Delhi High Court
Ms. Nisha vs Union Of India (Ministry Of Health And ... on 10 June, 2020
Equivalent citations: AIR 2021 (NOC) 256 (DEL.), AIRONLINE 2020 DEL 981
Author: Manmohan
Bench: Manmohan, Sanjeev Narula
2
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3410/2020 & CM APPL.12109/2020
MS. NISHA ..... Petitioner
Through: Mr. Shanker Raju with Mr. Nilansh
Gaur, Advocates
versus
UNION OF INDIA
(MINISTRY OF HEALTH AND
FAMILY WELFARE) & ORS. ..... Respondents
Through: Mr. Arun Bhardwaj, CGSC for
UOI/respondents No.1 and 2.
Mr. Mohinder J.S. Rupal, Advocate for
respondent No.3/Delhi University.
% Date of Decision: 10th June, 2020
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MR. JUSTICE SANJEEV NARULA
JUDGMENT
MANMOHAN, J:- (Oral) The petition has been heard by way of video conferencing.
1. Present writ petition has been filed with the following prayers:-
"a) Call for the records and Quash and set aside impugned seat matrix for internal quota for admission to MDS 2020 and also declare illegal diversion of added seats exclusively meant for EWS category in the discipline of Operative Dentistry and Prosthetics to ST & SC category respectively, petitioners;W.P.(C) 3410/2020 Page 1 of 9
b) Direct the MCC and other respondents to include added seats in internal quota for MDS 2020 and be allocated to EWS category and to further either revise the first round of counseling by including added seats of EWS category or to allocate two seats in second round of counseling to EWS category and consider the claim of the petitioner for allotment of the seat in any discipline meant for EWS category for admission to MDS 2020 with all consequential benefits and
c) Any order or further relief which this Hon'ble Court deems fit, just and proper in the peculiar circumstance of the case in the interest of justice may also please be awarded."
2. Learned counsel for petitioner states that despite the permission granted by the Ministry of Health and Family Welfare vide Public Notice dated 12th February, 2020 and letter dated 28th February, 2020 to increase two seats in the EWS category in internal quota of Maulana Azad Institute of Dental Sciences, the respondents did not incorporate the increased seats for EWS category in the first counselling. The relevant portion of the Public Notice dated 12th February, 2020 and letter dated 28th February, 2020 are reproduced hereinbelow:-
A. Public Notice dated 12th February, 2020 "V.12017/12/2019-DE GOVERNMENT OF INDIA MINISTRY OF HEALTH & FAMILY WELFARE Nirman Bhawan New Delhi-110108 Dated the 12th February, 2020 PUBLIC NOTICE Applicant Dental Colleges are hereby informed that the following Schemes for Starting/Increase of seats in MDS course W.P.(C) 3410/2020 Page 2 of 9 for the academic session 2020-21 have recently been recommended by Dental Council of India (DCI) which have been submitted to the competent authority in the Ministry for consideration/approval:
xxx xxx xxx
For increase of seats under EWS quota
S.No. College Name S. No. Specialty Seats
1 Maulana Azad 1 Prosthodontics 2 to 3
Institute of Dental and Crown &
Sciences, New Delhi Bridge
2 Conservative 2 to 3
Dentistry &
Endodontics
3 Orthodontics & 2 to 3
Dentofacial
Orthopedics
4 Periodontology 2 to 3
xxx xxx xxx
B. Letter dated 28th February, 2020
"V.12017/12/2019-DE
GOVERNMENT OF INDIA
Ministry of Health & Family Welfare
Nirman Bhawan, New Delhi-110108
Dated the 28th February, 2020
To
The Principal
Maulana Azad Institute of Dental Sciences, Maulana Azad Medical College Campus, Bahadur Shah Zafar Marg, New Delhi -110 002.W.P.(C) 3410/2020 Page 3 of 9
Letter of Permission Sub: Increase of seats (under EWS quota) in various specialties of MDS for the academic session 2020-21. Sir, In continuation to the Public Notice hosted on the Ministry's website on 12.02.2020 and this Ministry's Letter of Intent (LoI) dated 26.02.2020 and with reference to your letter dated 13.02.2020 furnishing therewith necessary documents, I am directed to convey the permission of the Central Government for increase of seats in MDS course (under EWS quota) in following specialties at your College for the academic session 2020-21 under Section 10(A) of the Dentists Act, 1948:
S.No. Speciality Seats
1. Prosthodontics and Crown & Bridge 2 to 3
2. Conservative Dentistry & 2 to 3
Endodontics
3. Orthodontics & Dentofacial 2 to 3
Orthopedics
4. Periodontology 2 to 3
2. The permission of the Central Government is accorded initially for a period of one year and will be renewed on yearly basis subject to the verification of the achievement of annual targets as indicated in your scheme. The process of renewal of permission in the increased intake capacity will continue till such time the expansion of its facilities is completed.
