High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 06-07-2007CORAM :THE HONOURABLE MR. JUSTICE A. KULASEKARANWP No. 16998 of 2007andM.P. Nos. 2, 3 and 4 of 2007Dr. Surekha Dabas.. Petitioner Versus1. The Union Territory of Pondicherry rep. By The Chief Secretary to the Government & Chairman Board of Governors Mahatma Gandhi Post Graduate Institute of Dental Sciences Government of Puducherry Institution Puducherry – 605 0062. The Chairman Selection Committee The Mahatma Gandhi Post Graduate Institute of Dental Sciences Government of Puducherry Institution Puducherry – 605 0063. The Mahatma Gandhi Post Graduate Institute of Dental Sciences Government of Puducherry Institution Puducherry – 605 006 rep. By its Registrar4. Dr. Vaishnavee @ Kamatchi5. Dr. Shiamala6. Dr. V. Gayathri.. Respondents Petition filed under Article 226 of The Constitution of India prayingfor a Writ of Certiorarified Mandamus as stated therein. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr. Haridas, Senior Counselfor Mr. K. RamachandranFor Respondents :Mr. Murugesan S.C. for K.K.Sasidharan Government Pleader (Pondy) for RR1 to 3 No appearance for R4Mr. S. Krishnasamy for R5Mr. Chandrasekaran for M/s. P.V.S. Giridhar Associates for R6ORDERThe petitioner has come forward with this writ petition praying for aWrit of Certiorarified Mandamus calling for the records of the thirdrespondent in No.274/MGPGI/A3/Aca/2007-08/1057 dated 21.04.2007 and afterquashing the same direct the third respondent to indicate the name of thepetitioner as the 1st in the General Category wait list and direct theremoval of the name of the 4th respondent in the list and conduct theselection on that basis. 2.The petitioner completed Bachelor of Dental Science in the year2005. She appeared for Post Graduate Dental Entrance Examination (PGDEE)for the academic year 2007-2008 held on 09.02.2007 and secured 161 marksout of 200. The third respondent published merit and wait list which isextracted below:-Name Category Roll No.Marksi)Dr. D. Jeyaraj GeneralM – 301167ii)Dr. Payal Chatterjee GeneralG - 101163iii)Dr. Vaishnavee @ Kamatchi OBC B - 205 162iv)Dr. Mahendira Kumar SCS – 401 149Wait list Name Category Roll No.Marksi)Dr. Surekha DabasGeneralG - 104161ii)Dr. Shiamala, JOBC B – 211156iii)Gnanavel, DSCS – 402135 https://hcservices.ecourts.gov.in/hcservices/

3.It is relevant to mention that under Puduchery Domicile /Residents quota, 4 seats of MDS were provided in which 2 seats for generalcategory, 1 for OBC and 1 for SC. The name of the petitioner was includedin Sl. No.1 in the wait list in the category of 'general'. The thirdrespondent conducted counselling on 09.04.2007 at 10.00 am. The candidatein Sl.No.(i) Dr. Jayaraj did not appear, however, the candidate in Sl.No.(ii) was selected in the general category, candidate in Sl.No. (iii) wasselected in the OBC category and the candidate in Sl.No. (iv) was selectedin SC category. On 21.04.2007, the petitioner received a communicationfrom the third respondent calling upon her to appear on 18.05.2007 fornext counselling. On 21.04.2007, the third respondent issued acommunication and displayed it in the notice board as follows:-"PGDEE-2007 – WAITLISTED CANDIDATES FOR 2ND ROUND COUNSELLING FORREALLOCATION OF SEATS & ALLOTMENT OF SEATS FROM WAITING LISTGeneral CategorySl.No.Reg.No.NameMarks1B-205Dr. Vaishnavee @ Kamatchi .V1622G-104Dr. Surekha Dabas1613M-309Dr. Sanguida .A160OBC CategorySl.No.Reg.No.NameMarks1B-211Dr. Shiamala, J1562B-220Dr. Gayathri, V154" 4.The said notification is challenged in this writ petition on theground that the fourth respondent was already selected in OBC category andjoined MDS on 10.04.2007 itself, hence, the third respondent ought to haveoperated the wait list and appoint her in general category in the vacancyof Dr. Jayaraj, who has not attended the counseling on 09.04.2007; thatafter admission of fourth respondent in OBC category, it is not open tothe third respondent to shift her from OBC category to general categoryand the petitioner is the only next eligible candidate to be accommodatedin the general category in the vacancy caused by Dr. Jeyaraj and prayedfor quashing of re-allocation order dated 21.04.2007. 