Bombay High Court
Annu Pyarelal Sinsinwar vs Union Territory Of Dadra And Nagar ... on 27 February, 2021
Bench: G. S. Kulkarni
Judgment-WP.419.2021
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION 419 OF 2021
Annu Pyarelal Sinsinwar }
Age: 19 years, Occ. Student, }
Residing at C/o Mr.Pyarelal M. }
Sinsinwar, House No. 2365, }
School Falia Tokarkhada, }
Silvassa 396 230 Union Territory }
of Dadra and Nagar Haveli and }
Daman and Diu } Petitioner
Versus
1. Union Territory of Dadra and }
Nagar Haveli and Daman and Diu }
Thorugh the Department of }
Administration, Silvassa }
2. The Secretary, Education }
Union Territory of Dadra and }
Nagar Haveli and Daman and }
Diu, Silvassa }
3. The Director of Health Medical }
and Health Services }
Union Territory of Dadra and }
Nagar Haveli and Daman and }
Diu, Silvassa }
4. The Dean }
NAMO Medical Education & }
Research Institute, Silvassa, }
Union Territory of Dadra & }
Nagar Haveli and Daman and Diu }
5. Shivani Mishra }
An Indian Inhabitant }
C/o The Dean, Namo Medical }
Education & Research Institute, }
Silvassa, Union Territory of }
Dadra & Nagar Haveli and }
Daman and Diu }
1
Judgment-WP.419.2021
6. Sakshi Suresh Dandhare }
An Indian Inhabitant }
C/o The Dean, Namo Medical }
Education & Research Institute, }
Silvassa, Union Territory of }
Dadra & Nagar Haveli and }
Daman and Diu }
7. Shruti Jaiswal }
An Indian Inhabitant }
C/o The Dean, Namo Medical }
Education & Research Institute, }
Silvassa, Union Territory of }
Dadra & Nagar Haveli and }
Daman and Diu }
8. Jayshree Das }
An Indian Inhabitant }
C/o The Dean, Namo Medical }
Education & Research Institute, }
Silvassa, Union Territory of }
Dadra & Nagar Haveli and }
Daman and Diu }
9. Dipu Singh }
An Indian Inhabitant }
C/o The Dean, Namo Medical }
Education & Research Institute, }
Silvassa, Union Territory of }
Dadra & Nagar Haveli and }
Daman and Diu } Respondents
Mr. Anil Anturkar-Senior Advocate with Mr.Anuj
Tiwari, Ms.Varsha Palav and Mr.Ajinkya Palav
i/b. Laureate for the petitioner.
Mr. Hiten Venegaonkar with Mr. Siddhant Rai for
respondent nos.1 to 4.
Mr. Sunny Punamia and Mr.Sunny Bhimra for
respondent nos.5 to 9.
2
Judgment-WP.419.2021
CORAM :- DIPANKAR DATTA, CJ &
G. S. KULKARNI, J.
Reserved on:- February 26, 2021
Pronounced on:- February 27, 2021
JUDGMENT:- (Per G.S.Kulkarni, J.)
1. This is a case of a highly meritorious student, an
aspirant for admission to the first year undergraduate medical
course (MBBS) who has secured 559 marks in NEET-2020
examination. If her claim for admission in the circumstances
before us is not considered, merit would be the causality.
2. Petitioner is a domicile of Dadra & Nagar Haveli.
She appeared for the NEET-2020 examination securing a high
score of 559 marks with a NEET percentile at 96.8418581.
3. In 2019, respondent no. 4- NAMO Medical
Education and Research Institute, Silvassa, the only medical
college for the Union Territories of Dadra & Nagar Haveli,
Silvassa & Daman & Diu, came to be established to cater to
the needs of medical education in such Union Territories. The
present academic year 2020-2021 is the second academic
year since the establishment of such medical college.
4. To undertake admissions to the MBBS course on
the basis of NEET score, an admission brochure was issued by
the Union Territories Administration of Dadra & Nagar Haveli &
Daman & Diu titled as "Admission Prospectus 2020-
2021".
Judgment-WP.419.2021
5. Although the petitioner is a domicile of the Union
Territory of Dadra and Nagar Haveli and who has been issued
a certificate to that effect, the petitioner, despite her high
score in the NEET examination, was to lose admission on
account of Clause 4 of the admission brochure, which
provided for different priorities. The "First Priority", inter
alia, being for candidates whose parents/ guardians are
domicile of the Union Territory of Dadra and Nagar Haveli and
Daman and Diu as the case may be who have studied
continuously from Class 8th to 12th in any of the recognised
schools of that Union Territory. The "Second Priority" being,
if the seats remain vacant after allotment of seats to
candidates belonging to the first priority, they will be offered
to candidates whose parents/ guardians are domicile of Union
Territory of Dadra and Nagar Haveli and Daman and Diu, who
have studied in any recognised educational institution
anywhere in the country or abroad. The "Third Priority"
being, if the seats remain vacant after allotment of seats to
candidates falling in first and second priority, to be offered to
candidates whose parents/ guardian are employees (regular/
on deputation/ on transfer) of the Union Territory
Administration/ Central Government/ UT PSUs/ Central PSUs
and are posted in Dadra and Nagar Haveli and Daman and Diu
as the case may be continuously for the past 5 years as on
last date of application for admission and the applicants have
studied in a recognised school of Dadra and Nagar Haveli and
Daman and Diu, as the case may be continuously from 10 th to
Judgment-WP.419.2021
12th standard. The "Fourth Priority" being, if the seats
remain vacant after allotment of seats to candidates falling in
the First, Second and Third priority, they will be offered to
other eligible candidates from any State/UT.
6. It is the petitioner's case that she satisfied the
eligibility criteria except Clause 4(a) providing for the First
Priority stipulating that the student should have studied from
Standard VIII to Standard XII in a school within the Territory
of Dadra and Nagar Haveli inasmuch as although the
petitioner studied from Standard I to X in Kendriya Vidyalaya,
Silvassa, Dadra and Nagar Haveli, she undertook XI and XII
standard course from Gurukul International School, Banthod
in the State of Rajasthan, which was affiliated to Central
Board of Secondary Education. The petitioner contends that
although she had a very high score in NEET by securing 559
marks, she would not fall in the First Priority and was to be
considered in the Second Priority provided seats are available
after the First Priority candidates are exhausted as per Clause
4(a).
