WP(C) 5046/2010 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. A.K.Sarkar, learned counsel for the petitioners. Also heard Mr. D. Sai kia, learned standing counsel for the Health Department representing the respond ents. 2. The petitioners in these three writ petitions sought admission i nto the MBBS Course for the session 2010-2011 in the Medical Colleges of Assam a nd all of them belong to the scheduled caste category. As per the result of join t entrance examination, the petitioner Likuma Das was ranked 687, petitioner San ghamitra Sarkar secured 732 rank and the 3rd petitioner Anooshmita Das was ranke d 808 as per the notice dated 5th July,2010 issued by the Controller of Examinat ion and the Director of Medical Education. 3. Thereafter an educational notice dated 5.7.2010 was issued infor ming the candidates to appear for counseling for admission into in the three Med ical Colleges of Assam i.e. Gauhati Medical College, Guwahati, the Assam Medical College, Dibrugarh and the Silchar Medical College, Silchar. The counseling for the general category candidates was scheduled to be held between 12th to 15th July, 2010 and 16th July, 2010 onward was the date fixed for counseling the sche duled caste category candidates. 4. Of the total 391 seats available in all the three Medical Colleg es, 161 seats were meant for general category candidates, 21 seats for scheduled caste category candidates and the remaining seats for other reserved category c andidates. 5. At the end of the counseling by 13th July, 2010, the allotment f or 161 general category seats was complete and the last ranked person to secure admission in general category was ranked at 157. 6 The counseling for the scheduled caste category candidates for t he 21 MBBS seats commenced on 13th July, 2010 and by 16th July all the 21 seats for scheduled caste category were filled up. The last candidate selected under t he scheduled caste category is ranked 517. 7. It may be recorded that in the meantime, the Govt. of Assam had established a new Medical College at Jorhat and the request for starting MBBS Co urse in the newly established Medical College at Jorhat was being considered by the Medical Council of India (MCI). A request for increasing the number of MBBS seats in the Silchar Medical College was also under consideration of the MCI. 8. After the counseling for filling up the pre existing seats in th e three Medical Colleges was over by 18.7.2010, a communication was received by the Silchar Medical College and the Director of Medical Education from the MCI i nforming that approval has been granted to increase the intake at the Silchar Me dical College from 65 to 100 for the academic year 2010-2011. Accordingly, 35 ad ditional seats at Silchar Medical College were made available. A letter was then received on 17.7.2010 from the Medical Council of India granting permission for establishment of a new Medical College at Jorh at and admission of 100 students in the new college initially for a period of 1 year. 9. As information about of 135 additional MBBS seats was subsequent ly received from the MCI, in the meantime, after counseling for the three existi ng colleges was over on 18.7.2010, Govt. approval was sought on 20.7.2010 for ad mission to the preexisting seats and after receipt of approval, through educatio nal notice dated 20.7.2010 the selected candidates who were short listed through counseling between 12th to 18th July, 2010 were permitted to take provisional a dmission into 3 Medical Colleges in the 1st year MBBS Course for the session 201 0-2011. 10. For the additional 135 seats made available by the MCI, the Dire ctor of Medical Education, Assam by his communication dated 21.7.2010 sought Gov t. approval to commence further counseling of candidates to fill up the addition al 135 seats and by Govt. communication dated 23rd July, 2010, approval was acco rded for conducting counseling for filling up the additional seats. 11. Out of the 135 seats made available for admission, 115 were earm arked for State quota and 20 were meant for Central quota. Of the 115 State quo ta seats by applying the reservation criteria 72 seats became available for gene ral category whereas 8 seats became available for admission of candidates, from the scheduled caste category. 12. The extended counseling for general category candidates was held on 27th July, 2010 and the 72 general category seats were short listed merit wi se, the last in the open category who became entitled for admission was ranked 3 27 in the merit list. 13. The counseling for scheduled caste and other reserved category c andidates was held on 28th July, 2010 and for the 8 available seats, scheduled c aste candidates starting from merit rank 518 to merit rank 593 became eligible f or admission. The petitioners who applied under the scheduled caste category, wi th JEE rank of 687, 732 and 808 failing to secure admission, have challenged th e select list notified on 29.7.2010 by the Director of Medical Education. 14.1 Mr. A.K. Sarkar, learned counsel for the petitioners refers to t he proviso to Rule 6 of the Admission Rules (Annexure-9) to contend that if a re served category candidate by virtue of securing a higher merit position becomes entitled to a MBBS seat on merit, he should be admitted as a general category ca ndidate and not as a reserved category candidate and the reserved category seat should go to another candidate of that category, who may not otherwise, would ha ve been entitled to a seat in the MBBS Course . 14.2 The learned counsel relies upon the Supreme Court decision in ca se of M. Sreedevi vs. University of Health Services, A.P. and ors. reported in ( 2002) 10 SCC 760 in support of his contention. 14.3 It is argued by Mr. Sarkar that if the admission exercise would have been carried out by taking the total 526 medical seats including the 135 ad ditional seats, a few of the scheduled caste category candidates admitted agains t scheduled caste category quota would have been entitled to admission on merit as general category candidates and in the process, a few wait listed candidates from the scheduled caste category could have secured admission, instead of gener al category candidates. 