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Judgment
A.M. Khanwilkar, J.—Heard Counsel for the parties.
Rule. Rule made returnable forthwith by consent of the parties. Mr.Naik, AGP waives notice for State. Mr.Thorat waives notice for Respondent No. 4. As short question is involved, Petition is taken up for hearing forthwith by consent.
By this Writ Petition under Article 226 of the Constitution of India, the Petitioner prays for quashing and setting aside the selection list published by the Respondent No. 2 on 15th April, 2009 to the extent of admission given to the Respondent No. 4 in place of the Petitioner herein against the NT-2 category seat in the subject of Prosthodontics. The Petitioner further prays for direction that the Notification No. 6/Revised Preference/2-A dated 08.04.2009 issued by the Respondent No. 2 was restricted to physically handicapped category and would not govern the NT-2 category. The Petitioner has asked for further relief of issuing direction to give one seat to the Petitioner in the college of Respondent No. 3 instead of allotment of that seat to Respondent No. 4, since the Petitioner was second in the State Merit list and the Respondent No. 4, who was higher in the State Merit list was disqualified on 24th March, 2009 for not submitting the original non-Creamy layer Certificate within specified time.
The background in which the present Petition arises is that the Petitioner belongs to Nomadic Tribe-C(NT-C) and is in the class of ''Non-Creamy layer'' duly certified by Sub-divisional Officer, Dharwa. After completing his Bachelor of Dental Surgery, pursuant to an advertisement issued by the Respondent No. 2, he appeared for Common Entrance Test(CET) held by the Respondent No. 2 for the Post Graduation Course in Dental at Nagpur center. On 27th February, 2009, the Respondent No. 2 declared the final merit list of Common Entrance Test, which was published on Internet as well as other modes of publication. The Petitioner was shown at category merit-2 in NT-2 category in the State Merit List. Whereas, the Respondent No. 4 was shown at No. 1 in NT-2 category. As per the notification issued by the Respondent No. 2 dated 12th March, 2009 bearing No. 4/Admission Process/2A, for MDS Admission to Post Graduation Dental-CET 2009, it was notified that the candidates who would qualify the CET 2009 are called for counseling and filling preference form for admission to Dental Post Graduate Courses for academic year 2009-2010 on 24/3/2009 at 11.00 a.m. at Government Dental College and Hospital. The above notification mentions that the brochure containing information about process, distribution of seats, subject and college combination code and other details would be available to candidates from 19th March, 2009 and also on the date of counseling at Government Dental College and Hospital, St. George''s Hospital Compound near CST, Mumbai. It also notified that selection list will be published on 2/4/2009 and also displayed on the website as well as notice board of Municipal Corporation Dental Colleges. Further, the last date for joining and payment of fees would be 15th April, 2009 and the academic session would start from 2nd May, 2009. The brochure was made available to the Petitioner on 19th March, 2009. The information brochure was also made available to other prospective candidates. The information brochure notifies the admission process exhaustively without any ambiguity. The relevant Clause in the said information brochure being Clause 11.2.2, which is of some significance reads thus:
11.2.2At the time of filling the Preference form the candidate should bring all original documents and a set of attested copies of the same in support of claim made in application form i.e. Caste Certificate, Caste Validity Certificate, and non-creamy layer certificate. If the matter is still pending with Hon''ble Court, candidate should submit a fresh Court order for PGD-CET 2009, failing which, claim will not be granted and the candidate will be considered as General Category candidate.
