Rajasthan High Court - Jodhpur
Bharat Kumar Choudhary vs Union Of India on 15 October, 2019
Equivalent citations: AIRONLINE 2019 RAJ 904, (2020) 1 WLC (RAJ) 222
Author: Dinesh Mehta
Bench: Dinesh Mehta
(1 of 17) [CW-12444/2019] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 12444/2019 Bharat Kumar Choudhary S/o Rama Ram Choudhary, Aged About 20 Years, By Caste Choudhary, R/o Near Post Office Gudamalani, Tehsil Gudamalani, District Barmer.
----Petitioner Versus
1. Union Of India, Through Its Secretary, Ministry Of Human Resource Development, Secretariat, Government Of India, New Delhi.
2. NEET UG Medical And Dental Admission/counselling Board-
2019 And Principal And Controller, SMS Medical College And Attached Hospitals, Jaipur Through Its Chairman.
3. State Of Rajasthan, Through Its Secretary, Department Of Medical And Health Services, Secretariat, Jaipur.
----Respondents
For Petitioner(s) : Mr. Rajesh Choudhary
For Respondent(s) : Mr. Kailash Choudhary for
Mr. Manish Vyas-AAG
JUSTICE DINESH MEHTA
Judgment
Reportable Reserved on :: 03/10/2019
Pronounced on :: 15/10/2019
1. By way of present writ petition, petitioner has challenged action of respondent Counseling Board in not giving him admission in MBBS Course.
2. Petitioner is a differently abled student and belongs to backward class, thus entitled to be considered as a candidate belonging to OBC-PwD category. He was desirous of pursuing MBBS Course, thus vied in the entrance examination known as NEET (UG)-2019 and secured merit position No.12404. (Downloaded on 15/10/2019 at 08:34:10 PM)
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3. The petitioner admittedly did not turn up in the first round of counselling and his name was shown at S.No.19 in the provisional list for OBC-PwD category prepared for the second round of counselling.
4. When final list of selected candidates was published pursuant to second round of counselling, his name was not shown in the list of candidates admitted to MBBS Course.
5. Feeling aggrieved of the fact that he was not given admission, though candidates less meritorious than him, namely, Vikas Singh etc. have been given admission, he has preferred the present petition under Article 226 of the Constitution of India.
6. A reply and an additional affidavit have been filed by respondent, inter-alia, pointing out that the petitioner did not turn up in the first round of counselling, whereas Vikas Singh, though lower in merit, was present in such counselling, but his candidature was however rejected as he was not found eligible/suitable to be given admission as a PwD candidate.
7. Said Vikas Singh filed a Writ Petition (No.11277/2019) wherein interim order was passed requiring one seat of OBC category to be kept reserved.
8. Another writ petition came to be filed by Manohar Lal Swami bearing registration number as S. B. Civil Writ Petition No.11241/2019 in which case also, an interim order was passed directing to keep one seat reserved.
9. The writ petition filed by Vikas Singh was allowed vide order dated 26.08.2019, whereas writ petition filed by Manohar Lal Swami came to be rejected. As a result of the aforesaid, one seat which was kept reserved in first round of counselling was given to Vikas Singh, while other seat, which was kept reserved in view of (Downloaded on 15/10/2019 at 08:34:10 PM) (3 of 17) [CW-12444/2019] the interim order passed in Manohar Lal Swami's case became available, as his writ petition was dismissed on 28.08.2019.
10. Consequently, at the time of second round of counselling, which took place on 30.08.2019, one seat of OBC-PwD became vacant as indicated in the additional affidavit dated 26.09.2019, filed by respondent-State. Thereafter, the mop-up round was organized, in which one seat for OBC-PwD category was available, however, on such date, the petitioner did not turn up. It has been asserted in reply that not only the petitioner, even no candidate from PwD category participated in mop up round and as such the seat earmarked for OBC-PwD category, was allotted to OBC candidate as per his/her merit position in the OBC Category.
11. Learned counsel for the petitioner, Mr. Choudhary, contended that petitioner was higher in merit than Vikas Singh and, was thus entitled for getting admission in OBC-PwD category, but his right has wrongly been denied.
