Dr. Monika Murmu vs Vice Chancellor, Guru Gobind ...
2008 Latest Caselaw 1320 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+             W.P.(C) No. 3884/2008

%             Date of Decision : 12.08.2008

DR. MONIKA MURMU                                    ..... Petitioner
                         Through: Mr. R. Vasudevan, Advocate

                   versus


VICE CHANCELLOR, GURU GOBIND SINGH
INDRAPRASTHA UNIVERSITY & ORS.                 ...... Respondent
                  Through: Mr. G.D. Goel & Mr. Sanjiv Goel,
                          Advs. for GGSIU
                          Mr. Saleem Ahmed, Adv. for
                          Respondent Nos.2, 3 & 6.


CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI

1. Whether the Reporters of local papers
   may be allowed to see the judgment?

2. To be referred to Reporter or not?           Yes

3. Whether the judgment should be               Yes
   reported in the Digest?

VIPIN SANGHI, J. (Oral)

1. The petitioner belongs to the Scheduled Tribe category.

She passed the MBBS examination from Vardhman Mahavir Medical

College in the year 2006. Guru Gobind Singh Indraprastha University

(GGSI University) i.e. respondent No.1 invited applications from the

candidates possessing MBBS degree recognized by MCI, and who

had completed one year compulsory rotating internship for grant of

admission to the post graduate medical degree and diploma courses

being held in Safdarjung Hospital and Post Graduate Institute of

Medical Education & Research (PGMER), Dr. Ram Manohar Lohia

Hospital, New Delhi (Dr. RML Hospital).

2. The petitioner applied in response to the said invitation

and appeared in the Central Entrance Test (CET) conducted by

respondent No.1. She was ranked 41 in the over all merit and stood

first amongst ST candidates. Since the reservation policy laid down

by Government of India was to apply to the admission process,

which provided 15% reservation for SC candidates and 7.5% for ST

candidates, the petitioner was hopeful of getting admission in a post

graduate course of her choice. The petitioner was called for

counseling on 9.5.2008. The respondent followed the 200 Point Model

Roster Selection Scheme sent to it by the Government of India along

with their communication dated 8.5.2008. As per the 200 Point Model

Roster Selection Scheme the categorywise position in respect of the

first 17 seats, with which we are concerned, is as follows:

              Serial No.             Category

              1                      UR
              2                      UR
              3                      UR
              4                      OBC-1
              5                      UR
              6                      UR
              7                      SC
              8                      OBC-2
              9                      UR
              10                     UR
              11                     UR
              12                     OBC-3
              13                     UR
              14                     ST-1
              15                     SC-2
              16                     OBC-4
              17                     UR

3. From the aforesaid it is seen that the first reserved seat

for the ST candidate falls at serial No.14 of the Roster Point Selection

Scheme. Accordingly, at the time of her counseling the petitioner was

the 14th candidate to be called. It is the petitioner‟s case that at the

time when she was called, she was informed of the vacancy position

and at that point of time there were two vacant seats in MD

(Medicine) in PGMER, Dr. RML Hospital. She opted for one of them.

The form that she was provided was accordingly filled up by her,

giving her option. When she was about to leave the counseling room,

she was called back and informed that she could not be allotted the

MD (Medicine) seat at PGMER, Dr. RML Hospital since there were

only 7 P.G Degree seats in PGMER, Dr. RML Hospital allotted to the

respondent University and hence no seat could be offered to a ST

candidate. The petitioner further states that 4 out of the 6

counseling members supported her case by taking the stand that the

entire University is to be treated as one unit for providing

reservations, and not institution wise. Even the result as declared by

the University shows that the intention was to treat the University as

one unit. The petitioner pleaded that as per the reservation policy she

was entitled to admission to the post graduate degree course in MD

(Medicine) in PGMER, Dr. RML Hospital. However, she was forced

to change her option and accordingly she changed her option to PG

(Diploma) Course in Gynaecology against her wish. The petitioner

was, at that stage, told that if she insisted on admission to PG Degree

course in Medicine at PGMER, Dr. RML Hospital, she might run the

risk of losing admission altogether at PGMER, Dr. RML Hopsital

4. The case of the petitioner is that of the two vacant seats

in MD (Medicine) in PGMER, Dr. RML Hospital, the respondent

offered one to Dr. Naveen Kumar who ranked 13 in the general

category merit list, but as per the Model Roster Point Selection

Scheme, at the time of counseling he was at serial No.17, i.e., after

the petitioner, and the other seat of M.D (Medicine) was offered to

one OBC candidate, viz. Dr. Manjeet Singh who ranked 16 in the merit

list, and who was called for counseling after the petitioner at serial

No.16.

