High Court
Case Details
WA 269/2012 BEFORE HONBLE CHIEF JUSTICE MR A.K. GOEL HON’BLE MR. JUSTICE A.K. GOSWAMI This Writ Appeal is presented against the Judgment and Order dated 31.08 .2012 passed by the learned Single Judge dismissing the writ petition as not mai ntainable for not impleading all the 22 candidates who were in Category-1 for be ing admitted to Medical Colleges in the MBBS course in respect of seats allotted by Government of India, for short, GOI seats. 2. The appellant’s father is an employee of the Government of Aruna chal Pradesh. The appellant had passed Class-X and Class-XII examinations from K erala. An Information Brochure was issued in respect of holding of Arunachal Pra desh Joint Entrance Examination (APJEE) to select candidates for nomination to t he various technical and professional courses against the seats made available t o the State of Arunachal Pradesh by the Government of India, the North Eastern C ouncil, etc. The brochure lays down eligibility criteria and also contains instr uctions for filling up of the application form as well as distribution of seats for selection and nomination of candidates. On fulfilling the eligibility criter ia, the candidates are to be placed in four categories- Category-I, Category -II , Category-III and Category-IV, on the criteria laid down in the brochure. Aruna chal Pradesh Scheduled Tribe (APST) candidates including children of IAS/Central Government/State Government employees belonging to APST are placed in Category- I; children of non-APST State Government employees are placed in Category-II; ch ildren of employees of the all India Services, Central Government Organizations and Central Public Undertakings serving within the territory of Arunachal Prades h are placed in Category-III and all others, not included in any of the above th ree categories with the condition that the candidate should have appeared/passed Class-X/XII or equivalent from any of the schools within Arunachal Pradesh and his/her parent(s) should have been residing in Arunachal Pradesh for the last th ree years or more are placed in Category-IV. The petitioner fulfilled the eligib ility criteria and her father being a non-APST State Government employee, she wa s in Category-II. She applied for admission to the MBBS course and appeared in A PJEE 2012. The examination was held on 02.06.2012 and the results were declared category-wise on 04.06.2012. She secured 7th rank amongst Category-II candidates , securing 338 marks. 3.
Decision
On 15.06.2012 (Annexure-8 of the writ petition), the respondent no. 2 issued a notice inviting candidates only from Category-I from serial no. 1 to 34 for allotment of MBBS seats and inviting applications from them indicatin g their preference of colleges as per seats made available to the State during t he last year. On 18.06.2012 (Annexure-9 of the writ petition), a list was publis hed in the web site of the Directorate of Higher and Technical Education indicat ing number of seats already received/yet to be received in the different college s in the country from the Government of India and the regional institutions. In the said list, it was mentioned that GOI seats are shared with all Categories as per reservation policy of the State Government and the regional seats are reser ved for Category-I. Thereafter, another list (Annexure-10 of the writ petition) was published showing allotment of PCB group seats as per the minutes of the mee ting held on 02.07.2012 which shows that 34 MBBS seats were allotted to 34 Categ ory-I candidates. 4. It was pleaded in the writ petition that as per the Information Brochure, 80% of the seats could have been reserved in Category-I. However, inst ead of permissible 21 seats in respect of seats allotted by GOI, 22 seats have b een illegally allotted to Category-I candidates resulting in one excess seat bei ng given to Category-I. It was also pleaded that there was no mention in the Inf ormation Brochure that seats allotted by regional bodies and institutes could be allotted only to Category-I candidates and it was only on 18.06.2012, it came t o be indicated that such seats would be reserved for Category-I candidates, and therefore, allotment of seats only to Category-I candidates in seats allotted by regional bodies and institutions numbering 14 is wholly impermissible in law. 5. Writ petition was filed by the petitioner impleading the candida tes who were allotted seats in the regional colleges and institutions as respond ent nos. 8 to 19 and the last candidate who was allotted GOI seat as respondent no. 7. All of them secured lesser marks than the writ petitioner. 