Himachal Pradesh High Court
Dr. Aman Kumar vs State Of Himachal Pradesh And Others on 26 August, 2020
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
HON'BLE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 2618 of 2020 Reserved on: 21.8.2020 .
Decided on: 26.08.2020
Dr. Aman Kumar ...Petitioner.
Versus
State of Himachal Pradesh and others ....Respondents.
....................................................................................... Coram Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Hon'ble Ms Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 Yes
For the petitioner : Mr. Jiya Lal Bhardwaj, Advocate with Mr.
r Sanjay Bhardwaj, Advocate.
For the respondents : Mr. Ajay Vaidya, Senior Additional
Advocate General for respondents
No.1 to 3/State.
Mr. Neel Kamal Sharma, Advocate, for
respondent No.4.
Mr. Sanjeev Bhushan, Senior Advocate
with Mr. Rakesh Chauhan, Advocate,
for respondent No.5.
Jyotsna Rewal Dua (J)
Petitioner is an aspirant to Master of Dental Surgery (MDS) Course. He qualified NEET-MDS-2020 test held on 20.12.2019 and within the period prescribed under the prospectus issued thereafter by the respondents, applied for admission to MDS Course academic session 2020-
23. Petitioner, who belongs to Scheduled Castes category and applied as such, for admission only in Himachal Pradesh Government Dental College, 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 26/08/2020 20:19:17 :::HCHP 2Shimla (hereinafter in short as HPGDC), remained unsuccessful in first round of counselling. He could not secure MDS seat even in second round of .
counselling, hence, feeling aggrieved instant petition has been preferred.
2. We have heard learned counsel for the parties and gone through the material available on record.
3 Two short grounds on which this writ petition has been preferred are:-
3(a) MDS seat falling against roster point No.14 during second round of counselling had to be filled up from a candidate belonging to Scheduled Caste category. The seat, however, has been wrongly alloted to respondent No.5 (Dr. Nidhi Chandel) belonging to General Category.
3(b) Clause 5.6 of the prospectus is unconstitutional.
4. Facts and discussion:-
4(i) Prospectus for MDS course 2020-2023, prescribed 40 point roster to be followed in distribution of MDS seats amongst candidates belonging to different categories. Clause 3.3(b)(i) of the prospectus reads as under:-
"(i) 40 point reservation roster shall be applied in respect to distribution of seats among Gen., SC & ST categories in continuation to the last roster point exhausted in the previous academic year in the following manner:-
Sr.No Name of the category 40 point roster (vertically) 1 SC (15%) 1,8,14,22,28 and 36 2 ST (7.5%) 4,17 and 31 3 Person with disability 5% 20 and 40 Note: 40 point roster exhausted up-to point 14 in the last year session 2019-20, hence now will start from point 15."::: Downloaded on - 26/08/2020 20:19:17 :::HCHP 3
Since 40 point roster stood already exhausted up-to point No.14 in the session 2019-2020, therefore, counselling for the academic .
session 2020-2023 had to start from roster point No.15.
4(ii) It is not in dispute that counselling in the first round actually started from roster point No.15. During first round of counselling, 76 MDS degree seats, out of total available 86 seats were allotted, in order of merit and choice of candidates as per roster point earmarked for the category concerned. Starting from roster point No.15, 40 point roster was therefore exhausted for 76 seats at roster point No.10.
4(iii) Petitioner had submitted his application form for counselling to MDS course for academic session 2020-2023 with only one option i.e. HPGDC, Shimla. He had specifically refused to opt for any other dental college in the State. Petitioner could not make it in the first round of counselling.
4(iv) After first round of counselling two seats belonging to un- reserved category remained vacant in HPGDC, Shimla, due to non-
joining/surrendering of seats. One more seat was reverted from All India Quota to State Quota in HPGDC, Shimla. Ten seats out of total available 86 seats were not allocated to any one in the first round of counselling.
Additionally, against 76 seats allocated in the first round of counselling, 34 candidates did not join within the prescribed period. Thus, second round of counselling was held for 11 seats [86-76=10 unallocated in 1 st round +1 ::: Downloaded on - 26/08/2020 20:19:17 :::HCHP 4 revered from All India Quota]. Additionally 34 seats were also available as resultant vacancies allocated in the first round, therefore, total number of .
MDS degree seats available in the second round of counselling was 34 + 11=
45. 4(v) On 34 resultant vacancies of first round, roster points had already been applied. In this regard Clause 5.6 of the prospectus provided as under:-
"5.6 Seat falling vacant in 1 st round of counseling will be filled from same category by virtue of vacant seat during 2 nd round of counseling and subsequent counseling."
