Vikas Yadav vs State of Haryana and Others

V.S. Aggarwal, J.—Regional Engineering College, Kurukshetra, was authorised by the State of Haryana to make admission to B. Tech./B.E. Engineering besides in Architecture and Agriculture Courses for the year 1999-2000 in various colleges in the State of Haryana. Initially, the seats were 3200 but had been increased to 4100.

The petitioner belongs to Backward Class (B) Category and was eligible to appear in the Common Engineering Entrance Test as per qualifications laid down in the Brochure. The Common Engineering Entrance Test was taken on 26.5.1999. The petitioner was informed about his result and his rank of 8682. Admission Committee, Regional Engineering College, Kurukshetra, respondent No. 4, advertised in various newspapers specifying the schedule of counselling for admission to academic session 1999-200. As per said advertisement which appeared in the Tribune. Instead of filling up the seats from the general category at the first instance, the seats from reserved categories were sought to be filled up thereby depriving the reserved category candidates from their right of consideration against general category seats which is not permissible in law. No such criteria had been prescribed in the prospectus. The effect of the same was that the candidates although belonging to Backward Class (B) category who were higher in merit would have been admitted in the quota of general category itself, but due to said advertisement, the concept of reservation had been defeated.

The petitioner''s case is that, as per his information, the last candidate in the non-payment seat in Backward Class (B) category is at rank No. 7934. There are only 79 Backward Class (B) category candidates in between rank No. 7934 and 8682. Had the counselling of general category seats taken place prior to reserved categories seats, about 176 candidates from the Backward Class (B) category would have come in the first 2000 meritorious candidates. The petitioner would have been admitted to a free seat in Backward Class (B) category. Thus, according to the petitioner, the schedule of counselling as spelt out in the advertisement is illegal, unjustified, arbitrary and violates his fundamental rights as well as Articles 14 and 16 of the Constitution.

In the written statement filed, petition as such had been contested. The respondents pointed out that there are about 20 private Engineering Colleges in the State of Haryana for which respondent No. 4 was making admission in a centralized manner from 3824 seats. The Common Engineering Entrance Test (for short "CEET") was conducted on 26.5.1999. After the declaration of the result, the candidates were to submit fresh application forms for being considered for admission. The last date for submission of application forms was 30.6.1999 which was extended to 7.7.1999. About 24000 candidates appeared in the test. The Admission Committee took a decision on the basis of past practice as well as considering the practical difficulty because a large number of seats of reserved category remained vacant, that the counselling for reserved category candidates be held in the first instance. After taking the said decision, the Schedule of Counselling for admission was published in the newspapers. The counselling for reserved category Backward Class (A) and (B) started on 21.7.1999. Thereafter all the reserved category candidates were called for second round of counselling on 2.8.1999 and 3.8.1999. At the time when Admission Brochure was issued in the first week of March, 1999, the reservation policy was under consideration of the Government of Haryana. In the eligibility criteria, a note was given that the reservation policy is subject to revision, 2263 candidates applied for being considered for admission under the different reserved categories for 1672 seats. They were called for counselling twice as per schedule, 562 seats still remain vacant out of which there are about 50 free seats in different reserved categories.

The respondents further asserted that in all the Engineering Colleges there are different branches of Engineer. The candidates while seeking admission choose seats from amongst the seats available under the different branches of Engineering, Sometimes, candidates give option for taking admission against the payment seat. Only few candidates of the reserved category who had earlier been admitted had opted to be admitted against general category upto the rank of 2500 by 8.8.1999. The petitioner had appeared in the test and obtained 53 marks. There was no controversy about his rank. The overall merit of the petitioner in Backward Class (B) category was 417 amongst 562 candidates who had applied in the said category. The counselling for Backward Class (B) was held from 21.7.1999 to 27.7.1999. The petitioner marked himself present on 26.7.1999 but did not turn up before the Admission Committee at his turn of counselling to get admission. By the time his turn for admission came, all free seats had been filled up and even most of the better branches in good colleges/Institutes had been filled up. Had the petitioner turned up before the Admission Committee for counselling, he would have got a payment seat because 24 candidates of Backward Class (B) category have been admitted against payment seats after the rank of the petitioner. It is denied that the decision of the respondent is contrary to Articles 14 and 16 of the Constitution.

