Mayuri Sarma vs State of Assam and Others

A. K. Patnaik, J.—These two appeals are directed against the common judgment and order dated 24.8.2000 of the learned Single Judge in WP(C) No. 3250/99 and WP(C) No. 3631/99.

The facts relevant for the purpose of disposal of these two appeals briefly are that admission to MBBS/BDS Course in the Medical Colleges of Assam and the Regional Dental College, Guwahati are regulated by a set of executive instructions notified under notification dated 16th August, 1996 of the Govt. of Assam, Health and Family Welfare (B) Department, called the Medical Colleges of Assam and Regional Dental College (Regulation of Admission of Under Graduate Students) Rules, 1996 (for short "the Rules, 1996"). In accordance with the Rules, 1996, common entrance examination was held for admission to the MBBS/BDS Course in the Medical Colleges of Assam and in the Regional Dental College, Guwahati, for the academic Session 1998-99. The appellants of the two Writ Appeals Miss Mayuri Sarma and Shri Udyan Bhattacharjee took the said common entrance examination. While appellant of WA No. 378/2000 Miss Mayuri Sarma was placed against Sl No. 25 of the waiting list of candidates of the general category recommended by the Selection Board on the basis of the said common entrance examination, the appellant in WA No. 477/ 2000 Mr. Udayan Bhattacharjee was neither placed in the select list nor placed in the waiting list of candidates of general category recommended by the Selection Board. After admission of the selected candidates, 19 candidates in the waiting list of candidates were given admission. The candidates placed against Sl. Nos. 20 onwards in the waiting list including the appellant Miss Mayuri Sarma were not given admission. Miss Mayuri Sarma filed a writ petition under Article 226 in this Court numbered as WP(CJ No. 3250/99. Mr. Prabin Barua who was placed against Sl. No. 22 in the waiting list of general candidates also filed a writ petition under Article 226 of the Constitution in this Court numbered as WP(C) No. 3631/99. By a common judgment and order dated 24th August, 2000, in WP(C) No 3250/99 and WP(C) No. 3631/99 the learned Single Judge held, inter alia, that the authorities did not adhere to the rules in filling up the seats and vacancies were filled up in a most arbitrary and illegal manner and seats of Arunachal Pradesh were distributed to two persons who even did not qualify in the entrance examination. In the said judgment and order, however, the learned single Judge did not grant any relief to the writ petitioners. Aggrieved by the said common judgment and order dated 24th August, 2000 in WP(C) No. 3250/99 and WP(C) No. 3631/99 the appellants have preferred these appeals.

Mr. K Agarwal, learned counsel for the appellant in WA No 378/ 2000 Miss Mayuri Sarma, submitted that the learned Single Judge having come to the conclusion in the impugned judgment and order that the authorities did not adhere to the rules in filling up the seats and vacancies were filled up in a most arbitrary manner and seats of Arunachal Pradesh were distributed to two persons who even did not qualify in the entrance examination should have directed the authorities to admit the said appellant. He argued that the only ground given by the learned Single Judge in the impugned judgment and order for not granting relief to the said appellant was that the course was in mid-stream and at this stage it will not be possible to admit the students in any Medical College. According to Mr. Agarwal, this was not a good ground for the Court to refuse relief to the appellant. He argued that under proviso to rules 5 and 6 of the Rules, 1996, seats which remain unfilled have to be filled up by candidates placed in the waiting list recommended by the Selection Board and in relaxation of the said proviso to rules 5 and 6, the authorities have arbitrarily given admission to several candidates including Mr. Udayan Bhattacharjee and thus violated the right of the appellant under Article 14 of the Constitution and this was a fit case in which admission should be granted to the appellant Miss Mayuri Sarma, if necessary by adding one more seat.

