Himachal Pradesh High Court
Mr. Divyaish Singh Chouhan vs State Of Himachal Pradesh & Ors on 8 December, 2022
Author: Jyotsna Rewal Dua
Bench: Amjad Ahtesham Sayed, Jyotsna Rewal Dua
THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
CWP No. 2415/2022
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Decided on: 08.12.2022
Mr. Divyaish Singh Chouhan ....Petitioner
Versus
State of Himachal Pradesh & Ors. ....Respondents.
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Coram
The Hon'ble Mr. Justice A.A. Sayed, Chief Justice.
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 Yes.
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For the petitioner : Mr. Lovneesh Kanwar, Advocate.
For the respondents: Mr. Ajay Vaidya, Sr. Additional Advocate
General, for respondent Nos.1 and 2.
Mr. Dinesh Thakur, Advocate, for
respondent No.3.
Mr. K.D. Shreedhar, Sr. Advocate with Ms.
Sneh Bhimta, Advocate, for respondent
Nos.4 and 5.
Mr. Tara Singh Chauhan, Advocate, for
respondent No.6.
Mr. Ajay Kumar Dhiman, Advocate, for
respondent No.7.
Jyotsna Rewal Dua, J.
Petitioner seeks a direction to the respondents to re-
draw the merit for admission to the MBBS course in the mop-up 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 09/12/2022 20:32:19 :::CIS 2round of counselling held on 25.03.2022 against the seats of H.P. State Quota. In essence, the prayer of the petitioner is for up-
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gradation of his MBBS course seat from Management Quota to H.P. State Quota (Scheduled Cast) category in respondent No.5-Maharishi Markandeshwar Medical College and Hospital, Kumarhatti, District Solan.
2. Following facts are not in dispute:-
2(i) Petitioner appeared in NEET-undergraduate-2021 examination held for the academic session 2021-2022 and secured 407 marks therein. Respondent No.3 issued common/centralized counselling prospectus in December 2021 inviting applications for undergraduate Medical/Dental Courses for admissions based on merit of NEET-UG-2021. The petitioner participated in the counselling. In the State merit-list issued by respondent No.3, he secured 1568th rank.
2(ii) Petitioner remained unsuccessful in the first round of counselling, result of which was declared on 2.2.2022. Provisional seat allotment during second round of counselling was notified on 4.3.2022. Name of the petitioner with 1568 th rank was reflected at Serial No.243. He was provisionally allotted Scheduled Cast category seat in H.P. Quota in respondent No.5-college. Ms. Pragati Panwar (respondent No.7) with 929th rank figured at Serial No.194 in this list.
She was provisionally allotted General category seat in H.P. Quota in ::: Downloaded on - 09/12/2022 20:32:19 :::CIS 3 respondent No.5-college. Petitioner and Ms. Pragati Panwar, both belonged to Scheduled Caste (SC) category.
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2(iii) Final seat allotment of second round of counselling was notified on 8.3.2022. In this list, one Mr. Raghav Singh with 815 th rank figured at Serial No.179. He was allotted General category seat in H.P. Quota in respondent No.5-college. Resultantly, Ms. Pragati Panwar with 929th rank got shifted to serial No.198 in H.P. Quota Scheduled Caste category seat in respondent No.5-college.
Consequently, the petitioner was allotted Management Quota seat (General) in respondent No-5-college. The allotment letter for MBBS/BDS Course Session 2021-22 was issued to the petitioner on 08.03.2022. The petitioner took admission in Management Quota (General) seat in respondent No.5-college and deposited the requisite fee.
2(iv) On 23.3.2022 respondent No.3 displayed vacancy position for mop-up round of counselling in respondent No.5-college.
There were total 244 vacant seats out of which 4 were in H.P. Quota.
In these 4 seats falling to H.P Quota, three were meant for General and one for the Scheduled Tribe categories. Mop-up round of counselling was held 25.3.2022. Three students namely Ms. Arundhati Sharma (rank 1025), Ms. Shalini Mankotia (rank 1179) and Mr. Mrigank Sood (rank 1199) belonging to General Category and admitted in management quota in second round of counselling, ::: Downloaded on - 09/12/2022 20:32:19 :::CIS 4 participated and were considered in the mop-up round of counselling against the available seats in H.P. Quota (General) category. Their .
status was up-graded from Management quota (allotted to them in second round of counselling) to H.P. Quota (General) against the available seats in the mop-up round.
2(v) The grievance of the petitioner is that before up-
gradation of MBBS seats of the aforesaid three candidates i.e. Ms. Arundhati Sharma, Ms. Shalini Mankotia and Mr. Mrigank Sood (respondent No.6) from Management Quota to H.P. Quota (General), the respondents were required to consider up-gradation of seat held by Ms. Pragati Panwar from H.P. Quota (SC) category to H.P. Quota (General) category against one out of the available three seats. That Ms. Pragati Panwar in view of her over all merit above the aforesaid three candidates was required to be shifted from H.P. Quota (SC) category to H.P. Quota (General) category in the mop-up round.
