Parth Swami S/O Sh. Pramod Swami vs State Of Rajasthan
2021 Latest Caselaw 242 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 14057/2020

Parth Swami S/o Sh. Pramod Swami, Aged About 20 Years,
Resident Of D-34, Agrasen Nagar, Near Churu Collectorate,
Churu (Rajasthan).
                                                                    ----Petitioner
                                   Versus
1.     State Of Rajasthan, Through The Secretary- Mdecial
       Education,    Department           Of    Medical         Education,   Govt.
       Secretariat Building, C- Scheme, Jaipur.
2.     Office Of The Chairman, Neet Ug Medical And Dental
       Admission/counselling             Board-2020              And     Principal,
       Government Dental College (Ruhs College Of Dental
       Sciences) Through Its Chairman Having Office At Subhash
       Nagar, Behind T.b. Hospital, Jaipur.
3.     National     Testing        Agency          Through         Its    Director
       (Administration), Having Registered Office At Block C-
       20/1A/8, Sector-62, Gautam Budh Nagar, Noida-201309
       (U.p.).
4.     Medical Council Of India, Through Board Of Governor, Mci
       Building Pocket-14, Sector-8, Dwarka Phase-I, New Delhi-
       110077.
                                                                 ----Respondents

For Petitioner(s) : Mr.Sandeep Singh Shekhawat For Respondent(s) : Mr.MS Raghav - for respondent NTA Mr.Angad Mirdha - for respondent MCI (through video conferencing) Mr.Harshal Tholia for Dr.VB Sharma, AAG - for respondent State

HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

Order

13/01/2021

The present writ petition has been filed by the petitioner for

considering his case under OBC Category for the purpose of

(2 of 9) [CW-14057/2020]

admission in Under Graduate Medical Course, conducted by NEET

UG - 2020.

The case set-up by the petitioner is that after passing Senior

Secondary School Examination from CBSE in the year 2018, he

applied for participating in National Eligibility-cum-Entrance Test

(NEET) UG - 2020 for admission in Under Graduate Medical

Courses and online application forms were to be submitted from

02nd December, 2019 to 31st December, 2019.

The petitioner has pleaded that he filled the application form

in due time and before the examination was conducted, the

admission cards were also issued to the candidates, including the

petitioner, on 01st September, 2020 and the examination was fixed

on 13th September, 2020.

The petitioner has pleaded that after participating

successfully in the examination, his result was declared and he

was shown as securing NEET All India Rank of 888404.

The petitioner has pleaded that he was shocked and

surprised that his category was indicated in the score card as

Unreserved Category, i.e., UR, which brings him under general

category.

The petitioner has pleaded that he belongs to Swami

Community, which is covered under the Backward Community due

to which, the petitioner is entitled to be treated as an OBC

candidate.

The petitioner has placed on record the caste certificate,

issued by the State Government as well as Central Government,

showing his caste of Swami falling in Backward Classes.

The petitioner has pleaded that due to inadvertent mistake,

committed while filling the form, he has been considered under

(3 of 9) [CW-14057/2020]

the General Category and as such, mandamus is sought from this

Court to consider his category as reserved for the purpose of

allotment of seat to admission in Under Graduate Courses.

Learned counsel for the petitioner, while making

submissions, submitted that an inadvertent error, which was

committed by the petitioner while filling the examination form,

should not result into depriving him from considering his case as

OBC category.

Learned counsel submitted that fact of the petitioner

belonging to Swami Community is not disputed by any of the

respondents and yet he has been treated as candidate of

Unreserved Category.

Learned counsel submitted that the Division Bench of this

Court in DB Civil Special Appeal (Writ) No.1700/2017

(Kavita Choudhary Vs. The Registrar (Examination) & Anr.,

decided vide order dated 1st November, 2017 considered similar

controversy and held that if there is an inadvertent error, not

resulting into infringement of third party right, such error should

be allowed to be rectified/corrected and category of the candidate

is required to be changed.

