Madhya Pradesh High Court
Kanishk Bhandari vs The State Of Madhya Pradesh on 14 July, 2020
Author: Sanjay Yadav
Bench: Sanjay Yadav, Rajendra Kumar Srivastava
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WP-7831-2020
THE HIGH COURT OF MADHYA PRADESH : JABALPUR
(Division Bench)
Hearing through Video Conferencing
Writ Petition No.7831/2020
Kanishk Bhandari
versus
State of Madhya Pradesh and others
Shri Harshwardhan Sharma, learned counsel for the petitioner.
Shri Ashish Anand Bernard, learned Deputy Advocate General for
the respondent/State and its functionaries.
CORAM :
Hon'ble Shri Justice Sanjay Yadav, Judge
Hon'ble Shri Justice Rajendra Kumar Srivastava, Judge
ORDER
(14.07.2020) Per : Sanjay Yadav, J :-
Grievance raised by the petitioner is against alleged disproportionate distribution of increased Post Graduate Medical seats in Clinical and Non-Clinical subjects. The petitioner seeks striking down complete process of admission in Post Graduate Medical seats through NEET-PG 2020. Direction is also sought for the respondents to prepare the seat distribution matrix in accordance 2 WP-7831-2020 to the State Reservation Policy and in accordance with the dictum of the Supreme Court in Indira Sawhney vs Union of India AIR 1993 SC 477. The petitioner further seeks the relief that the respondents be restrained from allotting the seats to EWS quota candidates by reducing the seats of unreserved category students.
2. As regard to third relief i.e. restraining the respondents from allotting the seats to EWS quota. On a query made to learned counsel for the petitioner as to whether the petitioner intends to challenge the validity of the Notification, it is fairly submitted by learned counsel for the petitioner that the petitioner has confined his challenge to the disproportionate distribution of Post Graduate Medical seats to clinical and non-clinical subjects. In view whereof, we do not accede to the relief for restraining the respondents from allotting the seats to EWS quota. The relief to that extent is rejected.
3. This order, therefore, deals with the limited issue as to alleged disproportionate distribution of seats in Clinical and Non-Clinical stream.
4. The petitioner after completion of MBBS Course appeared in NEET-PG 2020 and is at 9317th in the merit list. It is urged that Government of India, Ministry of Human Resources Development, Department of Higher Education vide Office Memorandum No.F. 3 WP-7831-2020 No.12-4/2019-UI dated 17.01.2019 (wrongly mentioned as 07.01.2019 in Paragraph No.3) and Office Memorandum No.36039/1/2019-Estt (Res) : Government of India, Department of Personnel, Public Grievances and Pensions, Department of Personnel and Training dated 31.01.2019 respectively providing reservation for Economically Weaker Sections (EWSs) for admission in Central Educational Institutions and in direct recruitment in civil posts and services in the Government of India, in consonance with the provisions of the Constitution of India (103 rd Amendment) Act, 2019. It is contended that vide said communication dated 17.01.2019, Chief Secretaries of all State Governments/Union Territories were requested to give effect to the provisions of 103rd Amendment of the Constitution for all higher educational institutions funded/aided, directly or indirectly, by the State Government in such manner that the provision for reservation for EWS would become operational from academic year 2019-20. It is urged that in the State of Madhya Pradesh, the amendment is brought in vogue with the issuance of Circular No.F-07-11/2019/ vk- iz-@,d dated 02.07.2019 and is being implemented from academic session 2020-21.
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5. It is urged that in the State of Madhya Pradesh, 187 seats have been increased under Section 10A of the Indian Medical Council Act, 1956 for EWS category. This fact, however, is seriously disputed by learned Deputy Advocate General. It is urged that as per MCI's letter dated 20.02.2020, 87 seats were needed to be increased for implementation of 10% EWS quota and not 187, as contended. Be that as it may, there is no cogent material on record to establish that the seats under 10% EWS quota for academic session 2020-21 were increased by 187. Therefore, the contention to said effect made on behalf of the petitioner is discarded.