6. In the affidavit filed on behalf of the respondent nos. 1 to 6, it was stated that Arunachal Pradesh is a 100% tribal State and an educationally backward State in comparison to other States of the country and even today, not a single Medical or Engineering College has been established in the State. The State receives seats for MBBS from the Government of India and also regional sea ts from Regional Institute of Medical Science, Imphal (RIMS, Imphal), North East ern Indira Gandhi Regional Institute of Health and Medical Sciences, Shillong (N EIGRIHMS, Shillong), Assam Medical College, Dibrugarh, Assam, Agartala Governmen t Medical College, Tripura and Regional Dental College, Guwahati. 14 MBBS and 3 BDS seats being regional seats are exclusively reserved for APST candidates. It is stated that till 02.07.2012, GOI seats had not been received and there was a prospect of regional seats having to be surrendered as date of admission was com ing to a close and therefore, it was decided that candidates who opted for regio nal quota seats for MBBS under Category-I should be allotted such seats. 7. In the reply-affidavit filed by the petitioner, it is stated th at to her knowledge there is no Rule reserving regional seats for APST candidate s and that Arunachal Pradesh is not a 100% tribal State. It is reiterated that w hile 1 excess seat was allotted to Category-I candidate, instead of 3 seats, onl y 2 seats in respect of GOI seats were allotted to Category-II candidates. 8. An additional affidavit was filed by the respondent nos. 1 to 6 on 24.08.2012 stating that on 23.08.2012, the State received 24 seats for MBBS a nd 2 seats from BDS as GOI seats. In effect, there was reduction of 2 MBBS seats as earlier the said State used to receive 26 seats for MBBS. It is stated that regional seats are allotted by the States of Nagaland and Mizoram only to candid ates of their States. Statements are also made that even in previous years, name ly, 2010, 2011, it was published in the web site of the Directorate that regiona l seats are only meant for Category-I candidates and GOI seats are shared with a ll other categories. The State also disputed calculations made by the writ petit ioner regarding excess allotment to Category-I and reduced allotment to Category -II. 9. In the affidavit filed by the respondent nos. 7 to 19, it is ple aded that as the writ petitioner did not pass Class-X and Class-XII examinations from any of the schools in Arunachal Pradesh, she was not even eligible to appe ar in APJEE. It is widely circulated in the web site of the Directorate that reg ional seats are exclusively reserved for Category-I giving details of allotment of seats for last three consecutive years beginning from 2010 to 2012. It is als o stated that from the instruction of JEE in the State, only APST candidates wer e nominated for regional seats. 10. On the basis of the pleadings, the learned Single Judge framed t Whether there is any order reserving all the seats offered by the Region Whether the Information Brochure indicates that seats offered by Regiona he following questions for determination: (cid:28)(i) al bodies and Institutions in favour of AOST candidates in Category-I; If so, whether such order has been in consonant with constitutional dict (ii) um as well as directions rendered in that regard by the Apex Court of the countr y; (iii) l Bodies are institutions would be reserved for APST candidates alone; (iv) regional seats would be filled up on the merit basis alone; (v) If the Information Brochure did not indicate that regional seats would b e reserved, whether subsequent attempt has been made to clarify/add new conditio ns to the aforesaid Information Brochure regarding allocation of seats offered b y Regional Bodies/Institutions; (vi) is permissible; (Vii) ats, offered by GOI; Whether there is violation of seats sharing arrangement in respect of se Whether 100% reservation of regional seats in favour of APST candidates If not, whether the petitioner was justified to concluding that all the (viii) Whether reservation of some of seats, offered by Regional Bodies and Ins titutions, in favour of APST candidates, could have been made on the facts and c ircumstances of the present case. Additionally, the following question was also formulated by the learned Single J udge: (cid:28)(a) d candidates, their number being 21 only. (cid:29) Whether the proceeding in hand is bad for non-joinder of all the selecte 11. The learned Single Judge, while dealing with question no. (i), o pined that there was nothing on record to suggest that the regional seats are me ant for APST candidates alone and at the same time, held that there was an order reserving all regional seats in favour of