Dr. Jagveer Singh & Ors. vs The Chairperson, Counselling ...
2010 Latest Caselaw 3871 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) 4230/2010

%                                     Date of decision : 19th August, 2010.

         DR. JAGVEER SINGH & ORS.                  ..... Petitioners
                      Through: Mr. Vivek Malik, Advocate.

                                      Versus

         THE CHAIRPERSON, COUNSELLING COMMITTEE,
         ACADEMIC SECTION, AIIMS & ANR.         ..... Respondents
                          Through: Mr. Sunil Fernandes, Advocate
                                   for R-1 AIIMS.
                                   Mr. Jatan Singh & Mr. Ashok
                                   Singh, Advocates for R-2 UOI.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.       Whether reporters of Local papers may
         be allowed to see the judgment?                   Yes

2.       To be referred to the reporter or not?            Yes

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


RAJIV SAHAI ENDLAW, J.

1. The four petitioners had applied for admission to the respondent no.1

All India Institute of Medical Sciences (AIIMS) for admission to Post

Graduation/Post Doctoral Courses in the academic session commencing

from July, 2010. All the petitioners belong to the OBC category. The

prospectus issued by the respondent no.1 AIIMS, for admission to

M.D./M.S. & MDS courses inter alia contains the following clauses:-

"2.(b) The candidate must have obtained a minimum of 55%

marks in aggregate in all the MBBS/BDS professional examinations for other category including OBC category and 50% for candidate belonging to SCs/STs.

12. B. Reservation of Seats

1. 22½ of the total Post-Graduate seats (15% for SC, 7.5% ST excluding OBC seats and 20 PG seats for OBC) excluding those for Sponsored/Foreign National candidates are reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes and the Other Backward Classes (Non- Creamy Layer).

12. E. Method of Counselling

1. In each category the number of candidates called for counselling will be 4 times the number of seats. The order of counselling will be ST/SC/OBC/General/50% AIIMS preferential candidates of total MBBS seats of AIIMS. The candidates in order of merit will exercise their choice of subject according to availability of seats in their respective category. In case of absentee the next candidate in merit will be considered. Counselling will be held as per schedule given under "AT A GLANCE". 2. In case during the second counselling, ST seats remains vacant, after calling all eligible candidates of ST category then these seats will be transferred to the SC category. Similarly, in case the SC seats remains vacant after calling all eligible SC candidates then these seats, whether it pertains to ST category or SC category, shall be made available to the general category/AIIMS preferential graduates. Similarly, in case the OBC seat remains vacant after calling all eligible OBC candidates then these seats shall be made available to the general category/AIIMS preferential graduates."

2. The grievance of the petitioners in the present writ petition is that the

respondent no.1 AIIMS instead of drawing up an overall merit list has

drawn up separate merit lists for the General, SC, ST & OBC categories.

The petitioners were sent call letters for counselling, giving their rank in the

OBC category only. The counselling also was done category wise only with

the petitioners being called for counselling in the OBC category only. The

petitioners impugn the said procedure adopted by the respondent no.1

AIIMS and contend that:-

(i) that the procedure adopted amounts to creating a reservation

against the petitioners and results in the petitioners belonging to the

OBC category becoming ineligible for admission in the general

category

(ii) that the procedure adopted by the respondent no.1 AIIMS is not

transparent.

(iii) Some of the courses offered do not have any seats in the OBC

category; in the absence of an overall merit list, the OBC candidates

are prevented from joining the said course/discipline

The petitioners seek a direction, directing respondent no.1 AIIMS to

disclose overall ranking of the petitioners and to consider the

petitioners for admission in the unreserved category also.

3. Notice of the writ petition was issued. The counsel for the respondent

no.1 AIIMS on 23rd June, 2010 informed that counseling was already over

and no vacancy in which the petitioners could be considered in any category

was remaining. Though, Union of India was not originally impleaded as a

party to the writ petition but was directed to be so impleaded as respondent

no.2 on 7th July, 2010. Counter affidavit has been filed by the respondent

no.1 AIIMS. No counter affidavit has been filed by the respondent no.2

Union of India.

