Himachal Pradesh High Court
Dr. Shabnam Guleria vs State Of H.P. & Others on 28 December, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 6330 of 2023
Date of Decision: 28.12.2023
.
Dr. Shabnam Guleria .....Petitioner.
Versus
State of H.P. & others .....Respondents.
Coram
of
Hon'ble Mr. Justice Bipin Chander Negi, Judge.
Whether approved for reporting?1
For the petitioner: Mr. Tara Singh Chauhan, Advocate.
For the respondents:
rt Mr. Anup Rattan, Advocate General with
Mr. Y.P.S.Dhaulta, Additional Advocate
General and Mr. Pratush Sharma,
Additional Advocate General, for
respondent No.1- State.
Mr. Dalip K. Sharma, Advocate, for
respondent No.2.
Mr. Sudhir Thakur, Senior Advocate with
Mr. Somesh Sharma, Advocate, for
respondent No.3.
Ms. Shreya Chauhan, Advocate, for
respondent No.4.
Mr. Ashwani Kaundal, Advocate, for
respondent No.5.
Bipin Chander Negi, Judge (oral)
The present petition has been filed seeking following substantive relief:
"A. That Writ of certiorari may kindly be issued by this court for quashing annexure 1 Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 28/12/2023 20:33:16 :::CIS 2
P-5 and holding that the same is against the clause 7.8 of the prospectus and admission of respondent No.3 in the stream of M.D. Psychiatry may kindly be quashed and set .
aside.
(ii) That the respondents No.1 and 2 may be directed to consider the case of the petitioner for allotting the seat of MD Psychiatry to the petitioner at IGMC Shimla in pursuance to annexure P-1."
of
2. The brief facts giving rise to the present petition are that a prospectus was issued by the Department of Medical Education rt and Research University H.P. with respect to Centralized Counseling and Admission for Post Graduation Degree (MD/MS/DNB) for the Sessions 2023-2024. The same was released on 26th July, 2023.
3. For the purpose of the present petition, it would be appropriate to refer to Clause 4.1 of the prospectus which deals with specialty wise details of recognized / permitted degree sheets for 50% all India quota and 50% State Quota for the Sessions 2023-2024 in respect of Indira Gandhi Medical College, Shimla. In the said clause 4.1 for the purpose of the present petition we are concerned with specialty detailed at Sr. No. 17 i.e. Psychiatry. In so far as the 50% State Quota seats are concerned in the specialty of Psychiatry two seats have been allocated to the State Quota.
::: Downloaded on - 28/12/2023 20:33:16 :::CIS 34. Other than the aforesaid, Clause 4.7 of the prospectus which deals with category wise, specialty wise distribution of .
State Quota seats for the academic session 2023-2024 has been detailed. Herein we are concerned for the purpose of the present petition with specialty detailed at Sr. No. 18 i.e. Psychiatry. From a perusal thereof it is evident that two seats in Psychiatry have been of listed against the GDO quota and one against direct quota.
5. In furtherance of the aforesaid the first round final seat rt allocation post conducting of first counseling was released on 18.08.2023. The same is appended alongwith the petition as Annexure P-2. A perusal hereof reflects that in so far as the specialty of Psychiatry was concerned candidates detailed therein at Sr. Nos. 39 & 55 had been allotted seats in the specialty or Psychiatry in IGMC. A further perusal thereof reflects that the aforesaid two allocations had been done to the GDO quota. The candidate at Sr. No. 39 i.e. Seemant Malhotra had joined, however, the candidate at Sr. No. 55 i.e. Shashi Pal did not join.
6. Subsequent to the aforesaid, second round of counseling was conducted. Post conducting counseling provisional seat allocation was released on 7th September, 2023 i.e. Annexure P-3.
A perusal of Annexure P-3, i.e. provisional seat allocation post conducting of second round of counseling reflects that the seat in specialty of Psychiatry was offered to a candidate whose name ::: Downloaded on - 28/12/2023 20:33:16 :::CIS 4 is mentioned at Sr. No. 60 (Annexure P-3) i.e. one Madhubala. A further perusal of Annexure P-3 reflects that the present petitioner .
figured at Sr. No. 69 of the said list and was offered the specialty of Radiotherapy.
