WP(C) 4528/2010 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. Heard Mr. A.M. Mazumdar, learned senior counsel for the petitioners. A lso MR Pathak, learned standing counsel for the Education Department appearing f or the official respondents. The private respondents arrayed subsequently have r efused to receive the notice tendered to them by the petitioners and are, theref ore, not participating in the hearing. 2. The petitioners applied for admission for the 3 seats of NCC quo ta in the State Engineering Colleges of Assam and challenged the select list not ified by the Director of Technical Education, Assam (Annexure-6), whereby the tw o writ petitioners have been placed in the waiting list and were thereby denied the admission. 3. The admission for the BE course is made for general category sea ts, through a combined entrance examination conducted by the Dibrugarh Universit y. But for the reserved seats, provided under Clause-9 of the Information Brochu re, 1 seat each for the best NCC cadet is reserved in the three Engineering Coll eges of the State. It is further provided that selection of candidates in NCC ca tegory is to be made on the basis of certificate produced by the applicants.. 4. The petitioners claim that they have qualified in all the three levels of the NCC courses i.e. ’A’, ’B’ and ’C’ and both of them are also holdin g the coveted ’C’ certificate which is the highest level that can be achieved by a NCC cadet. But notwithstanding their grade ’C’ certificate which reflects the highest NCC merit, the petitioners’ NCC merit position have not been reflected appropriately in the impugned select list and less deserving candidates with inf erior NCC qualification, have been enlisted higher in the impugned select list. 5. For the record the petitioner in WP(C) No. 4528//2010, Deepjyoti Koch has secured B Grade in the NCC ’B’ level examination held on Feb., 2009 an d secured A Grade in the NCC ’C’ level examination held on Feb., 2010. The petitioner in WP(C) No. 4199/2010, Dony Gohain has secured B Grade in NCC ’B’ level conducted in Feb., 2009 and a similar grade in NCC ’C’ l evel conducted in Feb., 2010. Since original certificates pertaining to the NCC ’B’ and ’C’ level exa minations were not furnished to the cadets , they applied on the basis of provis ional certificate. 6. The selections for admission for the 3 NCC category seats was he ld on 21.7.2010 and the records of selection produced by Mr. Pathak shows that t he Selection Committee in its deliberation of 21.7.10 decided not to act on the provisional NCC qualification certificates produced by the candidates. Because o f such decision, both the petitioners were shown in the waiting list and their n ames were not reflected in the NCC merit list, where names of only three candida tes for the three available seats were notified. 7. It appears from the order sheet in WP(C) No. 4528/10 that an ass urance was given on 23.8.10 by the learned standing counsel for the Education De partment before the Court that, vacancy will not be filled up until the next dat e and the counsel’s assurance was recorded by the Court in the order dated 23.8. 10. By later orders of the Court, interim protection was directed to continue in both the writ petitions. But notwithstanding the assurance given in Court and t he interim orders passed, the candidates in the NCC merit list were permitted to take admission. Accordingly Court directed their impleadment as respondents 5,6 ,7 and 8 by order passed in Misc. Case No. 2924/10. 8. Thereafter on orders being made to serve the newly added respond ents on Dasti’ basis, the petitioner tendered notice to the newly impleaded res pondents. But respondent No. 5, Manasjyoti Barman, respondent No. 7, Himadri Bor kakoki and respondent No. 8, Diganta Kumar Mishra refused to accept the notice t endered by the petitioner. In so far as respondent No. 6, Bijit Kumar Mech is co ncerned, since he was not available, notice was tendered to his father Sri Nande swar Mech at his office but he also refused to accept the notice on behalf of re spondent No. 6. The petitioners have filed then affidavit indicating the manner of serving notice upon the private respondents. 9.1. It is argued by Mr. A.M. Mazumdar, learned senior counsel that m erit in the NCC examination was the sole criteria for admission and the best NCC candidate was the most deserving of the NCC quota seats. However, by refusing t o reflect the correct merit position of the petitioners only because they produc ed provisional NCC qualification certificate, the respondents have enabled admis sion for less meritorious candidates. 9.2 The learned counsel further submits that the admission authoriti es should have accepted the provisional certificate(s) to determine the merit po sition and cannot partially act on the provisional certificate(s) to keep the pe titioners in the waiting list and not include their names in the main merit list . It is further argued that there is no basis for refusing to accept the provisi onal NCC qualification certificates, which have been issued by the NCC authoriti es themselves, since the original certificates gets issued after long delay. tak e a long time. 9.3 Mr. Mazumdar points out the earlier instances when the Admission Committee had granted admission to Mr. Pankaj Saikia, who was admitted to the J orhat Engineering College in the year 2006 and Mr. Chandan Bezbaruah, who was ad mitted to the Assam Engineering College, Guwahati against the NCC quota in 2007 although both of them furnished a provisional certificate(s). 