Consequently, the petitioner was also required to be shifted and up-
graded from Management Quota to H.P. Quota (SC) category i.e. the seat which would have become available after shifting of Ms. Pragati Panwar. This course has not been adopted by the respondents, hence the writ petition.
3. Contentions Learned counsel for the petitioner contends that the respondents have not adhered to the provisions of prospectus during ::: Downloaded on - 09/12/2022 20:32:19 :::CIS 5 the mop-up round of counselling. Clause 9(i) of the prospectus clearly mandated that reserved category candidate, if selected by virtue of .
his General Combined merit under un-reserved category shall not exhaust the seat reserved for the reserved category subject to fulfillment of eligibility criteria as prescribed for un-reserved category.
Therefore, on availability of three seats for H.P. Quota (General Category) in the mop-up round of counselling, Ms. Pragati Panwar with 929th rank, who was allotted H.P. Quota (SC) seat at Serial No.198 during second round of counselling was required to be shifted to the available seat of H.P. Quota (General Category). Such shifting would not have caused any prejudice to Ms. Pragati Panwar. As a chain reaction of shifting of seat of Ms. Pragati Panwar, the H.P. Quota (SC) seat held by her would have fallen vacant and petitioner belonging to Scheduled Caste category was entitled to be allotted the seat vacated by her.
On behalf of the respondents, submissions were made that their actions were within four corners of the provisions of the common/centralized counselling prospectus for undergraduate Medical/Dental Courses for admission session 2021-22. It was submitted that Ms. Pragati Panwar was admitted under H.P. Quota (SC) category during second round of counselling, hence, was not eligible to participate in the mop-up round. She did not even participate in the mop-up round of counselling. Therefore, there was ::: Downloaded on - 09/12/2022 20:32:19 :::CIS 6 no occasion for the respondents to shift her from H.P. Quota (SC) seat to H.P. Quota (General Category) seat in the mop-up round.
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4. Observations We have heard learned counsel for the parties and considered the material available on record.
4(i) In this petition, we are concerned with allotment of seats in MBBS/BDS Courses for academic session 2021-22 in respondent No.5-private medical college in the mop-up round of counselling.
Total 150 seats were to be filled up in this college in all, out of which 38 (25%) were in State Quota and 112 (75%) were meant for Management Quota. 17 out of total 38 seats in State Quota were reserved including 6 meant for Scheduled Caste category.
4(ii) Part-III of the Prospectus -2021 is with the heading 'Distribution of Seats and Admission Criteria'. Clause 9(i) of this part relied upon by the petitioner reads as under:-
"9(i) All the candidates under Group-A & B will have to apply amongst their own categories. The candidates of reserved categories (except children of J&K migrants, children of Tibetan Refugees and NRI), if selected, by virtue of their General Combined merit under Group-B (Unreserved) shall not exhaust the seats reserved for the reserved categories subject fulfillment of eligibility criteria as prescribed for un-reserved category. However, the allotment of seats will be made college-wise depending upon the merit- cum-choice of the candidate(s) for the concerned college.::: Downloaded on - 09/12/2022 20:32:19 :::CIS 7
Provided further that the reserved category candidates shall be entitled to admission on the basis of their own category merit as per option of the college for taking .
admission, where a specified number of seats have been kept reserved for them, when all the seats under Unreserved category by virtue of General Combined merit are filled-up in the respective Medical/Dental Colleges, as the case, may be."
Candidates belonging to reserved categories fall in 'Group A' whereas 'Group B' pertains to unreserved category.
Part VIII of the Prospectus-2021 goes with the heading 'Counselling Schedule and Admission Procedure'. Clause-3 of this part, relevant for deciding the issue raised by the petitioner, is extracted hereinafter:-
"3. After completion of 1st & 2nd round of counselling, the schedule for Mop-up round of counselling shall be issued by the University and the online counselling form shall be made available on the University website www.amruhp.ac.in. Candidates who are eligible for participating in the mop up round of online counselling are required to fill up fresh choices/preferences of course, college and quota in the online application form within stipulated period for provisional allocation against vacant seats alongwith requisite amount as prescribed for token amount of fee, as applicable. If candidate is satisfied with his/her seat allocated during the previous rounds of online counselling, he/she is not required to participate in the subsequent round of online counselling. No inter-se- shifting from one Government Medical College to another ::: Downloaded on - 09/12/2022 20:32:19 :::CIS 8 Medical College shall be allowed during the mop-up Round of Counselling as per MCI/NMC guidelines. However, shifting for up-gradation of course and quota from private .
Dental Colleges to Govt. Dental College and Govt./Private Dental Colleges to MMMC. Solan and Govt. Dental College/MMMC, Solan to Govt. Medical Colleges in order of merit-cum-choices/preferences of the course, college & quota shall be allowed.
Note: (i) Candidates who had not participated/allocated seats in the 1 st & 2nd rounds of counselling can also participate in the mop-up round(s) of counselling as per their AMRU merit Rank.