7. The petitioner participated in the admission process
undertaken by respondent no.4. On 12th October 2020,
provisional merit list for Dadra and Nagar Haveli in the
Priority I (common merit list) and a provisional merit list for
Dadra and Nagar Haveli in Priority II (common merit list)
came to be published. The petitioner stood at Sr. No. 1 in the
provisional merit list of Dadra and Nagar Haveli in Priority II
Judgment-WP.419.2021
(common merit list). The petitioner belongs to OBC; however,
the respondent no.4 failed to provide category merit to the
petitioner though she belongs to OBC category.
8. As the petitioner felt that prescribing of categories
as provided in Clause 4 would deprive her of admission
despite having a high merit, hence, her father made a
representation dated 1st January 2021 to the Secretary,
Education of the Union Territory of Dadra and Nagar Haveli
contending that the petitioner was a domicile of Dadra and
Nagar Haveli and looking at her credentials and merit, she
ought to have been granted an admission and such
unreasonable criteria ought not to come in the way of
recognising her merit.
9. The petitioner has pointed out that out of the total
quota of 177 seats available to be filled up by respondent
no.4, 15% seats (22 in number) were to be filled up from the
All India Quota. Out of such 15% seats, 4 seats remained
vacant and came to be repatriated to be filled up by
respondent no.4 on 9th December 2020.
10. It is the case of the petitioner that there are no
specific rules, as to in what manner these 4 seats so available
from the All India Quota, on their repatriation would be filled
up by respondent no.4. According to her, for filling up such
seats, criteria of merit should be the only criteria and the rule
of priorities, as contained in Clause 4 would not be applicable
Judgment-WP.419.2021
as the same was to be applied for admission to the 85%
quota, on the basis of which admissions were already made.
She has contended that even the reservation criteria would
not be applicable to such additional seats.
11. In the above circumstances, the petitioner is before
this court, inter alia, praying for a direction to the respondents
that the mop-up provisional allocation of seats to Dadra and
Nagar Haveli dated 4th January 2021, under which the Priority
criteria in Clause 4(a) applied for the said 4 seats, as
reverted from the All India Quota, be held to be illegal and be
quashed. There are further prayers that the respondent no. 4
be directed to grant admission to the petitioner considering
her high merit. The following are the substantive prayers as
made in the petition:-
"A. Rule be issued.
B. By a appropriate Writ, Order or direction of this
Hon'ble Court, the Mop-up Provisional Allocation of
Seats- Dadra and Nagar Haveli (DNH)-General
dated 4th January, 2021 annexed at Exhibit "N" and
"O" be quashed and set aside;
BB. That this Honourable Court be pleased to issue
a writ mandamus or writ in the nature of
mandamus or any other appropriate writ or
direction and order under Article 226 of the
Constitution of India 1950 quashing and setting
aside the provision of Priority admission on Page-
85, Paragraph 4 of the Guidelines for the Admission
to MBBS Course Academic year 2020-21 as
inconsistent with the provisions of the Medical
Council of India Regulations of the Graduate
Medical Education 1997, framed under Section 33,
amended upto 2018, under Medical Council Act as
illegal and bad in law;
Judgment-WP.419.2021
C. By an appropriate Writ, Order or direction of
this Hon'ble Court the Respondent Nos. 1 to 4 be
directed to admit the Petitioner to the First Year
MBBS Course for the academic year 2020-21 in
NAMO Medical Education & Research, Silvassa, i.e.,
the Respondent No.4 by considering her in the
"Priority-I" as provided under Rule 4(a) in the
prospectus at Exhibit "J";
D. In the alternate by an appropriate Writ, Order
or direction of this Hon'ble Court the Respondent
Nos. 1 to 4 be directed to admit the Petitioner to
the First Year MBBS Course for the academic year
2020-2021 in NAMO Medical Education &
"Research, Silvassa, i.e., the Respondent No.4
against the four vacant seats available under "ALL
INDIA QUOTA"."
12. There is an additional affidavit filed by the
petitioner, inter alia, pointing out the allocation of the total
seats. It would be relevant to set out the said allocation,
which would be as under:-
Table 1: Allocation of Seats: 177
Category No. of Seats
Seats for "All India Quota" (15%) 22
Seats for candidates nominated by 08
Government of Gujarat
Seats for wards of Indian Coast 03
Guard personnel posted at Daman
Seats for wards of Ex-serviceman/ 01
Defence personnel
Seats for candidates of Dadra & 73
Nagar Haveli
Seats for candidates of Daman and 70
Diu
13. Petitioner contends that the "Regulations on
Graduate Medical Education, 1997" of the Medical Council of
Judgment-WP.419.2021
India in Regulation 5(5) provides for selection of students to
Medical Colleges based on merit, and the criteria to be
adopted for determination of such merit. She has contended
that there is no indication in the rules that the seats which
remain vacant from the All India quota which reverted to the
State, are to be treated as deemed State quota seats, so that
the said vacant seats can be filled up not on merits based on
the performance in the NEET, but by selecting remaining non
meritorious candidates falling under the "First Priority" in
Clause 4(a).
14. Petitioner contends that since the year 1984 i.e. for
last more than 35 years, the position in law is well settled
right from the decision of the Supreme Court in Pradeep Jain
vs. Union of India reported in (1984) 3 SCC 654, that
selection of students for admission to the medical colleges has
to be only on merit and when more meritorious students are
available, simply because there are students who are
permanent residents or residents for a certain number of
years in the State, there ought not to be exclusion of more
meritorious students. The petitioner accordingly contends that
only because of the first priority criteria, as contained in
Clause 4(a), she could not secure admission and was merely
on paper required to stand at the first position in the merit list
notified in priority II.