Category-I to the total exclusion of all other students in the State of Arunachal Pradesh. Holding that State needs t o make a law in order to reserve certain percentage of seats in any educational institution in favour of students from particular community/communities and is r equired to make necessary order in terms of requirement of Articles 77 and 166 o f the Constitution of India, the learned Single Judge decided question no. (ii) holding that there being no law in terms of Article 15(5) of the Constitution, A nnexure-9 to the writ petition reserving all regional seats for APST candidates is a mere administrative fiat and it does not satisfy the constitutional require ment. Question no. (iii) was answered by holding that there is nothing in the Br ochure to suggest that regional seats would be reserved only in favour of APST c andidates and consequently, rendered a finding in question no. (iv) that the pet itioner was justified in entertaining an impression that regional seats would be filled up on the basis of merit alone. Question no. (v) was answered by the lea rned Single Judge by holding that rules of the game had been changed by the orde r dated 18.06.2012 as the same had altered the terms and conditions of the Infor mation Brochure. Question no. (vi) was not decided in terms of the question fram ed but it was recorded that the order reserving all regional seats in favour of APST candidates does not meet the constitutional requirements. According to the learned Single Judge, as only 21 seats could have been reserved for Category-I c andidates in respect of GOI seats, there was violation of seat sharing arrangeme nt and accordingly, question no. (vii) was decided in the affirmative. Consideri ng the backwardness in all fronts and acknowledging that in the circumstances, t he APST candidates of the State of Arunachal Pradesh would not be in a position to compete with their counterpart of the rest of the country, the learned Single Judge in question no. (viii) held that all the regional seats cannot be filled up on the basis of merit alone disregarding the interest of tribal students of t he State and noting that the Supreme Court in Dr. Pradeep Jain and Ors Vs. Union of India and Ors, reported in (1984) 3 SCC 654 had permitted reservation of 70% of seats, held that State could have enacted a law to accommodate 11 APST candi dates against the regional seats. As out of 14 regional seats, 12 had already be en allocated, the learned Single Judge expressed the view that the remaining 2 s eats could be filled up from amongst the candidates in the other 3 categories as mentioned in the Information Brochure. 12. Taking note of the prayers as made in the writ petition, the le arned Single Judge held that all the Category-I candidates numbering 34 were nec essary parties to the proceeding whereas the writ petitioner had made only 21 ou t of them, who are allotted regional seats and the last amongst the candidate wh o was allotted GOI seat, as parties and as such the writ petition was not mainta inable. Question no. (ix) was answered accordingly and the writ petition was dis missed. 13. We have heard Mr. P.D. Nair, learned counsel for the petitioner and Mr. A.M. Buzarbaruah, learned State Counsel appearing for respondent nos. 1 to 6. This Court by an order dated 17.09.2012 had granted liberty to the petitio ner to take steps for service of notice upon respondent nos. 7 to 19 through the Controller of Examinations, Arunachal Pradesh State Council for Technical Educa tion (Office of the Directorate of Higher and Technical Education) as well as th rough learned counsel, who appeared before the learned Single Judge. An affidavi t dated 21.09.2012 was filed by the petitioner to demonstrate that steps were ta ken by the petitioner in accordance with the order dated 17.09.2012. There is no representation on behalf of the respondent nos. 7 to 19. 14. Mr. P.D.Nair, learned counsel for the appellant submits that the learned single Judge, while holding that the State of Arunachal Pradesh having not made any law for reservation of seats in favour of students from particular community/communities and that such reservation made by it in favour of APST can didates was clearly unconstitutional, erred in law in dismissing the writ petiti on on the ground of non-joinder of necessary parties. Learned counsel submits th at the petitioner did not have any grievance with regard to 22 candidates who we re selected for admission to GOI seats save and except respondent no.7 who was g iven a GOI seat in excess of quota earmarked for GOI seats and therefore, when t he writ appellant had made respondent no.7 a party along with respondent nos.8 