12. The facts narrated above, leaves no room for ambiguity that the petitioner was entitled to be considered as an OBC-PwD category candidate in the mop up round, however, since he did not turn up, the respondents have allotted the seat to a candidate belonging to OBC category. The fact that he did not take part in the mop up round remains uncontroverted, hence, this Court does not find any illegality in the decision of the Counselling Board. Petitioner himself is responsible for his non-inclusion in the list of candidates admitted to MBBS Course.
13. As far as consideration of Vikas Singh's candidature is concerned, this Court does not find any error in this decision too. Regardless of the fact that he was lower in the merit than the petitioner, Vikas Singh did appear in the first round of counseling, (Downloaded on 15/10/2019 at 08:34:10 PM) (4 of 17) [CW-12444/2019] whereas the petitioner did not. One seat was ordered to be kept reserved for him; his writ petition has been allowed; and consequently he has been given admission in the course. Thus legally, he shall be deemed to have been given admission in the first round of counseling itself.
14. Contents of the reply and additional affidavit, filed by respondents remain uncontroverted. The petitioner did not attend the first round of counseling and the mop-up round, as such, there was no occasion for considering his candidature.
15. That apart, since the petitioner has not impleaded the candidate of OBC category, who has been selected allegedly at his place; relief as prayed cannot be granted.
16. However, an important question has emerged during the proceedings of the petition which needs to be examined, i.e. as to whether the respondents were justified in considering two seats given to MBC-PwD candidate in counting the total number of 16 seats, meant for OBC PwD category. In other words, whether the reservation of MBC (PwD) category was required to be treated as separate category or the same was required to be included in reservation meant for OBC (PwD) category, particularly when the booklet issued for NEET, 2019 contained the following clause:
"(iv) 5% seats, after excluding the seats of sub-
clauses (a), (b) above are reserved for those belonging to More Backward Classes NCL (MBC NCL) of the State of Rajasthan and who fulfill other relevant conditions. Not less than 25%, out of the above reserved seats shall be filled from girl candidates belonging to More Backward Classes. Candidate must submit MBC Certificate for Rajasthan State issued by competent authority of Rajasthan (issued on or after 05.06.2018 and clearly indicating 'Non Creamy Layer').
(e) 5% seats out of each category of 16% (SC), 12% (ST), 21% (OBC), 5% (MBC) and remaining General (Downloaded on 15/10/2019 at 08:34:10 PM) (5 of 17) [CW-12444/2019] category shall be further reserved on Merit-cum- Priority in each of Persons with Disabilities Act, 2016 and in accordance with Appendix H-1 of Graduate Medical Education Regulation, 1997 of MCI (Annexure 1). This "Certificate of Disability' issued in accordance with the Rights of Persons with Disabilities Rules, 2017 will only be considered. The UG Admission Board will finally verify the certificate of disability by a Medical Board at the time of physical verification as per MCI norms.
The Candidates who have got themselves examined in the Medical Board constituted for 15% All India Seats through NEET 2019 by the authorized Medical Board, will bring the certificate issued to them on the notified date for physical verification."
17. The above question was not raised in the writ petition, however, subsequent to filing of the writ petition, certain new facts have emerged, for which the petitioner craved leave of the Court to raise the additional question and make submissions in this regard. Considering that neither any factual averments nor any response thereto is required and also because the question raised by the petitioner is a pure and substantial question of law, this Court deemed it expedient to grant such liberty.
18. For the purpose of delving upon the question aforesaid, few facts have to be borne in mind, which are being narrated hereunder.
19. Having failed to appear in the first round of counseling, the petitioner appeared in second round of counseling under OBC-PwD Category, whereafter the respondent-Board issued list of PwD candidates on 18.07.2019. Said list contained names of 62 candidates belonging to PwD Category, which included petitioner's name at S.No.57.
20. Thereafter, the respondent-Board published provisional list of PwD candidates on 24.07.2018, showing the name of 27 (Downloaded on 15/10/2019 at 08:34:10 PM) (6 of 17) [CW-12444/2019] candidates and the petitioner's name found mention at S.No.19 of the list. It is to be noticed that this list of 27 candidates included 24 candidates, whose names were already included in the first list, i.e., the list published after first round of counseling, however names of three more candidates including petitioner were included in the list of PwD Category.
