Rashmi Mittal and others vs State of U.P.and others

K C. Bhargava, J.—All the three petitioners aggrieved by not giving them their choice of speciality have approached this Court for mandamus directing the opposite parties to consider the petitioners for allotment of speciality at the time of recounselling for filling the four seats which were earlier reserved for Scheduled caste candidates.

The facts giving rise to this petition are that the Post Graduate Medical Entrance Examination (hereinafter called PGMEE) 1994 was held on 16194, the result of which has been declared on 16394. The petitioners, according to their merit, were placed at serial nos. 7, 9, and 12 respectively and have been allotted the specialities of Prosthodontics, Pedodontics and Periodontics respectively and were admitted to these courses. There were 24 seats available in the K. G. Medical College, Lucknow for M.D S. course, out of which 6 are for central pool and rest 18 are for the State pool Out of the seats for State pool, six are reserved for SC and ST candidates and the remaining 12 seats were open for general candidates. Only two Scheduled caste candidates are available for admission to M D.S. course, who have been admitted in Orthodentics and Oral surgery speciality. The remaining 4 seats in specialities of Operative Dentestry, Prosthodontics, Pedodontics and Periodontics are lying vacant and the opposite parties want to fill up the seats from the students of waiting panel. This will adversely affect the petitioners as the persons in the waiting list, who are lower in merit, will get better speciality than the petitioners who are higher in merit. The represen�tation to this effect was moved by 18 students including the two SC candidates, copy of which is Annexure7. Three students of the waiting panel also made representation to the authority conderned to the effect that if they are allotted these four vacancies, they would surrender their seats in favour of the students higher in rank if any of them will opt for the same and will be content with any seat in any department in the M DS course, 1994. Copy of this representation is Annexure8 to the writ petition. The petitioners also made representation indicating their choice of specialities against these four vacancies which could not be filled by the students of reserved class.

At the time of counselling the opp. party no. 2 did not disclose the four seats which should have fallen vacant in the event of candidates of reserved class opting For only two of the specialities. Therefore, the petitioners could not make their choice for better specialities on account of this fault of opp party no. 2.

In the counteraffidavit filed by the opposite parties 1 and 2, namely, Siate of U. P. and Director Medical Education, Lucknow, it is alleged that the State of U. P. conducted P.G.M E.E. 1994 examination for 18 seats. As per Government Order dated 29494 one seat in each of the courses is reserved for candidates of reserved category. The selected candidates were allotted courses/college according to their merit in each category and the remaining vacancies are being allotted to the candidates in the waiting list according to their merit. As the petitioners have already taken admissions in the allotted courses on the basis of merit cumoption, hence they are not entitled for any change in course as per Govt. Order dated 30394. The admissions in post graduate courses ate being made in pursuance of the policy laid down in Residency Govt. Order dated 91090 which was lateron amended on 30394. The re�presentations moved by the petitioners have already been disposed of. It is mentioned that all the seats available for candidates of each category were displayed at the time of counselling. The vacant scats are being filled in the Sessions 1994 from the candidates of the waiting list. It is also alleged that since the counselling of the general and reserved category candidates were made on the same day hence specialitywise vacancy position was available in the office of the answering respondent only after the counselling was over.

Opp. parties 3 and 4 Dr. Vipin Agrawal and Dr. Nikhil have been impleaded on their application and they have also filed counteraffidavit. In their counteraffidavit it is alleged that for admission to M.D.S. and other post graduate courses for 1994 the system of counselling was introduced by the State of U. P. in pursuance of the recent decision of the Hon''ble Supreme Court rendered in 1993. The examination was conducted by the Lucknow University for which information brochure was supplied to all the examinee. After eximination a combined list of candidates of general category and reserved category was prepared. According to brochure a chart indicating the college ard subject was to be displayed and the candidates were to be called in order of merit and were asked to indicate his/her choice. This procedure was to go until all the seats are filled up. Only two seats were filled up by the reserved category candidates in the first counselling, hence four seats of reserved category which became vacant, were filled up in second counselling. The seats of reserved category candidates could not have been displayed for general candidates nor allotted to them as according to brochure, candidates of reserved category were also entitled to opt seats according to their choice. As the answering respondents had not given their choice in earlier counselling, hence their names were kept in the waiting list. When the four seats in Operative Dentistry, Pedodentics, and Periodontics were not filled up by the reserved category candidates then a decision was taken by the State Government to fill up those seats by the candidates of waiting list according to their merit. The second counselling of the candidates of waiting list was notified on 16694 in the news paper and the counselling was done on 4794 and the opp. parties 3 and 4 were given admissions against four vacancies according to their merit. Opp. parties 3 and 4 have joined their courses. As the petitioners have already given their choice and admitted to M.D.S. courses, they have no right to appear afresh against the dropped out vacancies on account of statutory bar in the Government order. It is alleged that according to Govt. Order dated 30394 the allotment in any seat of the speciality has to be completed within two months.