15. Mr. Anturkar, learned senior counsel for the
petitioner, has drawn our attention to the merit list in priority-
I to contend that if the petitioner was to fall in priority-I she
Judgment-WP.419.2021
would have been the fifth candidate to secure admission being
placed at her high merit position. Mr. Anturkar submits that
the petitioner, however, is now concerned not with the
admissions which have taken place, and concluded for the
85% seats in which the petitioner otherwise would have
certainly secured an admission, except for the prescription of
the "First Priority", but would now be concerned, with the four
seats which stand reverted, as they were filled from the All
India candidates. He has contended that respondent nos. 5 to
8 are candidates who are far too less meritorious than the
petitioner and who have been admitted by respondent no.4 on
such reverted seats, by applying the rules applicable to 85%
admissions when only rule of merit ought to have been
applied for making admissions to such four seats.
16. Mr. Anturkar has submitted that the rule of
priorities as contained in clause 4, prescribing the first to
fourth priorities is illegally applied and adopted for these four
seats reverted from the All India quota, when such
prescription is not contained in the rules even remotely. He
submits that the seats do not have character of seats under
the State quota but these are seats under the 15% All India
quota and which are required to be strictly filled in on the
basis of merit and merit alone.
17. A reply affidavit is filed on behalf of respondent
No.4 by Dr.Deepak S. Howale, Dean of respondent No.4, to
contend that the policy of priority, as prescribed in clause 4 of
Judgment-WP.419.2021
the admission brochure, is legal and valid and has also been
recognised by this court in its decision in the case of Ms.
Vinita Umesh Singh vs. The Administrator, Dadra & Nagar
Haveli, Damand & Diu Secretariat (Writ Petition Stamp No.
96105 of 2020). The affidavit states that the Mop Up
provisional allocation of seats was completed on 31 st
December 2020 and the seats have been allocated to the
candidates who were found eligible as per admission process
of respondent no.4. It is contended that the seats which are
reverted from the All India quota are considered as State
quota seats, to be filled as per the rules as applicable to the
State quota seats. The case of the respondent no.4 in paras 7
and 8 of the reply affidavit needs to be quoted, which
reads thus:-
"7. It is submitted that NAMO Medical Education
Research Institute, Silvassa has a total of 177 seats
i.e. 150+27 (for EWS Category). Out of these,
15% seats are allocated for All India quota i.e., 22
seats. By notice dated 09.12.2020, 4 seats were
reverted back to NAMO Medical Education Research
Institute, Silvassa under Stat Quota. All these four
seats were from Unreserved category and
therefore, in order to maintain balance, 2 seats
were allotted to DNH district and one seat each to
Daman and Diu under Unreserved category. Once
the reverted seat are reverted back to the State
quota, then its allocation has to be done only on
the basis of the Admission Policy and Admission
Judgment-WP.419.2021
Criteria adopted by the State. In the present case,
as the reverted seat has gone to the Unreserved
category, the allocation of the same will have to be
done by following the priorities mentioned in the
Admission policy. Thus, the reverted seats are first
offered to priority number one and then to priority
number two if the seat remains vacant. (Hereto
marked and annexed as Annexure.B is the copy of
notice dated 09.12.2020)
8. In the aforesaid facts and circumstances, I say
that the reverted seats have been allocated in the
Stat quota for Unreserved category. Those two
seats were offered to the candidates as per the
waiting merit list and accordingly, the students
satisfying the criteria of priority number 1 have
already availed and have taken admission for the
course. The Petitioner, therefore, cannot be offered
these reverted back seats from All India Quota as
she does not satisfy the terms and conditions
mentioned in Rule 4(a) of first priority."
(emphasis supplied)
18. Reply affidavits have been filed by respondent
Nos.5 to 8 who have been admitted on the seats reverted
from the All India quota. There is also a reply affidavit filed on
behalf of respondent No.9 by his father Surendra Nath Singh.
The affidavits filed by these respondent nos.5 to 8 are almost
identical, who contend that they qualified and fulfilled the
criteria in clause 3 and 4 of the admission prospectus falling in
the first priority. It is contended that their names appeared in
Judgment-WP.419.2021
the Mop Up provisional allocation of seats as notified on 31 st
December 2020 and were allotted provisional admission letter
for admission to MBBS course for the academic year 2020-
2021 as also they have submitted original documents and
have paid fees of Rs.35,100/-. It is contended that they have
been rightly offered admission to the said course as per rules
and cancellation of their admissions would cause hardship and
irreparable loss as they also belong to the low income strata.
19. By our order dated 11th February 2021 we had
granted liberty to the petitioner to amend the petition to add
additional prayer and averments on the issue as to the
applicability of rules to the All India reverted quota. Affidavit-
in-reply dated 25th February 2021 to the amended petition is
filed on behalf of the respondent no.4 of Dr. Deepak Howale,
Dean of respondent no.4. In responding to the case of the
petitioner that the admission brochure issued by respondent
no.4 does not disclose any provision in regard to the reverted
seats, Respondent No.4 has contended that once the seats
are forwarded for the All India Quota, the said seats do not
remain under the control of respondent no.4 or under the
control of Administration of Union Territory. The seats allotted
are then regulated and utilized as per the All India Quota. It
is contended that at the stage of issuing admission brochure
or initiating admission process, one cannot apprehend
whether the seats that had been allotted to All India Quota
would remain vacant or unfilled and it is for this reason that
the admission brochure does not contain any provision as to
Judgment-WP.419.2021
how the vacant seats from All India Quota which will be
reverted can be dealt. In paragraph 4 of the said affidavit, it
is contended that once the seats that have remained vacant
after last day of joining from All India Quota are being
reverted back to their respective States, the same would be
deemed to be converted into State Quota. Hence, whatever
number of seats reverted back would get added to the State
quota in the respective categories.
