Tej Pal Yadav vs Union Of India & Ors.
2010 Latest Caselaw 5389 Del

*              HIGH COURT OF DELHI AT NEW DELHI

                           Judgment Reserved on : 20th September, 2010
%                          Judgment Pronounced on: 29th November, 2010

+     LPA 611/2010 & CM No.15295/2010

      TEJ PAL YADAV                                        ..... Appellant
                           Through:     Mr. R.K. Saini with Mr. Sitab Ali
                                        Chaudhary and Mr. Vikas Saini,
                                        Advs.
               versus

      UNION OF INDIA & ORS.                              ..... Respondents

                    Through:            Mr. A.S. Chandhiok, ASG with
                                        Mr. Atul Nanda, CGSC, with
                                        Ms.Sugandha, Adv. for R-1
                                        Mr. Atul Kumar, Adv. for R-4.

       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE MANMOHAN

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

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

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

DIPAK MISRA, CJ

In this intra-Court appeal preferred under Clause 10 of the Letters

Patent, the sustainability of the order dated 13th August, 2010 passed by the

learned Single Judge in W.P.(C) No.5492/2010 is called in question.

2. The facts which are essential to be stated for adjudication of this

appeal are that the appellant had appeared for the All India Pre-Medical /

Pre-Dental Entrance Examination held by the Central Board of Secondary

Education, the respondent No.4 herein, for admission to the 15% All India

seats quota in the Medical Colleges all over the country. As per the

stipulations in the prospectus, the appellant appeared in the Preliminary

Examination as an OBC candidate and secured 49.2% marks in the said

examination as a result of which he qualified to appear in the final

examination. He appeared in the final examination and secured 72.3%

marks and was placed at serial No.3017 in the All India Rank and

Counselling Category Rank of 2965 (OBC - 1179). As per the Rank letter

dated 23.5.2010 in the column "Result‟, it was mentioned that the appellant

was "Qualified in Wait List - Eligible for (OBC) seats only". As put forth,

the Appellant appeared for counselling on 10.8.2010 as per his Counseling

Category Rank of 2965. Though seats in the General Category were said to

be available on that day, yet the seats reserved for the OBC Category were

filled up as a consequence of which the appellant was not considered for

admission. It was contended before the writ court that as the appellant had

secured 72.3% marks in the Final Examination, he was entitled to be

considered in the General Category and not in the OBC category alone.

Before the learned Single Judge, the mode of implementation of OBC and

Physical Handicapped Reservation in 15% All India Quota (MBBS / BDS)

seats were pressed into service. Relying on the same, it was contended that

the appellant was entitled to be considered in the reserved category.

3. The stand and stance put forth by the appellant was resisted by the

respondent No.2, the Directorate General of Health Services, contending,

inter alia, that the appellant had qualified in the Preliminary Examination as

an OBC candidate but not as a candidate belonging to the unreserved

category inasmuch as a candidate belonging to General Category was

required to obtain / secure 50% marks to undertake the main examination

but the appellant was declared qualified under the OBC quota as he had

secured more than 40% marks which is the requisite marks to be secured by

a candidate belonging to the OBC Category and, therefore, his claim can

only be considered in respect of seats meant for the OBC category.

4. The learned Single Judge, after taking note of the stand and stance put

forth by the parties, came to hold that the qualification in the preliminary

examination cannot be lost sight of while determining whether a candidate

was qualified in the OBC quota or in the unreserved quota and, in fact, the

very presence of the writ petitioner in the final examination was attributable

to the lowering of the standard of eligibility meant for the OBC candidates.

It is also worth noting that the learned Single Judge has also referred to the

prospectus which has been placed on the website of the Directorate General

of Health Services pertaining to reservation.

5. We have heard Mr.R.K. Saini, learned counsel for the appellant, and

Mr. A.S. Chandhiok, learned Additional Solicitor General along with Ms.

Sugandha, learned counsel for the respondent No.1, and Mr. Atul Kumar,

learned counsel for the respondent No.4.