Rejoinderaffidavit has been filed by the petitioners to both the counteraffidavits filed by the opp. parties. It is alleged that opp. parties have granted admission to the candidates in violation of clause (g) of clauses of the amended notification of Residency Scheme dated 30394 as the allotment of seats were to be done within two months from start of the Session, whereas four candidates have been admitted on 5794 much after expiry of two months. The petitioners have not received any copy of the order disposing their representations. It is further alleged that the opp. parties were aware of the fact that only two persons of the reserved category have qualified, therefore, four seats of speciality for reserved category candidates will fall vacant. Therefore, the opp. parties should have done the counselling of the reserved category candidates first and then the counselling of the general category candidates. If this would have been done, four seats would have been available for other meritorious students. At the time of allotment all the four seats vacant were not displayed by the opp. parties to the students.

Learned counsel for the petitioners, learned Standing counsel on behalf of opp parties 1 and 2 and learned counsel for opp. parties 3 and 4 have been heard.

It is an admitted fact that Lucknow University held an examina�tion in PGMEE on behalf of the State of U P. for the year 1994. A select list according to merit was prepared and according to the select list, specialities were to be offered to the candidates during the counselling as has been provided by the State of U. P. in the brochure issued by the University. This brochure was supplied along with the application Form. It is also an admitted fact that the system of counselling has been intro�duced by the State of U. P. on the basis of the observations made by the Hon''ble Sureme Court in the case of Anand S. Biji v. State of Kerala & others 1993(3) SCC 80. It is not denied that counselling is to be made in order of strict merit and once a candidate opts for speciality then that speciality is allotted to that candidate and the remaining specialities are then offered to other candidates in order of merit.

According to the learned counsel for the petitioners if the counselling of candidates of reserved class would have been done in earlier point of time then four specialities in which no reserved category candidate was to be admitted, would have become vacant and available for other general category candidates. According to the learned counsel when the examination was over, opp. party no. 2 knew that out of six candidates only two candidates of reserved class have qualified for admission and they will only get two specialities and the four specialities will be left vacant for general candidates. According to the learned counsel when this fact was known then the opposite party no. 2 should have done the counselling in the very beginning and the four specialities would have been available for general category candidates and the petitioners being higher in merit would have got those specialities. In support of this argument learned counsel for the petitioners has referred to an advertisement contained in AnnexureC4, which was issued by opp. party no. 2 in the news paper. According to the learned counsel, the counselling for reserved seats was done earlier in point of time at 1130 AM. on 26694 than the candidates of the general category who were called for counselling at 2.30 P.M. on the same day. According to the learned counsel if the same procedure would have been adopted earlier abo these four specialities out of six would have gone to the petitioners.

Learned Standing counsel on behalf of opposite parties 1 and 2 have argued that the counselling is to be done in the strict order of merit and the candidates of reserved category were lower in merit, hence their counselling could not have been done earlier in point of time as argued by the learned counsel for the petitioners. In reply to other part of the argument about the advertisement in which the counselling of reserved class candidates was done earlier in point of time, it is argued by the learned Standing counsel that it was the last counselling, hence in order to see that no vacancy remains, the counselling was done first from amongst the reserved class candidates of MDS and Dentistry courses and they have nothing to do with the counselling in the presert case which is under consideration in the writ petition.

Learned counsel on behalf of opp. parties 3 & 4 have argued that once the petitioners have opted for their specialities, they cannot now change the specialities in view of the restriction imposed by the Govern�ment Order dated 30394.

As mentioned in the earlier part of the judgment it is clear that counselling has to be done in strict order of merit, but in the present case when the seats are reserved for candidates belonging to Scheduled caste and Scheduled Tribes, they form a separate category altogether. Their result is not declared in the order of merit intermingled with the general candidates as will be evident from the examination result published in the news paper, photostat copy of which has been placed on record by the petitioners as AnnexureRA1 It goes to show that after the list of general candidates of MDS course was published, the list of MDS course for reserved category was published in which there appeared only two roll numbers. This goes to show that the list of reserved category candidates is separately published and is separately kept. No doubt they are juniormost in the merit. This has been done by the opp. parties 1 & 2 in accordance with the directions/amendments made by Govt. Order dated 30394. By means of this amendment Govt, Notification dated 91090 was amended. By this notification in the scheme of junior Residency subclause(e) of class 8 was also substituted. It reads as under:

"(e) The University or Institution referred to in subclause(d) shall prepare separate merit lists of general candidates and candidates belonging to the scheduled castes and the scheduled tribes on the basis of marks obtained at the said examination."