3. Any admission made in violation of the above condition will be treated as irregular and action under the provisions of the Dentists Act, 1948 and Regulations made thereunder shall be taken.
4. Discrepancies, if any, may be brought to the notice of Dental Council of India and Central Government.
Yours faithfully, Sd/-
(Vidyadhar Jha) Under Secretary to the Government of India"
W.P.(C) 3410/2020 Page 4 of 93. Learned counsel for petitioner further states that the seat matrix issued for second round of counselling in MDS-2020 has been wrongly implemented inasmuch as the additional internal quota of two seats has been added in the Scheduled Tribes category in Operative Dentistry and Schedule Caste category in Prosthetics specialty respectively instead of EWS unreserved category. The seat matrix for second round of counselling for MDS-2020 is reproduced hereinbelow:-
INTERNAL QUOTA NEWLY ADDED SEATS AND SEATS ADDED DUE TO NON JOINING AND RESIGNATION (DENTAL) Sr. Stream State Quota College Subject Course Category Sub Number No. Name Name Cat of Seats 1 Dental Delhi Delhi Maulana OPERATIVE Degree ST 1 (NCT) University Azad CONSERVATIVE Institute DENTISTRY of Dental Sciences, Delhi 2 Dental Delhi Delhi Maulana ORAL Degree OBC 1 (NCT) University Azad PATHOLOGY Institute of Dental Sciences, Delhi 3 Dental Delhi Delhi Maulana PROSTHETICS Degree SC 1 (NCT) University Azad Institute of Dental Sciences, Delhi 4 Dental Uttar Banaras IMS BHU PEDODONTIS Degree ST 1 Pradesh Hindu Dental, AND University Varanasi PREVENTIVE SURGERY Total Seats 4
4. He emphasizes that the petitioner is at serial No.1 in the waiting list in the unreserved EWS category and has got marks more than the required cut-off. He submits that non-allotment of the seat to the petitioner in the first and second counselling against the EWS quota in the discipline of conservative Dentistry and Prosthetics is contrary to the letter dated 28th W.P.(C) 3410/2020 Page 5 of 9 February, 2020 and is violative of her right as an EWS category candidate for allotment of seats in MDS-2020.
5. Learned counsel for respondents No.1 and 2 states that Ministry of Health and Family Welfare always issues letter of permission on the total number of seats and never on the basis of category (UR/SC/ST/OBC/EWS) and it is for the State Counselling Authorities to apply the roster for 50% State quota seats as per their existing reservation policies. He states that even in the present case the Delhi University has contributed two seats in Maulana Azad Institute of Dental Sciences under the SC and ST category which has been put up on the MCC website. He also states that since Delhi University had contributed the increased seats for EWS quota on 01st June, 2020 during round two, hence the same could be applied in second round of NEET PG 2020 only which commenced on 03rd June, 2020. Consequently, learned counsel for respondents No.1 and 2 prays that the present writ petition be dismissed.
6. Learned counsel for respondent No.3 states that the said respondent has only followed the 13-Point Roster suggested by Ministry of Human Resource Development sent through University Grants Commission for filling the additional two seats now released in second counselling which accordingly should go to SC and ST candidate respectively in that order. He also states that as the additional seats had not been notified prior to the first counselling, no seat has been provided for the EWS quota (which was to be taken out from the unreserved category). As per the 13-Point roster, entry 10 is marked for EWS seat (one seat). However, additional two seats were not released in time therefore, in first counselling the said seat at entry 10 was released to candidate of unreserved category as per the then prevailing W.P.(C) 3410/2020 Page 6 of 9 roster.