Learned counsel also submitted that the Coordinate Bench of

this Court in SB Civil Writ Petition No.4695/2018 (Harish

Patidar Vs. State & Ors.), decided vide order dated 19th April,

2018, has also considered the Division Bench's judgment passed

in the case of Kavita Choudhary (supra) and has again permitted

change of category of a candidate, if inadvertent error is

committed by such candidate.

(4 of 9) [CW-14057/2020]

Learned counsel Mr.MS Raghav, appearing for the respondent

- National Testing Agency, submitted that the prayer, sought by

the petitioner, may not be granted by this Court.

Learned counsel submitted that Revised Schedule was issued

in respect of conducting NEET (UG) 2020 and correction facility

was afforded to all the aspiring candidates in their online

application form, including category change and as such, he refers

to different Public Notices issued on 03 rd December, 2019, 13th

March, 2020, 01st April, 2020, 14th April, 2020, 15th May, 2020,

04th July, 2020, 15th July, 2020 and 23rd September, 2020.

Learned counsel submitted that having afforded various

opportunities to such candidates for necessary corrections, if

candidate did not avail such, the same may not be granted by this

Court.

Learned counsel further submitted that if the petitioner had

filled wrong category while submitting the application form, he

ought to have immediately taken steps and the petitioner having

got his result declared, showing him to be in Unreserved Category

Candidate, cannot be permitted to change his category from

Unreserved to OBC Category.

Learned counsel further submitted that the persons, who are

eligible in OBC Category, have been given admission and if such

kind of change is permitted, right of the other candidates, who

have already been given admission in OBC Category, will be

affected and as such, this Court may not entertain claim of the

petitioner.

Learned counsel Mr.MS Raghav also places reliance on the

judgment passed by Madras High Court on 13 th November, 2020 in

the case of Minor S.Sivakumar Vs. Secretary to Government

(5 of 9) [CW-14057/2020]

& Ors. (WP No.16679/2020) along with other connected writ

petitions.

On the strength of said judgment, learned counsel submitted

that Madras High Court has taken into account the various

opportunities, which have been afforded to the candidates for

correction in NEET (UG) 2020 and the Court has found that no

relief can be granted for the mistake committed by the candidate.

Learned counsel for the petitioner - Mr.Sandeep Singh

Shekhawat submitted that the order passed by Madras High Court

was put to challenge before Division Bench of Madras High Court

and Madras High Court, by an order dated 15 th December, 2020,

has passed an interim order permitting the candidates to be

considered from Unreserved to OBC subject to outcome of the

petition.

Learned counsel for the respondent State Mr.Harshal Tholia,

appearing on behalf of Dr.VB Sharma, AAG, had informed this

Court on earlier occasion that the respondent State - Counselling

Board has already conducted second round of counselling and

after second round of counselling, Mop-up round has also been

conducted on 3rd January, 2021.

Learned counsel further submitted that the petitioner is

otherwise not eligible even for OBC Category, as cut-off, which has

been declared for OBC Candidates, is 40 th percentile and the

petitioner has secured 34.6898383 percentile.

Learned counsel submitted that once cut-off for OBC

candidate is 40th percentile with cut-off marks 146.113 and the

petitioner, having secured only 98 marks, he cannot be even

considered to be eligible in OBC category.

(6 of 9) [CW-14057/2020]

Learned counsel further submitted that eligibility of the

petitioner to treat him as OBC candidate, solely lies with the

National Testing Agency and as such, no relief can be granted by

the State Government for considering the petitioner eligible.

This Court, on earlier occasion had directed learned counsel

for the State Government to verify the fact of conducting second

round of counselling and further, what procedure is adopted in

Mop-up round or the seats, which are left vacant after Mop-up

round and in what manner, these seats are filled.

Learned counsel Mr.Harshal Tholia has filed reply to the writ

petition and submitted that the candidates, who are allotted seats

in second round of counselling and if they do not join the same,

such seats are brought forwarded to the Mop-up round in the

same category, from which, these candidates belonged to.

