1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8009 OF 2007 Seema Jagdish Neviet .. Petitioner Vs. The State of Maharashtra & Ors. .. Respondents Mr.L.S.Deshmukh for the petitioner Mr.A.A.Kumbhakoni, Associate Advocate General with Mr.P.I.Khemani, A.G.P. for respondent nos.1 to 3 Mr.S.V.Deshmukh for respondent nos.4 CORAM : J.N.PATEL CORAM : J.N.PATEL CORAM : J.N.PATEL & & & SMT.NISHITA MHATRE, JJ. SMT.NISHITA MHATRE, JJ. SMT.NISHITA MHATRE, JJ. DATED : 13TH FEBRUARY, 2008 DATED : 13TH FEBRUARY, 2008 DATED : 13TH FEBRUARY, 2008 P.C.(PER J.N.PATEL, J.): P.C.(PER J.N.PATEL, J.): P.C.(PER J.N.PATEL, J.): 1. Rule. Rule made returnable forthwith. 2. Heard the learned counsel for the parties. 3. We propose to dispose of this petition at the stage of admission itself considering that the matter pertains to admission of P.B.B.Sc. (Nursing) degree Course for the academic year 2 2007-08. 4. The petitioner after having passed the H.S.C. examination with Commerce subjects in the year 1991 completed her General Midwife Nursing Course which is the basic qualification for passing the post basic B.Sc course and since the year 1998 she is working with J.J.Hospital as a staff nurse. 5. The respondent nos.2 issued an advertisement thereby calling applications from eligible candidates for the post of Basic B.Sc. (Nursing) degree course. The petitioner alongwith others applied in response to the advertisement and respondent nos.3 after scrutinizing the applications on 12.07.2007 published a provisional eligibility list in two categories i.e. the list of candidates from science stream and the list of candidates from other faculty. 6. On 26.07.2007, final selected list of 40 candidates and waiting list of 47 candidates came to be published. Respondent nos.4 was placed at Serial No.4 in the merit list. The petitioner 3 could not make it to the merit list and her name figured in the waiting list of candidates in the category of other faculty. 7. It is the case of the petitioner that respondent nos.4 was offered the seat in respondent no.3 College i.e. Institute of Nursing Education, Sir J.J.Group Hospital Compound, Byculla, Mumbai but she failed to exercise the option and seek admission and, therefore, lost her claim for being admitted to the course. 8. It is the case of the petitioner that subsequently 10 more seats of P.B.B.Sc (Nursing) were created in Kasturba Nursing College, Sevagram Dist. Wardha by the Government vide its Resolution dated 19.09.2007 and instructions were given to the selection committee of respondent nos.3 College to complete the selection process for these vacancies. 9. It is the contention of the petitioner that respondent nos.3 ought to have considered candidates from wait list (Science faculty) for being admitted against the 10 additional seats and 4 if the said wait list was exhausted then candidates from other faculty as provided under sub-clause (2) of clause (8) of the rules were eligible for consideration. 10. It is the case of the petitioner that amongst the additional 10 seats for P.B.B.Sc. (Nursing) for the Academic year 2007-08, one seat is reserved for NT-2 category and since there was no candidate from NT-2 category in waiting list of candidates from Science faculty, the selection committee of respondent nos.3 College ought to have selected a candidate from NT-2 category out of the IInd category of wait list, in accordance with the rules provided in the prospectus which govern the admission process to the course. 11. It is the case of the petitioner that though respondent nos.4 belongs to NT-3 category, she was selected against the seat reserved for NT-2 category. However, she having abandoned her claim, having failed to seek admission within the prescribed time against the seat allotted to her, she lost her claim for admission. As per clause 5 8(2) of the Admission Rules, those candidates who did not take admission in prescribed time, they loose their right to seek admission to the course and preference is to be given to the candidate of the same category against the said seat. Hence, as per Rule 8(2) of the Rules for Admission, she had lost her claim to get herself admitted to degree Course of P.B.B.Sc. (Nursing) and therefore, respondent nos.4 could not have been granted admission as she was out of the zone of consideration against the 10 additional seats. 