20. Affidavit of respondent no.4 further states that in
the present case four seats came to be reverted back, out of
which two seats were allotted for Dadra & Nagar Haveli and
two seats were allotted to the Daman & Diu respectively. It is
stated that once the said seats get added up, then the policy
of admission adopted, framed and published by the Union
Territory in the admission brochure applies and the seats get
allotted accordingly, to the candidates who satisfy the
admission criteria. It is stated that the petitioner is availing
admission in the All India quota, that she belongs to OBC
category, however, in para 20 (Q) of the petition she has
stated that she does not belong to such reserved category. At
this juncture we must observe that the petitioner has annexed
her admission documents to the petition (Exhibit-I) which
show that she belongs to the OBC category, and that she does
not belong to the OBC as stated in the amendment apparently
appears to be draftsman's mistake. In the original memo of
the petition she has categorically averred in paragraph 12 that
she belongs to the OBC.
Judgment-WP.419.2021
21. It is further stated in the additional reply affidavit
that 85% State seats were filled and 15% seats were
allocated for All India quota (22 seats) out of which by notice
dated 9th December 2020 four seats were reverted back to
respondent no.4 by the Central Government which were then
treated as State quota. All these four seats were from
unreserved category and therefore in order to maintain the
balance, two seats were allotted to Dadra and Nagar Haveli
and two seats were allotted to Daman and Diu under reserved
category. It is stated that once the seats were reverted back,
its allocation was to be done only on the basis of admission
policy and criteria adopted by respondent no.4 as contained in
the brochure. It is stated that the reverted seats have gone
to the unreserved category and the allocation has been done
following the policy of priority mentioned in the admission
brochure. That the reverted seats were first offered to
priority-I and only if seats continued to remain vacant, then to
priority-II. It is contended that the reverted seats were
deemed to be considered as State quota as per the
Counseling Scheme issued by the Medical Counseling
Committee.
22. We have heard Mr. Anturkar, learned senior
counsel for the petitioner, Mr. Venegaonkar, learned counsel
for respondent nos.1 to 4 and Mr. Punamia, learned counsel
for respondent nos.5 to 9. We have also perused the record
with the assistance of the learned counsel. Mr. Venegaonkar
Judgment-WP.419.2021
has made submissions supporting the plea of respondent
nos.1 to 4 in the reply affidavit. He would not dispute that a
peculiar situation is created of admissions being required to
be made by respondent no.4 on the four seats reverted from
the All India quota. Mr. Punamia would urge that his clients'
interest also needs to be protected as contended by them in
the reply affidavits.
23. On the above conspectus the issue which falls for
our consideration is as to whether the regular criteria for
making admissions to the State quota, namely, to the 85%
seats, could at all be applied, in the present circumstances, to
fill up the 4 seats reverted from the All India Quota and not
the criteria of pure merit of the candidates, who would be
available for admission.
24. The admitted facts are that the admission process
for the academic year in question commenced sometime in
October 2020. Respondent no. 4 has a quota of total 177
seats, out of which, 85% seats were to be filled up from the
State quota for Dadra Nagar and Haveli in the proportion of
73 and 70 respectively. 8 seats were to be filled up from
candidates nominated by Government of Gujarat; 22 seats
were to be filled from All India Quota being 15% of the total
intake and 3 seats were to be filled up from wards of Indian
Coast Guard Personnel. Admittedly, on 10th December 2020,
the admissions to the 85% State quota as per the rules
prescribed in the admission brochure from the candidates
Judgment-WP.419.2021
eligible under Clauses 3 and 4 were duly completed. Clauses
3 and 4 of the admission rules providing for such "Eligibility"
and the "Priorities" are required to be noted, which reads
thus:-
"3. ELIGIBILITY CRITERIA
A candidate who desires admission shall -
1) A citizen of India.
2) A Domicile of UT of Dadra & Nagar Haveli and
Daman and Diu in case candidate intends to take
benefit of reservation for
SC/ST/OBC/PWD/EWS/Wards of Ex.
Serviceman/Defence personnel.
3) Have completed 17 years of age on 31 st December
of the Academic year for which the admissions are
being conducted.
4) Have passed the 10th and 12th qualifying
examination from
i. The Gujarat Board; or
ii. The Central Board of Secondary Education
iii. The Central Board of Indian School
Certificate Examinations Board, New Delhi;
iv. The International School Board (International
Baccalaureate and Cambridge)
v. The National Institute of Open Schooling.
vi. Studied under Jawahar Navodaya Vidyalaya.
Vii. The boards of respective States.
5) Have qualified in NEET conducted in current
academic year.
6) Possesses minimum prescribed qualifying standard
in HSC examination and NEET of the current
academic year, as decided by the respective
Council/the Central Government and also fulfills
the eligibility criteria under this policy.
Judgment-WP.419.2021
Minimum qualifying standard prescribed for HSC
or equivalent examination are as under:
Exam General Gen-PH Reserved
Category/E categor (SC,ST, SEBC
WS y including
Physically
disabled)
categories
HSC or Equivalent 50% 45% 40%
examination passed
with Physics, Chemistry
and Biology Theory and
Practical , in
percentage
7) The candidate should not have been convicted of
any criminal offence and shall declare pending
criminal cases, if any, at the time of admission.
8) The candidate appearing for NEET, for admission
should have cleared the criteria for admission as
decided by the National Medical
Commission/Ministry of Health & Family Welfare,
New Delhi, Government of India.
9) The candidate seeking admission against a
particular category seats must meet the additional
eligibility criteria of respective category."
"4. PRIORITY IN ADMISSION
For the seats earmarked for candidates of Dadra &
Nagar Haveli and Daman and Diu, the candidates
will be considered for admission in the following
order of priority;
a) First priority:
Applicants whose parents/guardians (in case
Father and Mother are not alive) are Domicile
of the UT of Dadra & Nagar Haveli and Daman
and Diu as the case may be and the applicant
has studied continuously from Class 8th to 12th
in any of the recognized schools of that UT.