Fresh roster points therefore, were not to be applied to 34 vacancies on which roster had already been applied in the first round. Roster had to be applied only on 11 seats, which were not allocated at all in the first round. According to the respondents, 45 seats were filled up strictly in accordance with the provisions of prospectus in order of merit and choice, as per 40 point roster already applied on 34 seats of round one and also on 11 seats for which the roster was to be applied afresh. During second round of counselling, against 34 resultant vacancies of first round, candidates were selected from amongst the respective categories only strictly as per provisions of Clause 5.6 of the prospectus (already extracted above).
4(vi) The respondents No.1 to 3 alongwith their reply have appended tabulations depicting application of roster in filling MDS seats.
Table-1 of Annexure R-2 pertaining to seat allocation in first round of counselling shows:-
::: Downloaded on - 26/08/2020 20:19:17 :::HCHP 5(a) Allocation of 76 MDS seats.
(b) 40 point roster was started from roster point No.15 at .
Serial Nos.1 and exhausted at roster point No.10 at Serial No.76..
(c) 34 candidates out of 76 allocated seats, did not join.
Petitioner has no grievance to the filling up of seats/allocation of seats/application of roster etc. in the first round of counselling.
Table-2 of Annexure R-2, depicts seat allocation of first and second round combined. Roster point No.14 in the second round of counselling (regarding wrong allocation of which, grievance has been raised in the writ petition) was meant for Scheduled Caste category candidate in Private Dental College. However, since no eligible candidate including the petitioner was available (petitioner having not opted for Private Dental Colleges and opted only for HPDGC, Shimla), therefore, earmarked seat of Scheduled Caste category against running roster point No.14 during second round of counselling was filled up from amongst General Category candidate in accordance with following provision of Clause 3.3 of the prospectus:-
"3.3 in case, the eligible candidates to the extent of reservation in any category are not available or un-filled, the vacant seats shall be filled up by making them available in the category as given below:
(a) The vacant/unfilled seats of SC category shall be filled up amongst the eligible ST category candidates.
(b) The vacant/unfilled seats of ST category shall be filled up amongst the eligible SC category candidates.
(c) In case, the eligible candidate are not available in the above two reserved category in the above manner, the vacant seats shall then be filled up from amongst the eligible unreserved candidates.::: Downloaded on - 26/08/2020 20:19:17 :::HCHP 6
(d) The candidature of SC/ST candidates belonging to other State (non-HP) will only be considered for general category by virtue of their general combined merit.
(e) As per 40 point roster there is no specific seat (roster point) for the OBC candidate, hence the OBC candidate will be .
considered in General Category as per general combined merit."
In view of above, roster point No.14 during second round of counselling was filled up from Mr. Aron Sharma, in Himachal Dental College Sunder Nagar Mandi.
5. Observations 5(a) Petitioner's allegation that respondent No.5 (Dr. Nidhi Chandel) a General Category candidate, during second round of counselling was allocated point No.14, belonging to Scheduled Caste category is not borne out from the record of the case. Respondent No.5 was already allocated MDS seat in Conservative Dentistry, during first round of counselling as a General Category candidate at roster point No.27.
Petitioner had given his specific option only for MDS seat as a reserved category candidate in HPGDC, Shimla. He had specifically refused allocation of MDS seat in Private Dental Colleges. Petitioner could not secure the MDS seat in 1st round of counselling. He has not even disputed proceedings of first round of counselling.
There were 9 MDS seat in HPGDC, Shimla, out of which 7 seats were for General Category, 1 for Scheduled Caste category and 1 for Scheduled Tribe category. In the first round of counselling all these seats were allotted to respective category candidates as per 40 point roster.
However, out of 7 General Category candidates, 2 seats had fallen vacant due to surrendering/non-joining by the General Category candidates. In ::: Downloaded on - 26/08/2020 20:19:17 :::HCHP 7 addition to these two seats, one more seat was added to the General Category due to reversion from All India Quota. Thus, in second round of counselling .
there were three seats available for General Category in HPGDC, Shimla.
These three seats were filled from General Category candidates, as per roster point of round one and as per Clause 5.6 of the prospectus as well as considering the merit of the candidates and the choices filled by the candidates for the second round. In this manner respondent No.5, (Dr. Nidhi Chandel) who was allotted MDS seat of Conservative Dentistry in first round of counselling in Bhojia Dental College Nalagarh as General Category candidate against roster point No.27 was alloted MDS seat of Periodontology in HPGDC Shimla, against roster point No.20.
Petitioner otherwise also stands at 3rd place in the Scheduled Caste category State Merit List. The first candidate Dr. Shaleen Chaudhary was alloted MDS seat of Oral Medicines in HPGDC, Shimla against roster point No.22 (Scheduled Caste). The second candidate Dr. Randeep Kumar has been admitted in Himachal Dental College Sunder Nagar, Mandi against roster point No.28 (Scheduled Caste). Thus, in HPGDC, there was only one seat meant for Scheduled Caste category, which was filled up from Dr. Shaleen Chaudhary against roster point No.22 during first round of counselling. Petitioner therefore could not be allocated MDS seat in HPGDC Shimla.