12. The petitioner claims that in respect of category of other faculty candidates, she ranked at No.1 in NT-2 category and, therefore, she ought to have been considered for admission to the degree course of P.B.B.Sc. (Nursing) against the 10 additional seats which were made available subsequently, one of which has been reserved for NT-2 category and, therefore, it is submitted that the admission of respondent nos.4 be declared to be invalid as it is contrary to the rules of Admission and respondent nos.1 to 3 be directed to give admission to the petitioner for the degree course 6 of P.B.B.Sc. (Nursing) against the additional seat of NT-2 category which became available in Kasturba Nursing College, Sevagram at Wardha. It is also contended that if there is any seat lying vacant in the said College out of the 10 seats then the petitioner should be considered for the same and admitted. 13. In response to the petition, an affidavit in reply came to be filed on behalf of respondent nos.1 to 3 in which it has been disputed that the respondent nos.4 was initially granted admission at the respondent nos.3 College. However, the respondent nos.4 who is a lady from Yavatmal, did not accept the said allotment and did not join the respondent nos.3 College. 14. It is the case of the respondent nos.1 to 3 that at the time respondent nos.4 was allotted seat at the respondent nos.3 College, the total number of seats available at Kasturba Nursing College, Wardha, Sevagram were only 10 seats for admission and respondent nos.4 in view of her relative merit position and category, was not able to secure 7 admission at the aforesaid Kasturba College. It is after the conclusion of the 1st round of admission, additional 10 seats became available at the aforesaid Kasturba College, Wardha vide Government Resolution dated 19th September, 2007. It was therefore, necessarily required to offer seats to all the candidates who were seeking admission at the 1st round of admission from Serial Nos.1 onwards. Accordingly, these additional 10 seats were offered to all the candidates including the respondent nos.4 and the respondent nos.4 was pleased to opt for one of the seats from the said Kasturba College at Wardha meant for NT-2 category and as she is from Science stream as against the petitioner who is from Commerce stream, the respondent nos.4 was preferred against the petitioner and therefore, respondent nos.4 was allotted the NT-2 category seat from the aforesaid Kasturba College at Wardha which was after conclusion of the 1st round of admission. 15. In reply to the contention of the petitioner that this is contrary to clause 8(2) of the Admission Rules. It is contended on behalf of 8 the respondents that while considering the candidates for admitting them against the additional 10 seats at Kasturba College, Wardha, in terms of clause 8(2) of the Admission Rules cannot be read as to disqualify respondent nos.4 from the zone of consideration. On the other hand, the petitioner does not fall in NT-2 category and was in the waiting list which has been separately prepared for non science stream and so also the petitioner is not at Sr.No.1 in the Waiting List prepared for non science stream and there are two more candidates in the same category who are above the petitioner, therefore, the petitioner has no right to claim admission against one seat reserved for NT-2 category in the said college and that seat will have to be first offered to the aforesaid two candidates before seat can be available to the petitioner. 16. It is the case of the respondents that the petitioner is misinterpreting Rule 8(2) of the Admission Rules and her contention that since there was no candidate from NT-2 category of Science Stream, admission ought to have been granted to the 9 petitioner cannot be considered. Respondent no.4 has also file her affidavit in reply and has claimed that as she has been already admitted and rightly so being more meritorious and as she belongs to Science Stream her admission cannot be faulted with. 17. The learned counsel for the petitioner has submitted that respondent nos.1 to 3 could not have granted admission to respondent no.4 as it is contrary to clause 8(2) of the Rules of Admission and merely because there are other two candidates in the Waiting List above the petitioner, does not deprive the petitioner from being considered for admission against the said seat reserved for NT-2 category if the other two candidates do not opt for it. It is submitted that one can understand that one of the candidates from NT-2 category in the Waiting List who is better placed in merits compared to the petitioner was offered admission and she opted for it. It is contended that the petitioner does not join issue on this point but only claims that qua respondent nos.4 who was otherwise disqualified from being reconsidered has 10 been given admission in preference to the petitioner or persons who were in the Waiting List and, therefore, the admission of the respondent nos.4 deserves to be quashed and set aside and respondent nos. 1 to 3 should be directed to offer a seat to any of the qualified candidate in the Waiting List from NT-2 category as out of the 10 seats, one seat is reserved for NT-2 category. 