A perusal of this clause makes it clear that the merit list of general candidate is to be separately prepared and the list of candidates belonging to SC/ST shall be separately prepared on the marks obtained at the said examination. If we look to the substituted clause (f) it will also be clear that at the time of allotment all the available seats have to be displayed. The allotment of speciality is to be made by personal appearance, of all the eligible candidates. Thus in view of these two clauses it was incumbent on the opp. party no. 2 to have first done the counselling of the candidates belonging to the reserved category so that the left over seats would have been offered to the category of general candidates who are above in merit than other candidates in the waiting list.

Therefore, the argument of the learned Standing counsel that the counselling has to be made in strict order of merit in view of the Govt. Order dated 30394, cannot be accepted and does not hold good. In view of these facts, it is clear that the opp. party no. 2 knew at the time when the result was declared that only two candidates out of six in reserved category have qualified for admission to M.D S. course. It became apparent on that date that four specialities would be available for general candidates. Therefore, it was the duty of the opp. party no. 2 to have done first the counselling of reserved category candidates in order that the four specialities which were left over, would have been offered to more meritorious students in the general category. It cannot be said that the opposite parties were not aware of this fact and they followed the practice of doing counselling in strict order of merit As has been seen in the earlier part of the judgment that vide Annexuie RA2, the counselling of reserved category candidates for M.D S. ad Dertistry course was done prior in time on the same day than the counselling of the candidates of general category.

Now the argument of the learned Standing counsel that ihe counselling on 8694 for reserved class candidate was done prior in time in order to see that no vacancy remains, cannot be accepted Vecause there was a waiting list and out of that waiting list the candidates of general category would have been extracted as has been done in the present case by opp. party no. 2 Thus two different modes of counselling adopted by opp. party no. 2 shows that the opp. party no. 2 was aware that counselling of candidates for reserved specialities should be done first ;so that the seats which are available, may be offered to general candidates and those seats should go to more meritorious students. Therefore, the action of opposite party no. 2 in not doing counselling of reserved category candidates for M. D.S. course prior in time to the general candidates on the facts of the case can only be termed as arbitrary and cannot be said to be justified. The conduct of opp. paity no. 2 at two places also points in the same direction.

In the case of Dr. A.Franklin Joseph v. State of T. N & others (1994) 2 Supreme Court Cases, 387, it was held that a candidate with a lesser percentage of marks has been preferred as against the appellant who had secured higher marks. Equality is a laudable principle but not to be used by the State at its whims and fancies. The stand of the State is wholly untenable. The appellant being first in the vailing list having secured more marks would be legally entitled to admission in preference to another person whose selection is clearly arbitrary. In other cases also the Hon''ble Supreme Court has held that more meritorious students should get better specialities than the students who are lower in merit. This principle is to be followed by the State and particular ; action of the State is to be judged in the light of these principles. As has been seen in the earlier part of the judgment, in the present case the State has adopted two methods of counselling ; one method for the cases in hand relating to M.D.S. and the other for M.D./M S./Diploma, which is evident from Annexure C4 to the counter affidavit of opp. parties 3 & 4. Therefore, the State action in the present case cannot be justified and has to be disapproved. In such cases when against the reserved vacancies, the requisite number of students are not available, the State should first hold their counselling and after specialities/seats are declared for the general candidates then only counselling for the general candidates should be held.

'' 17. The next argument of the learned counsel for the opposite parties . is that a bar has been created by the Govt. Order dated 30394 by which it is provided that once an option is exercised by a candidate, it cannot be changed lateron and the same is firm and final. Clause (f) which has been substituted by the govt. Order dated 30394 provides that the allotment shall be final and no change shall be allowed to any candidate. No doubt this clause will operate only when there has been a fair play on the part of the opp. party no. 2. A has been seen in the earlier part of the judment, the opposite party no. 2 has violated this Govt. Order by not doing counselling of the reserved category candidates prior in time and a different procedure has been adopted in the matter of counselling as will be evident from AnnexureCA4. In the opinion of this Court, this clause will not operate against the petitioners in view of the conduct of opposite party no. 2, just referred to above and for the fact that admission of opp. parties 3 and 4 has been done subject to the decision of the writ petition.

