be admitted in the said college only after permission is given by them for renewal/recognition. By referring to the aforementioned documents disclosed by the respondent no. 3 to 6, learned counsel appearing for the petitioner submitted that although the A&N Administration informed the Ministry of Home Affairs, Government of India as well as MCI that with the increase of the existing intake of students without reducing the number of present seats available for already existing categories of students, 10 seats would be reserved for the EWSs and based on such representation the respondent no. 7, MCI allowed the A&N Administration to increase the intake capacity of the said college for the MBBS course in the academic session 2019-20 to 112. It was further submitted that even from clause 4.8 of the said prospectus for admitting students in the MBBS course of the said college in the academic year 2019-20 issued by the A&N Administration it is evident that the concerned respondent authorities all along understood that even with the increase of the intake of the students in the MBBS course of the said college for the academic year 2019-20 only 10 seats were reserved for EWSs. It was asserted that in the background of the communications exchanged between the A&N Administration and the Ministry of Home Affairs, and respondent no. 7, MCI before issuance of the said prospectus it is evident that the respondent A&N Administration had taken the decision to allot only 10 seats to the EWSs and the same is also evident from the clause 4.8 (serial number 2) of the said prospectus. It was further argued that in clause 4.9 of the said prospectus it was expressly stated that unutilised seats of All India Quota and EWSs Quota shall be allotted to the categories I, II, III and IV falling under serial number 2 of clause 4.8, being the various categories belonging to Andaman and Nicobar Inhabitant reserved seats. According to the petitioner, the case sought to be made out by the respondents A&N Administration and the said college in their affidavit-in-opposition and supplementary affidavit that out of the 8 seats reserved from the All India Quota two seats were reserved in EWSs category as per the directions of the A&N Administration is devoid of any merit. It was contended that as per clause 4.8 of the said prospectus the category wise allocation of seats in the said college in the table mentioned therein could be subjected to any change if, there would have been any valid decision of the Government of India/A&N Administration and notified on the website and the notice board of the said college, before the start of the counselling/admission process. It was pointed out that in the instant case, the first counselling/admission process of the students in the MBBS course of the said college for the academic year 2019-20 was held on August 03, 2019 and the second counselling was held on August 06, 2019. Admittedly, the A&N Administration had not issued any notice changing the category wise allocation of seats as mentioned in clause 4.8 of the said prospectus before the first counselling was held on August 03, 2019. It was strongly contended, in any event when the purported decision to allot 2 out of the 8 unutilised seats from All India Quota was taken by the concerned respondents after completion of the second counselling held on August 06, 2019 and the said purported decision is void being contrary to the procedure laid down in clause 4.8 of the said prospectus issued by the A&N Administration. Urging all these grounds, learned counsel appearing for the petitioner pressed for an order for setting aside the decision of the respondent A&N Administration and the said college to allot 2 out of the 8 unutilised seats of All India Quota to the EWSs category and directing the respondent A&N Administration and the respondent no.6 to admit the petitioner in the MBBS course of the said college for the academic year 2019-20.

However, the learned counsel appearing for the respondent nos. 3 to 6 submitted that as mentioned in clause 4.8 of the said prospectus the respondent A&N Administration had the right to alter the table providing for category wise allocation of seats in the said college. It was further submitted that from the documents disclosed in the affidavit-in-opposition and the supplementary affidavit filed on behalf of the respondent nos. 3 to 6 that after considering the communication exchanged between the A&N Administration on the one hand and the Ministry of Home Affairs as well as MCI on the other, the concerned Secretaries, as well as Deputy Secretary (Health) of the A&N Administration and the other competent authorities decided to allot the 2 out of the 8 unutilised seats reverted from the of All India Quota to the EWSs. In this connection reference was made to the various documents disclosed by the respondent no. 3-6 in their affidavit-in-opposition and supplementary affidavit. It was further submitted by the said respondents that there is no merit in the present writ petition and the same is liable to be rejected. Learned counsel for the respondent no.8 adopted the submission made by the respondent nos. 3 to 6.