10.1 Mr. Mr. Pathak, learned standing counsel, Education Department in reply submits that the Selection Committee in its meeting of 21.7.10 decided that only the original NCC qualification certificates are to be considered for selection against the NCC quota seats and on the basis of the said decision, the petitione r’s provisional certificate of NCC ’B’ and ’C’ level examinations, were not acce pted by the admission committee. 10.2 The learned counsel further submits that the petitioners were en listed in the waiting category to enable them to produce the original certificat e before the admission date but since thy failed to produce the original certifi cate, the admission was given to others who did not have any such deficiency in their testimonials. 11. I find from the case records that both the petitioners had produ ced provisional certificate for NCC ’B’ and ’C’ level examinations provided by the Group Commander NCC Group Headquarter, Guwahati and the Deputy Director of N CC respectively. From the other certificate of the Group Commander of the NCC Gr oup Headquarter, Guwahati, it can be gathered that provisional certificates are issued to enable the students to take admission or to appear in the selection te st and original certificates are later issued to bulk to the students after a pe riod, by which time the period of admission may be over. 12. No doubt the provisional certificates given by the NCC authorit ies were not available on 21.7.10 when selections were made but petitioners were denied the opportunity to produce these certificates. That apart since the prov isional certificates produced by them were acted upon in a limited way, to place them in the waiting list of selected candidates for the NCC category quota seat s, the authorities did not disqualify the candidature of the petitioners. 13. In the considered opinion of the Court, if the provisional certi ficates cannot at all be accepted, it cannot be used to place the writ petitione rs in the select list (even though in the waiting list category). But since the provisional certificates were acted upon in a limited way, it cannot be said tha t the Admission Committee had decided unequivocally to reject the candidatures o f any candidate, for his/her failure to produce the original NCC qualification c ertificate. 14. That apart, it is seen that even some of the selected candidates had also failed to produce the original certificates and yet they were short li sted in merit position and permitted to secure admission against the NCC quota s eats. 15. Since it is not in dispute that a cadet with NCC level ’C’ quali fication is the best in merit, the selection of candidates with less than ’C’ le vel qualification obviously meant that less meritorious candidates were given ad mission and the more meritorious NCC cadets have been left out of contention. 16. Furthermore, the respondents do not deny that in the year 2006 a nd 2007 candidates with provisional NCC certificates were given admission in the Jorhat Engineering College and the Gauhati Engineering College against NCC quot a seats. But only contention made for not accepting the provisional certificates produced by the petitioners is that a decision was taken by the Admission Commi ttee on 21.7.2010, not to act on such provisional certificates. 17. When the NCC authorities themselves admit that considerable dela y occurs in issuing the original NCC qualification certificates which are subseq uently issued in bulk to all the candidates and provisional certificates are iss ued for the purpose of admission and selection, it is difficult to comprehend as to why the Selection Committee had refused to act on the provisional certificat es produced by the petitioners. 18. On a specific query made by the Court as to whether there have b een any instance in the past of fake provisional certificate being used by the c andidates to secure NCC quota admission, Mr. Pathak , learned standing counsel f rankly admits that there has been no such instance in the past of any such fraud ulent admission because of provisional NCC certificates. 19. Having considered the above, this Court has to hold that the sel ection made for the NCC quota seats for the year 2010 was not made on the merit of the candidates since more meritorious candidates were left out of contention because they furnished provisional certificates. This, in my view, was not a fai r admission exercise, as it was nowhere specified that provisional certificates would not be considered for admission. Furthermore, the provisional certificates have not been out rightly rejected but have been used, for enlisting the petiti oners in the wait-listed category in the merit list. 20. For the foregoing reasons, I hold that the writ petitioners have been denied their deserved merit position against the NCC quota seats. Accordin gly the respondents are directed to act on the provisional certificates issued b y the NCC authorities for the ’B’ and ’C’ level examination and to re-do the ex ercise to prepare a correct merit list for the NCC quota seats. Since less deser ving candidates have secured admission on the basis of an erroneous exercise, th e fresh exercise is ordered to be carried out within 7 days from today. On the b asis of a re- evaluation, the most meritorious NCC candidates be given admission and the less meritorious must give way for admission of the more meritorious NC C cadet.. 21. The petitioners are permitted to produce the provisional certifi cate(s) issued by the NCC authorities to the Director of Technical Education, As sam by 7.10.10 to enable the Admission Committee to consider them and prepare a fresh merit list of the candidates for the NCC quota seats. The Admission Commit tee should take their decision on or before 12.10.10. 22. The writ petitions are allowed with the above direction.