5.Mr. Haridas, learned Senior counsel appearing for the petitionersubmitted that the seat, if any, which fell vacant in earlier counsellingcan only be filled in the same category in the next counselling. In thiscase, the fourth respondent was selected as a OBC candidate in thecounselling dated 09.04.2007 and she had already paid her fees on10.04.2007, hence, withdrawing her name from OBC category and adjusting inthe vacancy of general category in the next counselling is illegal; thatthe general category candidate Dr. Jayaraj did not attend the counsellingon 09.04.2007, the petitioner, who is in Sl.No.1 of the wait list in thesame category ought to have been fit in the vacancy, but without followingthe same, the impugned re-allocation was made, with the result, the sixth https://hcservices.ecourts.gov.in/hcservices/ respondent is likely to be adjusted in the general category, though shebelonged to reserved category, which is contrary to the reservationscheme. In support of his contention, the learned Senior counsel reliedon the decision of the Honourable Supreme Court reported in (Rajiv Mittalvs. Maharashi Dayanand University and others) 1998 (2) SCC 402, wherein inPara-14, it was held thus:-"14.The aforesaid Note 2, has not been correctlyconstrued by the High Court. This note, in a case likethe present, will have application only when a reservedcategory candidate is in a position to secure, andsecures admission to a seat in the general in the samecounselling, in which the seat is available to him inthe reserved category. It is for this reason that thefirst counselling for the general category candidateswas held on 09.09.2006 while the first counselling forthe reserved category candidates was held on10.09.1986. In other words, the first counselling wasspread over two days so that if any reserved categorystudent had managed to secure admission to the generalcategory seat then he would not be entitled toadjustment against the reserved seat. Had Sunil Yadavsecured admission to any one of the 49 seats in thefirst counselling held on 09.09.1996 then he could nothave been called or considered for admission againstany of the 11 reserved seats in the counselling whichwas held for the Backward Class candidates on10.09.1996. As Sunil Yadav's position in the opencategory was at Serial No.62 and the last candidate whohad secured admission at the first counselling againstthe 49th seat was at Serial No.53, therefore, havingfailed to secure admission on 09.09.1996, Sunil Yadavwas rightly allowed to take part on the second day ofthe first counselling for the backward classcandidates, which was held on 10.09.1996. It is inthat counselling that he was selected and grantedadmission to the Medical College at Rohtak. Once SunilYadav had secured admission in the reserved categoryquota at the first counselling, there would be nooccasion for him to take part in the second counsellingfor the general category seat for the same collegewhich was held on 26.09.1996. The seat which hadfallen vacant was one of the 49 seats, which wasrequired to be filled by the general categorycandidates. As the aforesaid Note 2 was not applicableto a case like the present, where Sunil Yadav havingfailed to secure admission in the open category in thefirst counselling, for that category for that category,but had secured admission in the reserved seat in thesame counselling the question of his being shifted orbeing regarded as a candidate to the open category seatwhich had become available only after he had securedadmission did not and could not arise and consequently,the appellant was rightly granted admission to thegeneral category seat in the Rohtak Medical College." https://hcservices.ecourts.gov.in/hcservices/