I have considered the materials on record as well as the arguments advanced by the learned counsel appearing for the petitioner and the respondent nos. 3 to 6. According to me, the short point that falls for consideration in the writ petition is whether the A&N Administration and the said college could allot 2 out of the 8 unutilised seats of All India Quota to the EWSs Quota. From the documents disclosed by the respondent nos. 3 to 6 it is evident that with the increase of the intake of the students in the MBBS course of the said college for the academic year 2019-20 the respondent A&N Administration had all along represented to the Home Department of the Central Government as well as the MCI that only 10 seats would be reserved for the EWSs category. Accordingly, in the table mentioned in clause 4.8 of the said prospectus of the said college the A&N Administration being the competent authority allotted 10 of the 112 seats to EWSs category. Clause 4.9 of the said prospectus expressly mentioned that the unutilised seats of All India Quota and EWSs quota shall be allotted to categories I, II, III and IV as per its reservations mentioned in the table in clause 4.8 as per reserved criteria. Clause 4.2 of the said prospectus issued by the A&N Administration expressly stated that out of 112 seats for the MBBS course at the said college, 10 seats are reserved for EWSs candidates and such distribution of seats was implemented after vetting by law and personnel department with concurrence of the Lieutenant Governor, A&N Islands. Therefore, I find substance in the contention of the petitioner in the present case, that in view of clause 4.9 of the said prospectus, when all the 8 unutilised seats from the All India Quota were required to be allotted to categories I, II, III and IV as per the reservation criteria stipulated in the table under clause 4.8 the petitioner, being placed as the first waitlisted candidate under category III C had a legitimate expectation to be admitted in the MBBS course of the said college for the academic session 2019-20. In any event, from the documents disclosed by the respondent nos. 3 to 6 in their affidavit-in-opposition as well as supplementary affidavit it is evident that it was only after the conclusion of the second counselling held on August 06, 2019 the respective Secretaries of the Education and Health Department of the A&N Administration and the Deputy Secretary of the Department of Education/Higher Education decided that out of the 8 seats reverted from All India Quota 2 seats shall be allotted to the EWSs category and thereafter, the concerned respondent issued the circular dated August 10, 2019 for third round of counselling by allotting 2 out of the 8 unutilised seats of All India Quota to the EWSs category resulting in deprivation of the right of the petitioner as second waitlisted candidate in category III A and first waitlisted candidate in category III C.

The decision of the respective Secretaries of the Health and Education department as well as the Deputy Secretary of the Higher Education, Department of A&N Administration and the respondent no.6 to allot 2 out of the 8 unutilised seats of All India Quota to the EWSs category after commencement of the counselling/admission process is void and cannot be sustained. In this connection, it may further noted that the decision of the respective Secretaries of the Health and Education department as well as the Deputy Secretary of the Higher Education, Department of A&N Administration and the respondent no. 6 not to give effect to clause 4.9 of the said prospectus published by the A&N Administration and to allot 2 out of the 8 unutilised seats of All India Quota to the EWSs category was not vetted by the law and personnel department nor any concurrence was obtained from the Lieutenant Governor, A&N Islands.

For all the foregoing reasons the present writ petition succeeds. The decision by the respective Secretaries of the Health and Education department as well as the Deputy Secretary of the Higher Education, Department of A&N Administration and the respondent no.6 to allot 2 out of the 8 unutilised seats of All India Quota to the EWSs category is quashed. Accordingly, the circular dated August 10, 2019 issued by the office of the respondent no. 6 in so far as the same directed allotment of the 2 out of the 8 unutilised seats of All India Quota to the EWSs category stands set aside. The respondent nos. 3 to 6 are directed to forthwith admit the petitioner in the MBBS course of the said college namely Andaman & Nicobar Islands Institute of Medical Sciences, Port Blair for the academic year 2019-20.

The Department is directed to forthwith issue certified website copies of this order to the parties subject to compliance of the necessary formalities. All parties including respondent nos. 3 to 6 shall act on a certified website copy of this order.