6. At the very outset, it is condign to state that there is no dispute with

regard to the facts. The thrust of the matter is whether the appellant who had

appeared in the preliminary examination as an OBC candidate after

qualifying in the main examination and placed at the rank of 2965 in the

General Category and 1179 in the OBC Category could have claimed to be

considered in the General Category, i.e., Unreserved Category and not in the

OBC Category. To appreciate the controversy, it is seemly to reproduce the

column on „reservation‟ which finds place in the prospectus:

"OBC candidates have Rank in the Unreserved category and as well as in OBC category. Therefore, they have the right to claim over UR or OBC seats at any of the said ranks as per their choice. However, if OBC seats remain unfilled after exhausting the UR merit list, these seats will be filled by the concerned State Quota candidates as per their existing rules and regulations. As per the present practice, the counselling/allotment of UR, SC and ST seats under All India Quota is being done as per the 2200 Point Reservation Roster. MBBS/BDS seats in whichever Medical/Dental college are available at their rank at that time, will be allotted to the candidate of any category as per Reservation Roster and as per their choice. Therefore, entire seats are open to all the categories i.e. for UR, SC & ST. This procedure will not be followed for OBC candidates as the OBC reservation is not the exactly 27% of the total number of the seats and as the OBC reservation is only in some participating Central Institute under All India Quota and these seats are reserved for OBC candidates only. Therefore, the Directorate General of Health Services has formulated the following procedure for implementation of OBC reservation in Central Medical Institution under 15% All India Quota:-

The allotment will be done as per the "2200 Point Reservation Roster" which is already followed in the 15% All India Quota since the year 2007-08. The candidates will be called as per the Reservation Roster and the seat (which is not reserved for OBC in the OBC list) will be allotted to the candidates whatever the seats in whichever Medical/Dental Colleges are available at their rank at that time. As and when a candidate comes at his/her Unreserved Rank and having the OBC Rank also, he/she can choose/opt either the seat which is not reserved for OBC or the seats exclusively reserved for OBC. If he/she opts the seat of unreserved category he/she will not be counted in the reserve category. This

type of candidate will be counted in the category in which he/she gets the seat allotted. If an OBC candidate qualified under OBC Quota only will have claim over the seat which is reserved for OBC only. In the event of exhausting of OBC seats under All India Quota no OBC candidates can claim OBC seats. The seat if not filled for want candidate, they can be treated as with UR as in the case of SC/ST."

[Emphasis added]

7. Relying on the said prospectus, it is contended by the learned counsel

for the respondents that a candidate who gets qualified in the OBC quota can

only claim for a seat which is reserved for the said category and not for the

Unreserved seat. Be it noted, the learned counsel for the respondents have

relied on the third paragraph and for a better appreciation, we have laid

emphasis on the same. On a studied scrutiny of the said paragraph, we have

no shadow or trace of doubt that it is applicable at the stage of counselling.

Holding of a preliminary examination and the main examination precedes

the stage of counselling. The said paragraph conveys that if a candidate opts

for the unreserved category, he / she would not be counted in the reserved

category. It is further clear that the said candidate would be counted in the

category in which he / she gets the seat allotted. Reading in a purposive

manner, there can be no iota of doubt that the claim relating to seats arises

only at the stage of counselling so that a candidate cannot take chances as by

the stage of allotment of seats the admission in colleges have to be finished

by specified date. It has a sacrosanct purpose. It avoids any kind of chaos.

8. In this context, we may refer with profit to the decision in Ritesh R.

Sah v. Dr. Y.L. Yamul & Ors., (1996) 3 SCC 253. In the said case, the

question that emerged for consideration before the Apex Court was whether

a candidate who belonged to the Scheduled Caste or any other reserved

category could be counted against the quota meant for the reserved category

even if he was entitled for selection for admission in open competition on

the basis of his own merit or would he be treated as an open competition

candidate. Their Lordships in paragraph 13 of the said decision expressed

the view as under:

"13. There cannot be any dispute with the proposition that if a candidate is entitled to be admitted on the basis of his own merit then such admission should not be counted against the quota reserved for Scheduled Caste or Scheduled Tribe or any other reserved category since that will be against the Constitutional mandate enshrined in Article 16(4)."

9. Their Lordships referred to Indra Sawhney v. Union of India, 1992

Supp (3) SCC 217 wherein it has been held thus:

"In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates."