21. It has been the assertion of the petitioner that the petitioner alone was a candidate belonging to OBC-PwD Category, whereas persons mentioned at S.No.3 and 9 hailed from PwD-General Category.
22. During the course of proceedings, pursuant to the direction to file an affidavit showing the details of candidates in PwD Category, who have been given admission in MBBS Course, an additional affidavit dated 26.09.2019 came to be filed by the respondents. A perusal of the said additional affidavit filed by the respondents reveals that 16 candidates have been allotted the seats reserved for OBC-PwD Candidates, out of which two persons placed at S.No.9 and 12, namely Durgalal Gujar and Anita Kumari are from MBC-PwD category (persons with disability from more backward classes).
23. Questioning their inclusion in the list of OBC, learned counsel contended that more backward classes is a category apart and the candidates belonging to MBC Category cannot be considered against the seats reserved for OBC Category Candidates and they should rather be considered in their own category - MBC, for which separate reservation of 4 seats was made. He argued that if these candidates are considered in their own category, i.e. More Backward Classes, for which 5% seats are already reserved, (Downloaded on 15/10/2019 at 08:34:10 PM) (7 of 17) [CW-12444/2019] number of candidates admitted from OBC-PwD Category turns out to be 14, as against 16 seats reserved for them leaving two seats of OBC-PwD available for allotment to petitioner. According to Mr. Choudhary, their inclusion in OBC Category is illegal and the petitioner should therefore be given admission in OBC-PwD Category qua seats reserved for OBC-PwD Candidates. He argued that two OBC-PwD Category seats would fall vacant, if Durgalal Gujar and Anita Kumari (MBC) are allotted seats, meant for MBC Category.
24. In response to the arguments so advanced, Mr. Kailash Choudhary, learned counsel for the respondent-State submitted that reservation to MBC Category has been provided to the castes, which are already included in OBC. According to him, the reservation for MBC Category operates in the sequence that firstly the MBC Category Candidate is required to be considered for General Category (unreserved), if the marks obtained by him/her is above the cut-off of the General Category and then he is required to be considered in the OBC Category and if he falls in the cut-off of OBC then he is required to be migrated and allotted OBC Seat and if his marks obtained are below the cut-off of OBC Category, then his claim is required to be considered for MBC Category.
25. He argued that reservation to PwD Candidates is horizontal as in case of woman, hence the persons with disability belonging to OBC/MBC/SC/ST can though migrate to seats of General (unreserved) Category, but cannot migrate to the seats of General PwD Category.
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26. But, such rule of migration does not apply to MBC Category Candidates, as it is not a separate class in itself and an MBC-PwD Category Candidate can migrate to OBC-PwD Category Candidates.
27. He further argued that the respondents have acted fairly and in tune with the Rules and Guidelines issued in this regard. The thrust of his argument has been that the MBC Category is bifurcated from the existing category and, therefore, they have been provided due reservation benefit of OBC and MBC Category vertically as well as horizontally and thus an MBC (PwD) Candidate is allowed to migrate to OBC (PwD) Category, though he is not allowed to migrate to the General PwD Category.
28. Before entering into this important question, this Court deems it appropriate to sail through the legislative history with respect to the reservation given to More Backward Classes.
29. The State of Rajasthan enacted an Act called, "the Rajasthan Schedule Castes, Scheduled Tribes, Backward Classes, Special Backward Classes and Economically Backward Classes (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in Services under the State) Act, 2008 (hereinafter referred to as 'the Act of 2008'). Said Act was enacted with a view to provide for reservation of seats in educational institutions and appointments and posts in the services under the State in favour of the Scheduled Castes, Scheduled Tribes, Backward Classes, Special Backward Classes and Economically Backward Classes.
30. The driving force behind bringing in this Act was that despite availability of reservation to Scheduled Castes, Scheduled Tribes and Other Backward Classes, certain backward classes, viz., (Downloaded on 15/10/2019 at 08:34:10 PM) (9 of 17) [CW-12444/2019] Banjaras, Gadiya Lohars, Gujars and Raikas needed special treatment in view of their being extremely backward - educationally and socially.