6. It is further contended that the controversy arose when NEET- PG 2020 First Round Counselling seat distribution chart was declared introducing EWS Quota. It is urged that while implementing said EWS quota, the respondents committed grave error of law and fact by seat distribution for EWS category at the cost of General Category students by reducing the seats for General Category as compared to academic year 2019-20. It is urged that though total number of seats in General Category has been increased from 155 to 160 in academic year 2020-21, but clinical seats have been reduced as compared to academic year 2019-20. It is urged that the seats reserved in General Medicine, General 5 WP-7831-2020 Surgery and Ophthalmology in academic session 2019-20 were respectively 16, 21 and 7 whereas, for academic session 2020-21, it is 14, 16 and 7. As a result whereof, it is contended that, the seats for open/unreserved category have been drastically reduced by crossing the cap of 50% reservation which, it is urged, is contrary to settled principle of law qua reservation.
7. Respondents-State of M.P. & its functionaries have entered appearance and are represented by learned Deputy Advocate General who submits that he has instructions to make submissions on merit and detail para-wise reply is not required in given facts of the case.
8. While not disputing the issuance of OMs dated 17.01.2019 and 31.01.2019 issued by Government of India for giving effect to the provisions of Constitution (103rd Amendment) Act, 2019 for effecting reservation for EWS in all higher educational institutions funded/aided, directly or indirectly, by the State Government, it is urged on behalf of the State that, by Notification No.F-07- 11/2019/vk-iz-@,d dated 02.07.2019 (Anneuxre P/5), 10% reservation for EWS was made effective. For Post Graduate Medical course, the reservation for the EWS is made effective from academic session 2020-21.
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9. It is urged that as per Letter No.MCI-23(1)(EWS)/2019- Med./192630 dated 20.02.2020 issued by the Board of Governors, in supersession of Medical Council of India, 10% EWS reservation is implemented for PG Courses from academic session 2020-21, determining 87 seats to be increased. Dwelling on State quota seats in 2019-20 and 2020-21, it is submitted by learned Deputy Advocate General that in the academic year 2019-20, there were 693 seats, out of which the State quota seats (Degree and Diploma) were 354 of which 177 (i.e. 50%) was allocated to UR category and remaining 50% seats were reserved in favour of ST (20%), SC (16%) and OBC (14%) i.e. 71, 56 and 50 respectively. It is further contended that out of All India quota seats which were 339, 138 (Degree and Diploma) seats reverted to State quota of which 69 seats were allocated to UR category and 28, 23 and 18 were respectively allocated to ST, SC and OBC. As a result whereof, it is urged that in academic year 2019-20, there were 246 seats in favour of General Category candidate.
10. Dwelling on the PG seat of the academic session 2020-21, it is contended that the total number of seats are 858 of which the State quota seats (Degree and Diploma) are 430, out of which 40% i.e. 172 seats are unreserved; 86 (i.e. 20%) for ST; 69 (i.e. 16%) for SC; 7
WP-7831-2020 60 (i.e. 14%) for OBC and 43 (i.e. 10%) for EWS (Open + PWD + Diploma). It is contended that there are 188 seats reverted from All India Quota, respectively allocated percentage-wise i.e. UR-76, ST- 37, SC-30, OBC-26, EWS-19 (Open + PWD + Diploma). It is urged that total number of unreserved seats are 248 (172 + 76) which are more than the seats allocated to UR Category in 2019-20.
11. Dwelling on the contention regarding actual distribution of Post Graduate medical seats in various streams, it is urged on behalf of the respondents/State that they include Post Graduate medical seats for PWD candidates which are 22 displayed on MP Online Portal and DME website; therefore, it is contended that there are 420 Post Graduate medical seats and not 398, as depicted by the petitioner. Respondents have further justified allocation of 14, 16 and 7 seats in General Medicine, General Surgery and Ophthalmology respectively for UR category which, it is urged, amounts to 40% of the seats reserved for the said category.
12. On these contentions, respondents submit that there being no violation of reservation policy, the petitioner is not entitled for the relief sought.
13. Considered rival submissions and gave thoughtful consideration.
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14. Apparently, the petitioner has no grievance against allocation of 10% seats in favour of EWS. The sole grievance is against disproportionate allocation of seats in various Clinical and Non- Clinical branches.