Mr. A. Roy, learned counsel for the appellant in WA No. 477/ 2000 Mr. Udayan Bhattacharjee, contended that the said Mr. Udayan Bhattacharjee was not impleaded as respondent in WP(C) No. 3650/99 and was not heard by the Court in WP(C) No. 3631/ 99. Therefore, no observation should have been made by the learned Single Judge with regard to illegality of the admission of Mr. Udayan Bhattacharjee in MBBS Course. He submitted that in the impugned judgment, the learned Single Judge has held that the authorities did not adhere to the rules in filling up the seats and vacancies were filled up in a most arbitrary manner and seats of Arunachal Pradesh were distributed in two persons (including Mr. Udayan Bhattacharjee) who even did not qualify in the entrance examination although there were no materials before the learned single Judge to make the said observation. Mr. Roy submitted that in an earlier case in WP(C) No. 3493/99 filed by Miss Sureshi Das, Mr. Udayan Bhattacharjee was impleaded as a respondent and the learned Single Judge in his judgment and order dated 14.3.2000 held that Mr. Udayan Bhattacharjee did not sit in the Joint Entrance Examination held by the Govt. of Arunachal Pradesh and yet he had been admitted and quashed the provisional admission granted to Mr. Udayan Bhattacharjee. The said Judgment and order dated 14.3.2000 of the learned Single Judge in WP(C) No. 3943/99 was challenged by Mr. Udayan Bhattacharjee in WA No 202/2000 before the Division Bench and by judgment dated 20th July, 2000 the Division Bench held that there was no justification to quash the nomination of the appellant Mr. Udayan Bhattacharjee for the MBBS Course by the State of Arunachal Pradesh as against 12 seats allotted by the State of Assam and that infirmity and illegality, if any, in such sponsoring or nomination could only be adjudicated if his nomination was challenged at the instance of one who claimed a nomination against the said 12 seats. According to Mr. Roy, after the judgment of the Division Bench on 12.7.2000 in the said WA No. 202/2000, the admission of the appellant Mr. Udayan Bhattacharjee could no longer be challenged at the instance of Miss Mayuri Sarma and Mr. Prabir Baruah, the writ petitioners in WP(C) No. 3250/99 and WP(C) No. 3631/99 who had not applied for nomination against the said 12 seats allotted to the State of Arunachal Pradesh.

Mr. B C Das, learned Addl. Sr. GA appearing for the State respondents, relied on the averments in the affidavit-in-opposition filed on behalf of the State of Assam in WP(C) No. 3631/99 and also produced the records to show that 31 MBBS seats were lying vacant from 15% All India Quota and that the State Cabinet in relaxation of the proviso the rules 5 of the Rules, 1996, allotted 16 seats out of the said 31 seats in the following manner :

(i) 12 seats to Arunachal Pradesh ;

(ii) 3 seats to NEC for distribution to the NE States except Assam ;

(iii) 1 seats to the Moran Community.

Mr. Das further stated that the remaining 15 seats out of the 31 seats of All India Quota were distributed to the students of the State quota placed in the waiting list in order of merit following the reservation policy. Mr. Das submitted that the Government had the power under rule 9 of the Rules 1996 to relax any provision of the rules if it was of the opinion that it was necessary or expedient to do so. Such relaxation, however, should not be inconsistent with the provisions of the said rules and reasons for such relaxation should be recorded in writing. He stated that in the Cabinet Memorandum dated 10.5.1999 which was approved by the State Cabinet the reasons for relaxation were recorded. According to Mr. Das the said relaxation was also not inconsistent with the provisions of the Rules, 1996. He further stated that since the learned single Judge has not granted any relief to the two writ petitioners by the impugned common judgment, no appeal has been preferred against the said judgment by the State.

The question which have to be decided in these two Writ Appeals are whether the relaxation of proviso to rule 5 of the Rules, 1996 and the allotment of 16 seals out of the All India Quota seats for MBBS Course which were lying vacant to the State of Arunachal Pradesh, NEC and Moran Community were in accordance with Rules. 1996 and not violative of Article 14 of the Constitution and whether the admission of the candidates including Mr. Udayan Bhattacharjee against the said 16 seats could be challenged by the appellant Mrs. Mayuri Sarma.

Rules 2(a), 5, 6 and 9 of the Rules 1996 as they stood prior to the notification dated 27.5.1999 amending the Rules, and which were in force at the time of selection and admission into the MBBS/ BDS Course in the Medical are to the following effect :

"2. Definitions : In these rules, unless the context otherwise requires :-

(a) ''Available Seats'' means the seats available for admission as per the Medical Council of India norms excluding the seats allotted for the categories of candidates mentioned in Rule 5.

Exemption from common entrance examination :

(a) Candidates recommended against 13 seats reserved as follows for different NE States, provided they satisfy other conditions and criteria of eligibility ;

Meghalaya : 10 seats

Arunachal Pradesh : 1 seat

Nagaland : 1 seat

Mizoram : 1 seat

(b) Candidates selected on the basis of the All India Entrance Examination conducted by CBSE for 15% reserved seats.

