Delhi High Court
Sana-Ur-Rehman vs University Of Delhi & Ors. on 16 March, 2012
Author: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) Nos.5569/2011 & 6554/2011
Reserved on: 06.03.2012
Decided on: 16.03.2012
IN THE MATTERS OF
W.P.(C) 5569/2011
SANA-UR-REHMAN ..... Petitioner
Through: Mr.Ram Prakash Gupta and
Mr. A.J. Khan, Advocates
versus
UNIVERSITY OF DELHI & ORS. ..... Respondents
Through: Mr. Mohinder Rupal and
Ms. Shawana Bari, Advocates for
Respondents No.1 & 2.
Mr. Jai Bansal, Advocate for
Mr.Adnan Mastan/Impleader.
AND
W.P.(C) 6554/2011
ADNAN MASTAN ..... Petitioner
Through: Mr. Jai Bansal, Advocate
versus
UNIVERSITY OF DELHI AND ORS ..... Respondents
Through: Mr. Mohinder Rupal & Ms. Shawana Bari,
Advocates for Respondents No.1 & 2
Mr. Rajeev Saxena, Advocate for
Respondent No.3.
Mr. Ram Prakash Gupta & Mr. A.J. Khan,
Advocates for Respondent No.4.
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J.
1. This common judgment shall dispose of two writ petitions,
wherein both the petitioners have sought issuance of directions to
respondent No.1/Delhi University to admit them to the Mahir-E-Tib(MD)
Unani Course in the academic session 2010-11.
2. To a large extent, the factual background of both the petitions is
identical. The petitioner in WP(C) No.5569/2011, i.e., Dr.Sana-Ur-
Rehman(hereinafter referred to as`Dr.Sana') and the petitioner in WP(C)
No.6554/2011, i.e., Dr.Adnan Mastan(hereinafter referred to `Dr.Adnan')
qualified their BUMS Course from Delhi University. While Dr.Sana
completed the BUMS Course and Surgery Examination in the year 2007,
Dr.Adnan completed his course in the year 2010. In April-May 2011,
respondent No.1/Delhi University invited applications for admissions to
Mahir-E-Tib(MD) Unani and Ayurved Vachaspati(MD) Ayurved for the
academic session 2010-11. Allotment of seats under Mahir-E-Tib is made
by the Government of India and the number of seats offered each year is
also settled by the Government who forwards this information to respondent
No.1/Delhi University and accordingly the process of admission is
undertaken. For the academic year 2010-11, the Government of India had
released eight seats in four courses for admission, and communicated the
same to respondent No.1/Delhi University in October 2010. Admission to
Mahir-E-Tib(MD Unani) in A & U Tibbia College, University of Delhi is made
through an entrance examination (PGMET-2010 A &D) conducted by the
Faculty of Ayurvedic and Unani Medicine, University of Delhi. In Mahir-E-Tib,
a total of four courses were offered for admission in the said year , which are
as below:-
(a) Amraz-E-Niswan Wa Qabalat
(b) Ilmul Saidla
(c) Moalejat
(d) Munaful Aza
3. Pertinently, in the previous academic year 2009-2010, the
Government of India had released only two seats in Mahir-E-Tib Unani in the
discipline of Moalejat. However, in the next academic year 2010-11, the
Ministry of Health and Family Welfare had released a total of nine seats in
Mahir-E-Tib Unani Course in all the four disciplines, of which eight seats
were allocated under 85% Delhi University quota and the ninth seat was
released under the All India quota.
4. The Bulletin of Information for the academic year 2010-11
issued by respondent No.1/Delhi University had laid down the schedule
of important dates as also general instructions for admission.
The postgraduate courses with intake capacity under Mahir-E-Tib Unani were
declared as below:-
(i) Amraz-E-Niswan Wa Qabalat - 02(Two seats)
(a) Ilmul Saidla - 03(Three seats)
(b) Moalejat - 02(Two seats)
(c) Munaful Aza - 02(Two seats)
5. As per Instruction No.(VII) relating to `Reservation of Seats',
the bulletin stipulated that reservation would be implemented for SC/ST/OBC
and others upon applying the 13 point roster system. Instruction No.(VIII)
relating to `Selection of Candidates', stipulated that there would be an
entrance test for admission to Mahir-E-Tib & Ayurved Vachaspati under the
respondent No.2/Faculty of Ayurvedic & Unani Medicines and the said test
would be conducted by respondent No.1/Delhi University.