15.1 Mr. D. Saikia, learned counsel representing the admission author ities submits that in the first counseling process for the 391 MBBS seats, sched uled caste category candidates at merit position 106 and 130 were given admissio n on merit to the 161 open category seats, by adhering to the proviso of Rule 6 and the judgment of the Supreme Court in M. Sridevi (Supra) and it is pointed ou t that only for such accommodation, candidates with rank rank uptil 517 in the s cheduled caste category, could be accommodated to the 21 available seats. 15.2 However, it is frankly admitted by Mr. Saikia that for the addit ional 100 seats for the Jorhat Medical College (newly established) and the addit ional seats in the Silchar Medical College (35), because of the last minute sanc tion of the additional seats and the stipulated time schedule for completion of the admission process (initially fixed on 14th July and extended to 25th July), due to paucity of time, the Admission Committee while considering the merit posi tion of the reserve category candidates, could not take into account who amongs t them could have secured admission on his own merit ranking without relying upo n a reserved category seat. Mr. Saikia however clarifies that calculations have been made thereafter which according to him projects that even if this exercise was carried out for the 8 scheduled caste category additional seats, considering the merit position of the three petitioners, who were in waiting list positions 12th, 13th and 20th respectively, they would not have secured admission as only the first 8 wait listed scheduled caste category candidates from the waiting l ist could be admitted through second admission exercise. 15. 3 The learned counsel refers to the time schedule stipulated by th e MCI for completing the process of admission and submits that the admission for the additional seats after the stipulated date of 25th July was an exception co nsidering the peculiar exigencies of the situation and a combined admission proc ess by clubbing together the pre existing 305 seats together with the 135 additi onal seats was not possible, as the process of counseling for the 305 seats was over, well before the additional seats were sanctioned by the MCI. 15.4 As regards the publication of a common list on 29.7.2010, Mr. Sa ikia submits that although the candidates whose name appears in the said list we re short listed in two separate counseling processes, a single list was later no tified to enable the candidates to opt for shifting of their respective Medical Colleges and by exercising options, some of the candidates opted to change to th e newly created Jorhat Medical College and Silchar Medical College, instead of o ther colleges where they were provided admission. 16. Having considered the rival submissions, it is apparent that the claim of the petitioners can have some basis only if it is concluded that all t he seats including 115 additional seats are to be filled up at one go. But the m ain difficulty for accepting this proposition is that initially only 305 State q uota seats were available and they were filled up on the basis of counseling hel d between 12th July to 18th July, 2010. The additional 115 seats were sanctioned only after the counseling exercise was over. 17. It must also be borne in mind that the final date of counseling was stipulated by the MCI as 25.7.2010 and the last date for taking admission in the allotted college was 31st July and the academic session was to commence fro m 1st August, 2010. In these circumstances, Admission Committee could not have d elayed the process of admission to prepare a common list by taking into account the additional seats sanctioned by the MCI for the newly established Jorhat Medi cal College and Silchar Medical College in the 3rd week of July, 2010. 18. Because the inflexible time deadlines were required to be adhere d to and the belated sanctioning of the additional seats and more particularly w hen the admission exercise in respect of the original 305 seats were completed b y 18.7.2010, it is difficult for this Court to hold that the selection process o ught to have taken into account the additional 115 seats sanctioned by the MCI, after the counseling was over for the initially available 305 seats. To expect t he Admission Committee to combine all the seats and then carry out the admission exercise in my view would be unreasonable and cannot be warranted in the peculi ar facts of the present case, where the additional seats were sanctioned at the very last moment by the MCI. 19. That apart, the Court must also take into account that the petit ioners by virtue of their merit ranking and the respective position in the waiti ng list, are hardly likely to get admission even if a couple of additional seats for scheduled caste category candidates became available to be filled up by can didates of that category. When the petitioners are in such merit position, this Court does not consider it justified to disturb a selection process, which does not otherwise suffer from any illegality. 20. The permission for the 135 additional seats in the newly establi shed Jorhat Medical College and Silchar Medical College was received after the f irst counseling and by that time, short listing of candidates for admission was already over. The counseling exercise for these additional seats was thereafter held in great hurry, to meet the deadline for the last date of admission i.e. 31 .7.2010. No allegation is made by the petitioners that the admission to the addi tional seats have been granted to candidates by disregarding the merit position and it is seen from the admission records that candidates have been offered admi ssion strictly in order of their merit ranking in the entrance test. The classes have thereafter started and the selected candidates are now attending there MBB S classes. 21. For the foregoing reasons, I am of the considered opinion that t hese writ petitions at the instance of the wait listed scheduled caste category candidates should not be entertained since no relief is possible and the same ar e accordingly dismissed.