IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 3592 of 2010. Decided on: 12.7.2010. Champa Kumari ….. Petitioner. Versus State of H.P. & others. …… Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting: Yes For the petitioner : Mr. Ajay Mohan Goel,Advocate For the respondents : Mr. R.K. Baw, Advocate General with Mr. J.K. Verma, Dy. Advocate General, for respondent No.1,3 and 4. Mr. B.C. Negi, Advocate for respondent No.2. Mr. Shrawan Dogra, Advocate, for respondent No.5. ------------------------------------------------------------------------------------------ Justice Kurian Joseph, C.J. (Oral): Writ petition has been filed with the following prayers: (A) “This Hon’ble Court may be pleased to direct by way of issuance of a writ of Mandamus Respondents No.1 to 4 to place on record the order dated 25/25 June 2010 admitting respondent No.5 against the seat of MD Medicine and thereafter quash the said admission of respondent No.5 to the specialty of MD Medicine for the session 2010- 2012/13 by issuance of writ of Certiorari. (B) This Hon’ble Court may be pleased to direct respondents 1 to 4 by way of issuance of writ of Mandamus to hold counseling for MD Medicine seat which as per roster and schedule of second counseling falls to the category of Scheduled Tribe Category HPHS-1, strictly as per the provisions of Clause 3.5(iii) of the prospectus issued for admission to MD/ MS Post Graduation courses for the session 2010-2010/2013 in respondent number 3 and 4 colleges and accordingly invite the candidates including the petitioner for the purpose of counseling and admit the petitioner to the said course in case the seat is opted by the petitioner during the process of counseling.” 2. Short facts, the petitioner is a student of Post Graduate course for the year commencing from the year 2010 under the All India quota. She could secure admission only for M.D Microbiology which according to her is not the subject of her choice. But the only option available was to accept it. However, when she participated in the State quota, the specialty of her choice was not available on 24.5.2010 and hence she did not opt for any PG course against State quota. The second round of State quota counselling was held on 24.6.2010. It is seen from Annexure P-5 (details regarding vacancies) that one seat of HPHS-I ST category ( Himachal Pradesh Health Services) was available for medicine. When a seat meant for particular group is not available, it is to be passed over as follows:- (The prospectus at 3.5 (iii)) “If required number of candidate in each group i.e. in –service and direct of reserved seats (SC/ST) are not available, the seats(s) reserved for them will be inter-transferable and thereafter in case any seats(s) remain unfilled or reserved category, the same shall be treated open and allotted to the general category candidate(s) of the same group in the same specialty. Provided however that in case required number of candidates in one group are not available the seats reserved for them shall be allotted to the candidates of the general category of the other group”. 3. Thus, in case Health Service ST Category is not available it should go to ST category Direct and if no candidate from the ST Direct is available then it should go to SC Health Service and then to SC Direct. The petitioner is the 4th in the SC Direct. If nobody from SC Direct is available, it should go to the Health Services Direct and if there is none from the Health Services Direct, it should go to the open Direct. On 24.6.2010 in the second round of counselling for the State quota, it is seen that since nobody from ST Health Services was available, the seat was allotted to Direct General without following the prescribed procedure as above. This is under challenge by the writ petitioner. The 5th respondent is the allottee of the seat. 4. There is a background behind the allotment of the seat to the 5th respondent, as stated to be explained by the State. In the first round of the counselling for State quota held on 20.5.2010, none in the category of Health Services ST quota was available and hence, it was passed over to ST Direct and since nobody was available amongst the SC Health Services Direct also, it was allotted to Health Services SC community. From Health Services SC category one Dr. Pratap Chand was allotted the seat. The said Doctor Pratap Chand later surrendered the seat since he got admission in PGI, Chandigarh and thus in the second round of counselling the seat fell vacant in respect of ST HS category since the source of recruitment is from the State Quota. Though, the learned counsel appearing for the 5th respondent vehemently made an attempt to contend that once seat has been passed over to SCHS category, it should be treated that the claim of the Health Service ST should be deemed to be consumed, we are afraid that contention cannot be appreciated. It is a seat meant for a group. In the order of allotment, till last moment effort should be made to see whether a member of that group is available in terms of the procedure for the pass over. The learned Advocate General submits that in the over all allotment of seats in the State quota, it was found that the members of the SC community had otherwise secured more than the required seats and hence it was decided that the seat which fell vacant in respect of Health Service ST category need not again be passed over to the SC either Health Service or Direct category. That contention also cannot be appreciated. May be owing to fortuitous circumstances, members of the SC category might have secured more seats but that does not mean that they should be made dis-entitled for their allotment in terms of the guidelines. 5. There is another issue also arising in this case, which on facts has to be referred to. 5th respondent had initially opted Ophthalmology in the first round of counselling on 24.5.2010 against the State quota. By mistake three seats were allotted against the permissible quota of two seats for Direct candidate under the State quota. According to the 5th respondent, she is not the third one, in fact she is the second and if at all the third candidate had to be ousted it was somebody else and not the 5th respondent. However, it appears that the State informed the 5th respondent that owing to a mistake committed at the time of allotment of the seats against State quota in the first round of counselling on 24.5.2010, a seat in excess of the permissible quota was allotted to Ophthalmology and hence the same was cancelled and consequently only she was offered the seat which fell vacant on account of non-availability of the candidates under the reserved category of Health Services ST. It is also brought to the notice of the Court that persons lower in merit of the 5th respondent had in fact been allotted better specialties in the first round of counseling held on 20.5.2010 and on that account also, according to 5th respondent the offer made to her for choosing one of the 12 seats in the second round of counselling is justified. 6. Once a bonafide mistake has been committed, according to us, instead of repeating the mistakes, steps should have been taken to correct the mistake from the point where it started. Unfortunately, that has not been done in the instant case. However, on another angle for viewing this case we do not that we should be unsettling the whole issue. 7. Admittedly, the writ petitioner is the 4th in the SC direct category. Her claim for the vacant post of ST HS category would fructifying only if there were no candidates available from the ST direct category and if not from the SC Health Service category and if not of two three above her in the SC Direct category, not opting for it. Those candidates are not before us. Though, the learned counsel for the petitioner submits that all those candidates had obtained clinical seats of their choice and hence only they have not sought or fought for this seat of Medicine, in the absence of those candidates before us, the contention cannot be appreciated. So much so, even if we set-aside the admission granted to 5th respondent, it is not going to enure to the benefit of the writ petitioner. In other words, this Court would be issuing a futile writ, which the Court may not do, as held by the Supreme Court in Sh. Kapoor vs. Jagmohan ( AIR 1981 SC 136). In Mridul Dhar ( minor) and another vs. Union of India and others reported in (2005) 2 SCC 65, the Supreme Court has made it clear that schedule fixed by the Court for admissions shall not in any way be unsettled by any court. That position has been reiterated by the Supreme Court in Medical Council of India Vs. Manas Ranjan Behera and others reported in 2010 (1) SCC 173. The extended time granted by the Supreme Court expired on 30.6.2010. We are informed that classes also have commenced from 31.5.2010. For all the above said reasons, we decline to interfere with the selection already made in respect of the 5th respondent. The writ petition is hence dismissed, so also the pending applications. However, there will be a direction to the State to take steps not to repeat such error in future. Once guidelines are prescribed, they shall be strictly followed. No deviation under any circumstances shall be made in the prescribed procedure. (Justice Kurian Joseph), Chief Justice. ( Justice Kuldip Singh), Judge. July 12, 2010 (sks/grs)