Learned counsel further refers to reply and submitted that

vacant seats in second round of counselling, after calling all the

eligible candidates, are forwarded to the Mop-up round in

Unreserved category.

Learned counsel further submitted that after Mop-up round,

the seats, which are vacant, are sent to the respective colleges

and these seats are treated as Unreserved and the colleges, at

their own level, fill these seats, as per merit.

Learned counsel for the respondent-State, on instructions,

further submitted that list of such available seats/unreserved

seats will be sent by the State Authorities to the different colleges

to be filled by them at their own level by keeping in mind the

merit, which is allotted to the candidates.

Learned counsel has taken specific stand that no further

reservation is provided category-wise for leftover seats and as

(7 of 9) [CW-14057/2020]

such, the relief, claimed by the petitioner, may not be possible in

the facts of the present case.

I have considered the submissions made by learned counsel

for the parties and scanned the matter carefully.

This Court finds that cut-off marks for OBC Category in NEET

(UG) - 2020 has been fixed at 40 th percentile as cut-off percentile

and further, cut-off score is 146.113 and the petitioner has

secured 98 marks with 34.6898383 percentile and as such, the

petitioner is not eligible, as per the result declared by the

respondents.

This Court further finds that the Authorities concerned have

not lowered down the percentile or cut-off marks for OBC category

and as such, the petitioner cannot be treated as eligible even to

participate as an OBC candidate.

Learned counsel for the petitioner Mr.Sandeep Singh

Shekhawat submitted that the Authorities are to decide whether

these OBC seats are to be filled by lowering down percentile or

cut-off marks and if the same is done, the petitioner can have

chance to participate as an OBC candidate, this Court is afraid to

accept the submission made by learned counsel for the petitioner

as on today, the required percentile to be an OBC candidate is 40 th

with 146.113 cut-off score and as such, the petitioner is not

eligible to get the same.

Learned counsel for the petitioner submitted that the seats,

which are left after Mop-up round, are required to be allotted

category-wise and as such, the petitioner, belonging to OBC

category, needs to be considered against such vacancies.

I have seen the affidavit and reply filed on behalf of the

respondent State and heard learned counsel Mr.Harshal Tholia,

(8 of 9) [CW-14057/2020]

who has taken specific stand that after Mop-up round, the seats

are treated as unreserved and sent to respective colleges and

such vacant seats are filled as per merit. There is no occasion for

this Court to disbelieve the statement, which has been given by

learned counsel for the respondent-State before this Court.

Accordingly, this Court finds that if now there is no occasion

for any Authority to treat the seats as reserved, the direction to

treat the petitioner eligible in OBC category will not be justified by

any stretch of imagination.

The submission of learned counsel for the petitioner that

Madras High Court has passed an interim order and as such, this

Court may be persuaded to pass the same order, I have gone

through the order passed by the Division Bench of Madras High

Court and the Division Bench, while passing the order, has

specifically recorded statement given from the side of the

respondents that third party right will not be affected, if the order

is passed and further, the Division Bench has also mentioned that

the findings, which are recorded by the Single Bench, have not

been stayed or disturbed.

This Court is afraid to accept the submission of learned

counsel for the petitioner that this Court may also pass the order

in view of the order passed by the Division Bench of Madras High

Court as an interim order.

Learned counsel for the petitioner submitted that reply filed

by the respondents shows that category-wise tentative seat matrix

has been prepared after Mop-up round and seat matrix shows that

vacant seats are earmarked for each category, including reserved

seats.

(9 of 9) [CW-14057/2020]

Learned counsel for the petitioner, on the strength of such

availability of seat in reserved category, submitted that the State

Government is required to follow the same allotment system

against reserved seats even after Mop-up around.

This Court finds that if the State Government has taken a

stand that there will be no reservation after Mop-up round, this

Court cannot pass any order against such stand taken by the

State Government.

This Court does not find any force in the writ petition, hence,

it is dismissed.

(ASHOK KUMAR GAUR),J

Preeti Asopa /Sakshi/59

Powered by TCPDF (www.tcpdf.org)