Judgment-WP.419.2021
"Students from the different districts in
U.T. of Dadra & Nagar Haveli and Daman
& Diu who have studied from class 1 to
10th in the respective district in U.T of
Dadra & Nagar Haveli and Daman & Diu
and due to non-availability of 11th & 12th
classes in the concerned board/stream in
the respective district in U.T of Dadra &
Nagar Haveli and Daman & Diu, will only
be given relaxation in the above criteria.
The students will have to produce a
certificate for non-availability of Class XI
and XII from the Assistant Director of
Education of the respective district in U.T
of Dadra & Nagar Haveli and Daman &
Diu".
b) Second priority:
If the seats remain vacant after allotment of
seats to candidates belonging to the first
priority, they will be offered to candidates
whose parents/guardian (in case Father and
Mother are not alive) are Domicile of UTs of
Dadra & Nagar Haveli and Daman and Diu as
the case may be and candidate has studied in
any recognized educational institution
anywhere in the country or abroad.
c) Third priority:
If seats remain vacant after allotment of seats
to candidates falling in first and second
priority, they will be offered to candidates
whose parents/guardian (in case Father and
Mother are not alive) are employees
(regular/on deputation/on transfer) of the UT
Administration/Central Government/UT
PSUs/Central PSUs and are posted in Dadra &
Nagar Haveli and Daman & Diu as the case
may be continuously for the past 5 years as on
last date of application for admission and the
applicants have studied in a recognized school
of Dadra & Nagar Haveli and Daman and Diu,
as the case may be continuously from 10th to
12th standard.
Judgment-WP.419.2021
d) Fourth priority:
If the seats remain vacant after allotment of
seats to candidates falling in the First, Second
and Third priority, they will be offered to other
eligible candidates from any State/UT."
(emphasis Supplied)
25. A provisional merit list in Priority I and Priority II
which was notified on 10th December 2020 was admittedly
operated and admissions were made as per the said merit list,
although the said merit list is referred to as a provisional one.
In the said merit list, the position of respondents stood at
merit position 31 to 34 with the following marks: -
Provisional Merit-List - Dadra and Nagar Haveli (DN) - Priority-I (Common Merit List)
Note:- shown in separate list from
the coast guard reservation)
26. The petitioner's position in the provisional merit list
in Priority II was at the first position as under :-
Provisional Merit-List - Dadra and Nagar Haveli (DN) - Priority-II (Common Merit List)
Annu Pyarelal Sinsinwar (Petitioner) - 559 marks
27. It so happened and as noted above, the 15% All
India Quota was not fully exhausted and the Central
Judgment-WP.419.2021
Government reverted 4 seats to respondent no.4 on 9th
December 2020.
28. Respondent nos. 5 to 9 were categorised in
Priority I, namely, those students who have completed their
8th to 10th standards from Dadra & Nagar Haveli, who did not
secure admissions in the process undertaken for filling up the
85% State quota. They had infact lost all hopes for
admission in the State quota. On the other hand, as noted
above, if the petitioner was to be considered from priority I,
she would have been at a very high position in the merit
namely at Sr. No. 5, that is below the candidate who obtained
569 marks and above the candidate who obtained 556 marks.
The petitioner, however despite such high and outstanding
NEET score of 559 marks, to her misfortune, although placed
at Serial No 1(in the first position) in the merit list in Priority
II, merely for the reason that she has completed 11 th and
12th Standard from out side Dadra and Nagar Haveli could
not secure admission in the 85% State Quota. However,
getting advantage of the fortuitous circumstance that four All
India seats had remained unfilled and were reverted to be
filled by Respondent No. 4, Respondent nos. 5 to 8 came to
be granted admission on 4th January 2021 on such seats again
merely for the reason that they fell in Priority I. Respondent
no.9 also appears to have been admitted on 4th January 2021
also in the category of Priority I although the score of
respondent no.9 is extremely low as compared to the
petitioner. Respondent no 9 secured only 219 marks at the
NEET 2020 and is stated to have been granted admission from
Judgment-WP.419.2021
the Coast Guard Personnel reservation. As to who are the
other candidates who were originally admitted on the 3 seats
reserved for such quota has not been pointed out by
Respondent no. 4.
29. From a perusal of the reply affidavits filed on behalf
of respondent no. 4, it appears to be quite clear that there are
no specific rules provided in the admission brochure to deal
with such an unforeseen and/or fortuitous circumstance of the
seats having reverted from All India Quota. Respondent no. 4
has categorically stated that in these circumstances,
Respondent No. 4 has applied admission rules as applicable to
the 85% State quota to the 4 reverted seats to grant
admission to respondent nos. 5 to 8, on a presumption that
such seats on their reversion form part of the State quota, so
as to apply the admission rules applicable to fill up the 85%
State seats. Respondent no. 4 thus applied Clause 4 /Priority
I to grant admission to Respondent Nos. 5 to 8 on the 4
reverted seats, merely for the reason that they have
completed education from Class 8 to Class 12 from the Union
Territory and excluded merit of the petitioner on the specious
ground that she fell in Priority II, having completed her 11 th
and 12th Standard from Rajasthan, although she is domicile of
the Union Territory having undertaken education from 1 st to
10th standard from Dadra and Nagar Haveli.
30. Mr.Venegaonkar, learned counsel for the Union Territory
Administration, as also representing the institution has fairly
conceded in his oral submissions that there are no specific
Judgment-WP.419.2021
rules contained in the admission brochure, as set out in the
reply affidavit to deal with such situation of admission to the
seats reverted from the All India Quota. He submits that the
respondent no. 4 thus proceeded on a consideration and
presumption that such seats form part of the State quota and
accordingly admitted respondent nos. 5 to 8 on such
consideration, as they fell in Priority I.