7. Having heard learned counsel for the parties, this Court is of the opinion that increase in seats was specifically applied for by Maulana Azad Institute of Dental Sciences as well as recommended by Dental Council of India and granted by the Ministry of Health and Family Welfare specifically for EWS quota. These facts are admitted by MCC in its reply affidavit dated 09th June, 2020. The relevant portion of said affidavit is reproduced hereinbelow:-
"5. It is submitted that, with reference to the Clarification sought by the Hon'ble Delhi High Court regarding the mistake in the words used in various public notices issued by the Ministry, it is elucidated that, the Dental Division of the Ministry of Health and Family Welfare has stated that "for the current academic year 2020-21 the permission of this ministry has been granted for increasing four MDS seats in four specialities at Maulana Azad Institute of Dental Sciences (MAIDS) for implementation of reservation of 10% seats in PG courses for Economically Weaker Section (EWS) candidates. The applicant college has submitted its application for increasing the above seats for implementation of reservation for EWS directly to DCI. After considering the request, DCI has recommended to the Ministry for granting permission to enhance the 10% seats i.e. total 4 seats at the MAIDS for the academic session 2020-21 to implement the reservations for the EWS candidates.
Normally, permission of this Ministry is granted for creation/increase of seats without mentioning any specific category. It is for the concerned Institute / State Government / Counselling Authorities to decide and implement its reservations policy against these seats. However, Ministry vide its letter dated 28.2.2020 granted its permission for increase of seats in MDS courses for the academic session 2020-21 wherein it was mentioned that it was under EWS quota in view of specific application by the Institute/recommendation by DCI for implementation of EWS reservation". A copy of the clarification made by the Ministry is annexed as Annexure III."W.P.(C) 3410/2020 Page 7 of 9
8. Even the Public Notice dated 12th February, 2020 and letter of permission dated 28th February, 2020, specifically state that seats have been increased in EWS quota. In fact, the letter of permission dated 28 th February, 2020 stipulates that any admission made in violation of the aforesaid letter shall be treated as irregular and action under the provisions of Dentist Act, 1948 and Regulations made thereunder shall be taken.
9. Further, the Dental Council of India's letter dated 23 rd May, 2019 which deals with implementation of reservation of 10% seats in postgraduate courses for the Economically Weaker Sections candidates by enhancing the PG seats in existing Dental colleges/Institutes puts the matter beyond controversy as it stipulates, "SC/ST category candidates cannot apply for EWS quota".
10. Since no EWS candidate has been admitted in the Maulana Azad Institute of Dental Sciences in MDS-2020 out of Delhi University quota, this Court allows the present writ petition and directs the first vacant one seat to be allocated and filled up from the EWS quota as per merit. After the EWS quota has been filled up, the 13-Point Roster shall be implemented further.
11. As a matter of abundant precaution, it is clarified that in the event an unreserved category candidate surrenders his/her seat, then the same shall be allotted to the candidate from the EWS quota and thereafter admission shall take place according to the 13-Point roster.
12. It is made clear that in case no unreserved category candidate surrenders his/her seat from first counselling, then the first additional seat now released shall be offered to EWS candidate and the remaining second additional seat to SC candidate as per the roster. Since additional two seats have been released only now for second counselling, no ST candidate shall W.P.(C) 3410/2020 Page 8 of 9 have any right to claim any right on the additional seat. Needless to mention that seats have been increased by respondents No.1 and 2 only to make available EWS quota this year, hence EWS candidate shall have priority to claim first additional seat and the roster shall work thereafter as per order.
13. This order is being passed in the peculiar facts and circumstances. No student who has already been allotted the seat in first counselling shall be disturbed unless any seat is surrendered by such student in second counselling.
14. With the aforesaid direction, present writ petition stands disposed of.
15. The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e-mail.
MANMOHAN, J SANJEEV NARULA, J JUNE 10, 2020 js W.P.(C) 3410/2020 Page 9 of 9