6. A meeting of the Joint Admission Committee of respondent
No.2/Faculty of Ayurvedic & Unani Medicine was held on 11.05.2011 and the
committee took the decision with regard to identification/allocation of seats
in the MD nani and MD Ayurveda courses for the session 2010-11. The
extract of the minutes of the meeting of the committee relevant to the MD
Unani course is reproduced hereinbelow:-
"Item No.1:
(a) The Committee considered the application of Roster to
identify seats for SC/ST/OBC Categoeires in Mahir-e-Tib (MD
Unani) and Ayurveda Vachaspati (MD Ayurveda) Courses for the
session 2010-11 and after detailed discussion decided as under:-
(i) that 13 Post Roster be implemented to identify reservation
of seats in P.G. seats of Ayurvedic & Unani Medicine
discipline for 85% Delhi University Quota & 15% All India
Quota as the number of seats is less than 14 (Fourteen).
(ii) that the replacement of seats be finalized by the Admission
Committee year-wise and it should be ensured that the
specialty of discipline should also rotate year-wise so that
none of the specialty in reserved for a particular categories
(SC/ST/OBC) repeatedly.
(iii) that the Faculty should maintain a permanent register for
the purpose.
(b) The Committee finalized the 13 Point Roster for the Session
2010-11 for 85% Delhi University Quota as well as for 15% All
India Quota as under:-
(i) The total number of seats in MD Unani are 09 (Nine)
(Amraz-e-Niswan Wa Qubalat - 02 Seats, Ilmul Saidla -
03 Seats, Moalejat - 02 Seats, Munafal Aza - 02 Seats)
(ii) The distribution of MD (Unani) seats: (08 seats under 85%
Delhi University Quota and 01 seat under 15% All India
Quota).
13 Point Roster 13 Point Roster
2010-2011 Courses 2010-2011 Courses
1 UR Molejat 2009-10 1 UR Amraz-e-Niswan Wa
2 UR Qubalat 2010-11
3 UR Molejat 2010-11 - - -
4 OBC1 - - -
5 UR Amraz-e-Niswan Wa - - -
Qubalat 2010-11
6 UR Ilmul Saidla 2010-11 - - -
7 SC1 - - -
8 OBC2 - - -
9 UR Munaful Aza 2010-11 - - -
10 UR - - -
Note:(i) 13 Point Roster was implemented w.e.f. the year
2009-10 to identify reserved points for MD Molejat seats
as such, the replacement points fall at point 3 & 4 for the
year 2010-11.
(ii) The rest of the disciplines have been started w.e.f.
session 2010-11."
7. In the admission form, the candidates applying for MD Unani
course were not provided with any option to select the discipline. As per the
procedure prescribed, after declaration of the results of the entrance test on
the appointed date, the eligible candidates were sent for counselling as per
their merit and were entitled to select any discipline of their choice at the
time of counselling, as per the availability of seats in different disciplines.
Immediately after holding the counselling, the Department would record
each candidate's preference of discipline and simultaneously the candidate
would be required to furnish an undertaking that he was informed of the
vacancy position at the date and time of counselling and asked to opt for a
particular discipline out of the available seats.
8. Alongwith many other applicants, both the petitioners herein
also applied for admission in the MD Unani course in the Delhi University for
the academic session 2010-11. Initially, both the petitioners had applied
under the OBC category. The entrance examination was conducted on
26.6.2011 and the results were declared on 29.6.2011. The date of
counselling was fixed as 23.07.2011. The merit list of candidates was
displayed on the website of the medical faculty as also of the respondent
No.1/Delhi University. On 19.07.2011, Dr.Sana submitted an application to
respondent No.2 stating inter alia that as he was not sure as to whether he
belonged to the OBC creamy layer or to the OBC non-creamy layer and to
avoid any dispute/risk, he did not want to take the benefit of seat allocation
on the basis of OBC category.
9. As per the rank wise list of candidates who had qualified for
admission under Mahir-E-Tib MD Unani, Dr.Sana was placed at rank No.7 in
the common merit list and at rank No.4 in the OBC category. Dr.Adnan was
placed at rank No.8 in the common merit list and at rank No.5 in the OBC
category. All the successful candidates who had sat for the PGMET(A&U)
2010-11, appeared for counselling on 23.7.2011. As there were five seats in
the general category and the rank of Dr.Sana was seventh in the common
merit list, he was unable to secure admission in the general category. On
the other hand, Dr.Adnan was placed at the eighth rank in the general
category and at the fifth rank in the OBC category and therefore he claimed
that he was a successful candidate in the OBC category and entitled to
allotment of the one remaining seat out of three seats that were available in
the reserved category.
