Akhila B S vs Director General, Esi ...
2013 Latest Caselaw 4409 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      LPA 709/2013

       AKHILA B S                         ..... Appellant
                           Through        Mr. K. K. Rai, Senior Counsel with
                                          Mr. P.V. Dinesh and Mr. Shantanu,
                                          Advocates
                           versus

       DIRECTOR GENERAL, ESI CORPORATION
       & ORS                   ..... Respondents
                    Through    Ms. Rekha Palli with Ms. Punam
                               Singh, Advocates for R-1 to 3.
                               Mr. Ashish Kumar, Advocate for R-4.

%                                   Date of Decision: 25th September, 2013

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

                               JUDGMENT

MANMOHAN, J: (Oral)

CM APPL. 15223/2013 in LPA 709/2013 Allowed, subject to just exceptions.

LPA 709/2013 & CM APPL. 15222/2013

1. Present Letters Patent Appeal has been filed challenging the judgment and order dated 18th September, 2013 by virtue of which appellant's writ petition seeking admission in MBBS course in ESIC Medical College under ESIC management quota in Rajaji Nagar, Bangalore and K.K. Nagar, Chennai, was dismissed.

2. Learned Single Judge while dismissing the writ petition observed that on the date of hearing no seat was available in either of the two colleges where the petitioner was interested in taking admission.

3. Learned senior counsel for appellant submits that the learned Single Judge committed a legal error in ignoring the judgments of this Court in Tej Pal Yadav Vs. Union of India & Ors., (2010) 174 DLT 510 DB and Jyoti Yadav & Anr. GNCTD & Anr., ILR (2012) III Delhi 499 wherein it was held that a reserved category candidate if eligible under the general merit category could be considered in the general merit category. He points out that the appellant's request dated 11th September, 2013 for adjustment against the general merit category was ignored by the respondents.

4. Learned counsel for appellant contends that the writ petition having been filed on 12th September, 2013 there was no question of respondents surrendering the vacant seats on 13th September, 2013.

5. On the other hand, learned counsel for respondent nos. 1 to 3 has produced the original file to show that the appellant had applied for a medical seat under the OBC category enclosing her OBC certificate. Learned counsel for respondent nos. 1 to 3 has also drawn this Court's attention to the appellant's own handwritten undertaking dated 11th September, 2013 promising to produce her OBC certificate in the prescribed format within seven days.

6. Learned counsel for respondent nos. 1 to 3 also disputes the fact that the appellant had applied for change of her category from OBC to general before or during counselling on 11th September, 2013. In any event, she contends that no seat under general category was available in Bangalore and Chennai Colleges on the date the writ petition was filed.

7. In rejoinder, learned senior counsel for the appellant submits that though

the appellant was an OBC, she was not entitled for admission under the said category as she belonged to the creamy layer.

8. Having heard learned counsel for the parties, this Court is of the view that a reserved category candidate if eligible can certainly be considered for admission in general merit category. But in the present instance, as the appellant had herself applied under the OBC quota, respondents were bound to consider her application in the said category. In fact, a perusal of the merit list reveals that a number of OBC candidates who opted for admission in the general category were granted admission under the general merit category. It is pertinent to mention that a person admitted in the OBC quota is entitled to various other reliefs like fee remission etc.

9. This Court is of the opinion that by the time the appellant realised that she was not eligible for admission in the OBC category, as she belonged to the creamy layer, no seat in general merit category was available in those two colleges as all general management seats had already been allotted in the counselling.

10. Consequently, this Court is in agreement with the view of learned Single Judge that appellant is not entitled to any relief as on the date of consideration of the writ petition, no seat was available under the management quota in Rajaji Nagar, Bangalore and K.K. Nagar, Chennai Medical Colleges. Accordingly, present appeal and application are dismissed.

MANMOHAN, J

CHIEF JUSTICE

SEPTEMBER 25, 2013 rn