WA 170/2011 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY HON’BLE MR. JUSTICE U.B.SAHA Amitava Roy, J In impugnment is the judgment and order dated 22.2.2011 passed i n WP(C) No. 6457/2010 rejecting the prayer for a direction to the respondents to redo the exercise to fill up the seats reserved for OBC/ MOBC candidates in the 1st year MBBS/ BDS Courses in the concerned colleges in the State of Assam for the session 2010-2011. 2. We have heard Ms D Borgohain, learned counsel for the appellant and Mr D Saikia, learned Standing Counsel, Health & Family Welfare (B) Departmen t, Govt. of Assam for the respondents. 3. The writ appellant had appeared in the Combined Entrance Examina tion, 2010 for admission into MBBS/ BDS/ BAMS/ BE/ B.E. Tech. courses in the Sta te with Roll No. 380351. She has introduced herself to be a member of the Manipu ri community and, thus, recognized as Other Backward Class (for short, hereinaft er referred as ’OBC’) in the State. It has been pleaded that in terms of the Inf ormation Brochure and application form for the Combined Entrance Examination, 20 10 for admission into the aforementioned courses, 15% of the total available sea ts therein had been reserved for OBC/ MOBC category candidates. In the list of c andidates selected for admission in the MBBS/BDS courses published in the issue dated 5.7.2010 of the local daily The Assam Tribune her name appeared in the O BC/ MOBC category and she was placed at Serial No. 64 therein in order of merit. In the said list nomenclatured as Educational Notice the dates of counselling prior to final admission were mentioned, the first session thereof to be beginn ing from 12.7.2010. The counselling for the OBC/ MOBC candidates in terms thereo f was to be held on 15.7.2010. According to the appellant, though she duly appea red for counselling on the aforementioned date i.e. 15.7.2010 meant for the OBC/ MOBC candidates and also in the second counselling held on 28.7.2010, she was n ot selected for admission. She has asserted that as a matter of fact, none of th e OBC/ MOBC candidates in the merit list for them were accorded admission. Being unsuccessful in having her grievance redressed by the official respondents insp ite of series of endeavours through representations and appeals, she turned to t his Court with the cavil that the respondents most illegally and arbitrarily had admitted candidates belonging to the OBC/ MOBC category in the general list aga inst seats exclusively kept apart for OBC/ MOBC candidates, thus, denying the be nefit of reservation to the candidates of the same category grouped separately i n order of merit. According to her, had the OBC/ MOBC candidates ranking higher in order of merit been accommodated against the unreserved seats, having regard to the absentees from the OBC/ MOBC category candidates in their exclusive group , she would have surely secured admission in any one of the four Medical College s of the State. 4. The respondents through the Controller of Examination in the Dir ectorate of Medical Education, Assam endorsed the action taken and detailed the steps pursued by the authorities for providing admission to the deserving candid ates in order of merit. It was inter alia pointed out in this affidavit that the total number of State quota seats at the time of first counselling in MBBS Cour se was 305, for BDS 16 and for BAMS 44. The respondents maintained that 15% of t he seats reserved for the OBC/ MOBC candidates out therefrom worked out to be 46 , 2 and 6 respectively. According to them, before completion of the process of c ounselling as a whole, 135 additional seats were sanctioned by the Medical Counc il of India (for short, hereinafter referred to as ’the MCI’) comprising of 100 for the newly established Jorhat Medical College and 35 for the existing Silchar Medial College, Silchar. It was stated that as a consequence an extended counse lling was held on 27th and 28th July, 2010 from the wait-listed candidates of th e first counselling and that having regard to the merit position of the writ app ellant, she could not be provided admission against the available seats meant fo r her quota of OBC category. 5. In her additional affidavit the writ appellant insisted in essen ce that though the respondents on the enhancement of the number of seats ought t o have accommodated the higher ranking OBC/ MOBC candidates in the general list against those earmarked for the general category, they filled up the resultant a dditional seats identified for the general candidates only by the unreserved can didates, thus, consuming the seats otherwise earmarked for the OBC/ MOBC candida tes thereby denying the appellant and other such reserved category candidates ca talogued together in a separate group on the basis of inter-se merit. She mainta ined that on the sanction of additional seats, in all 63 were reserved for the O BC/ MOBC candidates and that she being placed at rank No. 64 inter-se amongst th em with 8 candidates being absent in the final counselling, she would have certa inly secured a seat reserved for her category. 