Madras High Court
R. Sree Jayalakshmi vs The State Of Tamil Nadu, Represented By ... on 26 September, 1995
Equivalent citations: (1996)1MLJ605
Author: Shivaraj Patil
Bench: Shivaraj Patil
JUDGMENT Shivaraj Patil, J.
1. In this writ petition the petitioner has sought for a writ of declaration that admission to the M.B.B.S. and B.D.S. course for the academic year 1994-95 made under paragraph 3.5 (iii)(ii) of the Prospectus i.e., in the seats reserved for children of Ex-servicemen published on 24.10.1994 as arbitrary, illegal and violative of Article 14 of the Constitution of India, and consequently to admit the petitioner in accordance with her merit in the vacant seats to be caused by such declaration.
2. Originally there were only two respondents in the writ petition. Subsequently W.M.P. No. 2649 of 1995 was filed to implead the candidates selected in the category who were likely to be affected in the event of the writ petition being allowed, and as such respondents 3 to 7 were added.
3. The facts which are considered necessary for the disposal of this writ petition, briefly stated, are the following:
The petitioner applied for admission to the M.B.B.S. course for the academic year 1994-95. She appeared for the entrance examination conducted on 25.6.1994 and 26.6.1994. She secured 90.04 out of 100 in the entrance examination. Having secured 195.0 marks in the aggregate in the subjects Biology, Physics and Chemistry she had scored 285.04 cut off marks. She was not selected in the general selection list published on 17.7.1994. On that account she had filed a Writ Petition No. 14893 of 1994 and it is a separate matter, and that has nothing to do with this writ petition. The selection in the special categories was made and the list was published on 24.10.1994. To her shock, the petitioner had not been selected in the seats reserved for Ex-Servicemen even though a candidate with Registration No. 332442 who had secured a cut of mark of only 266.15 had been selected. The father of the petitioner had served the Indian Army in Infantry for 31 years and 6 months. He toiled in the inhospitable border areas for more than 18 years. He was actually in the war front, defending the mother India participating in India-China war 1962 and India-Pakistan wars 1965 and 1971. According to the petitioner the selection in this category was vitiated by patent errors and several infirmities.
4. The writ petition is filed on the grounds that the selection made by respondents 1 and 2 was arbitrary and illegal; even a candidate who had scored less marks compared to the petitioner was also selected; the second respondent ought not have considered the certificates produced other than those issued by the persons mentioned in paragraph 3.5 of the prospectus; the second respondent ought to have seen the change in the definition of Ex-servicemen after 1.7.1987; and that the second respondent ought not have applied the Rule of reservation based on community for the selection under the special category; as a matter of fact the Director of Technical Education had not applied the Reservation based on community for the selection of candidates of the children of Ex-servicemen for admission to B.E. course for 1994-95; and further even in the waiting list prepared the petitioner's name is not found although names of persons who secured lesser marks were included in the waiting list.
5. Respondent No. 2 has filed a counter-affidavit stating that the result of selection under special category was published on 24.10.1994; the petitioner was not selected under the said category for the following reasons:
The number of seats ear-marked for the category in question was 2, and four seats were added from the vacant categories, totalling to six. Since the seats were more than four, meritorious candidates were selected applying communal rotation. The contention of the petitioner that the candidate with Registration No. 332442 with 266.15 marks was selected is wrong; the aggregate marks of the said candidate were 286.15; the selection was done in a proper manner after following the rules and regulations prescribed in the prospectus. The averments made by the petitioner that the selection done was in an arbitrary manner is not correct. One Ramasaravanan who was selected for both M.B.B.S. and B.D.S. courses preferred to join M.B.B.S. The petitioner being the next in the list was allotted a seat in B.D.S. in the Government Dental College, Madras in the vacancy caused, and that the petitioner joined the course also. It is admitted that there was some mistake in not including the name of the petitioner in the waiting list.