31. The Preamble of the Act of 2008 stipulates that after careful consideration and looking to the extraordinary situation, the State decided that the existing reservation in admission to educational institutions in the State and in appointment in the services under the State for the persons belonging to Scheduled Castes, Scheduled Tribes and Backward Classes should be continued with the modification that extremely backward classes, like the banjaras, gadiya lohars, gujars and raikas should be provided reservation as a separate special backward class.
32. The expression "Special Backward Class" was defined in clause (h) of Section 2 of the Act of 2008, which reads thus:-
"Special Backward Class means classes declared as such by the State Government, by notification in the official gazette."
33. Section 3 of the Act of 2008 provided reservation of seats in educational institutions in State, as under:-
(i) Scheduled Castes : 16%
(ii) Scheduled Tribes : 12%
(iii) Backward Classes : 21%
(iv) Special Backward Classes : 5%
(v) Economically Backward Classes : 14%
Explanation.- The above classification shall be mutually exclusive.
34. The aforesaid provision granting benefit of reservation to Special Backward Classes to the extent of 5% came under judicial scrutiny and the same was held unconstitutional by this Court in the case of Captain Gurvinder Singh & Ors. Vs. State of Rajasthan, reported in 2011(1) WLC 586.
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35. Another enactment in the name of Rajasthan Backward Classes (Reservation of Seats in Educational Institutions in the State and Appointments and Posts in Services under the State) Act, 2017 (hereinafter referred to as 'the Act of 2017') came to be promulgated by the State, which received the assent of the Governor of the State on 08.11.2017. The Act came to be published in the official gazette on 17.11.2017, from which date it became operative by virtue of sub-section (3) of Section 1 of the Act of 2017. The preamble of the Act of 2017 records thus:-
"And whereas, looking to the recommendations made by the Rajasthan State Commission for Backward Classes, from time to time, it is expedient that the extremely backward classes within the backward classes like the Banjara/Baldiya/Labana, Gadiya Lohar/Gadoliya Gujar/Gurjar, Raika/Rebari/Debasi, Gadariya/ Gadri/Gayari should be classified within backward classes as a separate category as more backward classes and they should be given special care and protection for their rapid educational and social advancement."
36. It will not be out of place to reproduce relevant expressions duly defined in Section 2 of the Act of 2017:-
"(a) 'backward classes' means the backward classes as defined in the Rajasthan Scheduled Castes, Scheduled Tribes and Backward Classes, Special Backward Classes and Economically Backward Classes (Reservation of Seats in Educational Institution in the State and of Appointments and Posts in Services under the State) Act, 2008.
(d) 'more backward classes' means the backward classes specified in the Schedule."
Schedule S.No. Classes
1. Banjara, Baldiya Labana
2. Gadiya Lohar, Gadoliya (Downloaded on 15/10/2019 at 08:34:10 PM) (11 of 17) [CW-12444/2019]
3. Gujar, Gurjar
4. Raika, Rebari, Debasi
5. Gadariya, Gadri, Gayari
37. Section 3 of the Act of 2017 provides reservation of seats in educational institutions in the State, which reads thus:-
"3. Reservation of seats in educational institutions in the State.-(1) The reservation in respect of the annual permitted strength for admission into such educational institutions and courses in the State, as may be prescribed, for the more backward classes shall be such percent of the annual permitted strength as may be notified by the State Government from time to time.
Provided that every notification issued under this sub-section shall be laid, as soon as may be, after it is so issued, before the House of the State Legislature and the provisions of sub-section (2) of section 6 shall mutatis mutandis apply to such notification.
(2) Notwithstanding anything contained I sub-
section (1), persons belonging to creamy layer shall not be eligible for consideration against the reserved quota of seats in any educational institution in the State."
38. The Act of 2017 provided that reservation to more backward classes shall be such percent of the annual permitted strength as may be notified by the State Government, subject however to the condition that such notification shall be laid, as soon as may be, after it is issued, before the House of the State.
