Madhya Pradesh High Court
Ameer Khan vs State Of M.P. And Ors. on 29 April, 2002
Equivalent citations: 2002(4)MPHT68
Author: Rajendra Menon
Bench: Rajendra Menon
ORDER Rajendra Menon, J.
1. The petitioner, a student who had appeared in the Pre-Medical Test conducted by the Professional Examination Board, Madhya Pradesh, Bhopal (hereinafter referred to as the "Board") has called in question selection made to the M.B.B.S., course for the year 2001, results of which were declared by the Board on 28-8-2001.
2. Necessary prospectus and admission rules for the Pre-Medical Test were notified by the Board as PMT-2001 (hereinafter known as 'Rules') and according to the same, two seats were reserved for sons and daughters of Other Backward Class ex-soldiers (hereinafter known as OBC Sainik Category) as is evident from the rules extract of which has been filed as Annexure P-1. Clause 2.4.1 thereof indicates the category and distribution of seats in various Medical Colleges. For the OBC Sainik Category, in all two seats are reserved.
3. According to the rules, one seat for woman candidate in the OBC Sainik Category was reserved at the Gandhi Medical College, Bhopal. Similarly, one seat is reserved for male candidate at the G.R. Medical College, Gwalior. Thus, two seats are to be filled from the OBC Category of son/ daughter of ex-soldiers. It is further averred that procedure for selection was provided in Rule 2.5 and according to the said rule, a merit list has to be prepared category-wise and syllabus-wise, a candidate in the reserved category who has obtained sufficient marks to be higher in the merit than an open category candidate has to be accommodated against the open seat and in doing so, the number in the reserved category shall not be reduced meaning thereby a candidate of the reserved category if can get admission on merit in the general category, gets admission against the seat reserved for the general category and correspondingly, a reserved category candidate can be accommodated in the reserved category against such seat. However, this rule of giving admission to a reserved category candidate on the basis of merit is not applicable in case of horizontal (special) reservation.
4. It is submitted by the petitioner that OBC Sainik Category reservation is horizontal in nature and that being so, the provision of getting admission in the general category on the basis of merit applicable in other reserved category will not apply to candidates who are seeking admission in horizontal reserved category. The provisions of Rule 2.5.1 contemplates that a candidate belonging to reserved category who, on the basis of merit, finds place in the merit list of general category will be counted against general category only and not against their respective reserved category. However, it is provided in the last part of this rule that the same shall not be applicable to classes of horizontal reservation in various categories. Rule 3.9 of the Rules deals with the preparation of merit and in Rule 3.9.2 the same provision as contained in Rule 2.5.1 is repeated.
5. It is the case of the petitioner that according to the rules, results and tabulation of seats have been filed in the return of respondent Nos. 1 and 2. Annexure R-2 is the merit list of candidates who have been selected in the OBC Sainik Category. In this category, one Aneeta Singh, respondent No. 4 has been allotted the woman seat of OBC Sainik Category and Namdeo Mayank had been allotted for the male seat of OBC Sdinik Category. These seats have been allotted as per the merit. They have obtained 944.37 and 941.21 respectively. Annexure R-2 is the list prepared at the time of counselling and respondent No. 4, Aneeta Singh appeared for the counselling and opted for the Gwalior seat whereas Namdeo Mayank was absent on the date of the counselling i.e., on 6-10-2001. Accordingly, the seat was allotted to Mohini Sahu, the respondent No. 5 who had obtained 901.78 marks. The petitioner, Ameer Khan who was a candidate in the OBC Sainik Category had obtained 914.71.
6. Annexure R-3 is the waiting list of candidates belonging to OBC Sainik Category which indicates that apart from the petitioner, one Pradeep Raikwar had obtained 913.31 marks and they were OBC Sainik Category male candidates, instead of giving a seat to them, it has been given to the respondent No. 5, a candidate having less marks. By doing so, contrary to the rules, two female candidates have been granted admission whereas according to rule one has to go to male candidate. It is, therefore, submitted that the selection of respondent No. 5 against the seat reserved for OBC Sainik Category male cannot be sustained.
7. The respondent Nos. 1 and 2 have filed their return. It is their stand in the return that in the OBC Sainik Category two seats are reserved; one seat for female candidate at Bhopal and the other open for both male and female candidate an G.R. Medical College, Gwalior. It is further submitted by them that in table 'B' of the Rules in OBC Sainik Category, one seat in G.R. Medical College, Gwalior has been mentioned for male but actually it is an open category for male and female. This according to the respondents is clarified in Annexure R-1, dated 3-1-2002. It is further averred that for ladies 30% seats are reserved but for male no reservation of seat has been provided in the PMT Rules, and therefore, the seat at G.R. Medical College, Gwalior was for open category both male and female. It is submitted that Kumari Aneeta Singh, the respondent No. 4 has been given admission at G.R. Medical College only from the merit list of OBC Sainik Category on the open seat which includes male and a female, and therefore, the seat which became vacant was one reserved for female candidate. Therefore, the respondent No. 5 being the next female candidate the same has been allotted to her. However, the respondent No. 3 in their return have submitted that therefore only two seats for son/daughter of ex-soldier OBC Category and the seats are divided for one male and one female. This fact has been mentioned in reply to para 6.5 of the petition and it is stated that the averments in this regard made by the petitioner have not been disputed.