4. The respondent no.1 AIIMS in its counter affidavit has inter alia

stated:-

(a) that the writ petition has become infructuous owing to all seats

having already been filled up.

(b) that the procedure followed by the respondent no.1 AIIMS for

admission is as per the prospectus; that the prospectus was published

as far back as in May 2010; no objection to the procedure prescribed

therein was taken at that time and the procedure prescribed therein

cannot be challenged after the petitioners have been unsuccessful in

getting admission as per the procedure prescribed in the prospectus.

(c) that the petitioners having applied for admission on the terms

prescribed in the prospectus are estopped from challenging the same.

(d) that clause 12 E at page 8 of the prospectus while setting out

the procedure for counselling expressly provides that "the counselling

shall be done according to the Category Rank (UR/SC/ST/OBC/PH as

filled in the application form) and not by the overall rank"

It is thus contended that the respondent no.1 AIIMS was not required

under the prospectus to bring out the overall merit list and was required to

only bring out a category wise merit list. It is also pleaded that the procedure

adopted by respondent no.1 AIIMS is identical to the procedure adopted by

the Ministry of Health and Family Welfare for filling up 5,225 seats in All

India PG examination under the All India quota in Institutions other than

AIIMS.

5. The clause 12 E (supra) as quoted in the counter affidavit of the

respondent no.1 AIIMS, is not found to exist in the copy of the prospectus

annexed to the writ petition. The petitioners in their rejoinder affidavit also

pleaded so. Inspite of the same, the respondent no.1 AIIMS has not shown

any prospectus for the current academic year containing the said clause.

However, the letters calling the petitioners for counseling are found to be so

providing.

6. The counsel for the petitioners has today fairly stated that the

petitioners are now not claiming admission in the current academic year. It

is however contended that unless the question raised in the writ petition is

decided, the respondent no.1 AIIMS may in the next academic year also,

when the petitioners may again apply, follow the same procedure. The

counsel for the petitioners thus nevertheless seeks decision on the question

raised in the writ petition. I find merit in the said contention and the

counsels for the parties have been heard.

7. As aforesaid, there is a mismatch in the prospectus on the basis of

which the respondent no.1 AIIMS in its counter affidavit claims to have

proceeded and the prospectus as filed along with the writ petition. The

prospectus for the current year as filed with the writ petition, does not

provide that counselling shall be done according to category rank only and

not by overall rank. The call letters issued to the petitioners cannot be at

variance with the prospectus. However, even if the respondent no.1 AIIMS

has so interpreted the prospectus for the current year, the petitioners have in

the writ petition sought declaration that the said interpretation/understanding

of the respondent no.1 AIIMS as bad. I thus proceed to consider whether the

respondent no.1 AIIMS can refuse to draw up the overall merit list and can

insist upon drawing up category wise merit list. The direct consequence of

the same is to exclude the SC/ST/OBC/PH candidates (reserved category

candidates) from being considered for admission in the General (unreserved)

Category.

8. The Supreme Court in (i) Indra Sawhney Vs. Union of India 1992

Supp. (3) SCC 217 (ii) Ritesh R. Sah Vs. Dr. Y.L. Yamul 1996 (3) SCC 253

(iii) R.K. Sabharwal Vs. State of Punjab AIR 1995 SC 1371 and (iv) Union

of India Vs. Satya Prakash (2006) 4 SCC 550 has held that the candidates

selected in General (unreserved) Category on their own merit, even if

belonging to the reserved category, cannot be counted in the reserved

category so as to reduce the number of seats prescribed for the reserved

category. In R.K. Sabharwal (supra) it was expressly held that "reserved

category candidates can compete for non-reserved posts."

9. An unreserved seat is available to all the candidates who are in the

zone of consideration but a reserved seat is confined for candidates of that

particular category. In an open competition, General Category candidates are

entitled to compete only against unreserved seats but a reserved category

candidate in addition to his right to be considered against the reserved seat is

also entitled to be considered against unreserved seats. His option in the

application, for consideration of his candidature for a reserved seat is only a

declaration of his intention to be considered against reserved seat without

depriving himself of the right to be considered against an unreserved seat.