10. Having withdrawn his claim under the OBC category and being
unable to secure admission in the general category, Dr.Sana filed WP(C)
No.5569/2011 on 1.8.2011 and staked his claim to a seat in the OBC
category claiming that he did not fall in the creamy layer and therefore
prayed that respondent No.1/Delhi University be directed to grant him
admission in the MD Unani course for the academic year 2010-11. The
second ground taken in the alternate was that respondent No.1/Delhi
University had adopted an arbitrary and illegal procedure of carrying forward
two seats of Moalejat course allotted in the previous year, i.e., the academic
year 2009-10 to the current academic year, 2010-11 and thereafter, had
wrongly applied the 13 point roster system which had caused variation in
disciplines as also the reservations. It was thus averred by Dr. Sana that
the allotment of two seats and the admission conducted for the academic
year 2009-10 had no relation to the next academic year 2010-11 and that
due to an incorrect application of the 13 point roster system by the
respondent No.1/Delhi University, the petitioner had been wrongly deprived
of a seat in the MD Unani course.
11. Notice was issued in WP(C) No.5569/2011 on 5.8.2011. On
17.8.2011, respondent No.1/Delhi University was directed to keep one seat
vacant till further directions. Immediately thereafter, Dr.Adnan had
approached this Court on 6.9.2011 by filing WP(C) No.6554/2011 stating
inter alia that he had attained eighth rank in the general category and
belonged to the non-creamy layer in the OBC category and as he was a
successful candidate in the counselling conducted by the respondents, he
was entitled to allotment of the one seat directed to be kept vacant, but due
to the objections raised by Dr.Sana, the said vacant seat had been withheld
thus depriving him of his right to admission in the MD Unani course.
12. The aforesaid writ petition was tagged with WP(C) No.5569/2011
and vide order dated 24.10.2011, it was agreed by all the parties that as the
issue involved in both the petitions was identical, pleadings in WP(C)
No.5569/2011 would be considered for the purposes of deciding both the
writ petitions. As a result, a counter affidavit was filed by respondent
No.1/Delhi University in WP(C) No.5569/2011, wherein it was stated that
Dr.Sana had been placed at rank No.4 in the OBC category and at rank No.7
in the common merit list and he had claimed that the M.D. (Unani) seat in
Moalejat be offered to him under the OBC category. As per the 13 point
roster system for the academic year 2010-11, one MD seat in the Moalejat
course was reserved for the OBC category. However, on 19.7.2011,
Dr.Sana had submitted a representation to the respondents that since his
father was working as a Lecturer in A & U Tibbia College, he may not be
falling under the OBC category as he belonged to the creamy layer. He
further stated that to avoid any dispute/risk in future, he did not want to
take any benefit under the OBC category. The aforesaid representation of
Dr.Sana was placed before the Joint Admission Committee of A & U Tibbia
College in its meeting held on 25.7.2011. The Committee examined the
documents submitted by Dr.Sana and was of the opinion that a clarification
would be needed from the Government of India. However, in the meantime,
the present petition came to be filed by Dr.Sana.
13. During the pendency of the present petitions, counsel for
Dr.Sana had stated on 24.10.2011 that in view of the letter dated 22.7.2011
addressed by Dr.Sana to the Dean of respondent No.2/Faculty of Ayurvedic
& Unani Medicines, wherein it was submitted that he did not want to take
any benefit under the OBC category, he would confine his arguments by
laying a claim to the one vacant seat available in the MD Unani course, on
the ground that having attained Rank No.7 in the overall merit list, Dr. Sana
was entitled for being accommodated to that seat for the reason that the
said vacant seat ought to have been treated as an unreserved seat. As a
result of the aforesaid statement made by learned counsel for Dr.Sana, the
entire controversy with regard to Dr.Sana's earlier claim that he may or may
not be falling in the creamy layer in the OBC category was laid to rest, thus
leaving only one issue for consideration, which was whether the 13 point
roster system had been applied correctly by the respondent No.1/Delhi
University for the purposes of filling up the eight seats in the MD Unani
course for the academic year 2010-11.