18. It is submitted that in their affidavit in reply, the respondents have failed to mention that the other two candidates in the Waiting List were offered the seat reserved for NT-2 category out of the 10 additional seats which were created at Kasturba College, Wardha and, therefore, there is no reason why the petitioner’s case should not be considered for admission. 19. The learned Associate Advocate General submitted that the respondent nos.1 to 3 were justified in offering the seats to respondent no.4 for the reason that these 10 additional seats were not available earlier and if they were made available at the time of the 1st round, then 11 respondent no.4 was the only candidate who could have got admission against the said seats. 20. It is further contended that respondent no.4 is not only more meritorious compared to the petitioner but also belongs to Science Stream which is given preference over other faculties and merely because she has not taken admission against the seat offered to her because of her personal inconvenience, her claim could not have been overlooked. 21. The learned counsel for respondent no.4 submitted that the admission given to respondent no.4 is in accordance with the Rules and the fact that she is more meritorious than the petitioner and belongs to Science stream is not disputed. It is submitted that the Rules cannot be interpreted in a manner so as to deprive a meritorious candidate from being considered for admission if additional seats are made available. 22. It is canvassed before us that merely because respondent no.4 did not opt for the seat 12 offered to her at the relevant time which was the only seat available to her in her category and in accordance with her standing in the merit list, the respondent no.1 to 3 were justified in considering her case subsequently when additional 10 seats were generated. It is submitted that if the rules are to be considered in the correct perspective then she was debarred only from seeking admission against any other seat if it has fallen vacant or was available out of the original quota of seats but it would not apply to the additional 10 seats which have been created subsequently, as all the candidates in the fray who were considered for admission were rightly offered these seats and if thereafter, seats were still available then it could have been offered to Wait List candidates. 23. The only issue for our consideration is as to whether respondent no.4 was eligible for being offered the seat out of the 10 additional seats which were created subsequently or it was required to be offered only to the candidates of the Waiting List. In order to decide the controversy, we may refer to sub-clause (2) and (4) of clause 8 of the 13 prospectus and rules for admission of the P.B.B.Sc. (Nursing) degree course commencing from the Academic Year 2007-08. Clause 8(2) and (4) provides as under: 8(2) For the candidates, who became eligible as per the merit list, the information as to in which institution they have been given admission, by taking into account their order of choice (preference) given by them in the application, as well as the information as to the date by which they should join the institution will be publicised (declared) on the website. Moreover, the candidates will be informed by letter. Initially, 50 percent seats reserved under the Government Service will be filled up on merits. Thereafter, 50 percent of private seats will be filled up, on merits, from the candidates in the private hospitals. Those candidates, who fail to join the institution within the prescribed period, shall not have any kind of right to get admission. The seats remaining vacant because the candidates do not join the institution within the prescribed period, will be filled up from the wait list, as per the quota to which they belong and inspite of this if the seats remain vacant, then selection of the candidates will be made, on merits, from the wait list in which the candidates are left. (emphasis is ours) 8(4). A seat that may fall vacant 14 for any reason in the institution concerned, will be filled up only from the candidates in the wait-list. Moreover, if the available private or Government seat remains vacant for want of candidate in the respective group, then the same will be filled up from the wait-list of another group as per their interse-merit." 24. The plain reading of the aforesaid clause 8(2) and (4) of the rules makes it clear that in case a candidate is offered a seat in accordance with the merit list at any of the Institution and he fails to take admission in the said institution within the prescribed period then he will have no right whatsoever and the said seats would be filled in from the Waiting List in accordance with the quota meant for different categories of persons and inspite of that, if there will be further vacant seats they would be filled in from the candidates which remain in the Waiting List on the basis of merits. 