31. In our opinion, such approach of respondent no.4
to adopt Clause 4, namely, the 'Priorities criteria' to the seats
reverted from All India Quota, would not satisfy the test of
law and would amount to an arbitrary action on the part of
the official respondents for more than one reason. In
adopting such approach, respondent no. 4 has failed to take
into consideration that the reverted 4 seats fell outside the
85% State quota, as in respect of such State quota all
permissible norms of reservation, including the applicability of
priority in Clause 4 were made applicable. The admission to
the 85% seats of the State quota having been completed
applying the priority criteria in Clause 4 of the admission
brochure, there could not have been any grievance,
whatsoever of the candidates, who fell in the provisional merit
list notified for the 85% State quota. The candidates, who
participated in the admission process under 85% State quota,
at a given point of time when the merit list was notified on
10th December 2020, could not have anticipated availability of
seats beyond the 85% seats in the State quota. The
admission process qua 85% seats thus stood concluded.
Judgment-WP.419.2021
32. The fact, however, remains that the four All India
seats having remained unfilled were reverted to Respondent
no. 4 after the 85% State admissions were completed. This
was a peculiar and an unforeseen fortuitous circumstance. In
the absence of specific rules to cater to such fortuitous
exigency, in our opinion the only well established criteria
which respondent no. 4 was required to adopt to fill up the 4
All India seats, as reverted, was to make admissions only and
only on the merit of the candidates who were otherwise
eligible without the application of the priorities clause namely
clause 4. In such situation, it was certainly not permissible
for respondent no. 4 to overlook the high merit of the eligible
candidates by applying any criteria it would choose. In these
peculiar circumstances, there was no scope for any arbitrary
discretion to deviate from the rule that merit of the eligible
candidate should be the only criteria. This position is well
recognised in law to which we immediately advert.
33. The Medical Council of India notified "Regulations
on Graduate Medical Education, 1997" as amended up to
May, 2018. Regulation 5 of such Regulations provide that
selection of students to medical college shall be based solely
on merit of the candidate. Sub Clause (v) of Regulation 5(5)
provides that recognised merit should be the criteria. Sub-
claue (v) of Clause 5(5) reads as under:-
"(V). All admissions to MBBS course
within the respective categories
shall be based solely on marks
obtained in the National Eligibility-
cum-Entrance Test."
Judgment-WP.419.2021
34. Thus in the absence of any rules being framed by
respondent no.4 for making admissions to the seats reverted
from the 15% All India seats, in our opinion, to grant
admissions sacrificing such highly meritorious candidate like
the petitioner, would amount to a wholesome arbitrariness.
The criteria for admission to the 4 reverted seats, in these
circumstances, could not have been at the ipse-dixit of
respondent no.4 so that it adopts any criteria not notified
and unknown to the students by completely overlooking the
availability of meritorious candidates. It is a travesty that by
such method, the petitioner, who performed so well and
worked so hard to secure such high marks (559) in the NEET
which is a score more than 145 marks above the last
candidate (respondent no.8), has been denied admission by
operating the normal rule of admission to such 4 seats, which,
in our considered opinion, certainly could not have been
applied for the four reverted seats.
35. Respondent no. 4 in adopting such approach was
completely oblivious to the fact that such 4 seats becoming
available was a fortuitous and unforeseen circumstance not
expected by respondent no.4. It also overlooked that the
character of these 4 seats was not the same as that of the
seats in the State quota. Undoubtedly, such seats did not
possess the character and complexion of the State seats in
the State quota (85%). Even otherwise, if they were to be
filled up from the All India seats, they would have been filled
up only by all India merit and certainly not applying the
Judgment-WP.419.2021
Priority clause which was applicable only to fill up the State
seats. If this is to be the case, then only merit would be a
casualty. Thus, in our opinion these 4 All India seats when
reverted were required to be filled up only from the eligible
meritorious candidates.
36. In this context, Mr.Anturkar is justified in relying on
the decision of the Division Bench of this court in the case of
Shreyash s/o. Dr.Sanjay Khemuka vs. State of
Maharashtra and Ors. reported in 2011(6) Mh. L.J. 888.
A similar situation had arisen before the Court on account of
the relevant rules not prescribing the manner in which the
seats surrendered from the All India Quota should be filled up.
In these circumstances, Mr. Justice S.A.Bobde (as His
Lordship then was), speaking for the Bench, observed thus:-
6. ......According to the DMER, the surrendered
seats were never with the State Government
for being filled up according to the State Merit
List or the Regional Quota. They are seats
which belong to All India Quota for which
students from the whole country qualify by
appearing for and passing All India PMT.
Though these seats are subject to
constitutional reservation, their original
character is openness and devoid of any
provincial or regional reservation. Therefore,
the surrendered seats have not been
subjected to regional reservation because the
introduction of such regional reservation
would be contrary to the original character in
which there is no regional reservation.
7. After considering the scheme of the rules, it
seems that the difficulty has arisen because
Rule 2.3.2 does not prescribe the manner in
which the seats surrendered from the All India
Quota back to the State shall be filled. The
Judgment-WP.419.2021
only guiding words are that the seats
surrendered back to the State shall retain
their original character.......
.........In these circumstances, it appears that
the decision of the DMER to fill up seats
surrendered from All India Quota purely on
the basis of merit as determined by the State
Competitive Examination cannot be faulted.
Though it is correct to say as contended on
behalf of the petitioners that the DMER is not
free to act arbitrarily and whimsically in the
matter of filling up seats, in the present case
no arbitrariness can be attributed to the action
of the DMER in filling up these seats in
accordance with the principle of merit. The
DMER cannot be said to have acted illegally or
arbitrarily in taking the view that if the seats
surrendered from the All India Quota are to be
filled up according to their original character,
then they should not be subjected to the
break-up by introducing the regional
reservation as contended by the petitioners,
but only on the principle of merit. We are,
therefore, of the view that for filling up seats
under Rule 2.3.2, i.e. seats surrendered from
the All India Quota, there is no requirement in
any of the Rules to fill up the said quota from
the State Merit List as well as the Regional
Quota in the ratio of 30 : 70. This method of
filling up State seats from the State Merit List
and the Regional Quota is meant for seats
meant to be filled up by the State after
excluding the All India Seats in the first
instance. This method prescribed does not
govern the filling up of surrendered seats
which may be filled up in accordance with the
position of the candidates in the State Merit
List as has been done in the present case. The
Rules do not require that the seats remaining
unfilled from the All India Quota should be
filled up as if they are seats from the State
Quota."