(c) Candidates recommended by Govt. of India under Central Govt. Pool against 15 reserved seats.

(d) Candidates securing rank within first ten position in the HSSLC (Science Examination of the Assam Higher Secondary Education Council having Physics, Chemistry and Biology with not less then 75% marks in aggregate excluding the Additional subject in the year in which they seek admission. Such candidates may apply for direct admission within 10 days of publication of their qualifying examination results to the Director of Medical Education, Assam :

Provided that any seat under the aforesaid categories from (a) to (d) which is not filled up for want of candidate shall be filled from amongst the candidates in the waiting list for general/SC/ST categories only.

Reservation of Seats ; (1) Available seats shall be reserved for the following categories of candidates of the State of Assam.

(a) Scheduled Caste : : 7% of total available seats in MBBS & BDS Course each

(b) Scheduled Tribe (P) : : 10% -do-

(c) Scheduled Tribe (H) : : 5% -do-

(d) Other Backward : Classes including More than Other Backward Classes. : 15% -do-

(e) Sons & daughters, : dependent brother and sister of Ex-serviceman and serving defence personnel form Assam only. : 3 seats in MBBS & 1 seat in BDS.

(f) Sons/daughters, : brothers, sisters, grand-sons and grand- daughters of : 2 seats in MBBS only.

Freedom fighters of the State.

(g) Sons/ daughters/ brothers/sisters of the martyrs of the Assam Movement. : 2 seats in MBBS and 1 seat in BDS.

(h) Children of Tea garden and Ex-tea garden communities /Tribes : 2 seat in each of the three medical college for MBB and 1 seat in BDS.

(i) Socially & education Backward persons ordinarily residing In areas covered by the Assam State Char Areas Development Authority and not entitled to any other from of reservation. : 2 seats in MBBS only.

(j) Sons /daughters/ brothers/sisters of persons killed in extremist violence in Assam. : 2 seats in MBBS and 1 Seat in BDS.

Power to relax Where the Government is of the opinion that it is necessary or expedient so to do it may, by order, not inconsistent with the provisions of these rules and for reasons to be recorded in writing, relax any of the provisions of these rules."

The general scheme of the aforesaid provisions of the rules, 1996, is that out of the total seats for admission into the MBBS/ BDS Course in the Medical Colleges of Assam/Regional Dental College, Guwahati, some seats are allotted for categories of candidates mentioned in rule 5, namely, candidates belonging to North Eastern States, Candidates selected on the basis of All India Entrance Examination conducted by CBSE, candidates recommended by Government of India under Central Government Pool, and candidates securing rank within first ten position in the HSSLC (Science) Examination of the Assam Higher Secondary Education Council. All other seats which are not allotted to the aforesaid categories and candidates mentioned in rule 5 are "available seats" meant for admission of different categories of candidates of the State of Assam including the reserved categories of candidates of the State of Assam mentioned in rule 6(1),

It will further appear from the scheme of the Rules, 1996, that while the categories of candidates mentioned in rule 5 are exempted from common entrance examination, categories of candidates of the State of Assam amongst whom the available seats are to be distributed are not exempted form common entrance examination. The consequence is that only candidates of the State of Assam are to compete in a common entrance examination for the available seats and they will be admitted to the MBBS/BDS Course, as the case may be, on the basis of their position in the merit list for general or reserved seats in the available seats. But the categories of candidates mentioned in rule 5 are not required to take the common entrance examination and their merit vis-a-vis different categories of candidates of the State of Assam competing for the available seats in the common entrance examination is not determined. This is not to say that the merit of the categories of candidates mentioned in rule 5 is not relevant at all for the purpose of admission to MBBS/BDS Course in the Medical Colleges of Assam/Regional Dental College, Guwahati. The provisions in rule 5(b) and (d), on the other hand, show that candidates are selected on the basis of All India Entrance Examination conducted by the CBSE or on the basis of their rank within first ten position in the HSSLC (Science) Examination of Assam Higher Secondary Education Council. The candidates mentioned in rule 5(a) and (c) are also to be candidates selected on the basis of their merit and recommended by the North Eastern Council or the Government of India, as the case may be, and cannot be candidates arbitrarily chosen by the North Eastern Council or the Government of India without considering their merit. But the merit of different categories of candidates mentioned in rule 5 and the merit of the different categories of candidates of the State of Assam competing for the available seats through a common entrance examination are not compared on the basis of any common entrance examination.