15. The Constitution (103rd Amendment) Act, 2019 provides for :
"2. In article 15 of the Constitution, after clause (5), the following clause shall be inserted, namely:--
'(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making, -
(a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and
(b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent, of the total seats in each category.
Explanation. - For the purposes of this article and article 16, "economically weaker sections" shall be such 9 WP-7831-2020 as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.
3. In article 16 of the Constitution, after clause (5), the following clause shall be inserted, namely:--
"(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category."
16. Evidently, the Amendment enables the State to make provision for not more than 10% reservation to economically weaker sections who are not covered under the existing scheme of reservation for the Scheduled Castes, Scheduled Tribes and Socially & Educationally Backward Classes, to receive the benefits of reservation on a preferential basis, meaning thereby that a class to be determined as EWS out of General Category are to be provided 10% reservation. In other words, with 50% reservation already in existence in favour of ST/SC/OBC, out of remaining 50%, 10% reservation is carved out for EWS, which leaves the unreserved category with 40% reservation. To meet out the contingencies, the decision was taken 10 WP-7831-2020 by the Government of India, Ministry of Social Justice and Empowerment, vide OM No.F.No.20013/01/2018-BC-II dated 17.01.2019, brought on record vide Document No.6588/2020, directing every Educational Institution, with prior approval of the appropriate authority, to increase the number of seats over and above its annual permitted strength in each breach of study or faculty so that the number of seats available, excluding those reserved for the persons belonging to the EWS, are not less than the total seats available in the academic session immediately preceding the date of the coming into force of said Office Memorandum.
17. The petitioner in Paragraph VI-4 of his petition, has given two charts respectively showing distribution of PG Medical Seats for NEET-PG 2019 and 2020 in General Medicine, General Surgery and Ophthalmology, which are reproduced below for ready reference :
Distribution of PG Medical Seats For NEET-PG 2019 Subject (Clinical) UR SC ST OBC Total General Medicine 16 6 4 4 30 General Surgery 21 8 6 6 41 Ophthalmology 8 3 3 2 16 11 WP-7831-2020 Distribution of PG Medical Seats For NEET-PG 2020 Subject (Clinical) UR EWS SC ST OBC Total General Medicine 14 3 8 5 6 36 General Surgery 16 4 8 6 6 40 Ophthalmology 7 2 3 3 2 17
18. On the basis of these tables, it is urged that though total number of seats have been increased from 155 of year 2019 to 160 of year 2020 but, the respondents/State, without proper application of mind, has reduced the clinical seats for general category as compared to the previous year. The contention, though attractive, but there is a basic fallacy because the petitioner has not added the seats reserved for the PWD (MD/MS Course) NEET PG 2020, which is evident from the distribution chart of NEET 2020 (Annexure P/6 at Page 39 of the compilation). Thus, actual distribution of PG seats in General Medicine, General Surgery and Ophthalmology will be as under :
"Distribution of PG Medical Seats For NEET-PG 2020 in Open Category only Subject (Clinical) UR EWS SC ST OBC Total General Medicine 14 3 8 5 6 36 General Surgery 16 4 8 6 6 40 Ophthalmology 7 2 3 3 2 17 12 WP-7831-2020 As per State quota seat chart OPEN and PWD (MD/MS Course) NEET PG 2020 :
Subject (Clinical) UR EWS SC ST OBC Total
General Medicine Open 14 3 5 8 6 36
PWD 2 1 1 0 0 4
Total 16 4 6 8 6 40
General Surgery Open 16 4 6 8 6 40
PWD 0 0 0 0 0 0
Total 16 4 6 8 6 40
Ophthalmology Open 7 2 3 3 2 17
PWD 0 0 0 0 0 0
Total 7 2 3 3 2 17
Note - Distribution of General Medicine as per prevailing reservation
(i) UR - 40*40% = 16
(ii) ST - 40*20% = 8
(iii) SC - 40*16% = 6.4 (6)
(iv) OBC - 40*14% = 5.6 (6)
(v) EWS - 40*10% = 4 Total = 40 ..."