Notably, the above Clause is printed in bold letters to highlight the instruction that strict compliance of the above requirement should be observed, failing which claim of the concerned candidate will not be considered in the reserved category but will be considered as General category candidate. As per the notification, prospective candidates were obliged to appear for counseling and filling preference form and simultaneously present requisite documents. The reservation for NT-2 category was shown against the subject of "Prosthodontics" in Nair Hospital Dental College, Mumbai. The Petitioner therefore, had no option but to give his preference for the said subject. Since the Petitioner was claiming under NT-2 category-against the reserved seat, he appeared before the Committee on the appointed date, time and place for counseling and filing preference form and presented the relevant documents. The Respondent No. 4 who also claimed against the reserved seat for NT-2 category, appeared for counseling before the committee, but failed to present the requisite documents. He failed to submit his "non-creamy layer" certificate at the time of scrutiny of original documents. As a result, his candidature against the reservation for NT-2 category could not be considered and his application was therefore processed as general category in terms of Clause 11.2.2. of the Brochure. The Respondent No. 4 being aggrieved by the said exclusion, chose to file Writ Petition in this Court being Writ Petition(L) No. 640 of 2009. That Petition was filed on 30th March, 2009, which was however, dismissed by the Division Bench of this Court on 16th April, 2009. The challenge put forth by the Respondent No. 4 was negatived by the Division Bench of this Court on the basis of well settled legal position.
As a consequence, the Petitioner being second in the State Merit List in the category of NT-2 candidates, was to be allotted subject Prosthodontics. However, later on the Respondent No. 2 issued notification dated 8th April, 2009 to revise the distribution of seats of MDS course for the academic year 2009-2010. As per this notification, one open category seat was reserved for physically handicapped candidate in subject Prosthodontics in Government Dental College and Hospital, Mumbai. The only subject available for NT-2 category was earmarked as Prosthodontics in Nair Hospital Dental College, Mumbai. The Petitioner had already filled up his preference form on 24th March, 2009 for the said subject and was due to get admission being the second in the merit list in the NT-2 category consequent to rejection of the claim of the Respondent No. 4 herein. The Petitioner had reason to believe that his allocation of subject Prosthodontics would remain unaffected as the decision of this Court in Writ Petition No. 3490 of 2009 in the case of Pratik B. Vora v. State of Maharashtra decided on 2nd April, 2009 was limited to admission process and preference of subject of Oral Pathology and Microbiology only, which was earmarked for physically handicapped candidate. The challenge in the said Petition was that the said subject could not have been repeated for the academic year 2009-2010, but the reservation for physically handicapped candidate ought to have been rotated for some other subject. That challenge was accepted by the Division Bench of our High Court and the Respondent No. 2 was directed to select any other subject except the subject which have been repeated earlier to provide reservation in favour of the handicapped person in the year 2009. The relevant operative portion of the said decision reads thus:
We further find that the reservation for handicapped person is further required to be carried out by way of reservation in favour of the Scheduled Caste, Scheduled Tribes and other sorts of reservations either constitutionally provided and/or provided by the State Government. Therefore, the only seat which goes to the physically handicapped person will always go in favour of open candidate, but it will equally go into reservation system and that constitutional reservation shall also be observed in respect of this seat. Our judgment should not be taken as providing any reservation in favour of the handicapped persons and that too, in favour of open candidates. All constitutional reservations shall apply to the handicapped reserved seats. Therefore, we find merit in the petition to the extent we made observations above. We quash and set aside the reservation made in so far as Oral Pathology and Microbiology for the year 2009. We direct the respondents to select any other subjects, excepting the subjects which have been repeated earlier, to provide a reservation in favour of the handicapped persons for the year 2009. We further direct the respondents to prepare a further reservation, except for a moment that there is only one reservation seat for candidate of handicapped category for the next five years, applying all tests stated above and publish the reservations well in advance in prospectus so that the handicapped candidates know well in advance the reservation made by the respondents.
However, according to the Respondent No. 2, the revision of all subjects was necessitated due to the abovesaid decision of the Division Bench of our High Court in the case of Pratik B. Vora (supra). The Respondent No. 2 accordingly revised the allocation of all the subjects afresh. And on that basis published the results on 15th April, 2009. From the said results it transpired that the subject of Prosthodontics (earmarked for NT-2 category) was allotted to Respondent No. 4, who was earlier disqualified having failed to submit his original creamy layer certificate on 24th March, 2009 and as a result of which the Petitioner was allotted that seat being eligible candidate. It is the case of the Petitioner that revision of the preference was resorted to by the Respondent No. 2 only with a view to favour the Respondent No. 4 with ulterior purpose, under the garb of direction issued by the Division Bench of this Court in the case of Pratik Vora (supra). According to the Petitioner, the said decision of this Court, in no way directs the Respondent No. 2 to cancel the entire admission process completed on the basis of the notification dated 12th March, 2009, especially in relation to other subjects other than the reservation for physically handicapped candidate against the subject of Oral Pathology and Micro biology.