6. The fourth respondent has filed a counter affidavit pointing out that his cut off mark was 285.20, and the cut off mark of the petitioner was 285.04 and not 285.40. As such the petitioner cannot claim preference over the fourth respondent. The fourth respondent was selected for the Engineering course. He filed Writ Petition No. 19279 of 1994 seeking a direction to allot a seat to M.B.B.S. course. A seat was allotted by the second respondent to him on 25.11.1994 under the special category of Ex-serviceman. Accordingly he joined the course and is continuing his studies in the Government Mohan Kumaramangalam Medical College having joined the M.B.B.S. course for the academic year 1994-95.
7. Respondent No. 6 has filed a counter affidavit opposing the writ petition and justifying the selection. It is stated that no specific relief is asked against her, and that the writ petition may be dismissed. She has also stated that the fight is between the petitioner and the third respondent in the open competition, but she was selected in the S.C. category on the basis of communal reservation.
8. A counter-affidavit is filed on behalf of respondent No. 7 also justifying the selection of the 7th respondent. She has secured 286.15 marks in the aggregate. Her selection was in the Ex-serviceman special category, and that the petitioner has no ground whatsoever to challenge the selection of the seventh respondent. Thus the respondent No. 7 has sought for dismissal of the writ petition.
9. Respondents 3 and 5 are not represented and counter-affidavits also are not filed on their behalf.
10. Although several grounds are raised in the writ petition, at the hearing, the learned Counsel for the petitioner emphasised on and confined his arguments to only one ground that there must be no further reservation in the special category on the basis of communal rotation. Hence, it is not necessary to deal with the other grounds raised in the writ petition and the statements made in the counter affidavits meeting those grounds.
11. The Teamed counsel for the petitioner contended that as per G.O.Ms. No. 443, Health and Family Welfare Department, dated 9.6.1994 and the prospectus of Tamil Nadu Professional Courses Medical/Paramedical 1994-95, further reservation on the basis of communal rotation in selection to special categories was not permissible and whereas the respondents 1 and 2 have made selection applying the rule of reservation even in the said special category based on communal rotation, consequently the selection was bad and the petitioner was denied admission to the first year M.B.B.S. for the academic year 1994-95 arbitrarily and in violation of Article 14 of the Constitution of India. He read the relevant paragraphs in the said Government Order and the prospectus so far they have bearing on the question that is arising for consideration in this case.
12. In paragraph 2 of the said Government Order it is stated that 1072 seats are available for M.B.B.S. course in Government Medical Colleges. Paragraph 3 of the said Government Order so far it is relevant for the purpose of the case on hand reads thus:
3. The Government direct that the distribution of 1072 seats for 1994-95 session of Iyear M.B.B.S. course shall be as follows:
(i) 15% of seats i.e., 161 seats shall be reserved for the All India candidates as per the directions of the Supreme Court of India in Pradeep Jain case;
(ii) 53 seats specified in Annexure I to this order for certain special categories of candidates in the State of Tamil Nadu.
(iii) 1 (one) seat is reserved for candidates of Tamil Nadu Origin settled in Andaman and Nicobar Islands and the procedure to be followed for selection of candidates for this seat is indicated in Annexure II to this order;
(iv) The remaining 857 seats shall be allotted to open competition, Backward Classes, Most Backward Classes, and Denotified communities, Scheduled Castes and Scheduled Tribes as per the Rules of Reservation obtaining at the time of admission.
(v) Candidates applying against special categories mentioned in Annexure I shall be considered also against Most Backward Classes and Denotified communities, Backward Classes, Scheduled Caste, Scheduled Tribes and Open competition, if they belong to these categories on the basis of merit in the respective category.