25. It is not disputed that the respondent nos.4 was offered a seat in accordance with her place in the merit and by giving preference for 15 being a candidate from Science stream in the very first round of admission conducted in the respondent no.3 College which she did not join. Therefore, as per subclause (2) read with subclause (4) of clause 8 which clearly provides that a candidate who has been allotted a seat and offered admission fails to accept the same then the candidate would lose his right for being considered for admission against the vacant seats. Therefore, we have no hesitation to hold that in so far as respondent no.4 is concerned, she was out of the zone of consideration when additional 10 seats became available in Kasturba College, Wardha vide G.R. dt.19.9.07 for the reason that these additional 10 seats will be available to all such eligible candidates who were in the zone of consideration, as their right to seek admission continued to subsist. 26. The G.R. dated 19.09.07 which has been annexed to the affidavit in reply filed by respondent nos.1 to 3 also does not over ride the rules of admission by virtue of which 10 additional seats came to be created in Kasturba College, 16 Wardha. It only provides for creation of 10 additional seats pursuant to the representation made by the Institution. 27. We have no difficulty in considering that as per the rules, it is only those candidates who were eligible for being considered for admission at the time these 10 additional seats were created, were the only candidates who could have been offered these seats and may be such candidates were out of the merit list who could not be accommodated in the available seats and if no such candidate was available from the merit list, the next preference ought to have been given to the candidates whose names figure in the Waiting List. 28. Therefore, the contention of the learned A.A.G. that after 10 additional seats were created, it was obligatory on the part of the respondents to again offer it to all the candidates from the merit list does not find support either from the provisions of the Rules of Admission or the G.R. It may appear to be unfair to respondent no.4 who unfortunately lost her right to seek 17 admission in the said course having failed to take admission against the seat allotted to her and therefore, forfeited her right of being considered for admission to the said course for the academic session i.e. from 2007-08, even when additional seats became available. 29. We are informed that the procedure for admission of candidates to the said course was concluded by 31.10.07 and thereafter the academic session 2007-08 has commenced. Therefore, we do not find that if the case of the petitioner is considered for being admitted against the seat reserved for NT-2 category in Kasturba College, there will be any legal impediment in completing the course and the grievance of the petitioner would stand redressed. 30. We may make it clear that this does not mean that the petitioner should be offered admission against the said seat without first offering it to the other two candidates who were more meritorious than the petitioner in the NT-2 category. Out of the other two candidates namely 18 Mundane Kanchan M. is the only candidate who can stake her claim for admission as Walke Sushma S. is not claiming benefit of reservation and therefore, her case cannot be considered against the seat reserved for NT-2 category. Therefore, we find no reason why the petitioner should not be offered seat by cancelling the admission of respondent no.4. In view of the aforesaid discussion, we are inclined to allow the petition. 31. We, therefore, direct respondent nos.1 to 3 to cancel the admission of respondent nos.4 and offer the seat to the other eligible candidates in the waiting list. Rule made absolute accordingly with costs. We quantify the cost at Rs.5000/-. The cost be paid by respondent no.2 to the petitioner. 32. The learned counsel for respondent no.4 submitted that the effect and operation of our judgment and order be stayed for a period of 4 weeks to enable her to seek redress in the matter. We grant the request. There will be stay to the effect and operation of our judgment and order for a period of 4 weeks. No further stay will be 19 granted as it would adversely affect the candidate from completing her academic session. ( J.N. PATEL, J ) ( J.N. PATEL, J ) ( J.N. PATEL, J ) ( SMT.NISHITA MHATRE, J ) ( SMT.NISHITA MHATRE, J ) ( SMT.NISHITA MHATRE, J )