The Respondents, in particular, Respondent No. 2, on the other hand by filing affidavit have justified the action of issuing fresh notification dated 8th April, 2009. According to the Respondent No. 2, although the decision of the Division Bench in Vora''s case (Supra) related only to Oral Pathology and Micro-biology subject, the revision of preferences of all the seats became essential to give fair opportunity after readjustment of all the seats. In paragraph 3 of the reply affidavit filed by the Joint Director, Medical Education and Research, it is stated as follows:
I further say that pursuant to the Order passed in Pratik Vora''s case by this Hon''ble Court the Respondent No. 2 was required to change, the allocation done of Oral Pathology and Microbiology seat for physical handicapped category, to Prosthodontics. In view of the above change the entire process and counseling and the preference form filling which was carried out earlier on 24th March, 2009 was required to be revised as the allocation of the Oral Pathology and Microbiology now seat is changed from physically handicapped category to the non handicapped category i.e. to open category and prosthodontics seat which was earlier allocated to open category now upon revision to physically handicapped category. The Respondent No. 2 was required to issue Notification dated 8th April, 2009 as aforesaid. I say that therefore the process of counseling and preference form filling was revised on 13th April, 2009.
After having considered the rival submissions and going through the pleadings and other material produced by the parties, the first question that needs to be addressed is whether the decision of the Division Bench in the case of Pratik Vora (supra) made it imperative for the Respondent No. 2 to issue notification dated 8th April, 2009 so as to reopen the settled position in respect of other post graduate seats instead of reallocation and interchange between one open seat and the reserved seat of Oral Pathology and Microbiology inter se. That issue can be answered on the basis of the exposition in the case of Pratik Vora (supra). The Division Bench in the said case has made it abundantly clear that they were considering only challenge to the reservation of subject of Oral Pathology and Micro-biology for physically handicapped candidates and no other issue. The discussion in the Judgment and moreso in the operative part of the Judgment reinforces this position. Paragraph-6 of the Judgment has been reproduced in its entirety hitherto. But, there is nothing either in the entire Judgment or for that matter the operative order to even remotely suggest that the Respondent No. 2 was obliged to undertake the entire exercise of preferences afresh in respect of all the seats. What was expected was only to correct the reservation for physically handicapped category by selecting some other subject other than the Oral Pathology and Micro-biology in the year 2009. As a matter of fact, the Respondent No. 2 in the affidavit confirms that the decision in Pratik Vora''s case (supra) impacted only one seat of Oral Pathology and Microbiology which was earmarked for physically handicapped category for the year 2009 and now converted to the non-handicapped category i.e. to open category. In other words, the impact was only on the subject of Oral Pathology and Micro-biology reserved for physically handicapped category which stood converted to open category and one open category seat was to be allocated to physically handicapped category. It was possible for the Respondent No. 2 to interchange the two seats i.e. open and reserved for Physically handicapped of Government Dental College Aurangabad itself. At best, the Respondent No. 2 could have eliminated the candidate who has secured lowest rank in open category in subject Prosthodontics and that open seat could have been converted to reservation for Physically Handicapped. That change would have had no impact on any other subjects much less reservation of NT-2 category in the subject of Prosthodontics. To justify the necessity of revision of all the subjects, the Respondent No. 2 has now shifted the reservation for physically handicapped to another college. In as much as, as per the previous notification it was against the seat of Oral Pathology and Micro-biology in Government Dental College and Hospital at Aurangabad. In the revised notification the reservation for physically handicapped is shifted to subject Prosthodontics in Government Dental College and Hospital at Mumbai in exchange of open seat in that college; and the reserved seat for physically handicapped in Government Dental College at Aurangabad is converted to open category.
