Parvathy S vs The Union Of India
2022 Latest Caselaw 7146 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                 THE HONOURABLE MR.JUSTICE V.G.ARUN
     THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
                         WP(C) NO. 19815 OF 2022
PETITIONER/S:

             PARVATHY S.
             AGED 25 YEARS, D/O V. SASIDHARAN PILLAI, AGED 25,
             "SREESIVAM" MOONNALAM, ADOOR P.O.,
             PATHANAMTHITTA DISTRICT-691 523.
             BY ADVS.
             V.N.SANKARJEE
             R.UDAYA JYOTHI
             KEERTHI B. CHANDRAN
             M.SUSEELA
             VIJAYAN PILLAI P.K.
             V.N.MADHUSUDANAN
             M.M.VINOD
             C.PURUSHOTHAMAN NAIR
             NITHEESH.M

RESPONDENT/S:

     1       THE UNION OF INDIA
             REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY
             OF HEALTH AND FAMILY WELFARE, GOVERNMENT OF INDIA,
             NIRMAN BHAVAN, NEW DELHI-110 011.
     2       THE DIRECTOR,
             NATIONAL BOARD OF EXAMINATIONS IN MEDICAL SCIENCES,
             MAHATMA GANDHI MARG (RING ROAD), ANZARI NAGAR, NEW
             DELHI-110 029.
     3       THE JOINT DIRECTOR,
             NATIONAL BOARD OF EXAMINATIONS IN MEDICAL SCIENCES,
             MAHATMA GANDHI MARG(RING ROAD), ANZARI NAGAR, NEW
             DELHI-110 029.
     4       THE TAHSILDAR, TALUK OFFICE, ADOOR, PATHANAMTHITTA
             DISTRICT-691 523.
     5       THE VILLAGE OFFICER, VILLAGE OFFICE, ADOOR,
             PATHANAMTHITTA DISTRICT-691 523.

OTHER PRESENT:

             ASGI S.MANU; SC T.SANJAY; GP AMMINIKUTTY K


         THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   23.06.2022,   THE    COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 W.P.(C) No.19815 of 2022

                                   -2-



                                JUDGMENT

Dated this the 23rd day of June, 2022

The petitioner had submitted an application

for NEET-PG, 2022 under the Economically Weaker

Section (EWS) category. Candidates applying

under EWS category have to produce an Income and

Asset Certificate in the prescribed form, issued

by the competent authority/Tahasildar.

Accordingly, the petitioner submitted an

application for Income and Asset Certificate

before the 4th respondent. However, the 4th

respondent refused to issue the certificate on

the premise that her family owns a residential

flat having plinth area of more than 1000 sq.ft.

Immediately thereupon the petitioner attempted to

edit her online application so as to change the

category from EWS to General. As the system did

not permit the correction, petitioner sent online

request to the NBEMS, requesting to correct the W.P.(C) No.19815 of 2022

mistake. In its reply, the NBEMS directed the

petitioner to carry out the correction when the

edit windows are opened for the purpose. On

enquiry, petitioner came to know that the edit

windows were kept open from 29.03.2022 to

07.04.2022, which period was already over. The

petitioner appeared for the exam conducted on

21.05.2022 and secured rank No.1159. Based on

her rank, petitioner is eligible to obtain

admission for Medical PG Course in General

category. The petitioner apprehends that as she

had applied under the EWS category, she will not

be permitted to participate in the counseling, as

a candidate belonging to the General category.

Hence, the writ petition seeking the following

reliefs;

"(a) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the 2nd and the 3rd respondents to change the petitioner's category as General W.P.(C) No.19815 of 2022

Category in the NEET-PG 2022 before the commencement of the first allotment process;

(b) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the 2nd and the 3rd respondent for providing allotment and admission to the petitioner in the NEET-PG 2022 Examination in the General Category at the first allotment itself;"

2. Dr.V.N.Sankarjee, learned Counsel for

the petitioner submitted that the petitioner had

submitted application as a candidate belonging to

the EWS category under the bona fide belief that

the fourth respondent will issue the requisite

certificates. Even though the reason for refusing

to issue the Income and Asset Certificate is

wrong, the petitioner is not challenging the

action of the 4th respondent, since she is

eligible for admission in the General category.