8. This Court on the basis of the above has to consider as to whether the allotment of seat in the OBC Sainik Category had been done correctly or not.
9. A perusal of the tabulation contained in Annexure "B" to Rule 2.4.1 as contained in page 15 of the petition indicates that in the OBC Sainik Category, there are only two seats. One seat has to go to a male candidate and the other seat has to be allotted to a female candidate. This fact is admitted in para 6.5 of the return submitted by respondent No. 3, Board.
10. The aforesaid position has been reproduced in para 5.2 of the petition. In reply thereof, the respondent Nos. 1 and 2 have clarified that in fact one seat is for female candidate at Gandhi Medical College, Bhopal and the other seat is for both male and female at G.R. Medical College, Gwalior. This is said to have been clarified vide Annexure R-1, dated 3-1-2002. The stand of respondent Nos. 1 and 2 and respondent No. 3 in this regard seems to be contradictory.
11. The rules, provide for allotment of one seat at Gwalior for male candidate and one seat for female candidate at Bhopal in the OBC Sainik Category. Contrary statement made in the return without arty basis cannot be accepted. Respondents are trying to confuse the issue. Instead of interpreting the rules correctly the respondent-State has misconstrued the same. This fact is further clear from a perusal of Annexure R-2 which is the merit list prepared. According to merit, a seat had been allotted to a female candidate and a male candidate in this category.
12. In view of the above, the question is when a male candidate did not join will that seat also go to a female candidate when in the waiting list two other male candidates are available having higher marks than the respondent No. 5, Mohini Sahu to whom the seat had been allotted.
13. During the course of arguments, the learned Counsel appearing for the respondents tried to justify the action by indicating that respondent No. 4 was allotted seat in the 30% quota reserved for woman, and therefore, one female has been accommodated in the category of OBC Sainik Category female. The tabulation as contained in Annexure "B" at page 15 of the petition clearly prescribes the allotment of one seat to a female candidate at Gandhi Medical College, Bhopal and one seat to a male candidate at G.R. Medical College, Gwalior respectively in the OBC Sainik Category. Initially when the allotment of seats were done, the name of the respondent No. 5 does not find place in the merit list of this category. She stood placed at serial No. 3 in the waiting list, as is evident from Annexure R-3. Subsequently, when Namdeo Mayank did not join, the said seat should have been given to the petitioner whose name appeared at serial No. 1 of the waiting list of this category with 914.71 marks whereas it has been allotted to Mohini Sahu, the respondent No. 5 who had only 901.78 marks. The list of selected candidates prepared vide Annexure R-2 was in accordance with the rule.
14. Subsequently when Namdeo Mayank did not join, it seems that the respondents have not adhered to the rules strictly while allotting the seats to the candidates. Justification given for ignoring the name of the petitioner and the other candidates who have obtained more marks and whose names appeared in the waiting list above respondent No. 5 of this category is unjustified. The action of the respondent-State in this regard is contrary to rule and the explanation is not at all convincing. Adjusting respondent No. 4 against seat reserved for 30% female candidates is not permissible in view of the specific provision contained in Rules 2.5.1 and 3.9.1. According to this rule, a candidate opting for selection against horizontal reservation cannot be permitted to move to any other category. Respondent No. 4 having opted go in the OBC Category of Sainik, she cannot be adjusted against 30% seats reserved for female.
15. As has already been indicated above, during the course of argu-
ments, it was submitted by the respondents that respondent No. 4, Aneeta Singh has been adjusted in the category of reservation for female candidates and the respondent No. 5 has been allotted the seat in the OBC Sainik Female Category. If this argument is accepted and if it is presumed that respondent No. 4 has been accommodated against seat reserved in 30% quota for the women candidates, then allotment of one seat in the OBC Sainik Category is not explained and a seat in this category remains unfilled. This position is not made out from the return of the respondents. Even otherwise, Clauses 2.5.1 and 3.9.1 of the Rules clearly prohibits shifting of horizontal reservation to any other category.
16. In the aforesaid connection, the Supreme Court in the case of Anil Kumar Gupta and Ors. v. State of U.P. and Ors., (1995) 5 SCC 173, had considered the concept of social (vertical) and horizontal (special) reservation system and it was held on the basis of certain circulars issued by the Government that reservation in the category of sons and daughters of deceased/disabled soldiers would come in the horizontal category.
