Srijan Anant vs Union Of India And 5 Others
2017 Latest Caselaw 7397 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						             Reportable.
 

 
Court No. - 36
 

 
Case :- WRIT - C No. - 52505 of 2017
 
Petitioner :- Srijan Anant
 
Respondent :- Union Of India And 5 Others
 
Counsel for Petitioner :- Akhilesh Kumar Singh
 
Counsel for Respondent :- A.S.G.I.,G P Singh,Neeraj Tripathi,Sri Radha Kant Ojha
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Heard Shri Akhilesh Kumar Singh, learned counsel for the petitioner and Shri Bharat Pal Singh, holding brief of Shri Neeraj Tripathi, learned counsel for the respondent-University.

The controversy raised in the present petition is with regard to the result of Combined Research Entrance Test, 2017 (in short CRET-2017) in subject Commerce and Business Administration published on 16.10.2017 and approved by the Vice Chancellor of the University of Allahabad on 27.10.2017.

The short controversy raised is with regard to the preparation of final merit list wherein a reserved category candidate namely Kiran Saroj (respondent No.5) has been migrated to and placed against the seat of the General category (unreserved category).

The University of Allahabad has been created by the Parliamentary Act namely The University of Allahabad Act, 2005. The Ordinances of the University have also been enacted by the Parliament. The Ordinance LVI provides the procedure for admission of students in Doctor of Philosophy Programme (in short 'D.Phil Programme'). As per the said Ordinances, a notification dated 6.4.2017 was issued by the respondent for admission in D.Phil Programme for Academic Session 2017-18. The Brochure for Combined Research Entrance Test 2017-18 has been appended as Annexure-1 to the writ petition. A perusal of relevant Clause 1.03 as contained in Section 1 of the said Brochure, the CRET-2017 is divided into two parts:- Level (1) and level (2).

(A) Level (1) of CRET 2017 consists of two papers

(1). Paper 1-having 25 objective type questions carrying two marks each (total marks 50).

(2). Paper 2-having subjective type questions (total 250 marks).

The total marks of both paper-1 and 2 was 300 marks. Both the papers are based on the subject selected by the candidate.

(B) Level-2 Test consists of interview which may include presentations, group discussions or other modes which shall be administered by the Doctoral Programme Committee of the Department/Institution/Centre concerned.

As per Clause 1.04 of the Brochure of admission, certain categories of candidates are exempted from the Level-1 Test. There is no dispute with regard to the fact that the final result prepared on 16.10.2017 was of all those candidates who had appeared in both Level (1) and (2) Tests. As per Clause 1.07, the minimum qualifying marks for Level-1 Test (a written test) for General category and reserved candidates were as follows:-

1. For general category candidates, 30% of 300=90

2. For OBC category candidates, 27% of 300=81

3. For SC/ST/PH category candidates=Nil

Clause 1.08.1 of the Brochure provides that a candidate who fails to secure a minimum qualifying marks in the respective social categories i.e. (unreserved/OBC/SC/ST) shall stand disqualified for Level-2. Clause 1.08.2 says that a list of eligible candidates for the Level-2 Test shall be drawn up, in accordance with the consideration specified in Clause 1.08.4, from amongst the following categories (as provided in Clause 1.02) of candidates fulfilling the eligibility criteria. Clause 1.08.4 provides that against each vacancy two candidates will be qualified for Level-2 (as per the resolution dated 15.5.2016 of the Academic Council). Further all JRF (UGC/CSIR) qualified candidates will be eligible for Level-2 Test. The list of eligible candidates in Level-2 Test is announced by the CRET-2017 Committee giving due considerations to the vacancy in the Department.

Admitted position in the present matter as stated in the counter affidavit of the respondent-University is that all 59 candidates who qualified the Level-1 Test i.e. attained more marks than the minimum qualifying marks (as per Clause 1.07) were allowed to appear in Level-2 Test before the Doctoral Programme Committee of the Department concerned. The vacancy position as shown in the resolution approved by the Vice Chancellor of the University is also admitted. There are 14 vacancies out of which seven are unreserved, four of OBC and two SC and one ST. A list of shortlisted candidates for Level-2 CRET and JRF is at 'Pages 36 and 37' of the counter affidavit which indicates that in Level-1 Test, name of Ms. Kiran Saroj (respondent No.5) is shown in the category of SC candidates who had attained 64 marks in Level-1 Test whereas the petitioner a general category candidate had attained 138 marks.

