Kumari Rida Mustaquim vs Union Of India & Others

Arindam Sinha, J

Petitioner aspires to be admitted in Andaman & Nicobar Islands Institute of Medical Sciences (ANIIMS), Port Blair. Mr. Rao, learned advocate appears on her behalf and submits, she belongs to a family of pre year 1942 settlers. Under category III, notified by the institute, she is eligible for consideration on unutilized seats of All India Quota under clauses (a) and thereafter (c) of said category. Grievance of petitioner is, there were 8 unutilized All India Quota seats notified prior to commencement of third round of counseling by impugned circular dated 10th August, 2019, all of which are to be applied against categories I to IV.

He refers to clause 4.9 in the prospectus, which is set out below:-

"4.9 Unutilized seats of All India quota and EWS quota shall be allotted to Categories I, II, III & IV as per its reservation criteria."

Going back to impugned circular, he demonstrates breach by the institute in notifying, of 8 unutilized seats from All India Quota, 2 would go to Economically Weaker Section (EWS) category and balance to the categories in compliance of clause 4.9. He submits, this writ petition was moved on 16th August, 2019, when interim order was passed qua petitioner alone, that steps taken in the MBBS admission course 2019-20 shall abide by ultimate result of it. He prays for immediate interference on submission that course has commenced on 3rd September, 2019.

Mr. Mandal, learned senior advocate appears on behalf of the Administration and files affidavit-in-opposition. He submits, impugned circular satisfies clause 4.8 in the prospectus. Only the provision in said clause, apart from the table given therein, is reproduced below:

"4.8. Reservation & Allocation of Seats: Category wise allocation of seats in Andaman and Nicobar Islands Institute of Medical Sciences, Port Blair is given in the following table. However, this may be subject of 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 counseling/admission process."

In addition to disclosures in the affidavit, Mr. Mandal relies on original file. By handing it up he refers to paragraphs 53 and 58, which are set out below:-

"53. It is suggested that the above mentioned seats may be filled up in the third counseling to be held on 13th August, 2019 in the following ways:

The 14 *unfilled seats of Category I will go to Category V as per the existing policy of A&N Administration.

One seat# of Category II of State Quota will be filled from the waiting candidate of Category II

Out of 08 seats ** of All India Quota, 02 seats designated as EWS will be filled by EWS from the State Quota, the remaining 06 seats of All India Quota will go to Category I,II,III & IV of state quota as per the A&N Administration.

For approval please.

The proposal at para 53/n at pre page has been examined and found in order. However, the distribution of 6 vacant seats (excluding 2 EWS seats) of All India Quota may be distributed to the category 1, II, III & IV in accordance with distribution criteria/formula fixed by the Ministry of Home Affairs vide its Order dated 30.05.1996."

He submits, thereby there was change, duly made, on provisions for reservation and allocation of seats.

He submits further, 2 of the 8 unutilized seats of All India Quota were of EWS category. This is not really a change but the Administration following stated policy of applying reservation in favour of EWS of society. Unutilized seats of the category, in All India Quota, have been given to candidates of these islands belonging to that category. He is opposed to any interference.

Mr. Sivabalan and Mr. Prasanth, learned advocates appear on behalf of private respondent nos. 8 and 9, who have gained admission in respect of 2 of 8 unutilized All India Quota seats. They too oppose any interference. Mr. Prasanth submits, his client is entitled to peruse contents of affidavit-in-opposition of the Administration, yet to be served to parties. Mr. Mandal submits, copies of the affidavit-in-opposition will be circulated in course of the day.

Paragraph 62 of note sheet in the file says as follows:-

"62. As far as Medical seats particularly All India Quota, there may be instructions by Health Ministry/GoI. Hence the Health Dept may pl be asked to follow the instructions of GoI."

The above paragraphs have been set out from the file since same has been handed up to Court by the Administration but not disclosed in its affidavit.

Clause 4.8 in the prospectus makes reservation and allocation of seats subject to change, as per direction of the Government of India/Andaman and Nicobar Administration, which shall be notified. Court accepts compliance of the second part, relating to notification, but so far as direction issued for change in category wise allocation of seats, it appears, per paragraph 62 in the file, instructions were sought from Health Ministry/ Government of India. Instructions had, the Administration has not been able to demonstrate.

Question in this writ petition is not why there was reservation of seats in favour of EWS or object thereof. Question is whether reservation and allocation of seats per prospectus have been followed. As of now it does not appear to have been followed. Clause 4.9 requires unutilized seats of All India quota and EWS quota to be allotted to categories I to IV, mentioned in the table under clause 4.8. Even if the Administration subsequently demonstrates there is a separate EWS quota on All India basis, apart from All India Quota seats, still, without the authorization, sought by the Administration from Health Ministry/ Government of India, change made to manner of reservation and allocation of seats provided in clause 4.9, must be held to be in breach.

In above facts and circumstances, private respondents have admission and petitioner is on the outside. Course has commenced. Respondents seek adjournment. Justice will not be served if consequence of adjournment defeats claim of petitioner, if otherwise found to be eligible for admission. There is interim order in place. On query made Court has ascertained that Union of India has been served, but goes unrepresented.

Petitioner will obtain copy of this order and serve upon Union of India and file affidavit-of-service on adjourned date. Mr. Rao prays for direction of provisional admission, without prejudice, for his client to attend classes. Mr. Rao will be entitled to renew his prayer at next hearing, in case the writ petition is not disposed of at first hearing.

List on first day in next Circuit.