39. It is to be noted that the Act of 2017 used expression "more backward classes", synonymous to "special backward class" as used in the Act of 2008.
40. It is noteworthy that initially 1% reservation to special backward classes was given by way of notification dated 21.12.2017. However considering the same to be insufficient, an amendment was introduced in the Act of 2017 by way of Rajasthan (Downloaded on 15/10/2019 at 08:34:10 PM) (12 of 17) [CW-12444/2019] Backward Classes (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in Services under the State) (Amendment) Act, 2019 (hereinafter referred to as 'the Amendment Act of 2019'), which received assent of the Governor on 13.02.2019 and came into effect at once. Section 2 of the Amendment Act of 2019 amended Section 3 of the Act of 2017 in the manner that reservation to more backward classes has been provided as 5% straightway instead of providing the same by way of notification. It will not be out of place to reproduce Section 2 of the Amendment Act of 2018, which reads thus:-
"2. Amendment of section 3, Rajasthan Act No.38 of 2017.- For the existing sub-section (1) of section 3of the Rajasthan Backward Classes (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in Services under the State) Act, 2917 (Act No.38 of 2017), hereinafter in this Act referred to as the principal Act, the following shall be substituted, namely:-
'(1) The reservation in respect of the annual permitted strength for admission into such educational institutions and courses in the State, as may be prescribed, for the More Backward Classes shall be five percent."
41. An obvious incongruity arose as a result of use of two separate expressions - "special backward classes" in the Act of 2008 and "More Backward Classes" used in the Act of 2017. In a bid to overcome this anamoly, a notification dated 19.02.2019 came to be published, providing that the existing expression "special backward classes", wherever occurring, shall be substituted by the expression "more backward classes".
42. It is pertinent to note that all the castes mentioned in Schedule or definition in Section 2(f) of the Act of 2017, as more (Downloaded on 15/10/2019 at 08:34:10 PM) (13 of 17) [CW-12444/2019] backward classes are already covered within the bounds of backward classes (OBCs), by virtue of notification(s) published by the State from time to time. In other words, the persons belonging to more backward classes, such as banjaras, gadiya lohars, gujar, raikas, etc. are nevertheless included in "Other Backward Classes"
and such inclusion continues as such, notwithstanding the promulgation of Act of 2017 and its amendment in 2019.
43. In the backdrop of aforesaid, if the question at hands is examined, it can be safely held that notwithstanding creation of a separate class, persons belonging to more backward classes, do not get uprooted from the ambit of Backward Classes.
44. A careful reading of the preamble of the Act of 2017, particularly the highlighted portion thereof (reproduced in earlier part of judgment), shows that the classes like banjaras, gadiya lohars, gujars, raikas etc. have been classified as a separate category as more backward classes within backward classes.
45. The definition of backward classes contained in clause (a) of Section 2 is of great significance for determination of the question under consideration. A perusal of Section 2(a) suggests that the term "backward classes" is an inclusive expression and it takes into its fold backward classes as defined in clause (a) of Section 2 of the Act of 2008. Section 2(a) of the Act of 2008 defines "Backward Classes" as the classes, declared as such by the State Government.
46. A close and conjoint reading of the provisions contained in clauses (a) and (d) of Section 2 clearly indicates that the persons belonging to more backward classes, such as banjaras, gadiya lohars, gujars, raikas, etc. though have been carved out as more (Downloaded on 15/10/2019 at 08:34:10 PM) (14 of 17) [CW-12444/2019] backward classes, but have not been taken out bodily and thus continue as backward classes.
47. In the opinion of this Court, more backward classes is a specie of genus backward classes.
48. "More Backward Classes" are like relatively weaker sapplings, that are planted strategically in a bed, so that they can have better watering and appropriate exposure to sunlight in a bid to ensure fructification equal to the healthy sapplings - such sapplings cannot be denied the room or place in the bed and other nourishment, simply because of their strategic location. The fact that their roots are firmly grounded in one common bed of a common crop cannot be lost sight of.