6.Mr. Murugesan.S.C. learned Government Pleader (Pondicherry)appearing for the respondents 1 to 3, relying on the common counteraffidavit submitted that the total number of seats in MDS for the academicyear 2007-2008 was 10 and 50% of it was allocated to All India Quota. Outof the balance 5 seats, 4 seats were allocated to PuducherryDomicile/Residents and the balance one seat was earmarked for NRI/NRIsponsored/foreign student. The respondents 1 to 3 conducted entranceexamination, drawn a merit list consisting of 4 candidates and wait listconsisting of 3 candidates. A common counselling both for general andreserved category was conducted on 09.04.2007. Dr. Jayaraj, who was inSl.No.1 of general category did not participate in the counselling, inthat vacancy, the fourth respondent, who secured 162/200 ought to havebeen treated as open category since she succeeded on basis of merit bysecuring 162 marks, but she was wrongly considered against reserved quota,the said error was set right by the impugned order following the procedurecontemplated in Clause IV (6) (C) of information bulletin for PostGraduate Entrance Examination – 2007 as well as the judgment of theHonourable Supreme Court in (Indira Sawhany vs. Union of India) 1992Suppl. 3 SCC 217 – Para 811; that the sixth respondent, who belonged toOBC category secured 154 marks is the next eligible candidate in thereserved category, who is likely to be considered by the respondents 1 to3 in the available vacancy of the said category. The learned GovernmentPleader also submitted that the judgment of the Honourable Supreme Courtreported in Rajiv Mittal's case relied on by the learned counsel for thepetitioner is not applicable to the facts and circumstance of the case andconcluded his argument by relying upon the decision of the HonourableSupreme Court reported in (M. Sreedevi vs. University of Medical Sciences,A.P. And others) 2000 (4) ESC 2279 (SC) wherein in Para Nos. 2 & 3, itwas held as follows:"2.The grievance of the appellant found favourwith the Division Bench of the High Court, namely,that candidates from the Scheduled Castes, ScheduledTribes and Backward Classes who were meritorious had aright to admission on merit and they could not beconsidered against the reserved quota. The DivisionBench added "concedingly, if this principle had beenfollowed, the appellant would have got admission inthe course. Thus, the appellant has suffered onaccount of the conduct of the University in notfollowing the settled principle of law laid down bythe Apex Court". But, surprisingly, instead ofgranting the necessary consequential relief, theDivision Bench only found it fit to award costs in thesum of Rupees Five Thousand against the University.The appellant, therefore, challenges the correctnessof its order.3.It it was the fault of the University, asthe Division Bench found, it was proper to direct theUniversity to make due amends. Our attention has beendrawn to the judgment and order of this Court in C.Tulasi Priya vs. A.P. State Council of HigherEducation and Ors., JT 1998 (5) SC 246: 1998 (6) SCC https://hcservices.ecourts.gov.in/hcservices/ 284 where also the University had committed a mistaketo the detriment of the student and this Courtdirected that the student should be considered foradmission to a medical college in the State in a seatfrom the quota of that State for the academic year inquestion upon the correct and not the mistaken basis."7.The learned counsel appearing for the sixth respondent adoptedthe argument of the learned Government Pleader appearing for therespondents 1 to 3 and relied on the decisions of the Honourable SupremeCourt reported in (i) (Union of India and another Vs. Satya Prakash andanother) (2006) 4 SCC 550 (ii) (Yoganand Vishwasrao Tatil and others vs.State of Maharashtra and others) (2005) 12 SCC 311 (iii) (M. Sreedevi vs.University of Health Services, A.P. and others) (2002) 10 SCC 760 (iv)(Ritesh R. Sah vs. Dr. Y.L. Yamul and others) (1996) 3 SCC 253) (v) (R.K.Sabharwal & others vs. State of Punjab and others) 1995 2 SCC 745) (vi(Rajiv Mittal vs. Maharashi Dayanand University and others) 1998 (2) SCC402. 