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Judgment
W.A. Shishak, J.—These two writ petitions have been heard together as issues raised in both the petitions are the same and as such I propose to dispose of these two petitions by a common judgment.
In Civil Rule 140 (K) 96 there is ore Petitioner, whereas there are two Petitioners in Civil Rule 142 (K) 96.
The claim of the writ Petitioner in Civil Rule 140 (K) 96 is that having topped the list in the merit list of the Joint Entrance Test conducted by the State Government is published on 19.8.96 and having opted for seat at Jipmer Pondicherry he ought to have been given one seat in the said College. It may by stated that inspite of his choice of the College which he claimed from the Government vide Annexure-C to the petition, the 5th Respondent was given the seat in the said College by ignoring the claim of the Petitioner. It may be stated that the 5th Respondent was placed at serial 6 in the merit list published by the common selection board. It is also stated that the 5th Respondent had not made any choice of college. No request whatsoever was made by the 5th Respondent to the State Government to send him to Jipmer, Pondicherry. It may be stated that two seats are available at Jipmer for the State of Nagaland for the session 1996-97.
In Civil Rule 142 (K) 96 also similar issue has arisen. The two Petitioners were both selected for the session 1996-97. Their names were published at serials 7 and 8 in the merit list whereas the names of the Respondents 4 and 5 are at serials 15 and 16 of the merit list. These two Petitioners in Civil Rule 142 (K) 96, both opted for Lady Hardinge Medical College, New Delhi. However, their request was ignored and the Respondents 4 and 5 were given nominations in that College. By Virtue of this Court''s order dated 3.9.96 the nominations issued in favour of the Respondents 4 and 5 have been suspended and the Principal of Lady Hardinge Medical College has been directed not to give admission to Respondents 4 and 5. Similar interim order was also issued in respect of the 5th Respondent in Civil Rule 140 (K) 96.
The fact that results which were published on 19.8.96 were on merit is not controverted by any of the parties.
Mr. R. Iralu, learned Counsel appearing for the Petitioner in Civil Rule 140 (K) 96 draws my attention to the Nagaland Technical/Professional Degree Courses (Selection of Candidates) Rules, 1995. Para 5.1 of the said Rule is as follows:
The selection of candidates for nomination against the available seats shall be made by the STATE COMMON SELECTION BOARD on the basis of the Merit List prepared by the Board of Joint Entrance Examination subject to the admission criteria laid down by the Institution to which the candidate is nominated.
Mr. R. Iralu submits that nominations will have to be made on the basis of "Merit-cum-Preference", According to him such is the criterion followed particularly in Jipmer, Pondicherry. Reference has been made to Rule 3.2.2 of the criteria for admission to the Jawaharal Institute of Post Graduate Medical Education and Research (JIPMER) Pondicherry where in among other things the following is stated:
Seats to be filled on the basis of common All India Entrance Test :- The Central Board of Secondary Education will conduct the examination, evaluate the answer script, prepare the merit list/waiting list, as per the directions of the Supreme Court and also declare the result. After declaration of the result, the Central Board of Secondary Education will forward the merit/waiting list to the Directorate General of Health Services who will, in turn, allocate the candidates to the respective Medical Colleges/Institution on the basis of merit-cum-preference.
The Petitioner in Civil Rule 140 (K) 96 as I have stated above is claiming one seat at Jipmer, Pondicherry on the ground that he had given his preference for this College by his letter at Annexure-C dated 19th August, 1996. It is also stated by Mr. R. Iralu that the 5th Respondents while accepting a seats for MBBS Course had not given any preference in his letter of acceptance. The Petitioner also wrote to the Commissioner and Secretary, Higher and Technical Education Nagaland on 22.8.96 with reference to his earlier letter of acceptance dated 19th August, 1996 stating that since he had topped the merit list and since he had already given his preference for one seat at Jipmer, Pondicherry, the competent authority should nominate the Petitioner for a seat at Jipmer, Pondicherry. It is submitted by Mr. R. Iralu that the 2nd letter dated 22.8.96 was written as the Petitioner apprehended that because of interference from certain quarters the State Government was not going to do justice to him.
Government has filed affidavit. I have heard Mr. I. Jamir, learned Sr. Govt. Advocate. Government affidavit admits that representation was duly made by the Petitioner. It is, however, the contention of the Government that the claim of seat in a particular College cannot be sustained inasmuch as there is no such policy laid down by the Government. According to Mr. I. Jamir issuance of nomination letter is entirely left to the competent authority and no choice of college by the selected candidates can be entertained. Para 7(i) of the Government affidavit states hat candidates are selected for MBBS AND OTHER TECHNICAL COURSES purely on merit based on their performance in the Joint Entrance Exam and they are given their choice of course of study depending on seat availability. Among other things it is also stated in para 7(ii) that:
The question of merit of the candidate is therefore not relevant to the issue of allocation of Institute so long as each one of them is allowed to pursue their desired profession, which has been decided purely on their merit and choice.
The sum and substance of the stand of the Government of Nagaland is that any candidate selected by the Board has no right of choice of a particular College and it is absolutely left to the discretion of the State Government to allot a particular student in any particular College as long as the selected candidate. set the opportunity to study the course according to his their choice Mr. R. Jamir submits that even in the previous years the choices made by the meritorious students were accepted.