19. It is observed that in General Surgical and Ophthalmology streams, no seats are allocated to the Person with Disability (PWD) 13 WP-7831-2020 and there is no violation of reservation, which will be evident from the following:
General Surgery : Total Seats : 40
(i) UR - 40*40% = 16
(ii) ST - 40*20% = 8
(iii) SC - 40*16% = 6.4(6)
(iv) OBC - 40*14% = 5.6 (6)
(v) EWS - 40*10% = 4 Ophthalmology : Total Seats : 17
(i) UR - 17*40% = 6.8(7)
(ii) ST - 17*20% = 3.4 (3)
(iii) SC - 17*16% = 2.72(3)
(iv) OBC - 17*14% = 2.38(2)
(v) EWS - 17*10% = 1.7 (2)
20. In view whereof, the contention that the reservation exceeds 50% is belied.
21. Furthermore, the petitioner has relied on the interim order passed by the High Court of Bombay in LD-VC-49 of 2020 (Dr. Pushkar Sanjay Dongare and ors. vs State of Maharashtra and ors.) and the judgment by High Court of Rajasthan in Civil Writ Petition No.5468/2020 (Karmendra Singh Kushwaha and ors. vs State of Rajasthan and ors.) and connected Writ Petitions.
22. In Dr. Pushkar Sanjay Dongare (supra), learned Single Judge prima facie found that the total number of Post Graduate seats 14 WP-7831-2020 for open category for the year 2020-21 (327 seats) were less than those for the year 2019-20 (330 seats). In the present case, the fact situation, as adverted supra, are reversed i.e. the seats in 2020-21 are more (248) than in 2019-20 (246). The petitioner is, therefore, not benefited by the interim order passed in Dr. Pushkar Sanjay Dongre (supra). Similarly, in Karmendra Singh Kushwaha (supra), as evident from the findings in paragraph 35 1 that the State of Rajasthan did not take into consideration the additional seats earmarked for EWS in its first round of counselling. Whereas, the facts of present case, as analysed above, are different, which leads to an inevitable conclusion that the petitioner is not benefited by the decision in Karmendra Singh Kushwaha (supra).
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1. From the facts as noticed above, it is an admitted position that the state Government had full knowledge of additional seats having been allotted to it by the MCI vide its letter dated 27/02/2020. From the affidavit filed by the State of the Chairman, NEET PG Medical and Dental Admissions, this Court is not satisfied about the reasons advanced. It is apparent that the economically weaker section reservation of 10% in educational institutions could be provided only when the additional seats are made available. It is for this reason that in 2019-20, the EWS reservation was not implemented since the MCI had not provided additional seats. Clauses 13.1 and 13.2 of the Information Bulletin issued by the National Board of Examinations for NEETY- PG-2020 have to be read together and not in isolation of one another. From reading of both the Clauses, it is apparent that reservation for EWS could be applied only after the additional seats have been made available by the MCI for allocating them to the EWS category candidates. However, without their inclusion in the seat matrix, providing EWS reservation has resulted in depriving the meritorious open category candidates of their rightful claim to admission to a particular faculty and to a particular College. This Court does not agree with the submission of learned Advocate General that the present writ petitions having been filed by only 15 candidates in all and limits to them alone. It is not expected rom all the candidates appearing for academic examination to approach the Court. Even if a single student prefers a writ petition informing about the anomalies of admission process, this Court would entertain the same if it finds that illegalities are being committed. The State Government is not expected to take umbrage by taking a specious plea that all the students have not approached the Court. In the opinion of this Court, the present writ petitions which have been filed are in representative capacity and represent the grievances of all the students who have participated in the process. 15
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23. Taking any view of the matter, we do not perceive any substance in the challenge and the relief sought as would warrant merit consideration.
24. Consequently, petition fails and is dismissed. No costs.
(Sanjay Yadav) (Rajendra Kumar Srivastava)
JUDGE JUDGE
vinod
Digitally signed by
VINOD VISHWAKARMA
Date: 2020.07.17
12:52:35 +05'30'