14. Learned counsel appearing for Dr.Sana had submitted that the
allocation of subjects(disciplines) by respondent No.1/Delhi University was
based on an erroneous assumption that two seats for the Moalejat course
released by the government in the previous academic year 2009-10 were to
be counted by applying the carry forward system for the academic year
2009-10 to the academic year 2010-11. It was canvassed that the carry
forward mode of operating the 13 point roster adopted by the respondents
was erroneous and it had adversely affected the rights of Dr.Sana and had it
been applied correctly, he would have been allotted an unreserved seat. He
claimed that the two seats in the unreserved category in the courses of
Manafulaza and Amraz-E-Niswan Wa Qabalat had been wrongly filled up by
OBC candidates and had the 13 point roster been correctly applied, students
in the OBC category would have filled up the said two seats and the
remaining one seat for the unreserved category would have remained
unfilled and would have gone to Dr.Sana. It was urged that restricting the
roster to nine seats for the academic year 2010-11 has resulted in a change
in the sequence of disciplines and thus caused irreparable harm and injury to
Dr.Sana, who had been deprived of a seat.
15. To put it differently, the sum and substance of the argument of
the learned counsel for Dr.Sana was that while applying the 13 point roster
system for the academic year 2010-11, respondent No.1/Delhi University
had erred by taking into consideration eleven seats in the MD Unani course,
which had happened on account of an incorrect application and had the 13
point roster system been applied correctly, the seats ought to have been
allotted in the following manner:
1. Moalejat Out of 2
seats
1st Unreserved
2. Moalejat 2nd Unreserved
3. Amraz-E-Niswan Out of 2
Wa Qabalat Seats
1st Unreserved
4. Amraz-E-Niswan 2nd OBC
Wa Qabalat
5. Ilmul Saidla Out of 3
seats
Ist Unreserved
6. Ilmul Saidla 2nd Unreserved
7. Ilmul Saidla 3rd Schedule caste
8. Munafulaza Out of 2
Seats
1st OBC
9. Munafulaza 2nd Unreserved
16. Per contra, Mr.Rupal, learned counsel for respondent No.1/Delhi
University had submitted that as per the common merit list, candidates at
rank No.1 and 2, namely, Dr.Sarwar Alam and Dr.Danish Chishti respectively
had both opted for the Munafulaza course, as both the seats in the said
course fell under the unreserved category; then Dr.Mohd.Abid at rank No.3
had opted for the Moalejat course in the seat falling under unreserved
category. Thereafter, Dr. Shakeel at rank No.4 had opted for the Ilmul
Saidla course and had been allotted a seat in the OBC category and
Dr.Mohd.Zakir, at rank No.5 had opted for an unreserved seat in the Ilmul
Saidla course. Dr. Shabnam, a candidate who was at rank No.6, had opted
for the Amraz Niswan course and got a seat in the unreserved category thus
leaving one seat vacant in the OBC category which was to be filled up in the
Moalejat course.
17. Learned counsel for respondent No.1/Delhi University had
further submitted that if the 13 point roster system is operated
independently for each year as urged by the learned counsel for Dr.Sana, it
would create an imbalance in the entire quota system for the reason that
under the 13 point roster system, the first three seats fall in the unreserved
category and if the 13 point roster system is applied by the University,
without taking into consideration the admissions granted in the previous
academic year, the candidates in the unreserved category would stand to
gain each year, thus resulting in frustrating the right of the other candidates
in the OBC/SC/ST category. He emphasized that the 13 point roster system
was required to be operated in such a manner that one entire cycle had to
exhaust itself and only thereafter, could the second cycle commence. To
fortify his submission that the 13 point roster system is to be implemented
as a running account from year to year, reliance was placed by learned
counsel for the respondents on a decision of the Supreme Court in the case
of R.K.Sabharwal and Ors. Vs. State of Punjab and Ors. reported as (1995)
2 SCC 745.
18. Mr.Bansal, learned counsel for Dr.Adnan supported the
submissions made by Mr. Rupal and reiterated that the 13 point roster
system is a running account from year to year and must be maintained on
the same lines. To substantiate the aforesaid argument, he relied upon the
contents of an Office Memorandum dated 2.7.1997 issued by the Ministry of
Personnel, Public Grievances and Pensions, Department of Personnel &
Training, Government of India on the subject of `Post based reservation
policy'.