t o 19 who were given regional seats, dismissal of the writ petition on the ground of non-joinder of necessary parties, is bad in law. It is also submitted by him that there was no indication whatsoever in the Brochure that regional seats are reserved for Category-I candidates and in any view of the matter, even if it is held that State could have validly reserved such seats in favour of Category-I candidates, such reservation could not have been made without there being any di sclosure to that effect in the Brochure and that too, after publication of the r esult. He submits that in absence of any stipulation in the Brochure that region al seats are reserved for Category-I candidates, necessarily it has to follow th at the authorities were legally bound to allot the seats on the basis of merit. If seats had been allotted on the basis of merit, the petitioner would have secu red admission, he contends. Accordingly, he submits that appropriate direction m ay be issued by this Court for admission of the petitioner in the 2012-2013 sess ion, where, according to his instructions, two seats are available and in case such seat is not available, admission may be directed to be given for 2013-2014 session. He relies on the judgment rendered in the case of Bhawna Garg and Anr. Vs. University of Delhi and Ors., reported in AIR 2012 SC 3299. 15. Mr. A. M. Buzarbaruah, learned State Counsel submits that though the writ petition was dismissed on the ground of non-joinder of necessary parti es, findings and conclusions recorded by the learned Single Judge in question (i ) to (viii) are not sustainable in law. He has contended that Article 15(5) of t he Constitution has no application in the facts and circumstances of the case an d the learned Single Judge was not correct in holding that in absence of a law r eserving all regional seats for APST candidates, reservation and/or distribution of regional seats to APST candidates does not meet the requirement of Article 1 5(5) of the Constitution of India. Relying upon Pradeep Jain (Supra) it is conte nded by him that residence requirement for admission to a medical college cannot be construed to be unconstitutional. Placing reliance upon paragraph 5 of Dr. D inesh Kumar and Ors. (II) Vs. Motilal Nehru Medical College and Ors., reported i n (1986) 3 SCC 727, it is submitted that it is permissible, in the facts and cir cumstances of the case, to allocate even more than 85% of the seats available to APST candidates. 16. He has submitted that in earlier years also regional seats were reserved for Category-I candidates and GOI seats were shared with the four categ ories and it is not that for the first time such scheme of allocation of seats w as resorted to. The State of Nagaland and the State of Mizoram also follow the s ame norm in respect of allocation of regional seats. Referring to a note on the first page of the Information Brochure, learned counsel submits that it was spec ifically mentioned that all information and updates about the APJEE would be mad e available at the above-mentioned official website and the candidates were advi sed to visit the notified website for getting the updated information. Placing r eliance on the Additional Affidavit-in-Opposition, the learned counsel submits t hat it was published in the website that regional seats are meant for Category-I and the GOI seats are shared with all categories and a wrong statement was made by the writ petitioner that such disclosure was made only on 18.06.2012. It is strenuously urged by him that only because criteria of allocation of regional se ats was not mentioned in the Brochure, cannot lead to the conclusion that the re gional seats would have to be allotted on the basis of merit, as had been conten ded by the learned counsel for the petitioner. The Brochure has to be read along with the updates in the website and not in isolation. 17. The learned counsel submits that the backwardness of the residen ts of the State of Arunachal Pradesh is both social and educational. The candida tes belonging to States of North-eastern region including State of Arunachal Pra desh where there is no medical college form a separate class and reserving seats for such candidates will not violate any provision of the Constitution. It is l egitimately expected by the State that there is a much higher degree of possibil ity of local Scheduled Tribe tribal candidates of the State of Arunachal Pradesh , after completing their medical education, coming back and serving the people t han someone who has no roots in the soil of the State of Arunachal Pradesh. In a bsence of a medical college, the State has to make do with the few limited seats