Another list/weightage sheet of 59 candidates shortlisted in Level-2 (disclosing their marks in Level-2 Test) is appended as Annexure CA-1. A perusal thereof indicates that Ms. Kiran Saroj a SC candidate had attained 37.7 marks in total in Level-2 Tests whereas the petitioner, a general category candidate had attained 35 marks in Level-2.

As per the Brochure, the criteria of selection of general/OBC/SC/ST category candidates i.e. the minimum qualifying marks in three respective categories are different. For the general category the minimum qualifying marks are 90 out of 300 whereas for OBC it is 81 out of 300; for SC/ST candidates there is no minimum qualifying marks. Clause 1.08.1 as noted above states that the candidates who failed to secure minimum qualifying marks will be disqualified from appearing in Level-2 Test. Thus, the contention of the respondent-University that since all candidates who had appeared in Level-1 Test were allowed to undertake Level-2 Tests irrespective of the marks obtained by them in Level-1 examination and benefit of reservation had not been given at Level-1 is incorrect. For SC category candidate, there was no minimum qualifying marks and, thus, all SC candidates who had appeared in Level-1 were treated to be qualified whereas for unreserved i.e. general category only candidates having minimum qualifying marks (90) did qualify. This necessarily means that a general category candidate who had not been able to secure minimum qualifying marks (90) could not make it to the list of 59 candidates selected to appear in Level-2 Tests. The fact noted above is substantiated from the list of shortlisted candidates appended with the counter affidavit as noted above. As per the said list, the last candidate of general category selected for Level-2 had attained 111 marks in Level-1, and last OBC candidate had obtained 90 marks in Level-1, whereas the marks attained by SC Candidates were much lesser than the qualifying marks of OBC and unreserved/General Category Candidates.

As the benefit of reservation had been given to the SC candidates to treat them as having been qualified in Level-1 which is an open competition of written examination conducted by the University, it cannot be said that all were treated equal at Level-1, irrespective of the marks obtained by them.

It is settled position of law that the candidates who have been given benefit of reservation at the first stage of the open competition cannot be migrated to the unreserved vacancies at the time of preparation of final result on the basis of marks obtained in the second stage of open competition. They are necessarily to be counted against the reserved vacancies only.

The said view taken by the Court is substantiated by the following facts.

The reservation in admission of the students belonging to the SC, ST and OBC Classes to the Central Education Institutions established, maintained and aided by the Central Government is governed by the Central Educational Institutions (Reservation in Admission) Act, 2006 (Act No.5 of 2007) (in short the Act, 2006) which came into force on 3.1.2007. Section 3 of the Act, 2006 provides the manner and the extent to which reservation of seats for admission in a Central Education Institutions is to be provided. The relevant Section 3 of the Act, 2003 is as under:-

"3. The reservation of seats in admission and its extent in a Central Educational Institution shall be provided in the following manner, namely:-

(i) out of the annual permitted strength in each branch of study or faculty, fifteen per cent seats shall be reserved for the Scheduled Castes;

(ii) out of the annual permitted strength in each branch of study or faculty, seven and one-half per cent, seats shall be reserved for the Scheduled Tribes;

(iii) out of the annual permitted strength in each branch of study or faculty, twenty-seven per cent, seats shall be reserved for the Other Backward Classes."

Nine Judges Bench in Indra Sawhney & Ors. v. Union of India & Ors. 1992 Suppl. 3 SCC 217 had held that if the members belonging to the reserved category get selected in the open competition on the basis of their own merit, they will not be counted against the quota reserved for Scheduled Castes or Scheduled Tribes or OBC and they would be treated as open competition candidates. The same principles have been laid down in Post Graduate Institute of Medical Education and Research Chandigarh & Ors. v. K.L. Narasimhan & Anr. 1997 (6) SCC 283 in paragraph 5 as under:-

"5..........It is settled law that if a Dalit or Tribe candidate gets selected for admission to a course or appointment to a post on the basis of merit as general candidate, he should not be treated as reserved candidate. Only one who does get admission or appointment by virtue of relaxation of eligibility criteria should be treated as reserved candidate."