17. Accordingly, if OBC Sainik Category comes in the category of horizontal (special) reservation as indicated by the Supreme Court in the aforesaid case Anil Kumar Gupta and Ors. (supra) then adjustment of respondent No. 4 in the category of general female candidate is not permissible. Respondent No. 4 having opted to compete in the seat reserved for OBC Sainik Category has to compete for that seat only, and therefore, it has to be held that the respondent No. 4 had been given the admission in the OBC Sainik Category for female candidate. The other seat in this category has to go to a male candidate or it may be an open seat for both male and female as contested by the respondent Nos. 1 and 2 and the respondents have failed to justify as to how respondent No. 5, Mohini Sahu was allotted the said seat when according to the rules it has to be given to an OBC Sainik Category male candidate. Even if the argument of respondent that one seat is an open seat is accepted, then allotment has to be done on the basis of merit list prepared, ie., Annexure R-3.
18. Having considered the submissions made by the learned Counsel for the parties and in view of the observations I have made hereinabove, I have no hesitation in holding that viewed from any angle, the respondent Nos. 1 and 2 have not been able to justify the selection of Mohini Sahu, the respondent No. 5.
19. In my opinion, when only two seats were available in the OBC Sainik Category; one for female candidate and the other for male candidate and one male candidate was initially selected did not join, the seat should have been given to the next person as per merit in the waiting list. Even if the argument of the respondents to the effect that one seat is an open seat reserved for both male and female candidate then also the selection of respondent No. 5 who had less marks than the petitioner and Pradeep Raikwar cannot be justified.
The petitioner and Pradeep Raikwar who had secured more marks and their names appeared in the serial Nos. 1 and 2 of the waiting list, their claim cannot be ignored.
20. Accordingly, I have no hesitation in holding that the selection in the OBC Sainik Category has not been properly done and the respondent No. 5 has been selected in an arbitrary manner ignoring the claim of not only the petitioner but also the other person whose names appears above the respondent No. 5 in the merit of the wait list candidates as per Annexure R-3.
21. During the course of hearing, Counsel for respondent No. 5 had indicated that she had already joined the course and she had undertaken the study of the course for more than one year. The seats in other categories are available, therefore, she should not be disturbed. The petitioner and the other candidates, if eligible should be accommodated in those seats.
22. A perusal of the order sheet dated 4-12-2001 indicates that it was observed that if the petitioner succeeds, respondents shall admit the petitioner in First Year M.B.B.S. course by keeping a seat vacant or by creating a new seat.
23. Shri R.D. Jain, learned Senior Advocate has also invited my attention to the certain observations made by the Supreme Court in the case of Central Board of Secondary Education v. Nikhil Gulati and Anr., (1998) 3 SCC 5, wherein it is emphasised that giving admission to a student incorrectly will be permitting ineligible candidate and this will amount to abuse of the process and the rule of law.
24. If the respondent No. 5 was not eligible, this Court cannot give its stamp of approval for her selection. As has already been indicated hereinabove, the process of selection is vitiated in the instant case. In view of the fact that the selection has been done in an arbitrary manner in gross violation of the rules and merit has been ignored and without any justification and without any reasonable cause admission has been granted to her. In such circumstances, this Court cannot be a silent spectator to the procedure which has been adopted in the instant selection.
25. Accordingly, as has already been indicated hereinabove, I have no hesitation in holding that the selection in the OBC Sainik Category has not been properly made. As the respondent No. 4 is number one in the merit list there is no question of declaring her selection to be illegal. She has secured the highest number of marks and she has been adjusted in the category on her own merit. The allotment of the second seat in this category had been made contrary to the Rules, this seat ought to have been given to a male candidate of this category or as per the merit of candidates in the waiting list, Annexure R-3. Respondent No. 5 had obtained less marks than the petitioner and one Pradeep Raikwar, they were at serial Nos. 1 and 2 respectively in the waiting list in accordance with merit. Allotment of seat to the respondent No. 5 is clearly unjustified and cannot be sustained.
26. The respondents are therefore, directed to fill up one seat in the OBC Sainik Category according to the Rules and considering the merit of the candidates as per the merit list prepared by them. Even though, according to the merit of wait listed candidates, this seat should go to the petitioner but this Court would leave to the respondents to decide the same in accordance with law keeping in view the observations made by this Court in this regard in the preceding paragraphs. It is hoped that a final decision in the matter shall be taken immediately within a period of one month so that the candidate who has to be admitted does not lose much time.
27. Accordingly, the writ petition is allowed. Selection of respondent No. 5, Mohini Sahu to the seat reserved for OBC Sainik Category is quashed. The respondents are directed to take action in accordance with the directions made hereinabove.
Parties to bear their own costs.