7. Thereafter a revised provisional seat allocation was done vide Annexure P-4 on 09.09.2023. A perusal of the said list reflects of that the private respondent whose name figures at Sr. No. 44 of the said list was offered the seat in the specialty of Psychiatry. The rt said private respondent was a candidate belonging to the direct category.
8. Heard counsels for the parties perused the record. At the very outset it is made clear that the parties are ad-idem with respect to the fact that the prospectus in the case at hand has legal binding force.
9. In the aforesaid backdrop, the sole legal argument raised on behalf of the petitioner is that the specialty which in the prospectus was to be filled in by a GDO source/ classification could not have been filled in by a candidate belonging to the direct source/ classification. Both seats of Psychiatry in IGMC should have been filled in from GDO i.e. in service category. The specific contention of learned counsel for the petitioner is that in-
service and direct sources/ classification are two sources/ classification from which admissions have to be made. His further ::: Downloaded on - 28/12/2023 20:33:16 :::CIS 5 contention is that a candidate figuring in one source/classification can only stake a claim against the quota earmarked for the said .
source/classification. Hence, according to him a candidate who appears in the GDO source/classification i.e. in service source/classification cannot stake a claim to a seat meant for a direct source/classification and vice-versa.
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10. In support of his contention he has placed reliance on judgment reported in (2001) 2 SCC 538, titled K. Duraisamy and rt another vs. State of T.N. & others, relevant extract of the same is being reproduced herein below :-
"That apart, where the Scheme envisaged is not by way of a mere reservation but is one of classification of the sources from which admissions have to be accorded, fixation of respective quota for such classified groups, the principles at times applied in construing provisions relating to reservation simpliciter will have no relevance or application. Though the prescription of a quota may involve in a general sense reservation in favour of the particular class or category in whose favour a quota is fixed, the concepts of reservation and fixation of quota drastically differ in their purport and content as well as the object. Fixation of a quota in a given case cannot be said to be the same as a mere reservation and whenever a quota is fixed or provided for one or more of the classified group or category, the candidates falling in or answering the description of different classified groups in whose favour a respective quota is ::: Downloaded on - 28/12/2023 20:33:16 :::CIS 6 fixed have to confine their respective claims against the quota fixed for each of such category, with no one in one category having any right to stake a .
claim against the quota earmarked for the other class or category."
11. Other than the aforesaid, learned counsel for the petitioner has placed reliance on judgment (2003) 7 SCC 83, titled of State of M.P. & others vs. Gopal D.Tirthani & others, relevant extract of the same is being reproduced herein below:-
rt "27. The in-service candidates may have been away from academics and theories because of being in service. Still they need to be assessed as eligible for entrance in PG. For taking up such examination, they must either keep updating themselves regularly or concentrate on preparatory studies to entrance examinations but without sacrificing or compromising with their obligations to be people whom they are meant to serve on account of being in State service.
12. The aforesaid legal contention of learned counsel for the petitioner cannot be faulted with, however what has to be seen is its applicability in the facts of the case at hand and as to whether the same has been breached in the case at hand.
13. Per contra, learned counsel for the respondents have referred to clauses 7.5 and 7.14 of the prospectus. Their sole contention is that seats have to be filled on the basis of merit alone ::: Downloaded on - 28/12/2023 20:33:16 :::CIS 7 by operating the roster. According to the respondents the argument of the petitioner is based on a complete mis-conception .
of the way and manner in which as per the prospectus the roster in the case at hand is to be operated. As per them, in this roster, seat in the colleges are not fixed based on quota and category but the candidate who is higher in merit can choose available seat in any of specialization in any of the Colleges. In this regard the seats of different quota and category may be shifted from one college to rt another on the basis of the preferences of the candidates who is higher in merit.
14. A perusal of the clause 7.14 of the prospectus reflects that the same had been incorporated in pursuance to a judgment passed by this Hon'ble Court, in CWP No. 2160 of 2020, titled Gunjan Ahuja & others vs. State of H.P. & others, decided on 10th of July, 2020. A perusal of the aforesaid judgment reflects that the question which cropped up for consideration in the said was as to whether a candidate who were not appeared in the first round of counseling could be debarred from appearing subsequent round of counseling. In the case at hand, this is not the issue which has come up for consideration, therefore, reliance on Clause 7.14 of the prospectus made by the respondent is of no consequence.