(emphasis supplied)
Judgment-WP.419.2021
37. In Shilpa Suresh Shinde and Ors. vs. State of
Maharashtra, reported in 2000(3) Mh. L.J. 529, in a
similar situation the principle of merit, in relation to
postgraduate admissions qua the All India Quota came to be
recognized by a Division Bench of this Court. In this case,
about 140 odd seats had become available from the All India
Quota and the State intended to apply its reservation policy.
In such context, Mr. Justice S.Radhakrishnan (as His Lordship
then was) speaking for the Bench observed thus:-
9. .......The State Government
however, claims that, in this year 140
and odd seats which have become
available would become part of the
Stat Quota and that the admission
would be determined by the State in
accordance with its reservation
policy. It is not possible to accept the
contention of the learned Counsel for
the State of Maharashtra that what
was originally intended to be the All
India Quota would acquire the
character of State Quota, because the
availability of these additional seats.
In our view, the only just and
reasonable manner in which this
fortuitous block of seats can filled is
by going strictly in accordance with
merits...........
.....The quota of 140 and odd seats
which have become available
originally belonged to All India Quota
and they do not change their
character merely because of the
unforeseen circumstance which has
arisen in the current academic year"
(emphasis supplied)
38. In a very recent decision of the Supreme Court
delivered three days back, (24th February 2021) in
Judgment-WP.419.2021
Saraswati Educational Charitable Trust and Anr. vs.
Union of India and Ors., (Writ Petition (C) No. 40 of
2018), referring to Rule 5 of the Medical Council Regulations
on Graduate Medical Education, 1997, in the context of merit
of the student, the Court made the following observations:-
"9. Regulation 5 A of the Regulations
provides for counselling for admission to
MBBS course in all medical educational
institutions on the basis of merit list of
NEET. According to the said
Regulations, no admission can be made
by the Petitioner-College on its own.
(See: Modern Dental College and
Research Centre & Ors. v. State of
Madhya Pradesh & Ors. And State of
Maharashtra and Others v. D.Y. Patil
Vidyapeeth and Others)......"
39. It is thus clear that merit of the petitioner could not
have been overlooked by respondent no.4 in considering
candidates who were far below in merit than the petitioner, as
upon these 4 seats reverting to respondent no.4, the same
did not change their character of being seats available under
the All India Quota, which were to be filled up as per merit.
We are thus of the clear opinion that by the approach as
adopted by the respondent no.4, the claim of a meritorious
candidate like the petitioner is arbitrarily overlooked by
admitting less meritorious candidates. In the absence of
rules, the merit of the petitioner could not have been
sacrificed.
40. The petitioner approached this court on 6th January
2021 immediately after the mop-up round, within two days of
the admissions being announced to respondent nos. 5 to 8 on
Judgment-WP.419.2021
the 4 reverted seats. It is not in dispute that as per admission
programme, as contained in the brochure, declaration of the
list of selected candidates for mop up round was 4th January
2021 and last date of joining to the college was 31st January
2021. The petitioner having immediately approached this
court, there was no delay whatsoever for the petitioner to
assert her rights by the present petition. In our opinion, the
petition is thus well in time as per the test laid down in a
recent decision of the Supreme Court in the case of S.
Krishna Sardha vs. The State of Andhra Pradesh,
(Civil Appeal No. 1081 of 2017, decided on 13th
December 2019) wherein, the Supreme Court observed that
in a case where candidate/ student has approached the court
at the earliest and without any delay, such meritorious
candidate should not suffer for no fault of his/ her.
41. A sequel to our discussion is that the principles of
fairness, non-discrimination and non-arbitrariness and above
all merit of the petitioner in the admission process needs to
be recognized and given due weightage. The petitioner on
application of such constitutional principles certainly becomes
entitled for admission amongst the 4 reverted seats. In the
present circumstances this becomes possible only by
cancelling the admission of the candidate who is in the last
position of merit, being admitted on such 4 seats, namely
Respondent No. 8 who has secured 414 marks in the NEET
2020 which is about 145 marks less than the petitioner.
However to overcome this peculiar situation we are guided by
the principles as laid down by the Supreme Court
Judgment-WP.419.2021
S.Krishna Sardha vs. The State of Andhra Pradesh
(supra), when the Court in exercise of judicial review
recognises the rightful claim of a meritorious candidate for
admission to the medical course. The Supreme Court permits
creation of an additional seat so that the hardship to the
students is avoided, however, as an exceptional and a very
rare exercise. In our opinion this is certainly a case wherein
such salutary principle as laid down by the Supreme Court is
required to be applied to prevent academic loss of these
students more particularly when the petitioner has
approached the Court well in time before the commencement
of the academic session. The Supreme Court in the said
decision has held thus:-
"9. In light of the discussion/observations made
hereinabove, a meritorious candidate/student
who has been denied an admission in MBBS
Course illegally or irrationally by the authorities
for no fault of his/her and who has approached
the court in time and so as to see that such a
meritorious candidate may not have to suffer for
no fault of his/her, we answer the reference as
under:
(i) ........
(ii ) Under exceptional circumstances, if the
court finds that there is no fault attributable to
the candidate and candidate has pursued his/her
legal right expeditiously without any delay and
there is fault only on the part of the authorities
and/or there is an apparent breach of rules and
Judgment-WP.419.2021
regulations as well as related principles in the
process of grant of admission which would violate
the right of equality and equal treatment to the
competing candidates and if time schedule
prescribed - 30th September is over, to complete
justice, the Court under exceptional
circumstances and in the rarest of rare cases
directly admission in the same year by directing
to increase the seats, however, it should not be
more than one or two seats and such admissions
can be ordered within reasonable time, i.e., cut-
off date and under no circumstances, the court
shall order any admission in the same year we on
30th October. However, it is observed that such
relief can be granted only in exceptional
circumstances and in rarest of rare cases. In case
of such an eventuality, the Court may also pass an
order cancelling the admission given to a
candidate who is at the bottom of the merit list of
the category who, if the admission would have
been given to a more meritorious candidate who
has been denied admission illegally, would have
got the admission, if the court deems it fit and
proper, however, after giving an opportunity of
hearing to the student was admission is sought to
be cancelled."