Learned counsel for the petitioners have further drawn attention of this Court that according to the government instructions the counsell�ing is to be completed within two months and the admissions are also to be done within two months and the admissions are also to be done within that period. According to the learned counsel as the period of two months is over after start of the session, therefore, now no relief can be granted to the petitioners. This argument is misconceived. In the present case the session actually started on 19th May, 1994 though the date of deemed commencement of the session is 2nd of May, 1994 as per judgment of the Hon''ble Supreme Court. Even if we take the period of two months from the actual date of commencement of the session it expired on 18th of July, 1994. But this period will not be relevant for the purposes of this case on two grounds ; firstly, on the ground that the course ef M.D.S. students for six months is the same for all the specialities as will be evident from Annexure4 to the writ petition, which is a letter dated 18594 addressed to 14 students who have been selected for M.D S. course of Dental Science, the selection for which was made through P.G.M.EE. 1994 (Session199496). A memo has been appended which provides that for M. S. in speciality which has been allotted to the students they have to comply with certain conditions for their admission. After that it has been provided "and also subject to the condition that you shall rotate for 1st six months in all the specialities of Dental Faculty as allotted by the Dean Faculty of Dental Sciences, K.G M.C. Lucknow. On completion of 6 months as Junior Residents 1st year (Dental) you will work as J. R. II year (Dental) in the speciality noted above for one year and then as J. R. III year (Dental) for one year in the same speciality.

This shows that all the students who have been admitted to Dental Sciences are to be rotated for the first six months in all the specialities of Dental Faculty. After completion of six months'' period they are to work as Junior Residents 1st year, then II year and then III year in the speciality noted against each of them. Thus when the course of all the students for the first six months is the same and they have to rotate in all the specialities, it will be immaterial whether the students have been admitted to the Dental Sciences course in the year 1994, are admitted to one speciality or others have to undergo education in all the specialities. Therefore, even if at this stage the specialities are allocated between the petitioners and the other four students who have been admitted lateron subject to the orders of this Court in this writ petition, will not make any difference and will not jeopardise the students of any of the speciality, who have been admitted to a particular speciality. The Session in this case actually commenced on 19th May, 1994 as mentioned in the earlier part of the judgment and six months will be over on 18th of November, 1994 and before this the specialities can be changed.

The second reason is that the admissions of opposite parties 3 and 4 and two other students, namely, Dr. Dibya Tewari and Dr. Pradeep Shukla have also been made subject to the decision of the present writ petition. As mentioned in the earlier part of the judgment these students have already given in writing to opposite party no. 2 that they should be given admission against the vacancies and if any adjustment is made they will abide by it. Therefore, these four persons including opp. parties 3 and 4 are bound by their letter and the orders of this Court. AnnexureC5 to the counteraffidavit of opp. parties 3 and 4, Dr. Nikhil and Dr. Vipin Agrawal also shows that their admissions were made subject to the final orders passed in writ Petition No. 1480 (MS) of 1994 and other related petitions by Hon''ble High Court. Therefore, the admissions of these four students will also be subject to the result of this writ petition. It may be mentioned that respective merit position of the petitioners and these four persons are as under :

Persons

Petitioner no. 1

,, no. 2

no. 3

Seniority in merit

12

Opp. party no. 3 no. 4

Divya Tewari Pradeep Shukla

14 15

13 17

Thus the above chart would go to show that the petitioners are higher in rank than these four persons including opp. parties 3 and 4 who have been admitted lateron. Naturally the counselling of the reserved category students should have been done first than these petitioners, who might have got the speciality of their choice which have now been given to the opposite parties 3 and 4 and Dr. Divya Tewari and Dr. Pradeep Shukla. Therefore, the opp. party no. 2 can be directed to take choice from the petitioners within a time bound frame and offer the specialities to the petitioners 1 to 3 and then against remaining specialities opp. parties 3 and 4 Dr. Divya Tewari and Dr Pradeep Shukla can be offered specialities according to their merit and choice of the speciality. This will not be against any of the provisions contained in the Notification dated 30394 and 9th of October, 1990 as amended by the former notification.

The result is that the writ petition is allowed. Opp. party no. 2 is directed to reallocate the specialities between the petitioners, opp. parties 3 and 4 and Dr. Divya Tewari and Pradeep Shukla according to their merit obtained in PGMEE 1994 and choice which is to be submitted within a week from today. Then the opp. party no. 2 shall allocate the specialities between the petitioners, opp. parties 3 and 4 Dr. Divya Tewari and Dr. Pradeep Shukla within next ten days as directed in the earlier part of the judgment. There shall be no orders as to costs.