6. In his supplementary affidavit, the Controller of Examination, D irectorate of Medical Education, Assam brought on record the particulars of the OBC candidates who had been accorded admission in the general as well as OBC cat egories in the two phases of counselling held between 12.7.2010 to 18.7.2010 an d 27.7.2010 and 28.7.2010. The deponent explained that in the first counselling session for admission to the 305 State quota seats, 159 were earmarked for the g eneral (unreserved) and 46 for the OBC categories. The general category seats we re consumed by the candidates from rank No.1 upto No. 157, whereafter, counselli ng for the 46 seats meant for the OBC candidates commenced and the same were fil led up by candidates between rank No. 159 and 321. The respondent asserted that in view of the appellant’s low merit position (rank No. 566) she could not be ac commodated against the seats available for the OBC candidates. The affidavit fur ther disclosed that before the closure of the first counselling, the MCI vide it s letter dated 13.7.2010 granted permission to fill up 100 seats in the newly es tablished Jorhat Medical College, Jorhat. Further, after the first counselling s ession was over 35 additional seats for the Silchar Medical College, Silchar wer e also sanctioned by the MCI. Out of these 135 additional seats, 72 were identif ied for the general unreserved category and 17 for the OBC category. According t o the respondents, thereafter counselling for the 72 seats was done from rank No . 158 and the last candidate selected in the said category was of the rank No. 3 27. In the counselling for the 17 seats of OBC category which started from rank No. 331, the same culminated at rank No. 393. At that stage vis-à-vis the State quota seats, the appellant’s placement was at serial No. 35 in the waiting list of the OBC/ MOBC candidates. 7. The respondents in the alternative have disclosed that if all th e seats (original as well as additional) were taken to be filled up in one couns elling, the 231 (159 + 72) seats earmarked for the general (unreserved) category would have been filled up by the candidates between rank No. 1 and 240 excludin g the absentees. Similarly, vis-à-vis the 63 (46 + 17) seats assigned for the OB C candidates counselling would have started from rank No. 240 and ended at 449 excluding the absentees. In that view of the matter as well, according to the re spondents, the appellant who was ranked 566 would not have secured a seat as a m ember of the OBC category for her low merit position. Two charts in support of t he above pleadings have been annexed. 8. In the above backdrop of the pleadings, Ms Borgohain with refere nce in particular to Rule 4(3)(a) of the Medical Colleges of Assam, Regional Den tal College, Guwahati and Government Ayurvedic College, Guwahati (Regulation of Admission of Under-Graduate Students) Rules, 2007 (for short, hereinafter referr ed to as ’the Rules’) has urged that as would be apparent on the face of the Edu cational Notice/ select list that the same had not been prepared in conformity w ith the statutory prescription contained therein and the admissions made therefr om are not in accordance with law. The learned counsel has urged that under Rule 4(3)(a) of the Rules the respondent authorities were obliged to draw up separat e select lists for the general seats and the reserved seats in order of merit an d provide admission to the general candidates and the reserved candidates corres pondingly on the basis thereof. As admittedly the admissions have been accorded in departure of the statutory scheme as prescribed, judicial intervention for re dressal of the writ appellant’s grievances is urgently warranted. Ms Borgohain h as insisted on the basis of the pleadings on record that had the official respon dents acted in terms of Rule 4(3)(a) and had allotted seats to the OBC/ MOBC can didates on the basis of their inter-se merit as reflected in segment (G) of the select list, the appellant, having regard to the number of absentees of the said category of candidates, would definitely have secured her admission in a seat e armarked for the OBC/ MOBC candidates. As she has been wrongly denied such admis sion due to the illegality committed by the official respondents in contraventio n of the Rules, appropriate direction ought to be issued to them to provide the writ appellant such admission in the current session, she urged. In support of h er contentions, Ms Borgohain has placed reliance on the decisions of the Apex Co urt in Ritesh R. Sah -vs- Dr. Y.L. Yamul & Ors., (1996) 3 SCC 253; Dolly Chhanda -vs- Chairman, JEE & Ors., AIR 2004 SC 5043; Maince Devadiya -vs- State of Madh ya Pradesh & Ors., (2007) 15 SCC 691 and in Indian Medical Association -vs- Unio n of India & Ors., (2011) 7 SCC 179. 9. Emphatically controverting the above, the learned Standing Couns el, Health & Family Welfare Department, Govt of Assam has maintained that the Ed ucational Notice/ select list has been prepared in scrupulous compliance of Rule 4(3)(a) of the Rules and, therefore, the plea to the contrary is liable to be r ejected in limine. While referring to the pleadings pertaining to the two sessio ns of counselling following the allotment of additional seats, Mr Saikia has ins istently urged that as in terms of merit the last OBC candidate provided admissi on held rank No. 393, the appellant’s claim for admission with her rank No. 566 is visibly misconceived. Besides pointing out that the assertion of absence of m ore meritorious OBC candidates is without any pleaded foundation, the learned St anding Counsel has argued that as a matter of fact such candidates were present at the counselling and after securing admission are pursuing the course(s). Mr S aikia in endorsement of his arguments has taken us through the compilations appe nded to the additional affidavit filed on behalf of the official respondents on 1.8.2011. 