Articles 15 and 16 of the Constitution of India confer certain benefits on the

persons belonging to these categories but which benefits are not in

substitution of any other right which may be otherwise available to them as

citizens of the country.

10. Benefit of reservation does not substitute or supplant any other right

of a person belonging to SC/ST and OBC Category. Such benefit would be

in addition to an already existing right including the fundamental right of

equality. If any scheme of reservation or the procedure evolved with a view

to give effect to such scheme is made to depend upon the condition of

truncating the fundamental or any other right of an individual, such scheme

of reservation would be contrary to the constitutional provisions and the law

and to the extent it curtails fundamental right or any other right of a person

belonging to such category, would be liable to be declared illegal. Reserving

certain seats for different groups of the community in the first instance

means that these seats are meant for members belonging to such specified

groups. This is an additional benefit conferred on them. On account of such

additional benefit however they are not precluded from claiming ordinary

benefits otherwise available to them.

11. Members belonging to SC, ST and OBC Category for whom

reservation of seats is made are not confined for selection for those seats

only, although its converse is true. They cannot be asked to occupy only

reserved seats. They would be free to occupy any seats including unreserved

seats. However, the requirement of law is that while claiming selection

against unreserved seats, they should prove their merit like any other citizen,

who is not entitled to the benefit of reservation. No provision of law

whether substantive or procedural, can be so interpreted as to run contrary to

this basic tenet of the Constitution of India.

12. The respondent no.1 AIIMS in drawing up separate merit list for the

UR/SC/ST/OBC/PH categories has misapplied the law of reservation; in

doing so, it has completely excluded consideration of candidates belonging

to OBC category for the seats meant for General Category. Just because the

petitioners in their application forms, being required to fill up their

categories in the relevant column described themselves as belonging to OBC

category, they cannot be deprived of consideration in the General Category.

The petitioners and others eligible for selection in reserved categories,

cannot be deprived of an opportunity of selection in unreserved category, of

course on the basis of merit.

13. Recently in judgment dated 16th August, 2010 in W.P.(C)

No.5536/2010 titled Ms. Jyoti Yadav Vs. Govt. of NCT of Delhi, I had an

occasion to deal with the procedure for admission to Diploma Course in

Elementary Teacher Training. In that case liberty was granted to the

candidates belonging to the reserved category to apply in the General

Category also by filling up a separate form. The petitioners therein however

failed to apply in the General Category and being not successful in gaining

admission in the reserved category then wanted to be considered in the

General Category. However, they were held not entitled to do so, having

failed to apply in the General Category. However, the procedure allowing

the candidates in the reserved category to apply in the General Category also

was upheld.

14. Though, in the prospectus of the respondent no.1 AIIMS for the

current academic year, I do not find any limitation for considering the

candidates belonging to the reserved category, in the unreserved category

also, but the call letters issued and the counter affidavit of the respondent

no.1 AIIMS shows that it has wrongly refused to so consider them.

15. The Supreme Court recently in Jitendra Kumar Singh Vs. State of

U.P. (2010) 3 SCC 119 also held that a reserved candidate cannot be

deprived of his right to be considered against general vacancy on the basis

of merit. The practice of preparing categorywise list was also deprecated in

para 43 of A.P. Public Service Commission Vs. Baloji Badhavath (2009) 5

SCC 1 as being detrimental to the interest of meritorious candidates

belonging to the reserved categories.

16. I therefore declare the stand taken by the respondent no.1 AIIMS in

its counter affidavit of being entitled to prepare and declare a separate merit

list for each of the categories and of thus depriving candidates belonging to

the reserved category from admission in the General (unreserved) Category

to be bad in law.

17. The writ petition succeeds to the aforesaid extent. The respondent

no.1 AIIMS is directed to w.e.f. next admission, allow the candidates

belonging to the reserved category to compete in the General (unreserved)

Category also and the candidates belonging to reserved category, if entitled

to admission on their own merit in General (unreserved) Category to be so

given admission without counting them against seats in the reserved

category.

The writ petition is disposed of. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 19th August, 2010 bs..