10. Reliance was also placed on R.K. Sabharwal v. State of Punjab,

(1995) 2 SCC 745 wherein the Constitution Bench was considering the

question of appointment and promotion and roster points vis-à-vis

reservation and had opined thus:

"When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the

reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State if not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats."

[Emphasis added]

11. The two-Judge Bench, in the said decision, referred to the

pronouncement in Ajay Kumar Singh v. State of Bihar, (1994) 4 SCC 401

and came to hold thus:

"In view of the legal position enunciated by this Court in the aforesaid cases the conclusion is irresistible that a student who is entitled to be admitted on the basis of merit though belonging to a reserved category cannot be considered to be admitted against seats reserved for reserved category. But at the same time the provisions should be so made that it will not work out to the disadvantage of such candidate and he may not be placed at a more disadvantageous position than the other less meritorious reserved category candidates. The aforesaid objective can be achieved if after finding out the

candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different colleges which have been kept reserved for reserved category and thereafter the cases of less meritorious reserved category candidates should be considered and they be allotted seats in whichever colleges the seats should be available. In other words, while a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission in the colleges where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as an open category candidate and not as a reserved category candidate."

[Underlining is ours]

12. At this juncture, we may refer with profit to the Full Bench decision

of the Andhra Pradesh High Court in Dr. B. Kaladhar & Ors. v.

Government of A.P., Health, Medical and Family Welfare Department &

Ors., 2005 (6) ALT 723 wherein, after discussing various judgments of the

Apex Court, the Full Bench has expressed the view as follows:

"If we examine the judgments of the Supreme Court rendered in the cases of Ritesh R. Sah, Neethi Chandra and Anurag Patel‟s, referred to above, it emerges that the Supreme Court laid down a principle to the effect that the merit obtained by a candidate belonging to a reserved category, cannot be treated, or permitted to become, a factor, to deprive or minimize the options to him, when compared to a candidate belonging to the same category, and accommodated in the reserved seats or posts. This principle, in turn, came to be applied in different manners, in different cases, depending on the procedure adopted for selection of candidates. It is the principle, that becomes a guiding factor, than the application part of it. The principle - the ratio decidendi, as we understand is that a higher ranked/merited candidate belonging to a reserved category, should not suffer a deprivation in the choices of either a seat or an institution of his choice vis- à-vis a lesser ranked/merited candidate of the same social class, by the operation of a reservation principle. Any

admissions programme that accords with such principle is valid."

13. At this stage, it is immensely instructive to refer to paragraph 811 of

Indra Sawhney (supra) which reads as follows:

"811. In this connection it is well to remember that the reservation under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition filed on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates."

14. In the said case, Sawant, J., while dealing with the philosophy and

objectives of reservation has opined thus:

"411. The aim of any civilized society should be to secure dignity to every individual. There cannot be dignity without equality of status and opportunity. The absence of equal opportunities in any walk of social life is a denial of equal status and equal participation in the affairs of the society and, therefore, of its equal membership. The dignity of the individual is denied in direct proportion to his deprivation of the equal access to social means. The democratic foundations are missing when equal opportunity to grow, govern, and give one‟s best to the society is denied to a sizeable section of the society. The deprivation of the opportunities may be direct or indirect as when the wherewithals to avail of them are denied. Nevertheless, the consequences are as potent.

412. Inequality ill-favours fraternity, and unity remains a dream without fraternity. The goal enumerated in the Preamble of the Constitution, of fraternity assuring the dignity of the individual and the unity and integrity of the nation must, therefore, remain unattainable so long as the equality of opportunity is not ensured to all.

xxxx xxxx xxxx xxxx

416. The trinity of the goals of the Constitution, viz., socialism, secularism and democracy cannot be realised unless all sections of the society participate in the State

power equally, irrespective of their caste, community, race, religion and sex and all discriminations in the sharing of the State power made on those grounds are eliminated by positive measures."