It will further appear from the scheme under the Rules, 1996, that when seats which have been allotted to different categories of candidates mentioned in rule 5 are not filled up for want of candidates, under the proviso to rule 5 such seats can be filled up from amongst the candidates in the waiting list for general/SC/ST categories only. If in relaxation of the provisions of the said proviso to rule 5 under rule 9 of the Rules, 1996, the Government instead of filling up such vacant seats meant for different categories of candidates mentioned in rule 5 directs that such vacant seats be filled up by some more candidates from any or more of the North Eastern States, such relaxation by the Government cannot be said to be inconsistent with the general scheme of the Rules, 1996. This is because, the candidates in the waiting list belonging to general/SC/ST categories who have taken the common entrance examination for the available seats of the State of Assam cannot claim higher merit than those candidates recommended for the seats reserved for North Eastern States and exempted from appearing in the said common entrance examination. As to whether such a relaxation is arbitrary and violative of Article 14 of the Constitution, however, is entirely a different question to be decided on the facts and in the circumstances of each case.

The scheme under the Rules, 1996, further shows that out of the available seats meant for the candidates of the State of Assam, some seats have been reserved for candidates of different reserved categories and the rest are meant for general candidates. The proviso to rule 6, however, states that if any of the seats mentioned in rule 6 remains unfilled for want of candidates such seat shall be filled up by candidates belonging to general category whose names appear in the waiting list recommended by the Selection Board. Thus as per the said proviso, if any of the selected candidates from amongst the reserved category or general category does not turn up for admission, and there are vacant seats out of the available seats for candidates of the State of Assam, such vacant seats shall be filled up by candidates of general category whose names appear in the waiting list recommended by the Selection Board. If the Government relaxes this provision in the proviso to rule 6 of the Rules, 1996, and instead of filling up the vacant seats out of the available seats for different categories of candidates of the State of Assam, both reserved and general, from amongst the candidates of the general category placed in the waiting list recommended by the Selection Board, fills up such vacant seats by candidates of the North Eastern States who have not taken the common entrance examination, such relaxation, in our considered opinion, will be contrary to the scheme of the Rules, 1996. This is because, the said unfilled seats out of the available seats are meant to be filled up by candidates of the State of Assam through a common entrance examination and not by the categories of candidates mentioned in rule 5 of the Rules, 1996, who are exempted from common entrance examination.

A reading of rule 9 of the Rules, 1996, quoted above, would show that the power to relax any of the provisions of the rules is to be exercised "not inconsistent with the provisions of these rules". While relaxing any of the provisions of the Rules, 1996, therefore, the Government cannot disregard the scheme in the provisions of the Rules, 1996, as contained in rules 5 and 6 discussed above, and any relaxation in total disregard of the said scheme would be inconsistent with the provisions of the Rules.

Coming now to the facts of the present case, it appears from the records produced before the Court and in particular from the file No. SLV.477/92, that in a Cabinet Memorandum dated 10.5.1999, prepared by the Secretary to the Government of Assam, Health and Family Welfare Department, it was, inter alia, stated that 31 MBBS seats out of the 15% All India Quota have remained unutilised and that States including Arunachal Pradesh have been demanding for allotment of additional MBBS Course seats and NEC have been insisting on allotment of a fixed quota for each year for MBBS which NEC proposed to distribute amongst the NE states and NEC has also indicated that they would like to link such allotment for under-graduate and post-graduate course for the NEC with funds to Medical Colleges under the State Government under NEC schemes and further that the Moran students Union have also been demanding for separate reservation of MBBS seats for their community and it was, therefore, proposed to relax rule 5 in exercise of the powers conferred on the Government under rule 9 for allotment of additional MBBS seats for the Sessions 1998-99 so as to provide 12 MBBS seats to Arunachal Pradesh, 3 MBBS seats to NEC and one MBBS seat for the children of Moran community and the remaining MBBS seats will be allotted to the students of Assam from the waiting list after following reservation policy. Thus, reasons have been recorded in the Cabinet Memorandum as to why the proviso to rule 5 providing for giving admission to the general/SC/ST candidates in the waiting list to the unfilled seats reserved for All India Quota has been relaxed by the Government. Moreover, we have held above that such relaxation of the proviso under rule 5 of the Rules, 1996 for reasons recorded by the government cannot be held to be inconsistent that the provisions of the Rules 1996. This is because the candidates in the waiting list had taken the common entrance examination for admission to the available seats for different categories of candidates for the State of Assam and did not compete for any of the seats reserved for the different categories of candidates under rule 5 of the Rules, 1996 including 15% seats reserved for the All India Quota. Further, since the remaining 15% out of the 31 unutilised MBBS seats of All India Quota were allowed to be filled up from the candidates in the waiting list in accordance with the said proviso to rule 5 of the Rules, 1996, such relaxation cannot be held to be arbitrary and violative of Article 14 of the Constitution.