In a judgment in Deepa E.V. v. Union of India (UOI) & Ors. AIR 2017 SC 1945, the Apex Court has clarified that the relaxation in age, fee, experience, education qualification, permitted number of chances in written examination etc. granted to the reserved category candidates are with the object to provide them a level playing field. However, in case, there is an express bar by the executive orders of the State Government, the reserved category candidates having given benefit of relaxation cannot be considered against unreserved vacancy even if they secure more marks than the last candidate in the general category in the open competition.

In a recent judgment, in Gaurav Pradhan & Anr. v. State of Rajasthan reported in 2017(4) SCT 89 (SC), two judge's bench of the Apex Court has clarified the controversy of migration of reserved category candidates in general/unreserved category candidates in the light of the abovenoted pronouncements of the Apex Court. It was clarified that the ratio of the judgment of the Apex Court in Jitendra Kumar Singh v. State of U.P. reported in (2010) 3 SCC 119 has to be read in the context of statutory provisions and the executive orders of the State of U.P. i.e. Government Order dated 25.3.1994 issued by it.

It was observed therein that Article 16 sub-Clause (4) of the Constitution of India is an enabling provision empowering the State for making any provision for reservation of admissions or posts in favour of any backward class of citizens. The orders issued by the State Government from time to time are the orders contemplated by Article 16 sub-Clause (4). The reservations being enabling provision, the manner and extent to which the reservation is provided has to be clearly supported from the orders issued by the State Government/Government from time to time.

The ratio of judgment in Deepa E.V. (Supra) is held to be referable to the circular of the Central Government dated 1.7.1998/2.7.1997 which provided for the migration of reserved category candidates to General/unreserved Category after getting relaxation in age etc to provide them a level playing field in the open competition with the candidates of unreserved category.

In the instant case, there is no dispute pertaining to the extent of reservation provided by the Government to SC, ST and OBC candidates as noted above and the reservation position clarified by the Central Act, 2006 enacted by the Parliament as also the fact that the exemption, concessions, manner and methodology to effectuate the reservations can also be provided by the Government.

The limited issue, however, herein is as to whether the reserved category candidate having got relaxation in qualifying marks in open competition at first level can be allowed to be migrated and adjusted against unreserved category in the second round of the competition. The petitioner herein has brought on record the Government Order dated 1.7.1998 issued by the Ministry of Personnel and Training which pertains to the direct recruitment on the post of Central Government Departments and speaks otherwise.

However, no Government Order/instructions/executive orders or any rules relating to admission in Central Institutions have been brought on record by the University of Allahabad which would provide the methodology of migration of reserved category candidates into general category candidates despite taking concession in the open competition.

In absence of any such instructions, it was not open for the University to migrate SC category candidate to unreserved category and adjust her against the vacancies of the said category after she was granted relaxation in the criteria of qualifying marks attained in Level-1 Tests.

It necessarily follows that the respondent No.5 namely Ms. Kiran Saroj having given the benefit of reservation for qualifying Level-1 Test cannot be treated as a general category candidate in Level-2 Tests. It is all the more important to reiterate that Level-1 was an open competition which was a written test being first stage the competition open to all candidates seeking admission in D.Phil Programme. Further, the eligibility criteria for appearing in Level-1 Test as per Clause 1.02.1 of the Broucher itself shows that relaxation was granted to a reserved candidate in the minimum required marks at Post-Graduate level i.e. the qualifying marks for entering in the open competition at Level-1, itself. Thus, the reserved candidate who had appeared in Level-1 (open written test) having been granted relaxation in eligibility criteria (minimum score at Post-Graduate Level), after getting benefit of reservation in Level-1 test, could only be treated as reserved category candidate for Level-2 Tests.

For all the above noted reasons, the final result of CRET-2017 (Commerce and Management) Department of Commerce and Business Administration published on 16.10.2017 and approved by the Vice Chancellor of University of Allahabad on 27.10.2017, therefore, suffers from grave error of law and is liable to be quashed. The respondent-University is directed to draw a fresh result strictly in conformity with the observations made hereinabove as also the Ordinances of the University.

Subject to the above observations and directions, the writ petition is allowed.

(Sunita Agarwal, J.)

Order Date:-29.11.2017

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