5. The petitioner has filed this petition to challenge the

denial to her of one MD (Medicine) seat at PGMER, Dr. RML Hospital

under the ST quota. The submission of the learned counsel for the

petitioner is two-fold. He firstly argues that since the respondent

University conducts a Central Entrance Test in respect of the two

P.G. institutions, viz. Safdarjung Hospital and PGMER, Dr. RML

Hospital and a common merit list is drawn up by it, the seats available

in both the institutes should be clubbed to apply the Model Roster

Point Selection Scheme at the time of counseling. He submits that

since both these institutes are affiliated to the respondent University,

it is not permissible to provide for reservation institute wise. The

submission of counsel for the petitioner is that at the time of holding

counseling when a candidate is called, he is entitled to opt from

amongst all the then available seats in both the institutes put

together, and a candidate cannot be told that he cannot opt for a

particular seat in a particular institute on the ground that there is no

reservation for a category to which he belongs in that particular

institute. He further submits that there was no postwise reservation

of seats in the two institutes.

6. The alternative submission of learned counsel for the

petitioner is that, in any event, assuming that the reservations could

be made institute wise as contended by the respondent University, the

fact that there were admittedly 7 seats in PG degree course in

PGMER, Dr. RML Hospital leads to the conclusion that one seat ought

to have been reserved for a ST category candidate. He submits that

7.5% of 7 comes to 0.525 which has to be round off to 1, upon

application of common principles of mathematics. For this submission

he relies on a decision of this Court in Madan Mohan vs. Guru

Gobind Singh Indraprastha University & Ors, 2007 (4) SLR 468.

7. Counter affidavits have been filed on behalf of respondent

No.1 GGSIP University, respondent No.3 Medical Superintendent, Dr.

R.M.L. Hospital and respondent No.6 Union of India, and additional

affidavits have been filed by respondent Nos.1 & 6. In the counter

affidavit/short affidavit dated 01.07.2008 filed by respondent No.1, it

was merely stated that admissions have been made by the respondent

University on the directions of Government of India. Respondent No.1

further stated that the Government of India had forwarded the Model

200 Point Roster System for allotment of PG seats vide letter dated

08.05.2008 and by another communication of the same date it was

stated that in modification of the first communication, the Model 200

Point Roster System is applicable to PG seats of PGMER, Dr. R.M.L.

Hospital only, as per Supreme Court orders in implementation of 27%

seats reservation for OBCs. The said respondent also produced the

Model 200 Point Roster System, and the details of the candidates

admitted in Safdarjung Hospital and PGMER, Dr. R.M.L. Hospital to

the various post graduate degree and diploma courses. Respondent

No.3 stated that the aspect of grant of admission to the concerned

seats rests with respondent No.1 and it is for the said respondent to

answer the issues raised in the writ petition. Respondent No.6 Union

of India stated that after application of Model 200 Point Roster

System, which is based on, inter alia, 7.5% reservation for ST

candidates, the petitioner was effectively ranked 14th. Respondent

No.6 also stated that 7 seats falling in the All India quota had

remained unfilled and were, accordingly, surrendered to be filled by

the respondent No.1 University as per their rules and regulations for

which purpose the Supreme Court had passed an order on 18.07.2008

in IA No.17/2008 in the case titled "Amit Gupta & Ors. v. Union of

India & Ors.". Respondent No.6 also produced the Model 200 Point

Roster System of reservation with reference to posts for direct

recruitment on All India basis by open competition. Respondent No.1

in its additional affidavit dated 08.08.2008, filed in response to the

order dated 04.08.2008 passed by this Court, stated in para 7 that the

petitioner "was called on the 14th seat available at Safdarjung Hospital

as the STs seats was available in the Roster List of Safdarjung

Hospital only and no ST seat was available in Dr. R.M.L.Hospital as

per Roster till the point upto which candidates were called to fill up

the available seat". It was also admitted that Dr. Navin Kumar who,

ranked 13th in the general category merit list was given the

opportunity in respect of the seat available at the two hospitals, which

were described as "unreserved". Dr. Manjeet Singh was admitted

under OBC quota on his own turn. His rank was 16th in order of merit.

Respondent No.6 in its additional affidavit stated that 8 seats i.e. 7

degree and 1 diploma seat at PGMER, Dr. R.M.L. Hospital, New Delhi

were surrendered to the respondent University for the session 2008-

09 for allotment under State quota. The letters dated 08.05.2008

were written to the respondent University and the respondent

University was instructed to follow the 200 Point Model Roster

System.