15. In Dr. Preeti Shrivastava v. State of Madhya Pradesh, AIR 1999 SC

2894, the Constitution Bench, after referring to a passage from Marc

Halanter, has expressed thus:

"Since every such policy makes a departure from the equality norm, though in a permissible manner, for the benefit of the backward, it has to be designed and worked in a manner conducive to the ultimate building up of an egalitarian non-discriminating society. That is its final constitutional justification. Therefore, programmes and policies of compensatory discrimination under Art.15(4) have to be designed and pursued to achieve this ultimate national interest. At the same time, the programmes and policies cannot be unreasonable or arbitrary, nor can they be executed in a manner which undermines other vital public interests or the general good of all. All public policies, therefore, in this area have to be tested on the anvil of reasonableness and ultimate public good. In the case of Art.16(4) the Constitution makers explicitly spelt out in Art.335 one such public good which cannot be sacrificed, namely, the necessity of maintaining efficiency in administration. Article 15(4) also must be used, and policies under it framed, in a reasonable manner consistently with the ultimate public interests."

16. In Student's Union v. AIIMS, (2002) 1 SCC 428, the Apex Court has

held that merit must be the test when choosing the best.

17. In Avinash Singh Bagri & Ors. v. Registrar IIT Delhi & Anr., (2009)

8 SCC 220, the Apex Court was dealing with the situation under Article 32

of the Constitution of India and the grievance of the students belonging to

Scheduled Caste and Scheduled Tribe who had been given admission in IIT,

Delhi but were denied the right to pursue their studies by the educational

institutions on the ground of poor performance and their cancellation of

admission and expulsion from college after one year or two years. In that

context, their Lordships referred to the decision in Ashok Kumar Thakur v.

Union of India & Ors, (2008) 6 SCC 1 and opined that Article 46 of the

Constitution of India enjoins upon the State to promote with special care the

educational and economic interest of the weaker sections of the people and

protect them from social injustice and all forms of exploitation. Their

Lordships have ruled that these socially and economically backward

categories are to be taken care of at every stage even in the specialized

institutions.

18. We have referred to the aforesaid decisions only to highlight that the

purpose of reservation is a generic concept and has different connotations

under various circumstances. The Constitution of India, the fountainhead of

all law, requires one to understand and appreciate the schematic

interpretation of the organic law of the country to understand the said

concept. Reservation of the present nature has an affirmative objective. In

our view, the interpretation placed by the learned Single Judge would defeat

the very intent and objective behind the reservation policy.

19. Coming to the case at hand, a student may appear in the preliminary

examination declaring that he belongs to OBC category and may qualify or

may not qualify. If he does not qualify, that is the end of the road. If he

qualifies, he appears in the main examination. If he does not qualify in the

said examination, his right to get admission becomes totally extinct. If he

qualifies within the OBC category, he may put forth his claim in that

category but if he gets more marks than the general candidates, he would be

justified to say that he can be considered in the general category. As has

been held in the case of Dr. Preeti Shrivastava (supra), the public interest

cannot be undermined and public good cannot be sacrificed. The necessity

of maintaining efficiency is also paramount. If the whole concept of

reservation is understood in a holistic manner, it becomes amply clear that a

candidate‟s appearing in the OBC category in the preliminary examination is

basically at the entry level. We are inclined to think that though both the

preliminary and main examinations, at a first glance, may look to be totally

interconnected, yet on a deeper scrutiny, one is disposed to think that despite

being apparent interconnectivity there is a subtle distinctive separation. This

being the position, we are of the considered opinion that if an OBC

candidate appears in the preliminary examination as an OBC category

candidate and performs extremely well in the main examination, his claims

should not be scuttled or smothered solely on the ground that he had taken

the initial examination as an OBC category candidate. In case it is allowed

to be so done, a general category candidate who really could not compete

with the OBC candidate in the main examination would steal a march over

him. That would not be in the public interest and also not in accord with the

law laid down in the cases of Indra Sawhney (supra), Ritesh R. Sah (supra),

R.K. Sabharwal (supra) and Dr. Preeti Shrivastava (supra). Further, if we

allow ourselves to say so, the constitutional philosophy as well as the law

laid down by the Apex Court from time to time in relation to the conceptual

essentiality of reservation in medical admission, a test of trinity, namely, due

regard for merit when a reserved category candidate is able to compete with

a general category candidate, interest of public efficiency and public good in

certain courses, and bestowing of special care to the said category so that

they would come up in educational sphere are to be kept in view. Therefore,

we conclude and hold that the analysis made by the learned Single Judge in

this regard is not defensible.