The next question to be decided in these writ appeals is as to whether the appellant in WA No 378/2000 Miss Mayuri Sarma could challenge the admission of candidates including Mr. Udayan Bhattacharjee against the aforesaid 16 seats in the MBBS Course allotted to the State of Arunachal Pradesh, NEC and Moran Community. This question has been answered by a Division Bench of this Court in WA No. 202/2000 filed by the said Shri Udayan Bhattacharjee. In the said Writ Appeal, the Division Bench has held that there was no justification to quash the nomination of Shri Udayan Bhattacharjee in the MBBS Course of State of Arunachal Pradesh against additional 12 seats allotted by the State of Assam and infirmity and illegality, if any, in such nomination could only be adjudicated if the nomination was challenged at the instance of one who could claim nomination against the said additional 12 seats. Miss Mayuri Sarma, the appellant in WA No 378/2000, was not a party in the said WA No. 202/2000 and hence the said judgment of the Division Bench in the said WA No. 202/ 2000 may not be strictly binding on Miss Mayuri Sarma. But we find that the view taken by the Division Bench in the said WA No. 202/2000 is in accord with the decision of the Supreme Court in the case of Kumari Chitra Ghosh and Another Vs. Union of India (UOI) and Others, In the said case of Chitra Ghosh, the Supreme Court has held :

"The other question which was canvassed before the High Court and which has been pressed before us relates to the merits of the nomination made to the reserved seats. It seems to us that the appellants do not any right to challenge the nominations made by the Central Government. They do not compete for the reserved seats and have no locus standi.".

Admittedly, Miss Mayuri Sarma did not compete for the 16 seats allotted to the State of Arunachal Pradesh, NEC and Moran Community. She therefore cannot challenge the admission of candidates to the said seats.

Despite our aforesaid conclusion, we do not feel comfortable with the situation that Mr. Udayan Bhattacharjee was nominated by the State of Aurnachal Pradesh as per his own case in Writ Appeal only on the basis of his testimonials and an interview. The merit of the candidates who apply for nomination can be determined only through a written examination and not on the basis of testimonials and interview. As indicated above, the candidates under rule 5(b) have to be selected on the basis of All India Entrance Examination conducted by CBSE for the 15% reserved seats. Similarly, the candidates mentioned under rule 5(d) are those securing rank within tenth position in HSSLC (Science) Examination of the Assam Higher Secondary Education Council. Thus the scheme of rule 5 is that the categories of candidates mentioned in rule 5 have to be selected on the basis of the some written examination. Candidates under rule 5(a) recommended against the seats reserved for the North Eastern States also have to be selected on the basis of written examination because selection on the basis of interview or production of testimonials is likely to be arbitrary and discriminatory and violative of Article 14 of the Constitution. Moreover, this is not the only case we have come across where a candidate having failed to find a place in the select list or the waiting list due to his poor performance in the common entrance examination for admission to the available seats for the State of Assam has got admitted to a seat allotted to the other North Eastern States thus causing a lot of bitterness amongst the candidates of the State of Assam taking the common entrance examination. The State of Assam will therefore take immediate steps to suitably amend the Rules, 1996, to avoid such a situation from the academic session 2000-2001. A copy of this judgment will be sent by the Registry of this Court to the Commissioner and Secretary to the Government of Assam, Health and Family Welfare, within a week from today for initiating steps for such amendment.

With the aforesaid observations and directions, the writ appeals are disposed of. Considering, however, the facts and circumstances of the case the parties shall bear their own costs.