Dr. Shrinivasa Rao S/O ... vs Dean And Chairman, P.G. Selection ...
2004 Latest Caselaw 235 Bom

JUDGMENT

D.D. Sinha, J.

1. Heard Shri Kaptan, learned Counsel for the petitioner, Shri Manohar. learned Counsel for the respondent Nos. 1, 2, 5, 6, 7, 10, 11, 12, 14, 17, 18, 19, 20, 21, 23, 24, 29, 31, 33, 36, 37, 38, 40, 41, 46 and 48 and Shri Kapgate, learned Counsel for the respondent Nos. 13, 22, 26, 30, 34, 35, 39, 42 and 44.

2. Shri Kaptan, learned Counsel for the petitioner, states that petitioner belongs to reserved category (Other Backward Class). The petitioner completed his M.B.B.S. course in the year 1999 from Sewagram Medical College and also one and half years' rural service. At the relevant time, petitioner was eligible for getting registration in the post graduate course and applied for the same for the academic session 2003-04 pursuant to notification dated 13.11.2002 issued by the respondent No. 1. It is contended that a common merit list was prepared and displayed by the respondent No. 1 in which petitioner was shown at serial No. 26. The petitioner in his application for registration, gave three choices of subjects as required and those are Orthopaedics, Radiology and Paediatrics. The common merit list reveals that only three students, namely, Pankaj (serial No. 20). petitioner (serial No. 26) and Kalidas (serial No. 37) have given their first choice for the subject "Orthopaedics".

3. It is submitted by the learned Counsel for the petitioner that call letter was given to the petitioner and counselling was held on 19.12.2002 in the office of Dean, Sewagram Medical College. At the time of counselling itself, for the first time candidates were made aware about reservation of scats and so far as subject "Orthopaedics" is concerned, total seats were three, i.e. two for open category candidates and one for reserved category candidate (Other Backward Class). It is contended that counselling for reserved category was held first and petitioner was called for counselling from the "Other Backward Class" category and was told that only two subjects are available, i.e. M.S. (General Surgery) and M.S. (Ophthalmology)- Though these were not the subjects of choice of the petitioner, even then he was compelled to select one of them and, therefore, petitioner unwillingly opted for M.S. (General Surgery) keeping in view that he would have an opportunity of getting subject of his choice, i.e. M.S. (Orthopaedics) in open category.

4. Learned Counsel Shri Kaptan states that so far as open category round is concerned, petitioner was not called and. therefore, he immediately raised objections with the authorities. However, petitioner was told that since he was considered in the reserved category (Other Backward Class), he could not be considered in the open category again. It is submitted that procedure adopted by the respondent authorities is contrary to the procedure evolved by this Court in the case of Ravindra Sahadeo Sonawane v. Dean, Grant Medical College. Bombay and Ors. 1989 (4) S.L.R. 118. It is further contended that procedure adopted by the respondent authorities for admission being inconsistent with the law laid down by this Court in the above referred judgment, same may be quashed and set aside and direction may be given to the respondent authorities to reconsider admission process according to procedure evolved by this Court in the above referred judgment.

5. The learned Counsel for the petitioner further submits that in the instant case, respondent No. 1 has also not followed the procedure contemplated in Sub-rule (2) of Rule 11 of the Rules for Admission to Post Graduate Courses, which has resulted in miscarriage of justice to the petitioner and. therefore, direction may be given to the respondent authorities to reconsider the entire process of admission to the postgraduate course. In the alternative, it is submitted by the learned Counsel that direction may be given to respondent authorities to create a supernumerary post for the petitioner in the subject of "Orthopaedics" in the post graduate course.

6. Shri Manohar, learned Counsel for respondent Nos. 1, 2, 5, 6, 7, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 23, 24, 29. 31, 33, 36, 37, 38, 40, 41, 46 and 48, states that petitioner has challenged selection process adopted by the respondent Nos. 1 and 2 for granting registration for the post graduate course for the year 2003-04. It is contended that petition suffers from delay and laches as the selection process was completed on 20.12.2002. The petitioner had taken part in the selection process and was given admission to the post graduate course, i.e. M.S. (General Surgery). It is submitted that petitioner having participated in the selection process and having secured admission in the M.S. (General Surgery), petitioner is estopped from challenging selection process.