15. Other than the aforesaid, learned counsel for the respondent have placed reliance on Clause 7.5 and clause ::: Downloaded on - 28/12/2023 20:33:16 :::CIS 8 7.8(iv). The stress of the argument of learned counsel for the respondents is that in terms of Clause 7.5 and Clause 7.8 (iv) .
admission have to be made purely in the order of merit by operating the roster. According to the respondents the specialty of Psychiatry in IGMC after the first round of counseling by operation of roster in order of merit was allocated to a candidate from the in-
of service source.
16. Thereafter in order of merit by operation of roster after the rt second round of counseling the second seat in the specialty of Psychiatry in IGMC was allocated to a candidate belonging to the direct source/classification. A perusal of the prospectus details whereof have been reproduced supra reveal that in the specialty of Psychiatry in terms thereof was to be allocated to a candidate belonging to the direct source/classification from the category of person belonging to a person with dis-ability. Since no candidate belonging to the direct source/classification from the category of person belonging to a person with dis-ability was available therefore in terms of clause 7.8(iv) the said seat was converted to a general category and hence offered to the private contesting respondent.
17. The third seat in the specialty of Psychiatry was now to be filled by the private medical college from a candidate belonging to the in-service source i.e GDO.
::: Downloaded on - 28/12/2023 20:33:16 :::CIS 918. The learned counsel for the petitioner has failed to show any provision of the prospectus whereby two seats allotted .
to the State Quota to IGMC was required to be filled in from the GDO i.e. in-service category. Hence, the argument that a seat meant for a GDO source in Psychiatry in IGMC has been filled in from the direct source is without any merit. The legal contention of based on 2001 (2) SCC 538 & 2003 (7) SCC 83, has no applicability to the facts and attending circumstances of the case at hand.
rt
19. The respondents had carried out counseling strictly in terms of 40 point running roster. By way of an example, it was explained by Dr. Parveen Sharma (concerned Controller of Examination) who had appeared before the Court on 24.12.2023, that the merit list of General category was prepared separately.
First roster point (Roster Point No.37) in the 40 point running roster fell to the specialty of Anatomy and was meant for an in service candidate belonging to general category. One Smt. Sumati Sharma at rank No.1 of general category was considered against this roster point. She gave her first option in the faculty of MD Radio Diagnosis. Seat was available in the faculty of MD Radio Diagnosis for the in-service candidate belonging to general category. So, Smt. Sumati Sharma, who was considered at roster point No.37 (1st point in 40 point running roster) in faculty of ::: Downloaded on - 28/12/2023 20:33:16 :::CIS 10 Anatomy for a seat belonging to in-service general Category candidate, was actually allocated the seat in MD Radio Diagnosis .
meant for in-service general category applicant. In this way, the Roster Point No.37 in faculty of Anatomy was exhausted. In similar manner all other roster points in different faculties were filled up based on the order of merit of candidates, the options exercised of by them & availability of the opted seats in the colleges.
20. It is evident that the roster points meant for candidates rt belonging to different categories have been filled up by the respondents by considering the candidates from that very category in order of their merit. After taking into consideration the options exercised by them, the seats have been allocated to them keeping in view the availability of seats as per their options.
21. Learned counsel for the petitioner, during the course of arguments attempted to raise a contention with respect to her claim qua the State Quota seat in the Department of E.N.T. Since, no such claim was raised in the petition, therefore, the petitioner was stopped from raising any further arguments in this regard.
More so, when with respect to the cause of action in the present petition no such claim had been raised by the petitioner.
Therefore, it can safely be presumed that the petitioner had given up all claim with respect to her entitlement to a seat in the Department of E.N.T. in the State Quota. Besides raising of her ::: Downloaded on - 28/12/2023 20:33:16 :::CIS 11 claim in this respect at a belated stage would affect other individuals, who are not party before this Court in the case at .
hand.
22. Hence, I find no merit in the present petition and the same is dismissed, so also, pending miscellaneous application(s), if any.
of (Bipin Chander Negi) Judge December 28, 2023rt (Nisha) ::: Downloaded on - 28/12/2023 20:33:16 :::CIS