10. We have extended out thoughtful consideration to the pleadings o n record as well as the arguments advanced. Indubitably, Rule 4(3)(a) requires t he Director of Medical Education, Assam along with the Controller of Examination of that Directorate to prepare the select lists for the general seats available in each course and, thereafter, select lists for the reserved seats as per Rule -6 from the remaining candidates in order of merit as per the merit list. Rule 4(3)(a) deserves to be quoted: 4(3)(a). On receipt of the aforesaid merit list the Director of Medical Educati on, Assam along with the Controller of Examination shall prepare for each course separate select lists for the general seats available in each course and therea fter shall prepare separate select lists for the reserved seats as per Rule 6 fr om the remaining candidates in order of merit as per the merit list. . 11. The Educational Notice dated 5.7.2010 per se discloses various c ategories of candidates grouped separately in order of merit maintaining, howeve r, seriality of the ranks secured by them. Category-(C), (D), (E) & (F) admitted ly catalogue the general candidates (miscellany of unreserved and reserved categ ories) in order of merit to be considered for unreserved seats which after the a llocation of additional seats mounted to 231. The candidates in category -(G) ar e exclusively from the OBC/ MOBC category placed, however, in order of inter-se merit. They ranked between 346 and 582 with the appellant figuring at rank No. 5 66. The Educational Notice in clear terms mentioned that after filling up of all unreserved or general seats in the three Medical Colleges of the State and the Regional Dental College, Guwahati, the remaining candidates belonging to S.C. S.T.(P), S.T.(H) and OBC/ MOBC categories will be accommodated in their respecti ve categories in order of merit. Incidentally, with the allocation of the additi onal seats as mentioned in the pleadings the number of seats for the OBC/ MOBC c andidates rose to 63. It is a matter of record that the first phase of counselli ng (before allocation of the additional seats) was conducted between 12th and 18 th July, 2010 for admission to the 305 State quota seats out of which 159 were i dentified for the general category and 46 for the OBC/ MOBC category. 12. There is no wrangle at the Bar that the counselling for the 159 seats started from the candidate holding rank No. 1 and these seats were consume d with the last candidate of rank No. 157. The official respondents thereafter p roceeded with the counselling for the 46 OBC seats starting from the candidate h olding rank No. 159 and the said seats were exhausted by the candidates of the O BC category upto rank 321. It has not been disputed before us that these 46 seat s had been allotted to the OBC candidates only ranking between 159 and 321. Unmi stakably, the official respondents after according admission to the 159 general seats to be filled strictly in order of merit irrespective of the categories of the candidates, did not revert to the list exclusively meant for the OBC candida tes at Category (G) of the Educational Notice. The admission to the 46 seats, ho wever, was confined only to the OBC candidates figuring from rank No. 159 to 321 in the categories-(D), (E) and (F) of the candidates in the Educational Notice. Noticeably, therefore, the official respondents at that point of time filled up 46 OBC seats exclusively by the OBC candidates in order of merit, however, to t he exclusion of the same category of the candidates with lower ranks grouped in Category (G) of the Educational Notice. 12A. Be that as it may, though in the literal sense in doing so a dep arture from the mode of preparation of select lists as contemplated in Rule 4(3) (a) is discernible, the official respondents evidently did not compromise with t he merit of the OBC candidates in providing admission to the 46 seats earmarked for them to the candidates of the same category ranking between 159 and 321. Had the official respondents prepared a separate select list for the OBC candidates for these 46 seats, those between rank No. 159 and 321 would have definitely be en placed above the appellant in order of merit. That the OBC candidates between rank No. 159 and 321 held positions above her in order of merit is not in dispu te. The method adopted by the official respondents apart from the aforementioned marginal deviation from Rule 4(3)(a) otherwise appears to be in consonance with the procedure as professed in the Educational Notice that after filling up of t he unreserved or general seats, the remaining candidates belonging to the reserv ed categories would be accommodated in their respective categories in order of merit. In that view of the