8. From the counter affidavits filed by the respondents on

record, it clearly emerges that there is absolutely no denial of the case

of the petitioner that she was called as the 14th candidate at the time

of counseling upon application of the 200 Point Model Roster System

since the 14th position in the said roster is allocated to the First

Scheduled Tribe candidate. There is also no dispute that at the time

of her counseling the petitioner opted for one MD (Medicines) seat in

PGMER, Dr. R.M.L. Hospital and that she was compelled to change

her option on the ground that there is no reserved seat for ST

category candidates in PGMER, Dr. R.M.L. Hospital, since only 7 post

graduate degree course seats are available, and the reservation for

the Scheduled Tribe candidates is 7.5%.

9. It, therefore, needs consideration whether the stand of

respondent University that there was no reserved seat for the

Scheduled Tribe category candidate in PGMER, Dr. R.M.L. Hospital

from amongst the 7 post graduate degree course seats is correct or

not. It also requires consideration whether reservation was to be

provided institution wise as contended by respondent University, or

whether the same ought to have been applied in respect of the pool of

seats available for admission on the basis of merit in CET, by

application of the 200 Point Model Roster Point Selection Scheme.

10. Clause 4.1.1 of the admission brochure-V circulated by the

respondent University states that the University offers 8 Post

Graduate Medical Degree Programmes and 6 Post Graduate

Medical Diploma courses as per the number of seats available at its

two affiliated hospitals, viz., Safdarjung Hospital and PGMER, Dr.

Ram Manohar Lohia hospital. In the tabulation contained in the

brochure being Table-1, under the heading "Specialty of Medical

Sciences", in Safdarjung Hospital three vacancies were shown and in

PGMER, Ram Manohar Lohia Hospital, two vacancies were shown in

the discipline "Medicine". There is a „Note‟ contained in the brochure

which states that the number of seats are provisional and

seats/courses/institutions are likely to increase depending upon the

approval of MCI/ Government of India/University. The final number of

seats/courses will be displayed/notified on the University website

www.ipu.ac.in before commencement of counseling. The brochure

further states that the common entrance test (CET) for only 50%

seats as indicated in Table-II will be conducted by GGSIP University

for admission to Post Graduate Medical Degree/Diploma courses. For

this test, only medical graduates of GGSIP University are eligible.

In Table -2, in the Speciality „Medicine‟, two seats were shown in

Safdarjung Hospital and one seat in PGMER, Dr. RML Hospital.

11. In the discipline M.D (Medicine), at the time of

counseling, the number of seats in Safdarjung Hospital was notified as

one whereas in PFMER, Dr. RML Hospital two vacancies were

notified. Clause 4.1.5 states that all admission to post graduate

degree/diploma courses will be made only on the basis of merit in

CET and reservation/allocation of seats to various category subject

wise shall be made as per the Government Rules.

12. Under Clause-6.1, it was stated that 50% of the seats are

reserved for All India Quota to be filled up on the basis of All India

Entrance Test conducted by AIIMS on behalf of DGHS, Government

of India. Clause 6.2 stated that other 50% seats will be reserved for

MBBS graduates of GGSIP University. "Reservation will be applicable

in theses seats as per the policy of Government of India as applicable

from time to time for Scheduled Caste (SC) and Scheduled Tribe ( ST)

candidates. For reservation of Physically Challenged (PC) candidates,

guidelines of Medical Council of India will be applicable." Under

Clause 6.2.1 it was provided that in case any seats reserved for

SC/ST category remain unfilled due to non-availability of the eligible

candidates under the said category, then the seat shall be offered

to the other category, i.e., seats of SC to ST and vice-versa as the

case may be. In case sufficient number of eligible candidates of SC

and ST is not available, the seats thus remaining vacant will be

treated as unreserved.

13. In Clause 12 under the heading "Selection Procedure" it

was, inter alia, stated that separate merit list will be prepared for

each category based on the result of Common Entrance Test. The

admission would be made strictly on the basis of merit of the eligible

candidates determined by marks obtained in CET:PGMC, 2008.

14. Clause 13 dealt with counseling for admission. In clause

13.4 it was stated that for allotment of seats as per merit, the

University shall follow the procedure, viz. that the candidates will be

called in the order of merit and shall be offered the seat available at

that point of time. In clause 13.4 (vi) it was provided that admissions

will be made strictly on the basis of merit rankwise and

counseling/admissions will stop when all the seats get filled up.

When a candidate appears for counseling he/she will be informed

about the available courses and the institutions in which the courses

are available. The candidates were entitled to select any one course.

15. From the admission brochure issued by the respondent

University and the tabulations contained therein it appears that

there is no material to support the contention of the respondent

University that any particular seat, either in post graduate degree

course or in diploma course, was reserved either for the Scheduled

Caste or for Schedule Tribe category, or that the same was an

unreserved seat. None of the available seats were earmarked as

belonging to any reserved category. From clause 13 of brochure

which describes the manner of counseling, read with Clause 12

which states that the admission will be on the basis of the result of

the common entrance test and on the basis of merit of the candidates

and clause 6.2 which states that the respondent University shall fill

the 50% seats by application of the Government Rules on reservation,

i.e., the 200 Point Model Roster Point Selection Scheme, it is clear

that the entire pool of seats available to be filled up by the respondent

University were to be treated as one, and candidates were required

to be called for counseling according to their merit by the application

of the 200 Point Model Roster Selection Scheme and to be assigned

the seats as per their option on the basis of the availability of seats.