(ii) Candidates are advised to remain in touch with the AMRU websites regularly for any change in the counselling/admission process as well as latest updating upto the last closing date of admission and University shall in no way be responsible for non-
communication on this account. For any query, please contact on Tel.No. 01905-243967, 292102."
Conjoint reading of above clauses makes it clear that if a candidate is satisfied with the seat alloted to him in any round of counselling, he is not required to participate in the subsequent round of counselling. It becomes evident from the prospectus, that if a reserved category candidate gets admitted against an unreserved seat on the basis of his merit then he shall not exhaust the point meant for reserve category. This, however, cannot be interpreted to mean that those candidates, who stand admitted in previous rounds ::: Downloaded on - 09/12/2022 20:32:19 :::CIS 9 of counselling against particular seats/quota & are not interested in surrendering the seats allotted to them and do not participate in .
subsequent rounds of counselling, can be automatically shifted by the respondents in subsequent rounds of counselling to the available seats in order to make way for up-gradation of seats held by others.
A point exhausted by a candidate in any round of counselling would not be declared vacant unless the candidate occupying that point is either up-graded or leaves the process of counselling by surrendering his seat. If a candidate is satisfied with the seat allotted to him, he need not then participate in the subsequent round of counselling. In such situation, seat of that candidate, who has not participated in the subsequent round of counselling, is not vacant or available for allocation in the subsequent round of counselling. The vacancy is created either because of non-allocation of seat or the candidate not taking admission on the allocated seat. Vacancy position is accordingly displayed and the vacant points are filled up in the subsequent round of counselling. Clause 9(i) is to be followed during allocation of vacant seats & not otherwise.
4(iii) In the instant case, the petitioner and Ms. Pragati Panwar (respondent No.7) belonged to Scheduled Caste category.
The petitioner with State merit rank No. 1568 remained unsuccessful in the first round of counselling. During second round of counselling, he was allotted Management Quota (General) seat in respondent ::: Downloaded on - 09/12/2022 20:32:19 :::CIS 10 No.5-private medical college. Ms. Pragati Panwar (respondent No.7) with 929th rank in the State Merit list, was alloted H.P. Quota .
(Scheduled Caste category) seat in respondent No.5-college. Ms. Pragati Panwar was satisfied with the allocation of seat. She did not participate in the subsequent mop-up round of counselling. In fact, alongwith reply filed by respondent No.3, a letter written by Ms. Pragati Panwar to respondent No.5-college has been placed on record stating therein that she was not interested in converting her seat from State Quota (Scheduled Caste) to State Quota (General).
Ms. Pragati Panwar, who had already been alloted H.P. Quota (SC) seat during second round of counselling could not be forced to surrender her seat and participate in the mop-up round of counselling for taking a chance to convert her seat from State Quota (SC) to State Quota (General). The roster point meant for H.P. Quota (SC) stood exhausted by the admission of Ms. Pragati Panwar at this roster point during second round of counelling. This point was not available during mop-up round. The petitioner could not be adjusted against a roster point that was not available in the mop-up round as that point was consumed by respondent No.7 in second round of counselling.
4(iv) Petitioner had been allotted management quota seat in respondent No.5-private medical college in the second round of counselling. He had even deposited requisite fee and took admission ::: Downloaded on - 09/12/2022 20:32:19 :::CIS 11 on 10.03.2022. Ms. Pragati Panwar (respondent No.7) was allotted H.P. Quota (SC) category seat in the second round of counselling in .
respondent No.5-college. She also took admission & deposited requisite fee. Neither the petitioner nor respondent No.7 participated in the mop-up round of counselling. Since these two candidates did not surrender their seats, these seats were not displayed as vacant or available seats for the mop-up round. Thus, seat of H.P. Quota (SC) category was not available in the mop-up round. Vacancy position cannot re-adjusted by the respondents on their own in every round of counselling. Clause 9(i) is to be followed only during allocation of vacant seats. Once the seat occupied by Ms. Pragati Panwar (respondent No.7) was not available in the mop-up round, once the seat occupied by the petitioner was not available in the mop-up round, when Ms. Pragati Panwar & petitioner did not participate in the mop-up round of counselling, there was no question of applying Clause 9(i) of Part VIII of the prospectus for forcibly shifting Ms. Pragati Panwar from H.P. Quota (SC) seat to H.P. Quota (General) seat. Hence, the seat of HP Quota (SC) category was not available in the mop-up round of counselling.
Petitioner could not be allotted the seat occupied by Ms. Pragati Panwar. The process of admissions also stood concluded since long.
5. For all the foregoing reasons, we do not find any merit in the claim of the petitioner for upgradation of his MBBS course seat in ::: Downloaded on - 09/12/2022 20:32:19 :::CIS 12 respondent No.5-private medical college from Management Quota to H.P. Quota (SC) category. The writ petition is accordingly dismissed.
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Pending miscellaneous applications, if any shall also stand disposed of.
(A. A. Sayed) Chief Justice ( Jyotsna Rewal Dua ) Judge 8th December, 2022(rohit) ::: Downloaded on - 09/12/2022 20:32:19 :::CIS