19. Having regard to the aforesaid facts and circumstances of the
case as noted hereinabove, it is clear that none of the parties herein have
disputed the fact that reservation was required to be implemented for filling
up the seats in the MD Unani course. As per the Bulletin of Information for
Mahir-E-Tib (MD Unani) course 2010-11, reservation of seats were to be
implemented for OBC/SC/ST upon applying the 13 point roster system. The
undisputed list of candidates, who have been admitted in the MD(Unani)
course 2010-11, is as below:
Rank Candidate Category Category Subject
applied Opted
1. Sarwar Alam OBC UR Munaful Aza
2. Danish Gen UR Munaful Aza
Chishti
3. Mohd.Abid Gen UR Munaful Aza
4. Shakeel OBC OBC Ilmul Saidla
5. Mohd.Zakir Gen UR Ilmul Saidla
6. Shabnam OBC UR Amraz Niswan
7. Tenzen ST SC Ilmul Saidla
Wangchuk
Both, Dr. Sana and Dr. Adnan are contenders for the eighth seat lying
vacant under the orders of this Court.
20. There is no dispute about the fact that till the academic year
2008-09, the 13 point roster system had not been implemented for the MD
(Unani) course and that the same came to be implemented for the first time
in the academic year 2009-10. The 13 point roster system is to be operated
in the following manner for allocation of seats:-
(1) 1st seat - UR (6) 6th seat - UR (11) 11th seat - OBC
(2) 2nd seat - UR (7) 7th seat - SC (12) 12th seat - UR
(3) 3rd seat - UR (8) 8th seat - OBC (13) 13th seat - ST
(4) 4th seat - OBC (9) 9th seat - UR
(5) 5th seat - UR (10) 10th seat - UR
21. In the year 2009-10, the Government of India had released only
two seats and that too in respect of a specific discipline, out of four courses
namely, Moalejat course. Upon operation of the 13 point roster system as
indicated above, the aforesaid two seats in the Moalejat discipline were
adjusted by the respondents against the first two unreserved seats in the
roster point. In the next academic year 2010-11, the Government of India
had released a total of nine seats in all four disciplines in the Mahir-E-
Tib(MD) Unani course. The bifurcation of the seats in the four disciplines
was done in the following manner:-
2010-2011 Courses
1 UR
Molejat
2 OBC
3 UR Amraz-e-Niswan Wa Qubalat
4 UR
5 SC Ilmul Saidla
6 OBC
7 UR
Munaful Aza
8 UR
22. In the academic year 2010-11, when the Government of India
released nine seats in all the four disciplines, the 13 point roster system was
applied from the 3rd roster point. As a result, in the academic year 2010-11,
when two seats were made available in the Moalejat discipline, one seat in
the Amraz-E-Niswan Wa Qabalat discipline, three seats in the Ilmul Saidla
discipline and two seats in the Munafulaza discipline, the same were required
to be filled up by applying the 13 point roster system and by starting the
allocation of the seats from the 3rd roster point, which fell in the unreserved
category. This was followed by assigning one seat in the OBC category and
two seats in the unreserved category and again followed by assigning one
seat in the SC category, then one seat in the OBC category and the last two
seats in the unreserved category. As per the prescribed mode of allocation
of seats in the 13 point roster system and keeping in mind the options that
were given by the candidates for the different disciplines as were available to
them at the time of counselling, the picture that would emerge for allocation
of the eight available seats, is as below:-
Rank Candidate Applied Opted Subjects available to Subject Remarks
Category Categ choose as per their opted
ory rank & category
1 Sarwar-E- OBC UR Molejat (UR) Munaful Only 7th point of roster
Alam Molejat (OBC) Aza (UR) marked as SC category in
Amraz Niswan (UR) Ilmul Saidla was not available
Ilmul Saidla (UR) to him as he was an OBC
Ilmul Saidla (OBC) candidate.
Munaful Aza (UR)
Munaful Aza (UR)
2 Danish Gen UR Molejat (UR) Munaful Only UR category was
Kamal Amraz Niswan (UR) Aza (UR) available to him as he was a
Chishti Ilmul Saidla (UR) Gen candidate
Munaful Aza (UR) +
One UR seat in the Manaful
Aza course utilized by Rank 1.
3 Mohd. Gen UR Molejat (UR) Molejat Only UR seat available to him
Abid Amraz Niswan (UR) (UR) as he was a Gen candidate
Ilmul Saidla (UR) +
Two UR seats in the Manaful
Aza Course utilized by Rank 1
& 2.