7. Learned Counsel Shri Manohar states that as per Rule 10 of the Rules for Admission to the Post Graduate Course, selection of candidate does not depend solely on the merit in the qualifying examination, but shall be subject to final selection of the candidate by the Selection Committee. Clause (a) of Rule 10 contemplates that merit will be determined by adding marks obtained at first, second and final M.B.B.S. examination along with the actual marks obtained in the subject in which candidate has applied. It is submitted that for the controversy in issue, remaining part of the rule is not relevant, It is contended that in the instant case, procedure contemplated in Clause (a) of Rule 10 is followed. The total number of seats in subject M.S. (Orthopaedics) were three - two were kept for open category candidates and one for reserved category candidate. As per common merit list. candidate at serial No. 12, namely, Nitin Samal secured total 2518 marks including marks obtained by him in "Orthopaedics" and was admitted from the open category. Similarly, candidate at serial No. 16, namely, Naresh Bidkar obtained total 2476 marks including marks of subject "Orthopaedics" and was admitted from the reserved category in M.S. (Orthopaedics) course. Lastly, candidate at serial No. 27, namely, Preshit Gaddam secured total 2421 marks including marks of "Orthopaedics" subject and, therefore, was admitted from the open category. It is, therefore, contended that all the three seats were filled in according to the procedure contemplated in Rule 10 and each one of them has secured more marks than the petitioner and, therefore, procedure of admission followed by respondent Nos. 1 and 2 is consistent with the rules of admission and, therefore, cannot be faulted with.

8. We have considered the contentions canvassed by the respective learned Counsel for the parties and perused the relevant rules for admission applicable in the present case as well as judgment of this Court in the case of Ravindra Sahadeo Sonawane (cited supra). In the instant case, Rule 10 of the Admission Rules contemplates that criteria of selection would be merit-cum-interview and Clause (a) of Rule 10 provides that merit will be determined by adding up the marks obtained at first, second and final M.B.B.S. examinations along with actual marks obtained in the subject in which candidate has applied. When we consider the present issue in the light of the above referred rule, then merit in the instant case will be determined by adding up the marks obtained at first, second and final M.B.B.S. examinations along with actual marks obtained in the subject.

9. In the instant case, there were three seats for M.S. (Orthopaedics), out of which two were for open category candidates and one for reserved category candidate. One Naresh Bidkar is given admission from reserved category (Other Backward Class) and marks obtained by him in the first, second and final M.B.B.S. examinations along with actual marks obtained by him in the subject of "Orthopaedics" come to 2476, which are much more than the marks of petitioner i.e. 2407. Similarly, candidates, who are admitted in the open category, namely, Nitin Samal and Preshit Gaddam have obtained marks at first, second and final M.B.B.S. examinations along with actual marks obtained in the subject "Orthopaedics" as 2518 and 2421 respectively, which are admittedly more than the marks of petitioner and, therefore, they were admitted from the open category. It is, therefore, evident that procedure, which is followed by the College Is consistent with Rule 10 of the Admission Rules.

10. Another aspect which needs our consideration is whether procedure evolved by the Division Bench of this Court in the case of Ravindra Sahadeo Sonawane (cited supra) has been followed by the respondent authorities while allotting seats between reserved and non-reserved categories. For that purpose, observations made by the Division Bench in para (6) of its judgment are relevant, which reads thus :

6. We are not aware how other institutions are interpreting the reservation rules. If the same interpretation is being placed by them, they must realise that they have done enough harm so far and it is high time that they reverse their course. It should be clearly understood by all concerned that while allotting the seats between reserved and non-reserved categories, the marks/grades obtained by all the candidates, whether belonging to the reserved or non-reserved categories should first be listed in order of their merit, and the seat or seats in the open merit category should first, be allotted on the basis of such merit list. While considering such allotment on merit in the open merit category, the fact that a candidate belongs to the reserved category should not. be taken into consideration. It is only after the seats are so allotted on open merit on competitive basis, that the seats in the reserved category should be allotted. While considering allotment of seats in the reserved category, further, the fact that some candidates have earned seats in the open merit list should not be taken into consideration to calculate the maximum percentage of reservations. It must be remembered that those who come on their merit in open merit list do so not in the quota reserved for them and therefore, they are to be excluded while calculating either the minimum or maximum seats reserved. The reserved seats should be allotted to other eligible candidates from the reserved categories.