20. Presently we shall proceed to delve into the issue as to what relief can

be granted to the appellant. The submission of Mr. Saini, learned counsel

for the appellant, is that when injustice is caused to a person, he should not

be declined or denied relief solely on the ground that the admissions are

over. It is urged by him that he has to be adjusted in respect of a seat meant

for the general category. We are disposed to think that there is substantial

force in the submission of the learned counsel for the appellant. In this

regard, we may think it apt to refer to certain citations in the field.

21. In Punjab Engineering College, Chandigarh v. Sanjay Gulati, AIR

1983 SC 580, the Apex Court has categorically held that the authority which

makes admission by ignoring the rules of admission must pay for its own

lapse and wrong caused and injustice meted to the deserving candidates. In

the said case, their Lordships directed for increase of strength as a course of

solution. It is worth noting that in the said case, a contention was

propounded that the Medical Council of India would not sanction additional

seats but the said proponement was repelled. We think it apt to reproduce

the relevant paragraph from the said decision:

"It is strange that in all such cases, the authorities who make admissions by ignoring the rules of admission contend that the seats cannot correspondingly be increased, since the State Government cannot meet the additional expenditure which will be caused by increasing the number of seats or that the institution will not be able to cope up with the additional influx of students. An additional plea available in regard to medical colleges is that the Indian Medical Council will not sanction additional seats. We cannot entertain this submission. Those who infringe the rules must pay for their lapse and the wrong done to the deserving students who ought to have been admitted has to be rectified. The best solution under the circumstances is to ensure that the strength of seats is increased in proportion to the wrong admission made."

22. In Anil Kumar Gupta v. State of UP, (1995) 5 SCC 173, the Apex

Court, after coming to hold that there were errors in the rule of reservation

and its implementation, dwelled upon the relief to be granted when the

admissions had already been finalized. In that context, their Lordships held

thus:

"At the same time, we have to rectify the injustice done to the open competition candidates in the admissions in question, to the extent feasible. Accordingly, we direct that in the matter of admissions made pursuant to C.P.M.T. 1994, while the admissions already finalised shall not be disturbed, the Uttar Pradesh Government shall create thirty-four additional seats in the M.B.B.S. course and admit thirty-four students from the O.C. category against those seats. If any seats are vacant as on today, they shall also be filled from the O.C. category alone."

23. In Dolly Chhanda v. Chairman, JEE & Ors., (2005) 9 SCC 779,

while finding that the appellant was unjustly denied admission to an

educational course, their Lordships ruled thus:

9. The appellant undoubtedly belonged to reserved MI category. She comes from a very humble background, her father was only a Naik in the armed forces. He may not have noticed the mistake which had been committed by the Zilla Sainik Board while issuing the first certificate dated 29.6.2003. But it does not mean that the appellant should be denied her due when she produced a correct certificate at the stage of second counselling. Those who secured rank lower than the appellant have already been admitted. The view taken by the authorities in denying admission to the appellant is wholly unjust and illegal.

10. The appellant had qualified in JEE-2003 but the said academic year is already over. But for this situation the fault lies with the respondents, who adopted a highly technical and rigid attitude, and not with the appellant. We are, therefore, of the opinion that the appellant should be given admission in MBBS course in any of the State medical colleges in the current academic year.

24. In Vijay Jaimni v. Medical Council of India & Ors., (2005) 13 SCC

461, while noticing the mistake in the determination of category, the Apex

Court directed as follows:

"5. Under these circumstances, we direct Respondent 5 college to give admission to the petitioner out of the said intake and under the category to which the petitioner was entitled as per the position in the last Academic Year 2004-2005. The said college is further directed to charge from the petitioner the fee which would have been charged if admission had been granted in Academic Year 2004-2005. The admission shall be granted before 30.9.2005. The petitioner shall comply with all the requirements."

25. In view of the aforesaid enunciation of law, we are disposed to think

that the appellant should not suffer and his career should not be given an

indecent burial and accordingly, we direct that he shall be admitted in the

general category quota in the next academic year.

26. Resultantly, the appeal is allowed and the order passed by the learned

Single Judge is set aside. In the peculiar facts and circumstances of the case,

there shall be no order as to costs.

CHIEF JUSTICE

MANMOHAN, J November 29, 2010 dk