4 Shakeel OBC OBC Molejat (OBC) Ilmul Two Manaful Aza (UR) & one
Amraz Niswan (UR) Saidla Molejat (UR) utilized by Rank
Ilmul Saidla (OBC) (OBC) 1,2 & 3.
5 Mohd. Gen UR Amraz Niswan (UR) Ilmul Only one UR seat was
Zakir Ilmul Saidla (UR) Saidla available to him as he was a
(UR) Gen candidate
+
Two UR seats in Manaful Aza
& one UR seat in Molejat
utilized by Rank 1, 2 & 3.
6 Shabnam OBC UR Molejat (OBC) Amraz Two Manaful Aza (UR) and
Amraz Niswan (UR) Niswan one Molejat (UR) & two Ilmul
(UR) Saidla (UR & OBC) utilized by
Rank 1, 2, 3, 4 and 5.
7 Sana-Ur- Gen UR NIL Disputed All UR categories utilized
Rehman by higher rankers. No seat
available in Gen category.
8 Adnan OBC OBC Molejat (OBC) Disputed Only one Molejat (OBC)
Mastan seat remaining vacant
9 Tenzen ST SC Ilmul Saidla (SC) Ilmul Being the only SC/ST
Wang Saidla candidate amongst all the
Chuk (SC) candidates who had applied
for the course, the SC seat
went to him.
23. The submission made by learned counsel for Dr.Sana that the
roster point system had been wrongly implemented by the respondent
No.1/Delhi University and that it ought to have been operated in the
academic year 2010-11 independently of the preceding year, is without any
basis. Rather, the aforesaid argument runs contrary to the decision of the
Supreme Court in the case of R.K.Sabharwal(supra), wherein it was held as
below:
"4. 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 reserve 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 citizen which, in the opinion of the State is
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. As mentioned above the roster
point which is reserved for a backward class has to be
filled by way of appointment/promotion of the member
of the said class. No general category candidate can be
appointed against a slot in the roster which is reserved
for the backward class. The fact that considerable
number of members of a backward class have been
appointed/promoted against general seats in the State
Services may be a relevant factor for the State
Government to review the question of continuing
reservation for the said class but so long as the
instructions/ Rules providing certain percentage of
reservations for the backward classes are operative the
same have to be followed. Despite any number of
appointment/promotees belonging to the backward classes
against the general category posts the given percentage has
to be provided in addition. We, therefore, see no force in the
first contention raised by the learned counsel and reject the
same.
5. We see considerable force in the second contention raised
by the learned counsel for the petitioners. The reservations
provided under the impugned Government instructions
are to be operated in accordance with the roster to be
maintained in each Department. The roster is
implemented in the form of running account from year
to year. The purpose of "running account" is to make
sure that the Scheduled Castes/Schedule Tribes and
Backward Classes get their percentage of reserved
posts. The concept of "running account" in the impugned
instructions has to be so interpreted that it does not result in
excessive reservation. "16% of the posts......are reserved for
members of the Scheduled Caste and Backward Classes. In a
lot of100 posts those falling at serial numbers 1,7, 15, 22, 30,
37, 44, 51, 58, 65, 72, 80, 87 and 91 have been reserved
and earmarked in the roster for-the Scheduled Castes. Roster
points 26 and 76 are reserved for the members of Backward
Classes. It is thus obvious that when recruitment to a cadre
starts then 14 posts earmarked in the roster are to be filled
from amongst the members of the Scheduled Caste. To
illustrate, first post in a cadre must go to the Scheduled Caste
and thereafter the said class is entitled to 7th, 15th, 22nd and
onwards upto 91st post. When the total number of posts in a
cadre are filled by the operation of the roster then the result
envisaged by the impugned instructions is achieved. In other
words, in a cadre of 100 posts when the posts earmarked in
the roster for the Scheduled Castes and the Backward Classes
are filled the percentage of reservation provided for the
reserved categories is achieved. We see no justification to
operate the roster thereafter. The "running account" is to
operate only till the quota provided under the
impugned instructions is reached and not thereafter.