8.This Court considered the arguments of counsel on both sides andcarefully perused the judgments of the Honourable Supreme Court. In thecase on hand, the issue involved relating to four MDS seats, in which twofor general category, one for OBC and the remaining one for SC. The thirdrespondent originally published merit list cum wait list on 21.02.2007.It is not in dispute that on 09.04.2007, the common counselling for bothgeneral and reserved category was held. The candidate in Serial No.1 ofthe merit list of general category Dr. Jayaraj did not participate in thecounselling. The candidates in Serial Nos. 2, 3 (who is fourth respondentherein) and 4 were selected in the category of general, OBC and SCrespectively. It is needless to mention that the respondents were underthe impression that the general vacancy alone to be filled up andpostponed the counselling to 18.05.2007. In the meanwhile, arepresentation dated 14.04.2007 was received by the third respondent fromthe sixth respondent stating that selection of fourth respondent under OBCcategory is illegal; even she belonged to OBC category, she ought to havebeen selected under open general category based on her merit and if thesame is adopted, then she is the next eligible OBC candidate entitled tothe resulted OBC vacancy. It is submitted by the respondents 1 to 3 thatthe said request was found valid and considered, consequently, theimpugned order was passed. 9.In this context, it is relevant to peruse the informationbullet-in PGDEE-2007 wherein in clause (iv) (6) (c) it is stated that allthe candidates (Puduchery Domicile) will be considered for selectionagainst open category seats. Once the general category seats have beenfilled up, as per the mark list, the remaining seats under the reservedcategory like MBC/OBC/SC will be filled up. It is argued by therespondents 1 to 3 that the said clause is included in the said bulletinfollowing the judgment of the Honourable Supreme Court in Indira Sawhanicase mentioned above wherein in Para-811, it was held in Para-811 that "Inthis connection, it is well to remember that the reservations underArticle 16 (4) do not operate like a communal reservation. It may wellhappen that some members belonging to, say, Scheduled castes got selectedin the open competition field on the basis of their own merit, they willnot be counted against the quota reserved for scheduled castes; they willbe treated as open competition candidates." https://hcservices.ecourts.gov.in/hcservices/

10.In the judgment relied on by the learned counsel for the 6threspondent reported in (Union of India and another Vs. Satya Prakash andanother) (2006) 4 SCC 550 their Lordships have held that merely becausethe OBC candidate opted a preference from the reserved category, he cannotbe treated as reserved candidate but should be treated as open categorycandidate for the purpose of computing quota/percentage of reservation. 11.In (Yoganand Vishwasrao Tatil and others vs. State ofMaharashtra and others) (2005) 12 SCC 311 relied on by the learned counselfor the sixth respondent, the Honourable Supreme Court held that a studentis entitled to be admitted on the basis of mark. Though he or she belongedto a reserved category, they cannot be considered for admission againstthe seats reserved for reserved category. 12.In the decision rendered by the Honourable Supreme Courtreported in (M. Sreedevi vs. University of Health Services, A.P. andothers) (2002) 10 SCC 760, relied on by the counsel for the 6th respondent,their Lordships have held that the students from SC/ST and backward classare having right to admission on merits should not be considered againstreserved category. The other decisions relied on by the learned counselfor the 6th respondent reported in (Ritesh R. Sah vs. Dr. Y.L. Yamul andothers) (1996) 3 SCC 253); (R.K. Sabharwal & others vs. State of Punjaband others) 1995 2 SCC 745) and (Rajiv Mittal vs. Maharashi DayanandUniversity and others) 1998 (2) SCC 402 reiterate the above said legalposition, hence, the same is not mentioned separately.13.Thus, it is well settled that a candidate, who applies eitherfor reserved category or for general category or for both reserved andopen, be considered first in open category. In case, he or she is notselected in open category, he or she be considered for reserved category. 