13. As can be seen from paragraph 24 of the said Government Order, a copy of the Prospectus for M.B.B.S., B.D.S., B. Pharmacy, B.Sc. (Nursing) and B.P.T. Course 1994-95 session submitted by the expert committed was sent to the Director of Medical Education requesting him to make necessary alterations, additions, selections and modifications wherever necessary in the prospectus in conforming with the directions contained in the foregoing paragraphs of the said Government Order.
14. In the said prospectus 1994-95 session, paragraph 3.5 deals with the seats reserved for special categories in Government colleges. Paragraph 3.5 refers to seats reserved for Defence. Paragraph 3.5 (iii)(ii) refers to Ex-servicemen. It is useful to extract paragraphs 9.3 to 9.6 in the Prospectus for better appreciation of the arguments. Paragraphs 9.3 to 9.6 reads thus:
9.3 All India Surrendered Seats: Out of the seats sanctioned for M.B.B.S. course in the Government Colleges, 15% seats are reserved for allotment to All India candidates. Likewise, 12 seats in B.D.S. course have been reserved for All India candidates. The Director General of Health Services is making allotment against these reserved seats on the basis of All India selection. If and when M.B.B.S./B.D.S. seats are surrendered by the Director General of Health Services, New Delhi for want of sufficient number of candidates, the surrendered seats (All India Quota) will be added to General Pool of seats and filled up with candidates from the merit list applying the Rule of Reservation in vogue.
9.4 If sufficient number of candidates are not nominated for filling up seats in M.B.B.S. and B. Pharmacy allocated for candidates of Tamil Nadu origin settled in Andaman and Nicobar Islands and nominees of Government of India and Government of Pondicherry, the vacant seats in the respective courses will be added to the 'General Pool' of seats and allotted to the candidates from merit list applying the Rule of Reservation in vogue.
9.5 If sufficient number of candidates are not available for allotment against any of the 53 seats in M.B.B.S. reserved for the Special Categories listed under 3.5 (i) to 3.5 (x) above the vacant seats will be allotted among the special categories itself in proportion to the number of applications received in each category.
9.6 However, the one seat in B.D.S. reserved the children of Defence Personnel from the three groups of Defence Service whether are in service or deceased in action or Ex-servicemen, the two seats in B P.T. reserved exclusively for the physically handicapped, the six seats, in B. Pharmacy reserved for the nominees of Government of India/Government of Pondicherry and candidates settled in Andaman Nicobar Island and the one seat in B.Sc. (Nursing) will be added to the respective "General Pool of seats" and allotted to candidates from the respective merit list applying the Rules of Reservation.
[Italics is mine]
15. In paragraphs 9.3, 9.4 and 9.6 it is specifically stated that the vacant seats arising in these categories shall be filled up with the candidates from the merit list applying the rule of Reservation in vogue. In paragraph 9.5 it is specifically stated that the vacant seats listed under 3.5 (i) to 3.5 (x), the vacant seats shall be allotted among the special categories itself in proportion to the number of applications received in each category. As in respect of other categories, in this category, filling up the vacant seats is not made subject of Rule of Reservation.
16. The learned Counsel for the petitioner also relied on the Division Bench judgment of this Court in Minor J. Latha and V. Rajeswari v. The Government of Tamil Nadu represented by the Secretary to Government, Health Department, Madras-9 and two Ors. W.A. Nos. 135 and 136 of 1993 disposed of on 26.10.1993, in support of his submission that the Rule of reservation was held not applicable to the special category of freedom fighters in the prospectus for admission to the first year M.B.B.S. for the academic year 1992-93 as Rule of Reservation was not made applicable to that category although the general note prescribed percentage of reservation for the categories mentioned under items (ii) and (v). The Division Bench of this Court did not approve the procedure followed by the selection committee in making a further reservation in the eight seats set apart for the category of children and grand-children of freedom fighters. According to the learned Counsel the said decision supports the case of the petitioner fully.