49. On similar lines, all persons belonging to more backward classes belong to the larger strata called backward classes; every person hailing from "More Backward Classes" is equally a member of backward class, but vice-a-versa is not true. A person belonging to more backward classes (MBC) is, therefore, required to be considered against the seats/ vacancies reserved for other backward classes (OBC).
50. The 5% reservation vertically provided to the MBC Category is to operate in the manner that MBC Category candidate will firstly be considered against the Open (Genera) Category, then OBC Category and thereafter he/she will be entitled for the applicable 5% reservation separately provided for such category.
51. However, in case of MBC-PwD candidate, firstly he/she is required to be considered as General (Open) Category, if he/she secures more marks in the cut-off fixed for General Category, thereafter he/she is required to be considered qua the seat (Downloaded on 15/10/2019 at 08:34:10 PM) (15 of 17) [CW-12444/2019] reserved for OBC-PwD Category if the quota fixed for OBC-PwD Category is exhausted and the marks secured by him/her are not sufficient to consider his/her case in above two categories - he/she is to be considered qua the residual seats reserved for MBC-PwD, on the basis of his/her inter-se merit.
52. It is to be noticed that since reservation of PwD is horizontal while reservation to the SC, ST and OBC including MBC Candidates is vertical, while reckoning the number of seats occupied by PwD Candidates has to be carefully counted.
53. It is held that notwithstanding migration of MBC Category candidates in the OBC Category, the requisite reservation of 5% seats to the MBC Category has to be ensured. Reservation to MBC Category is though exclusive but vis-à-vis OBC Category, it is inclusive, in the sense that if some candidate(s) has/have migrated to OBC/OBC-PwD Category, the State will have to ensure that additional 5% seats are kept allotted/allocated to MBC-PwD Category Candidates.
54. Hence, PwD reservation, which is horizontal in nature, though is not transferable as a matter of course, but in case of OBC and MBC, it is transferable, given the fact that MBC is not a separate category, but class, sprouted within the class viz., Backward Classes, having its feet firmly entrenched in the Book Word Class.
55. An MBC-PwD Category candidate cannot be considered aginst the seat(s) meant for PwD (General) Candidates, but he can nevertheless be considered against the seat(s) reserved for OBC- PwD Category.
56. Coming back to the factual backdrop of instant case - 16 seats were reserved for OBC-PwD Category, whereas 4 were (Downloaded on 15/10/2019 at 08:34:10 PM) (16 of 17) [CW-12444/2019] reserved for MBC-PwD Category. As such if a person with disability belonging to more backward class has secured more marks than the cut-off of OBC Category, he was to migrate or required to be reckoned in the OBC-PwD Category, regardless of the fact that separate reservation to the extent of 5% has been provided to his category i.e. MBC-PwD Category.
57. It is true that not only the provisions of the Act of 2017 (after amendment) provide for 5% reservation to the more backward classes and a separate reservation is available for persons with disability in each of the category; but in considered opinion of this Court, More Backward Class (MBC) instead of being a separate class, is a category within the class, namely "backward classes" and as such, the action of the respondents, in considering candidature of Durgalal Gujar and Anita Kumari hailing from MBC NCL (PwD) Category against the OBC NCL (PwD) category as they had secured more marks than the cut-off of OBC, cannot be said to be illegal.
58. During the course of arguments, an argument was advanced that if these two candidates (Durgalal Gujar and Anita Kumari) are considered as OBC-PwD, then 4 seats reserved for MBC-PwD category remained unoccupied and the select list is thus contrary to law.
59. This Court is of the considered opinion that such argument is not available to the petitioner, who belongs to OBC-NCL (PwD) Category. Such grievance (if any) can be raised by a person belonging to more backward classes only. That apart, as held earlier - a candidate from OBC cannot be considered against the seats reserved for MBC, petitioner cannot stake his claim qua the 4 seats reserved for MBC-PwD.
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60. This Court does not find any infirmity in the respondents' action of considering Durgalal Gujar and Anita Kumari as candidates belonging to OBC NCL (PwD) Category.
61. The writ petition filed by the petitioner, therefore, fails.
62. The stay petition, so also all interlocutory applications, stand disposed of accordingly.
(DINESH MEHTA),J skm/-
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