matter, the process of counselling and admission till that stage of the process, in our opinion, cannot be faulted with so as to inva lidate the same. 13. The records demonstrate that while the first phase of counsellin g was drawing to its end, in all 135 additional seats were allotted by the MCI o ut of which 115 were assigned to the State quota and out of these 72 seats were earmarked for the general category and 17 for the OBC category. In the extended counselling that followed these 72 seats for the general category were filled up from the unreserved candidates between rank No. 158 and 327. The 17 seats for t he OBC category were filled up from the candidates from rank No. 331 to 393 only from that category. In any case, therefore, having regard to the rank of the wr it appellant i.e. 566 she could not be accommodated inspite of additional seats being available. According to the respondents, after providing admission to the candidates of the general and the OBC categories the appellant’s position stood at serial No. 36 of her reserved category in order of merit. 14. As alluded hereinabove the appellant’s remonstrance is mainly on two counts-firstly, the official respondents in terms of Rule 4(3)(a) were obli ged to prepare the select lists separately for the general seats and the reserve d seats in order or merit which was not done and, thus, the admission provided t o the candidates from the general list to the seats reserved for the OBC candida tes was patently illegal, thus, vitiating the entire process. Secondly, while pr oviding admission to the 72 additional seats, the OBC candidates who were includ ed along with the unreserved candidates in order of merit were not adjusted agai nst the same, thus, consuming the seats exclusively kept apart for the OBC candi dates to be accommodated inter-se in order of merit. Considering the number of a bsentees of the OBC candidates, according to the appellant, she would have certa inly secured her admission against a seat meant for the OBC category. 15. In the facts and circumstances, though as mentioned hereinabove the select lists as projected by the Educational Notice dated 5.7.2010 were not strictly in accordance with the mandate of Rule 4(3)(a) of the Rules, it is nobo dy’s case that the placement of the candidates had not been in order of merit. I n this view of the matter, in our estimate, even if the select lists contained i n the Educational Notice dated 5.7.2010 were not strictly in terms of the requir ement of the aforementioned statutory provision, the inter-se position of the ca ndidates being based wholly on merit, this departure does not invalidate/ nullif y either the select lists or the process of admission undertaken on the basis th ereof. 16. On a scrutiny of the compilations (Annexure-A and Annexure-B to the affidavit dated 1.8.2011 of the respondents), in our comprehension, the admi ssions provided to the OBC candidates against seats meant for the general as wel l as OBC candidates by no means can be said to be in breach of their inter-se me rit. In other words, in providing such admission the official respondents have n ot compromised merit which appears to be the quintessence of Rule 4(3)(a) of the Rules. Whereas Annexure-A aforementioned provides the break up of positions and the admissions accorded to the OBC candidates in successive rounds of counselli ng (caused by additional seats), Annexure-B portrays the same particulars as wou ld emerge had admission to all the seats (original as well as additional) been m ade in one round of counselling. In both the eventualities the appellant in view of her rank could not have been accommodated against the seats available for th e general as well as the OBC candidates. 17. The factual analysis resorted to by the appellant to suggest tha t the select lists if prepared in terms of Rule 4(3)(a) of the Rules she could h ave secured a seat had the admissions been provided on the basis thereof having regard to the absentee OBC candidates, in view of the state of the pleadings, ca nnot be entertained. The official respondents, to reiterate, did not undermine t he merit of the candidates as reflected in the combined select list categorywise in providing admission to them and, thus, in absence of categorical pleadings i n support of such investigative and hairsplitting factual propositions, we are n ot inclined at this point of time to interfere with the exercise already complet ed. Most significantly, it is not the case of the appellant that any candidate b elow her in the select list in order of merit has been granted admission by ille gally and arbitrarily ignoring her superior claim. The authorities cited on her behalf in the facts and circumstances of the case do not advance her case. As th e official respondents have safeguarded merit in the matter of granting admissio n to the courses involved which is noticeably the definitive criteria underlined in Rule 4(3)(a) of the Rules, the instant challenge does not commend for accept ance. 18. We have perused the impugned judgment and order and are, in view of the reasons enumerated hereinabove, in general agreement with the ultimate c onclusion recorded therein. 19. The appeal, therefore, lacks in merit and is dismissed. No costs .