made available to it by the Central Government and some of the State Government s of the North-eastern region. The tribal Scheduled Tribe students of the State of Arunachal Pradesh, because of lack of exposure and woefully low level of educ ational development, cannot be expected to match their counterparts in the rest of the country to vie and complete in All India Entrance Examination. There is a lways the growing need of more doctors to improve the health-care sector and the State has to remain alive to the stark reality. It is also submitted by him tha t such allotment of seats was earlier made on the basis of decision taken by the selection committee. However, on 26.11.2012, a decision was taken by the State Cabinet that all seats of MBBS/BDS under NEC/Regional quota shall be reserved ex clusively for the APST candidates only and such decision was published in the f orm of an order dated 26.11.2012. The learned counsel, while contending that the writ petition was rightly dismissed for want of necessary parties, also submits that all the seat 18. s allotted for 2012 were filled-up. 19. We have heard the learned counsel for the parties and considered the materials on record. 20. There are number of States/Union Territories which do not have Medical/Dental Colleges of their own and in order to meet the requirements of t hese States/Union Territories, Central Government has created a central pool of MBBS/BDS seats for being allotted to such States/Union Territories. Many of the North-eastern States including State of Arunachal Pradesh do not have Medical/De ntal Colleges and as such the Government of India makes available specified numb er of seats out of such pool to the State of Arunachal Pradesh. It also receives certain number of regional seats from the North-eastern States where there is M edical College/Dental College. The State of Arunachal Pradesh suffers from large scale social and economic backwardness and there is hardly scope for any disput e that the State lags behind most of the States of the country. It is in the bac kground of the above considerations, in the Brochure, it is laid down that 80% o f the GOI seats are to be distributed to Category-I candidates. It is also laid down that 12%, 4% and 4% of GOI seats are meant for Category-II, Category-III an d Category-IV, respectively. The petitioner has not raised any issue with regard to distribution of GOI seats in the above manner. 21. Father of the writ appellant is a non-APST employee of the State of Arunachal Pradesh and she had passed her Class-X and Class-XII examinations from Kerala. She was eligible to apply for the seats allotted to the State of Ar unachal Pradesh only because of her father being an employee of the Government o f Arunachal Pradesh. 22. The Information Brochure did not indicate how the regional seats would be allocated. It is equally true that there was also no indication therei n that such seats would be open seats to be filled only on the basis of merit. I t is also to be noted that result of APJEE was to be declared Category-wise and not in the form of a common merit list. There is no dispute that in the previous years, regional seats were allotted to APST candidates. In the writ petition, t here was no specific plea with regard to alleged violation of Article 15(5) eman ating from such allotment and/or reservation in absence of any law. That the Inf ormation Brochure is not wholly exhaustive can be seen from the fact that the sa me required the candidates to visit the notified website at regular intervals fo r getting the updated information. It is the specific stand of the respondent no s. 1 to 6 in the Additional Affidavit-in-Opposition that in the official website it was displayed that the regional seats are meant for Category-I candidates an d the writ petitioner had made a misleading statement that, for the first time, only on 18.06.2012, it was indicated that regional seats are for Category-I cand idates. There is no denial to the said stand. In view of the above, we are of th e opinion that the authorities had made it known well in advance that the regio nal seats are reserved for Category-I candidates. There is no basis, bearing in mind the purpose for which the seats are allotted to the State of Arunachal Prad esh, for the petitioner to harbour the notion that regional seats are open seats and would be allotted on the basis of merit, more so, when there is no combined merit list of all Categories. Allotment of all the regional seats on the basis of merit would have the effect of causing injustice to and disregarding interest of tribal student community of the State of Arunachal Pradesh. Assuming that th e