From the above facts and discussion, it is clear that roster point No.14, during second round of counselling was allotted to one Dr. ::: Downloaded on - 26/08/2020 20:19:17 :::HCHP 8 Aron Sharma in the HDC Sunder Nagar, District Mandi, in accordance with Clause 3.3 of the prospectus. Therefore the contention of the petitioner that .
this roster point No.14 was filled in HPGDC, Shimla from Dr. Nidhi Chandel belonging to General Category is incorrect. Dr. Nidhi Chandel had already been allocated seat of Conservative Dentistry, in BDC Nalagarh as a General Category candidate against roster point No.27 in the first round of counselling. Due to reversion of one MDS seat from All India Quota to State Quota, the available vacancies in HPGDC, Shimla for General Category candidates in second round of counselling rose from two to three.
Accordingly, because of up-gradation opted by candidates of previously allocated seats in first round of counselling, Dr. Nidhi Chandel was alloted the MDS seat in HPGDC, Shimla.
5(b) Challenge to Clause 5.6 of the prospectus:-
The challenge of the petitioner to Clause 5.6 of the prospectus regarding filling up of vacant seats of first round of counselling from same category, during second round and subsequent counselling is misplaced.
Petitioner had applied and participated under the terms and conditions of the prospectus. After participating in the counselling under the terms and conditions of the prospectus, petitioner can not be heard to complain about the alleged illegality of the conditions.
In this regard, it would be profitable to refer to (2019) 15 SCC 633, titled Union of India and others Vs. C. Girija and others and connected matters, wherein following previous judgments of Hon'ble Apex ::: Downloaded on - 26/08/2020 20:19:17 :::HCHP 9 Court on the issue were noticed viz. Ashok Kumar Vs. State of Bihar (2017) 4 SCC 357; Chandra Prakash Tiwari Vs. Shakuntala Shukla .
(2002) 6 SCC 127; of India Vs. S. Vinodh Kumar (2007) 8 SCC 100;
Munindra Kumar Vs. Rajiv Govil (1991) 3 SCC 368; Rashmi Mishra Vs. M.P. Public Service Commission (2006) 12 SCC 724; Amlan Jyoti Borooah Vs. State of Assam (2009) 3 SCC 227; Manish Kumar Shahi Vs. State of Bihar (2010) 12 SCC 576 ; Madan Lal Vs. State of J&K (1995) 3 SCC 486 ; Marripatti Nagaraja Vs. State of A.P. (2007) 11 SCC 522 ;
Dhananjay Malik Vs. State of Uttaranchal (2008) 4 SCC 171;K.A. Nagamani Vs. Indian Airlines(2009) 5 SCC 515 ; Vijendra Kumar Verma Vs. Public Service Commission (2011) 1 SCC 150 ; Ramesh Chandra Shah Vs. Anil Joshi (2013) 11 SCC 309 ; State (UT of Chandigarh) Vs. Jasmine Kaur (2014) 10 SCC 521 ; Pradeep Kumar Rai Vs. Dinesh Kumar Pandey (2015) 11 SCC 493 and Madras Institute of Development Studies Vs. K. Sivasubramaniyan (2016) 1 SCC 454. The broader principles which can be extracted from the above judgments, are :-
(i) when a candidate appears in the examination without objection and is subsequently found to be not successful, his challenge to the selection process is precluded; (ii) question of entertaining a petition challenging an examination would not arise where a candidate had appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was lacuna therein merely because his or hers result was not palatable; (iii) those who consciously take part in the ::: Downloaded on - 26/08/2020 20:19:17 :::HCHP 10 selection process cannot thereafter turn around and question the method of selection and its outcome; conduct of such persons disentitle them from .
questioning the selection process; (iv)after participating in the selection process, challenge to the same after declaration of result cannot be allowed.
The candidates cannot approbate and reprobate at the same time.
The principle that the prospectus is binding on all persons concerned, was laid down by Hon'ble Supreme Court in Punjab Engineering College Chandigarh Vs. Sanjay Gulati reported in AIR 1983 SC 580. The terms & conditions of the prospectus are to be strictly adhered to avoid prejudice to the candidates during admission. (refer to the judgments in Sonia Kayastha Vs. State of H.P. reported in 1999(1) Sim.L.C 162 & AIR 1999 Punjab and Haryana 319 (F.B) titled Indu Gupta Vs. Director Sports Punjab).
In view of the foregoing observations, contentions of the petitioner under both the grounds raised by him, are rejected. Accordingly, we find no merit in the instant writ petition and the same is dismissed accordingly. Pending miscellaneous application(s), if any, shall also stands disposed of.
(Tarlok Singh Chauhan) Judge (Jyotsna Rewal Dua), Judge 26th August 2020 (rohit) ::: Downloaded on - 26/08/2020 20:19:17 :::HCHP