16. Reliance placed by the respondent University on the

second communication dated 8.5.2008 whereby the Government of

India in partial modification of the first communication of even date

stated that the 200 Point Model Roster Point Selection Scheme is

applicable to post graduate seats in PGMER, Dr. R.M.L. Hospital only

as per the Supreme Court order in implementation of 27%

reservation for OBC, has no relevance in the facts of the present

case. This is so because reservations for Scheduled Castes and

Scheduled Tribes candidates to the extent of 15% and 7.5%

respectively have been in existence for many years, and it was only

the reservations for OBCs that have been introduced for the first time

after the decision of the Supreme Court in Ashok Kumar Thakur V

Union of India & Others, MANU/SC/1397/2008 in the academic

session 2008-09. The optimum reservation for OBCs to the extent of

27% is to be achieved over a period of three years in terms of Central

Educational Institutions (Reservation in Admission) Act, 2006.

However, as aforesaid, reservation for Scheduled Castes and

Scheduled Tribes candidates has been in force for a considerable

period of time. The said second communication dated 8.5.2008 did

not purport to upset the well established reservations for the SC and

ST candidates and that communication merely related to grant of

reservations to OBC candidates apparently in the light of the scheme

for reservations evolved by the aforesaid Act of 2006. The reading of

the respondent of the second communication dated 8.5.2008 to mean

that reservation has to be provided in PGMER, Dr. R.M.L. Hospital

only for the OBC‟s is, therefore, wholly incorrect and I reject the

same.

17. Alternatively, assuming that for the sake of argument, that

the stand of the respondent that reservation has to be provided

institution wise, and not in respect of the entire pool of seats

available in different colleges by treating it as one unit is correct,

even then on the application of the decision of this Court in Madan

Mohan (supra) it is clear that one seat ought to have been reserved

for a Scheduled Tribe candidate in PGMER Dr. RML Hospital. This is

so because 7.5% of 7 ( which is the number of seats for post

graduate degree course in Dr. R.M.L. Hospital) comes to 0.525. The

same would have to be rounded of to 1 since it is more than 0.500.

Therefore, viewed from either side, it is clear that the petitioner

could not have been denied admission to the post graduate

M.D.(Medicine) course in PGMER, Dr. R.M.L Hospital when, as a

matter of fact, two seats in the said course were available when the

petitioner was called for counseling at the 14th position and she had

opted for one of those seats. Since Dr. Naveen Kumar (general

category) and Dr. Manjeet Singh (OBC category) were both called for

counseling after the petitioner, they could not have been granted

admission to the M.D.(Medicine) course in preference to the

petitioner in PGMER, Dr. R.M.L. Hospital. Accordingly, this writ

petition is bound to succeed and the petitioner is declared to be

entitled to seek admission in the P.G. M.D. (Medicine) course in

PGMER, Dr. R.M.L. Hospital

18. This Court had passed an order on 20.5.2008 directing

that respondent No.3 shall keep one seat in post graduate degree

course in Medicine in Dr. R.M.L. Hospital vacant so that the

petitioner could be accommodated in case of her success in the writ

petition. Learned counsel for the respondent University has

submitted, and this is also evident from the counter affidavit of

respondent No.6, that 7 seats of All India quota were surrendered to

be filled up by the respondent University. Mr. Goel, learned counsel

for the respondent University has submitted that the respondent has

reserved one of those seats for the petitioner in MD (Medicine) at

PGMER, Dr. R.M.L. Hospital. Since, in my view, the petitioner ought

to have been granted admission to the said course as per her merit

and option, I direct the respondents to forthwith grant admission to

the petitioner to M.D. (Medicine) course at PGMER, Dr. R.M.L.

Hospital. The petitioner well present herself for seeking admission

and completion of formalities on 22.8.2008.

19. The attendance of the petitioner in the post graduate

diploma course in gynecology shall be transferred to the M.D.

(Medicines) course at Dr. R.M.L. Hospital. The bond and fee deposited

by the petitioner while seeking admission to the P.G. Diploma course

shall also be adjusted towards the fee and bond for the M.D.

(Medicine) seat.

20. With these directions the petition stands disposed of.

Dasti to the parties under the signature of Court Master.

                                           (VIPIN SANGHI)
                                               JUDGE
August 12,      2008
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