We are in agreement with the criticism of the Petitioner that it was wholly unnecessary to resort to revision of distribution of all the subjects, but the revision could have been modulated in such a way that one open seat in subject Prosthodontics in Government Dental College at Aurangabad could have been treated as reserved for physically handicapped and in exchange the seat earmarked for subject Oral Pathology and Microbiology which was reserved for physically handicapped in the same college could have been converted to open seat. In the alternative, it was possible to treat one open seat in subject Prosthodontics from amongst the four colleges as reserved for physically handicapped in lieu of seat of Oral Pathology and Microbiology at Aurangabad by eliminating the candidate with lowest rank accommodated against the open seat, which was required to be converted. Significantly, the seat earmarked for NT2 category has remained unchanged at Nair Hospital Dental College, Mumbai. However, as a result of revision of preferences of all the subjects, the Respondent No. 4 whose claim was rejected by the Respondent No. 2 on 24th March, 2009 and challenge to the said rejection was negatived by this Court in Writ Petition (L) No. 640 of 2009, has succeeded in getting a back door entry; which perhaps was the main purpose of the Respondent No. 2 in issuing notification dated 8th April, 2009. That can be demonstrated from the charts produced by the Counsel for Respondent No. 2 in compliance with the direction given by us, depicting the position emerging before revision of distribution of seats and after such revision. On comparison of the two charts, it is amply clear that the exercise of revision facilitated inclusion of Respondent No. 4 who was earlier disqualified. No other candidate selected in the earlier round has been eliminated, except the Petitioner herein. The comparative position emerging from the two charts is reproduced thus:
A priori, under the garb of direction issued by the Division Bench of our High Court in the case of Pratik Vora (Supra), the Respondent No. 2 has not only circumvented its own decision but has also rendered the decision of this Court in Writ Petition (L) No. 640/2009 filed by the Respondent No. 4 challenging the rejection of his claim against the subject Prosthodontics in NT-2 reserved category meaningless and redundant. There was no other tangible reason for such revision of preference as has been resorted to in respect of all the subjects. The explanation offered by the Respondent No. 2 to justify that course is palpably unacceptable.
Counsel for the Respondent No. 2 placed before us minutes of meetings of the Committee dated 7th April, 2009 pursuant to which the notification dated 8th April, 2009 was issued. Except referring to the decision in Vora''s case, no reason has been recorded by the Committee in the said minutes which according to them necessitated issuance of notification to revised preferences in respect of all the seats. The said decision of our High Court however, merely directed the Respondent No. 2 to provide equal opportunity for physically handicapped candidates to the post graduate dental course, which was to be adjusted against one open seat. Taking any view of the matter therefore, we find that the basis on which the notification dated 8th April, 2009 has been issued was a non-existing reason. It is thus a colourable exercise of power by the Respondent No. 2 facilitating admission of Respondent No. 4 who was earlier disqualified.
Accordingly, we are inclined to hold that said notification dated 8th April, 2009 was restricted to the candidate of physically handicapped category and the revision of preferences would not be applicable to the other categories, in particular, NT-2 category. It is because of this inappropriate and unjust act of the Respondent No. 2, the Petitioner is wrongfully denied admission against NT-2 reserved category by the Respondent No. 2 by preferring a candidate (Respondent No. 4) who was disqualified for not submitting his original "Non-Creamy Layer Certificate" within specified time. Thus understood, we have no hesitation in granting relief as prayed by the Petitioner to quash and set aside the selection list published on 15th April, 2009 by the Respondent No. 2 to the limited extent of admission given to Respondent No. 4 and instead direct the Respondent No. 3 College to admit the Petitioner against the same seat reserved for NT-2 category.
Accordingly, Writ Petition succeeds on the above terms. Rule made absolute on the above basis with no order as to costs.