17. Shri D. Murugesan, learned Special Government Pleader urged that the respondents 1 and 2 have only acted to advance the cause of reservation and intended to give benefit of reservation on the basis of communal rotation in respect of the categories relating to admissions to M.B.B.S. course. He pointed out to paragraph 9 of the prospectus wherein it is stated that the percentage of allocation of seats for open competition, backward class, most backward class and denotified communities, scheduled caste and scheduled tribes under the rule of reservation for admission in the medical, dental and paramedical colleges in respect of seats in Government colleges and free seats in self-financing colleges shall be in accordance with the Rule of Reservation in force at the time of admission. In the case of payment seats the rule of reservations shall not apply. On the basis of this paragraph 9 of the prospectus, he argued that the rule of reservation was applicable to all categories of seats in all Government colleges and to all free seats in self-financing colleges. According to him, thus, the rule of reservation was applicable to the seats earmarked for special categories as well. He also contended that it is not the case of the petitioner that the respondent No. 1 had no power to apply the rule of reservation to the special categories also. He attempted to distinguish the Division Bench judgment aforementioned stating that it was a case relating to special category of children and grand children of freedom fighters. He submitted that the aggregate marks secured by the petitioner and respondents 3 to 7 are as follows:
___________________________________________________________________ Name Aggregate marks Petitioner R. Sree Jayalakshmi 285.04 Respondent 3 R. Ram Saravanan 285.40 Respondent 4 Mohammed Nigani 285.20 Respondent 5 Arun Shanger 280.75 Respondent 6 P. Mahalakshmi 264.90 Respondent 7 Sunitha Virgin Rajathi 286.15 ________________________________________________________________ Hence at any rate the petitioner cannot challenge the selection and admission of respondents 3, 4 and 7, having regard to the marks secured by them.
18. The learned Counsel for respondents 4, 6 and 7 argued justifying the selection made in the special category. They also added that after selection the respondents 3 to 7 joined the course and are continuing the studies, and that for no fault of them they may not be deprived of their seats; otherwise it will cause great hardship damaging their career itself.
19. I have carefully considered the submissions made by the learned Counsel for the parties.
20. The only question that arises for consideration is whether the respondents 1 and 2 were right in applying the rule of reservation further to the special category relating to Ex-servicemen of found at paragraph 3.5 (iii)(ii) of the prospectus on the basis of communal reservation depriving the petitioner the chance to get admission in the first year M.B.B.S. course for the academic year 1994-95.
21. In G.O.Ms. No. 443, Health and Family Welfare Department, dated 9.6.1994, it is clearly stated that 1072 seats were available for the first year M.B.B.S. course for 1994-95 session. Out of them 15% of seats i.e., 161 seats were reserved for All India candidates; 53 seats were reserved for special categories mentioned in Annexure I to the said order, one seat was reserved for the candidates of Tamil Nadu origin settled in Andaman and Nicobar Islands. The remaining 857 seats were to be allotted to open competition, backward classes, most backward class and denotified communities, schedule castes and scheduled tribes as per the rule of reservation prevailing at the time of admission.
22. The Rule of Reservation was made specifically applicable relating to the remaining 857 seats as stated above, and it is not explicitly stated as to the rule of reservation was made applicable to the other categories found in sub-paragraphs (i) to (iii) in paragraph 3 or the said Government Order. In paragraph 24 of the said Government Order it is stated that the prospectus for 1994-95 session should be in conformity with the directions contained in the said Government Order. In paragraph 9 of the prospectus it is stated that the rule of reservation in force shall be applied in respect of the seats in Government colleges and free seats in self-financing colleges. In respect of allocation of seats in open competition, backward class, most backward class and denotified communities, scheduled castes and scheduled tribes, but it does not refer to special categories.