42. We may observe that, the case in hand stands
quite a peculiarly and in such situation interest of justice
would imminently require that the petitioner be
accommodated without disturbing the admissions of
Judgment-WP.419.2021
respondents 5 to 8. The Court, in such situation, would also
take into consideration such equitable circumstances so as not
to disturb the educational interest of the students like
respondents 5 to 8 who have been admitted although
overlooking the merit criteria, as adopted by respondent no.
4, for which they cannot be faulted. In the above
circumstances, we allow the petition by the following order:-
ORDER
(i) Respondent no.1 to 4 are directed to forthwith admit the
petitioner to the First Year MBBS Course for the academic
year 2020-2021, on one of the 4 reverted seats from the 15%
All India Quota.
(ii) Respondent No 1 to 4 are directed to take immediate
steps to create one additional seat so that the admission of
respondent no.8, who has secured the lowest marks in the
NEET-2020 (414 marks) and being the lowest in merit stands
protected in the light of the principles as laid down by the
Supreme Court in S.Krishna Sardha vs. The State of
Andhra Pradesh(supra).
(iii) Admission of the respondent No.8 shall be treated as
provisional till such time the additional seat is created.
(iv) The writ petition is allowed in the aforesaid terms.
There shall be no order as to costs.
(G. S. KULKARNI, J.)
Judgment-WP.419.2021
Per the CHIEF JUSTICE:
43. Brother Justice Kulkarni has prepared the main
judgment racing against time and by burning the midnight oil
to meet the deadline set by the Supreme Court in Civil Appeal
No. 1081 of 2017 [S. Krishna Sradha vs. The State of Andhra
Pradesh] for admission in the MBBS course on time. Having
perused the same, I find that His Lordship has marshalled the
relevant facts and determined the question arising for decision
with admirable dexterity. While I heartily concur with the
same, the circumstances of the present case and the
importance of the problem arising therefrom invoke a call to
my conscience to pen a few words.
44. It is rather painful when a candidate scoring as low
as 219 marks in the NEET, 2020 obtains an admission in the
MBBS course because of a quota for the Coast Guards (with
which I have no qualm) whereas a candidate like the
petitioner, scoring as high as 559 marks in the same
qualifying examination, is left high and dry and suffers for no
fault on her part compelling her to seek judicial intervention.
45. Our resolve in the Preamble to the Constitution is
to secure "social justice" to all. The Directive Principles of
State Policy are declared in Article 37 to be "fundamental in
the governance of the country" and the immediately next
article commands the State to strive to promote the welfare of
the people by securing and protecting, as effectively as it
may, a social order, in which justice ~ social, economic and
political ~ shall inform all the institutions of the national life
Judgment-WP.419.2021
and endeavor to eliminate inequalities in status, facilities and
opportunities.
46. In the class-ridden society that we live in, "social
justice" should mean justice to the weaker and poorer section
of the society particularly when we have also resolved in the
Preamble to secure "equality of status and opportunity"; and
securing justice to the weaker and the poorer section could
make them equal with the rest of the society.
47. In a given case such as the present, where it is
neither black nor white but a grey area, to rise to the
challenge for "social justice" whenever the weaker or poorer
section faces a combat against the stronger or richer section,
the Courts ought to lean in favour of the former so that "social
justice", i.e., justice to the weaker or poorer section of the
society is ensured. The admission brochure, it has been
conceded, did not contain any guideline as to how the seats
that revert from the All-India quota would be filled up. The
decision to fill up the same following the same procedure for
filling up State quota seats was taken in the midstream of the
admission process. The petitioner obviously could not have
approached the Court earlier unless by any administrative
decision her rights were affected. Admission process of
students scoring marks lower than the petitioner was
completed on January 4, 2021, whereafter she approached
the Court within a couple of days. Why merit was not given
precedence in filling up the reverted seats has neither been
explained nor has any law been placed requiring filling up of
Judgment-WP.419.2021
the reverted seats otherwise than on merit. Although the
Courts do not sit in appeal over decisions of academic bodies,
it is not the law that such decisions are immune from judicial
review. The acknowledged parameters of judicial review
permit examination of the decision-making process if the
resultant decision is against the Constitutional mandate or
unreasonable or arbitrary or perverse. The drowsy default of
the executive to acknowledge merit and give it due
recognition has to be frowned upon, on facts and in the
circumstances. The admission process, in my view, suffers
from a serious taint and if such tainted admission process is
saved, the rule of merit would be compromised which, in turn,
would frustrate the labour of meritorious students like the
petitioner, apart from development in them of a sense of
aversion to the concept of qualifying examinations. COVID-19,
in the past year, has taken away from the society a number of
reputed doctors. The pool of doctors, thus, has to be
replenished fast. If meritorious students desirous of becoming
doctors are not encouraged in such challenging times, it would
amount to a grave disservice to the society. Our resolve to
render social justice would be a distant dream, if interference
in this case were declined. Dislodging a candidate to
accommodate the petitioner was one of the options open but
considering that the respondents 5 to 8 are not at fault, it was
decided not to dislodge any of them but to make a direction of
the nature permitted in S. Krishna Sradha (supra). This is
indeed a rare and exceptional case where commencement of
classes notwithstanding, the petitioner is still entitled to claim
Judgment-WP.419.2021
admission in the MBBS course in one of the reverted seats
through the window of 'a month' kept open by the Supreme
Court in its decision in S. Krishna Sradha (supra), upon
creation of an additional seat in the relevant college for the
respondent no.8.
48. I too would, therefore, allow the writ petition on
terms suggested by His Lordship.
(CHIEF JUSTICE)
Digitally
signed by
Pravin Pravin D.
Pandit
D. Date:
Pandit 2021.02.27
14:39:54
+0530