Learned counsel for the petitioner urged that it was mandatory that firstly the general seats should have been filled up because many of the candidates of the reserved categories would be entitled to claim the general seats on merit. This will leave more seats for the reserved category candidates. According to the respondents counsel, this would make no difference.

At this stage, it can conveniently be mentioned that in the different colleges that have come up in Haryana, there are two categories of seats. Some seats in the private colleges are described as free seats for which normal fee is charged and for other seats which are described as payment seats, exorbitant amount running into lacs is charged for different disciplines.

We know from the well known decision in the case of Indra Sawhney etc. etc Vs. Union of India and others, etc. etc., , that if a member of the reserved category, particularly Scheduled Castes, gets selected in the open competition, he will not be counted against the reserved quota. The same principle would apply in the case of any other person who comes on his own merit. The Supreme Court held as under:-

"In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition filed on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates."

This question was further considered by the Supreme Court in the case of Ritesh R. Sah Vs. Dr. Y.L. Yamul and others, . It was again reiterated that a candidate who is entitled to be admitted on the basis of merit though belonging to reserved category cannot be considered to be admitted against a reserved seat for reserved category. The Supreme Court held as under:-

".....We have seen both in law and medicine that persons with brilliant academic record do not succeed in practice while students who were supposed to be less intelligent come out successful in profession/practice. It is, therefore, wrong to presume that a doctor with good academic record is bound to prove a better doctor in practice. It may happen or may not". In view of the legal position enunciated by this Court in the aforesaid cases the conclusion is irresistible that a student who is entitled to be admitted on the basis of merit though belonging to a reserved category cannot be considered to be admitted against seats reserved for reserved category. But at the same time the provisions should be so made that it will not work out to the disadvantage of such candidate and he may not be placed at a more disadvantageous position than the other less meritorious reserved category candidates. The aforesaid objective can be achieved if after finding out the candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different colleges which have been kept reserved for reserved category and thereafter the cases of less meritorious reserved category candidates should be considered and they will be allotted seats in whichever colleges the seats should be available. In other words, while a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission to the colleges where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as, a open category candidate and not as a reserved category candidate...."

Keeping in view the said principle enunciated by the Supreme Court, it leaves no doubt in one''s mind that if certain reserved category candidates are selected on merit, then they will take the general category seats and not reserved seats. As a necessary consequence, it will follow that certain seats would be still vacant for reserved category because some of the reserved category candidates are selected on merit. It, therefore, is mandatory that first general category seats are filled up. These seats will be filled up strictly on merit and thereafter reserved category seats have to be filled up excluding those who have already been admitted from reserved category though they have scored well and had come on merit. Of course, in terms of the decision of the Supreme Court in Ritesh R. Sah''s case (supra), so far as admission is concerned, it cannot be to their prejudice. Seemingly, it has not been done by the respondents. This causes a prejudice to the petitioner who certainly can claim that qua him Articles 14 and 16 have been violated.

Merely because if the petitioner did not appear at the time of counselling is not a ground to deprive him of his constitutional right. This is for the reason that it was explained that the petitioner could not make the payment of a huge amount on being admitted to the payment seat.

For these reasons, it cannot be termed that the manner in which the respondents had proceeded would stand scrutiny. However, only the petitioner has approached this Court. Other persons are satisfied and consequently it will not be appropriate to upset the curriculum of studies which had started. Any direction to de novo start the whole affair will affect the valuable time of the students. Therefore, it is directed that only qua the petitioner, an exercise shall be conducted that firstly the general seats shall be filled up and all reserved category candidates who had scored well and fall in the merit list shall be included in that list. Thereafter, the reserved category seats be filled up and the petitioner be called for counselling as to if he is entitled to a particular discipline or not and whether he falls within the free or a payment seat. The said exercise shall be completed preferably within three weeks.