23. Reading of paragraphs 9.3 to 9.6 of the Prospectus make the position clear with regard to the applicability of Rule of Reservation to special categories listed under para. 3.5 (i) to 3.5 (x) of the prospectus. In respect of other categories referred to in paragraphs 9.3 9.4 and 9.6 the rule of reservation is expressly made applicable to the vacant seats becoming available, but the rule of reservation is not made applicable to the special categories as can be seen from paragraph 9.5; more so when in the same paragraph it is specifically stated that the vacant seats will be allotted among the special category itself in proportion to the number of applications received in each Category. In view of the relevant provisions contained in the said Government Order and the prospectus, it cannot be said that a further rule of reservation was permissible on the basis of communal rotation in respect of the selection from the category of Ex-servicemen under paragraph 3.5 (iii) (ii).
24. The Division Bench judgment aforementioned supports this aspect. In the said decision also when the rule of reservation was made applicable to certain categories and it was not so stated in regard to special category of children and grand-children of freedom fighters, the Division Bench of this Court held that the further reservation to the said special category of children and grand-children of freedom fighters was not permissible. Hence, I hold that the application of Rule of Reservation on the basis of communal rotation to the special category of Ex-servicemen listed in paragraph 3.5 (iii)(ii) was not permissible for 1994-95 session, having regard to G.O.Ms. No. 443 and the prospectus, 1994-95.
25. On the basis of the marks secured by the petitioner and respondents 3 to 7 as found in paragraph 16, the selection and admission of respondents 3, 4 and 7 remains unaffected. As far as the selection and admission of respondent Nos. 5 and 6 is concerned if the rule of reservation had not been applied, the petitioner would have been selected and admitted being eligible and entitled for admission to the said course in the place of the last candidate respondent No. 6 having regard to the marks secured.
26. In the light of the Division Bench Judgment aforementioned, the selection committee ought to have made selection for the special category relating to Ex-servicemen without applying further rule of reservation, as the said Division Bench Judgment though dealt with the special category relating to the children and grand-children of freedom fighters, on principle, it clearly applies to the facts of the case on hand as well. Under the circumstances the selection committee respondent No. 2 ought to have acted deriving guidance from the said judgment when that Judgment was very much available before the list of selection in the special categories for 1994-95 session was published on 24.10.1994. It is to be added that the selection committee was a party to the said Division Bench judgment as well.
27. The petitioner was allotted a seat in B.D.S. course which she has joined. She has also completed almost one academic year in the said course. The sixth respondent, on the basis of selection, did join the first year M.B.B.S. course and she has also completed almost one academic year. Whether she should be unseated to provide a seat to the petitioner as she was eligible and entitled for selection and admission to first year M.B.B.S. course on merits in the special category (Ex-servicemen) is a matter to be examined. The sixth respondent has joined the first year M.B.B.S. course on the basis of selection made, and she has completed one academic year of M.B.B.S. course. No fault can be found with her. It is not a case where the sixth respondent secured admission by making any untrue representation or that she was not eligible for admission. In this view, I do not think it just and appropriate to dislodge her from the course. Although the petitioner is entitled to get admission to the first M.B.B.S. course, it is for her to consider that one seat in the B.D.S. course will go waste besides she also loses one academic year if she still insists to join the M.B.B.S. course. Anyway it is for the petitioner to decide.
28. Further since the academic year 1994-95 is ever, it is not possible to give direction to the respondents 1 and 2 to admit the petitioner to the first year M.B.B.S. course for 1994-95 session. All that can be done is a direction can be given to the respondents to select and admit the petitioner for the 1995-96 session by creating one extra seat as a price for the mistake committed by them in the selection. Under the circumstances it is neither desirable nor proper to declare that the entire selection and admission made under paragraph 3.5 (iii)(ii) of the prospectus as arbitrary or illegal.
29. In the result, for the foregoing reasons I pass the following order:
(i) The writ petition is partly allowed; and
(ii) The respondents are directed to select and admit the petitioner for the first year M.B.B.S. course for the 1995-96 session by creating one extra seat on or before 29.9.1995. This date is fixed having regard to the regulations of the University fixing the cut off dates for joining.