Once the prescribed percentage of posts is filled the
numerical test of adequacy is satisfied and thereafter
the roster does not survive. The percentage of reservation
is the desired representation of the Backward Classes in the
State services and is consistent with the demographic
estimate based on the proportion worked out in relation to
their populations. The numerical quota of posts is not shifting
boundary but represents a figure with due application of
mind. Therefore, the only way to assure equality of
opportunity to the Backward Classes and the general
category is to permit the roster to operate till the time
the respective appointees/ promotees occupy the posts
meant for them in the roster. The operation of the
roster and the "running account" must come to an end
thereafter. The vacancies arising in the cadre, after the
initial posts arc filled, will pose no difficulty. As and when
there is a vacancy whether permanent or temporary in a
particular post the same has to be filled from amongst the
category to which the post belonged in the roster. For
example the Scheduled Caste persons holding the posts at
Roster - points 1, 7, 15 retire then these slots are to be filled
from amongst the persons belonging to the Scheduled Castes.
Similarly, if the persons holding the post at points 8 to 14 or
23 to 29 retire then these slots are to be filled from among
the general category By following this procedure them shall
neither be short-fall nor excess in the percentage of
reservation." (emphasis added)
24. The submission made by learned counsel for Dr.Sana that the
percentage of reservation had to be worked out by counting the number of
seats which are available in a particular academic year in relation to the
course in question, and the total seats available in a particular course are to
be allocated by applying the 13 point roster system on an annual basis
without considering the allocations made in the previous year, is legally
flawed as it would result in depleting the extent of reservation required to be
made each year and thus defeat the very objective to be achieved under
Article 16(4) of the Constitution of India. The argument canvassed by the
learned counsel for Dr. Sana that for filling up the seats in the MD Unani
course, the 13 point roster is to be operated by considering each year
independently of the previous year and by taking into consideration only
such number of seats that are made available by the Government of India
for the said year, if taken to its logical conclusion, cannot withstand closer
scrutiny as it would result in negating the very purpose of making
reservation. This is for the reason that under the 13 point roster system,
the first three seats in the roster point have been earmarked for allocation
under the unreserved category and if the roster system is permitted to
operate independently in each year without taking stalk of the number of
seats assigned under different categories in the previous years, the outcome
would inevitably create an imbalance as the candidates in the OBC/SC/ST
category for whom reservation is required to be made, would stand to lose
the first three seats of the 13 point roster system on an annual basis and
their turn would come only thereafter from roster point No.4 and that too, if
at all any seats are left after making the allocations. Take for example the
academic year 2011-12, wherein the Government is stated to have released
only three seats in the Ilmul Saidla course. If the formula of Dr.Sana's
counsel is applied, then all the three seats would end up in the kitty of the
unreserved category, leaving the remaining candidates in OBC/SC/ST
categories high and dry. This would result in causing an undue hardship to
the candidates in the reserved category and bestow an undue favour upon
the candidates in the unreserved category.
25. It is pertinent to note that the carry forward rule was also
discussed by the Supreme Court in the case of Akhil Bharatiya Soshit
Karamchari Sangh(Railway) represented by its Assistant General Secretary
on behalf of the Association vs. Union of India and others reported as AIR
1981 SC 298, wherein, reference was made to the judgment in the case of
T.Devadasn Vs. Union of India reported as AIR 1964 SC 179 and it was
observed in the aforesaid case that the Constitution Bench did not strike
down the carry forward rule on the ground that it was inherently vicious or
was bound to lead to vicious results in the future if permitted to operate
without inhibition. Rather, it was observed by the Supreme Court that the
repercussions of the actual working of the rule in practice had to be watched
from year to year. In other words, it was reiterated by the Supreme Court
that the immediate actual practical result of the reservation rule would
depend upon the relevant prevailing circumstances in each case.
26. The provision of reservations is aimed at ensuring a level playing
field for all and the 13 point roster system is built around the objective of
achieving adequate representation to the OBC/SC/ST classes. At the same
time, the roster point system cannot be operated in such a manner so as to
cause an imbalance by applying the reservation rule in a lopsided fashion
that may result in excessive reservation. If the 13 point roster system is
implemented in the manner as sought to be urged by learned counsel for
Dr.Sana, as demonstrated above, the consequence thereof would be a
complete imbalance in allocation of seats as, in every year, the first three
seats made available in the MD Unani course would have to go to candidates
belonging to the unreserved category and only after exhausting the said
seats, would come the turn of the OBC candidate placed at roster point No.4.
The ripple effect of this would be an automatic monopoly by the unreserved
category on the first three roster points each year thus marginalizing the
chances of those in the OBC/SC/ST categories, who would end up being
inadequately represented on the wrong application of the 13 point roster
system.