It is contended that merit being the prime

consideration for admission, a mistake in the W.P.(C) No.19815 of 2022

application cannot be taken as a reason to deny

admission based on merit. It is settled law that

if a reserved category candidate secures

sufficient rank for admission/appointment under

the open merit quota, such reserved category

candidate will have to be first adjusted and

considered for appointment in the General

category pool. Applying the same principle, the

petitioner will have to be considered as a

General category candidate on the strength of

her rank, and not as a reserved candidate based

on the entry in her application. In support of

the contention, learned Counsel placed reliance

on the following decisions;

Saurav Yadav and others v. State of Uttar

Pradesh and others [2021(4) SCC 542], Dr.Jagdish

Saran and others v. Union of India and others

[1980 (2) SCC 768], Bharat Sanchar Nigam Limited

and anr. v. Sandeep Choudhary and others [Civil W.P.(C) No.19815 of 2022

Appeal No.8717 of 2015]

3. Adv.T.Sanjay, learned Counsel for the

NBEMS contended that, having applied under the

EWS category, the petitioner cannot turn around

and seek admission under the General category. It

is submitted that candidates were instructed to

ensure that the information entered during online

submission application is correct and factual.

NBEMS does not edit/modify/alter any information

entered by the candidates at the time of online

submission of applications. Attention is drawn

to Clause 8.14 of Ext.P5 information bulletin,

advising the candidates not to complete their

application registration process in a haste so as

to avoid errors in the information provided.

Further, under Clause 8.21, all editable fields

in the application form shall be open for the

candidates to make corrections if so required.

The edit window was accordingly kept open from W.P.(C) No.19815 of 2022

29.03.2022 to 07.04.2022 for carrying out the

corrections. Clause 8.24 makes it clear that no

editing in the information provided shall be

permissible after edit window is closed. It is

contended that, having failed to avail the

opportunity of changing her category when the

edit window was kept open, the petitioner cannot

seek a mandamus directing the NBEMS to carry out

the category change. It is pointed out that about

one lakh eighty thousand candidates had

participated in the single window entrance

examination conducted by the NBEMS and the

admission process being completely system based,

any intervention will have a debilitating as well

as cascading effect. Finally, it is contended

that the petitioner having wrongly claimed EWS

status, her application was liable to be

summarily rejected as provided under Clause 2.11

of Ext.P5.

4. There is a clear admission on the part W.P.(C) No.19815 of 2022

of the petitioner that the 4th respondent refused

to issue an Income and Asset Certificate finding

that the petitioner does not belong to the

Economically Weaker Section. As such, it has to

be held that the petitioner had made a wrong

entry as to her category. Even accepting that

the petitioner will be eligible for admission in

the General category based on her rank, the

question is whether the discretion vested with

this Court under Article 226 is to be exercised

in favour of a person who made a wrong claim for

reservation. The proposition laid down in the

decisions relied on by the learned Counsel for

the petitioner will not come to the aid of a

candidate who had wrongly claimed reservation.

Moreover, the petitioner did not avail the

opportunity to correct the mistake when the edit

windows were kept open for that purpose. Having

failed to do so, the petitioner cannot seek a

direction to the NBEMS to either change the W.P.(C) No.19815 of 2022

category or consider her as a General category

candidate. I also find merit in the submission

of the Counsel for the respondent that

intervention by the Court at this stage will have

a cascading effect on the prospects of the

eligible candidates. It is for the NBEMS to

decide as to whether the petitioner can be

allowed to participate in the counseling process

as a General candidate, in spite of having

entered the category as EWS in her online

application.

The writ petition is dismissed with the above

observations.

Sd/-

V.G.ARUN JUDGE Scl/23.06.22 W.P.(C) No.19815 of 2022

APPENDIX OF WP(C) 19815/2022

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PETITIONER'S NEET-PG 2022 APPLICATION AS UPLOADED.

Exhibit P2 TRUE COPY OF THE ADMIT CARD ISSUED BY THE 3RD RESPONDENT.

Exhibit P3 TRUE COPY OF THE SCORE CARD ISSUED TO THE PETITIONER.

Exhibit P4 TRUE COPY OF THE INCOME CERTIFICATE DATED 2.4.2022 ISSUED BY THE 5TH RESPONDENT.

Exhibit P5 TRUE COPY OF THE NOTIFICATION (RELEVANT PAGES) ISSUED BY THE 2ND RESPONDENT.

Exhibit P6 TRUE COPY OF THE PETITIONER'S EMAIL AND ITS REPLY BY NBEMS HELP DESK FROM 1.5.2022 TO 13.6.2022 MART PAGES RELEVANT PAGES.