In Civil Rule 142 (K) 96 Mr. S. Risom and Mr. G.A. Shimray, learned Counsel appearing for the Petitioners have pointed out to me the statement made in para 5 of the writ petition. It is averred that even in 1993, 1994 and in 1995 invariably female candidates for under-going MBSS Course were selected on merit to study at Lady Hardinge Medical College, New Delhi. It is stated that it has been so consistently for many years. However, this year despite the fact that these two Petitioners who are far above the Respondents 4 and 5 who had chosen Lady Hardinge Medical College, New Delhi have not been given and instead the Respondents 4 and 5 have been given seats in the said College. In support of this contention the Petitioners have produced result sheets of the previous years. The answer of the Government is the same it. this case also. It is the contention of the Government that choice as such cannot be made by the students.
In AIR 1980 Supreme Court 820, particularly in para 39 it is stated thus:-
If equality of opportunity for every person in the country is the conditional guarantee, a candidate who gets more marks than another is cabled to preference for admission, Merit must be the test when choosing the best according to this rule of equal chance for equal marks. This propesn on has greater importance when we reach the higher courses. After all, top technological expertise in any vital field like medicine is a nation''s human as(sic) without which its advance and development will be stunted. The role of high grade skill or special talent may be less at the lesser levels of education jobs and disciplines of social inconsequence, but more at the higher levels of sophisticated skills and strategic employment. To devalue merit at the summit is to temporise with the country''s development in the vital areas of professional expertise. In science and technology and other specialised fields of developmental significance, to relax lazily or easily in regard to exacting standards of performance may be running a grave national risk because in advanced medicine and other crincal departments of higher knowledge, crucial to material progress, the people of India should not be denied the best the nation''s talent lying latent can produce. If the best potential in these fields is cold-shouldered for populist considerations garbed as reservations, the victime, in the long run, may be the people themselves. Of course, this unrelenting strictness in selecting the best may not be so imperative at other levels where a broad measure of efficiency may be good enough and what is needed is merely to weed out the worthless.
Mr. R, Iralu submits that preference given by a candidate who is at the top in the merit list cannot be ignored without a reasonable ground to be so. Mr. Iralu refers me to 1994 (5) SLR 784 and submits that giving preference to a candidate who is on the top in the merit list is one of principle. Therefore, the preference or choice of a College given by a person who has done so well in the test should be honoured inasmuch as to do so would promote justice and not defeat it. I may reiterate here that the Petitioner in his letter of acceptance dated 19th August, 1996 had made his choice of Jipmer, Pondicherry clearly, whereas the 5th Respondent had not made any such request to send him to Jipmer, Pondicherry. The affidavit filed on behalf of the Government does not indicate any reason why the 5th Respondent should be preferred and that too despite the request made by the Petitioner. If the request of the Petitioner who is at the top in the list is to be turned down, in my view, the State Government should give reasons to do so. In fact, the Government should have explained why the 5th Respondent should be preferred to the Petitioner in the choice of College. After all the Petitioner has already made a protest and his protest must be dealt with by the Government according to the established norms. No reason whatsoever has been assigned as to why the claim of the Petitioner should not be accepted. In my view, Rule 5.1 of the Rules of 1995 and Rule 3.2.2. applicable to Jipmer, Pondicherry as quoted above should be read together. In my view, it would be just, fair and reasonable to honour the preference of College given by a candidate whose name is at the top in the merit list. There can be no doubt in any body''s mind that meritorious students would certainly like to go to well established and good College The fact that a student tries to do his best in the selection test would also mean that he would like to get the best college available for him if he is on the top in the merit list. In my view, this is the way to encourage meritorious students to work even harder. Let the spirit of competition be encouraged.
Mr. I. Jamir, learned Sr. Govt. Advocate is right when he states that there is no clear policy laid down by the Government that a student would have the choice of College. However, as I have slated above, once choice is made by one whose choice deserves consideration because of the merit he has demonstrated in the Entrance Test, if such choice or preference of the meritorious student as to be by-passed, it would be necessary for the Government to give clear reasons fur doing so. Otherwise in my view the action would become arbitrary. Fortunately in the present case the Petitioners as well as the private Respondents are all selected candidates and they would get their rats is one college or the other. However, in the facts and circumstances of the present case and keeping in view the future, I am of the view that it would be a good policy to follow merit-cum-preference for I have no doubt in my mind that to do so would certainly promote justice.
Mr. K.H. Sabi, learned Counsel appearing on behalf of the 4th Respondents in Civil Rule 142 (K) 96 submits that since nomination has already been issued, this Court may not pass any order disturbing the position of the 4th Respondent. This submission is made on the ground that on receipt of the nomination the student has already left for Delhi. In my view the Government of Nagaland should immediately let the student know where she will now proceed to undergo MBBS Course other than Lady Hardinge Medical College, New Delhi.
In the result, these two writ petitions are allowed. Nomination issued in favour of the 5th Respondent in Civil Rub No. 140 (K) 1996 shall stand cancelled and instead nomination shall be issued in favour of the Petitioner for one seat of MBBS Course at Jipmer, Pondicherry by the competent authority immediately on receipt of this order. Further nomination issued in favour of Respondents 4 and 5 for the two seats for MBBS Course at Lady Hardinge Medical College, New Delhi shall stand cancelled and instead letters of nominations shall be issued by the competent authority immediately on receipt of this order in favour of these two Petitioners in Civil Rule No. 142 (K) 1996.
These two petitions are disposed of. I pass no order as to costs.