11. In view of procedure evolved by this Court referred to hereinabove. it is evident that while allotting seats between reserved and non-reserved categories, marks/grades obtained by all the candidates irrespective of their category, should first be listed in order of their merit and seats from the open category are required to be allotted first on the basis of such merit list. Similarly, it is clear that such allotment in the open category is purely on the basis of merit irrespective of the category, i.e. reserved or open. It is also evident that after allotment of seats is done in the open category, authorities should take up filling up the seats in the reserved category. It is also made clear by this Court in the above referred judgment that reserved category candidate, if appointed on merit in open category, does not affect percentage of reservation meant for reserved category and, therefore, is required to be excluded while calculating minimum or maximum seats reserved for that category.

12. In the instant case, respondents appear to have not followed the above referred procedure while allotting seats to the reserved and unreserved categories. On the other hand, Management has first allotted one seat from reserved category on the basis of comparative merit and accommodated Naresh Bidkar in that seat, i.e. M.S. (Orthopaedics), who has secured more marks than the petitioner. It is, however, true that if Management had adopted the course evolved by this Court in the above referred judgment, then it would have been possible that meritorious students belonging to reserved category, if they are above in the common merit list, would have been adjusted against the seats kept for open category in the said subject and in such contingency, possibility of petitioner getting admission in the second round of allotment of seat from the reserved category would have been there. However, it cannot be said with certainty that petitioner would have definitely got the admission in such contingency. It is virtually impossible for us to quash and set aside process of admission at such a belated stage when entire process of admission to the post graduate course for academic session 2003-04 was completed on 20.12.2002. It is, no doubt, true that some injustice is caused to the petitioner because Management did not follow the procedure evolved by this Court in the above referred judgment while allotting seats to the reserved and non-reserved categories. However, it will not be equitable at this stage to disturb admission of sixty students at such a belated stage when academic session is virtually at its fag end only to accommodate the petitioner on the basis of mere possibility that if the said procedure is followed, petitioner may get admission. However, we make It clear that from the next academic session, respondent Nos. 1 and 2 must follow the procedure evolved by this Court in the judgment in the case of Ravindra Sahadeo Sonawane (cited supra) while allotting seats between reserved and non-reserved categories and any deviation in this regard would be fatal to entire admission process.

13. So far as Sub-rule (2) of Rule 11 of the Admission Rules is concerned, it reads thus :

If a candidate from particular reserve category is not available, the candidate from the inter se merit of group of reserve categories will be considered. However, if no candidate is available, it will be declared open.

In the instant case, Naresh Bidkar, who is at serial No. 16 in the general merit list, had given his option for the subjects Gynaecology, Paediatrics and Orthopaedics and secured 2476 marks as referred to hereinabove and, therefore, the respondent authorities were justified in giving him admission from the reserved category for the post graduate course in M.S. (Orthopaedics) since he secured more marks than the petitioner as per criteria provided in Rule 10 of the Admission Rules. In the instant case, Sub-rule (2) of Rule 11 is not attracted at all. The said rule is attracted, if candidate from the particular reserved category is not available and in that case alone, the candidate from inter se merit of group of reserved categories needs to be considered. In the instant case, since candidate from reserved category was available, having more marks than the petitioner, the question of considering candidate from inter se merit of group of reserved categories did not arise and, therefore, contention canvassed by the learned Counsel for the petitioner in this regard cannot be accepted.

14. For the reasons stated hereinabove, we do not propose to interfere at such a belated stage and, therefore, petition is dismissed. However, respondent Nos. 1 and 2 are directed to pay rupees ten thousand to the petitioner for some injustice caused to him by not following the procedure evolved by this Court in the judgment in Ravindra Sahadeo Sonawane (cited supra) in respect of allotment of seats between reserved and non-reserved categories.