14.The learned counsel appearing for the petitioner relied on thedecision of the Honourable Supreme Court in (Rajiv Mittal vs. MaharashiDayanand University and others) 1998 (2) SCC 402. In the said case, therewere 60 seats in the University out of which 49 were earmarked for opencategory and 11 for reserved category. One reserved candidate securedfirst position in the reserved category and 62nd position in the generalcategory. The first counselling for 49 seats in general category held on09.09.1996. A candidate namely Sunil Yadav did not get seat because ofhis low position in the merit list but on the next day, when counsellingwas held for reserved candidates, he got a seat because of his firstposition in reserved merit list. The other candidate, who was notselected in the said reserved category contended that the said Sunil Yadavought to have been adjusted against the open category. The HonourableSupreme Court, in Para-14 of the judgment found that Sunil Yadav'sposition in the open category was in Serial No.62 and the last candidate,who secured admission at the first counselling against 49th seat was atSerial No.53, therefore, having failed to secure admission on 09.09.1996,Sunil Yadav was rightly allowed to take part on the second day of firstcounselling for the backward class candidates, in which he was selectedand granted admission. It is further held that once Sunil yadav hassecured admission in the reserved category quota in the first counselling,there would be no occasion for him to take part in the second counsellingfor the general category seats which was held on 26.09.1996. The seatwhich has fallen vacant was one of the 49 seats, which was required to be https://hcservices.ecourts.gov.in/hcservices/ filled up by the general category candidates. It is further held by theHonourable Supreme Court that when Sunil Yadav, having failed to secureadmission in the open category in the first counselling, for thatcategory, but he secured admission in the reserved seat in the samecounselling the question of his being shifted or being regarded as acandidate to the open category seat, which had become available only afterhe has secured admission did not and could not arise. 15.In the case on hand, on 09.04.2007, common counselling wasconducted for both general and reserved category. The seats earmarked inthe open category was two, one for OBC and the other for SC. One Dr.Jayaraj, belonged to general category, who was in Serial No.1 in the meritlist did not participate in the counselling and forfeited his seat. Insuch event, the respondents 1 to 3 ought to have accommodated the fourthrespondent in the general category, as she has secured 162 marks, succeedin the general category on the basis of merit on the same day of commoncounselling, instead, she was wrongly admitted in OBC category. Afterreceipt of representation from the 6th respondent, the respondents 1 to 3realised the mistake and rectified it in and by the impugned order of re-allocation. The petitioner, who has secured 161 marks i.e., one marklesser than the fourth respondent. Hence, the impugned re-allocation isin terms of the judgment of the Honourable Supreme Court reported in(Indira Sawhany vs. Union of India) 1992 Suppl. 3 SCC 217 as well as incompliance of clause iv (6) (c) of the Information Bulletin, hence, thedecision of the Honourable Supreme Court relied on by the learned counselfor the petitioner reported in (Rajiv Mittal vs. Maharashi DayanandUniversity and others) 1998 (2) SCC 402, in my respectful consideration isnot applicable to the facts and consideration of the case on hand.16.In view of the above discussion, the writ petition is devoid ofmerits, liable to be dismissed and accordingly it is dismissed. No costs.Consequently, connected miscellaneous petitions are closed.rshSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The Chief Secretary to the Government & Chairman Board of Governors Mahatma Gandhi Post Graduate Institute of Dental Sciences Government of Puducherry Institution Puducherry – 605 006 https://hcservices.ecourts.gov.in/hcservices/

2. The Chairman Selection Committee The Mahatma Gandhi Post Graduate Institute of Dental Sciences Government of Puducherry Institution Puducherry – 605 0063. The Registrar The Mahatma Gandhi Post Graduate Institute of Dental Sciences Government of Puducherry Institution Puducherry – 605 006+1 cc to Mr.S.Krishnasamy, Advocate Sr.No.40577.+1 cc to Mr.K.Ramachandrasn, Advocate Sr.No.40536.+1 cc to Mr.P.V.S.Giridhar, Advocate Sr.No.40803.+1 cc to Senior Government Pleader cum Senior Public Prosecutor for Pondicherry Sr.No.40837.ASM(CO)dcp/13.7.07WP No. 16998 of 2007