27. In the present case, the purpose of operating the 13 point roster
system by maintaining a running account on a year to year basis is to
ensure that the percentage of seats reserved for SC/ST and backward
classes actually gets translated into reality by making such allocations. It
may be emphasized that the seats falling under OBC/SC/ST category are to
be filled up from amongst the members of the reserved category alone and
candidates belonging to the general category cannot be considered for the
reserved seats, nor can they be permitted to jump the queue by insisting
that the 13 point roster system be operated independently each year so that
the first three seats in every academic year get automatically allocated to
candidates falling in the unreserved category.
28. In view of the aforesaid facts and circumstances, the Court
upholds the stand of the respondents that the 13 point roster system ought
to be maintained as a running account and be operated on a year to year
basis and if in the academic year 2009-10, the seat allocation had stopped
at roster point No. 2 of the cycle, the seats to be allocated to candidates in
the next academic year 2010-11 were to be counted from roster point No.3
and continue being allocated thereafter till all the available seats got
exhausted and further, the cycle would continue in the next academic year
till it would get completed.
29. The aforesaid view is also fortified by the note in the minutes of
the meeting dated 11.05.2011 held by the Joint Admission Committee of
respondent No.2/Faculty, wherein it was clarified that the 13 point roster
system was implemented w.e.f. the year 2009-10 to identify reserved points
in MD Molejat seats and as a result, the replacement points fell at points
No.3 and 4 for the academic year 2010-11. Further, the Committee had
clarified that the replacement of seats would be finalized on a year-wise
basis and it would be ensured that the specialty of the discipline should
rotate on a year-wise basis so that none of the specialty is reserved for a
particular category repeatedly.
30. It may further be relevant to note that even if the Court accepts
the argument of learned counsel for Dr.Sana that the 13 point roster system
cannot be operated as a running account and ought to be operated by the
respondents on an annual basis, independent of the previous year, his client
would not stand to gain for the reason that in such an eventuality, the seats
assigned under the first three roster points, which fall under the unreserved
category, would be filled up with one seat from Molejat, one seat from
Amraz Niswan and one seat from Ilmul Saidla. The fourth roster point that
falls under the OBC category would go to the discipline of Molejat. The fifth
and sixth unreserved seats would go to Munaful Aza. The seventh SC seat
and the eighth OBC seat would go to Ilmul Saidla. Keeping in mind the
ranks of the candidates, Dr. Sana, who was at rank No.7 in the common
merit list, would have still been left without any seat in the unreserved
category as by the time his turn would have come during the course of
counselling, all the five seats in the unreserved category would have been
filled up by the candidates from the unreserved category, who were senior to
him in rank. Thus, either ways, Dr.Sana cannot claim entitlement to the one
vacant seat in the MD Unani course in the academic year 2010-11.
31. As a result of the aforesaid discussion, the claim of the
petitioner, Dr.Sana in WP(C) No.5569/2011 fails and the said petition is
hereby dismissed, while the claim of the petitioner, Dr.Adnan in WP(C)
No.6554/2011 succeeds. It is therefore held that Dr.Adnan would be
entitled to the one OBC seat lying vacant, in terms of the order dated 17th
August, 2011 passed in WP(C) No.5569/2011 and the respondents shall
admit him in the discipline of Molejat in the MD Unani Course, Delhi
University. The only factor, which is relevant for consideration is that after
the closure of the admissions on 31.10.2011, the academic session 2010-11
had commenced on 01.11.2011 and by now, about four months of the
aforesaid academic year have already passed. It is, therefore, deemed
appropriate to let the respondent/University decide as to whether Dr. Adnan
can possibly be given admission in the MD Unani course for the academic
session 2010-11 by giving him extra coaching for him to catch up with the
rest of the class. If the respondents are of the opinion that Dr. Adnan
cannot be accommodated in the academic session 2010-11, for certain
practical reasons, then he shall be accommodated in the Molejat discipline in
the MD Unani course in the next academic session 2011-12. The
respondent/University shall weigh the pros and cons and take a decision
either ways and communicate the same to Dr. Adnan within a period of one
week from today, so that he can join his classes accordingly.
The petitions are disposed of, while leaving the parties to bear
their own costs.
(HIMA KOHLI)
MARCH 16, 2012 JUDGE
mk/rkb/sk