norm of distribution of GOI seats, which is not challenged by the petitioner, would also be applicable in respect of regional seats, 2(two) seats would have f allen in the share of Category-II. The petitioner’s rank being 7th amongst Categ ory-II candidates, she would have been out of contention for a seat. 23. By the Constitution (Ninety-third Amendment) Act, 2005, Clause ( 5) was inserted in Article 15 of the Constitution which reads as under: (cid:28)15(5) Nothing in this article or in sub-clause (g) of Clause (1) of Article 19 shall prevent the State for making any special provision, by law, for the advan cement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes insofar as such special provisions rel ate to their admission to the educational institutions including private educati onal institutions, whether aided or unaided by the State, other than the minorit y educational institutions referred to in Clause (1) of Article 30. (cid:29) 24. Article 15(5) of the Constitution makes reservation by the State for socially and educationally backward classes without the creamy year and for the Scheduled Castes and Scheduled Tribes permissible and thus removes the basi s for finding reservations to be an unreasonable restriction in the freedom to s elect students only on the basis of merit with respect to all the seats in any e ducational institution including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions and s uch educational institutions would have to comply with the State mandated reserv ations through law. In the factual matrix of the case, when there is no Medical/ Dental College in the State of Arunachal Pradesh, we are of the opinion that Art icle 15(5) is not attracted in the matter of allocation of GOI seats or regional seats. 25. In Pradeep Jain (Supra), the Apex Court had held that so far as admission to MBBS course is concerned, residence requirement in a State can be i ntroduced as a condition for admission to the MBBS course. In Dinesh Kumar (II) (Supra), albeit in a different context, the Apex Court had directed that not les s than 15% of the total number of seats in each Medical College or institution, without taking into account any reservation validly made, shall be filled on the basis of All India Entrance Examination. 26. In this case, no issue was directly or even remotely raised with regard to the maximum number of seats that could have been allotted to APST can didates out of total number of seats received, i.e. the combined pool of GOI sea ts and regional seats and therefore, this Court refrains from expressing any opi nion on this aspect of the matter. 27. A comparison of Annexure-6 (result-sheet) and Annexure-10 (allot ment of seat) will go to show that the respondents 8 to 19 had secured more mark s than Sonam Tsomu, Kimo Ori, Tao Pari, Subu Kobing, Kezang Dekey Kharma and Mom Hinda, who were allotted GOI Seat. Apart from that, respondent no. 8 had secure d more marks than Dani Yakang, Pagi Ngomdir, Hage Duniya, Nyaba Jini and Tarak C hachu, who were allotted GOI Seat; respondent no. 9 had secured more marks than Hage Duniya, Nyaba Jini and Tarak Chachu; respondent nos. 10, 11 and 12 had secu red more marks than Nyaba Jini; respondent nos. 13, 14 and 15 had secured more m arks than Tarak Chachu. 28. It may be that allotment of regional seats was on the basis of n otice dated 15.06.2012 (Annexure-8), which is also impugned in the writ petition . If the argument of the writ appellant is accepted and allocation of regional s eats are set aside, the same will result in a situation where many less meritori ous candidates in Category - I will be privileged to pursue MBBS course just bec ause they were allotted GOI seats while more meritorious candidates who had opte d for regional seats would be deprived of the same merely because of a fortuitou s event, namely, choice or preference for a regional seat. In absence of such le ss meritorious candidates as party respondents, granting opportunity to them to have their say, in exercise of the powers under Article 226 of the Constitution of India, this Court could not have moulded the relief by cancelling their admis sions to ensure that no injustice was caused to the more meritorious candidates. That apart, having regard to the prayer made in the writ petition for setting a side the allotment list for admission to the 1st year MBBS course (Annexure-10 o f the writ petition) containing the names of 34 candidates, we are in agreement with the learned Single Judge that all the 34 candidates are necessary parties. 29. In view of the discussions above, we find no merit in this writ appeal and accordingly, the writ appeal is dismissed. No cost.