IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8414 of 2011 Dr.Sanjay Kumar Mishra, son of Sri Suryakant Mishra, resident of village – Ram Nagar, P S – Rahika, District – Madhubani, presently residing at E.W.S. 80, Harmoo House Colony, Ranchi (Jharkhand). ______ Petitioner Versus 1. The State of Bihar through the Principal Secretary, Department of Health Education, Govt. of Bihar, Patna. 2. The Bihar Combined Entrance Competitive Examination Board, I.A.S. Association Building, Near Patna Airport, Patna through its Secretary. 3. The Controller of Examination of Bihar Combined Entrance Competitive Examination Board, I.A.S. Association Building, Near Patna Airport, Patna. ______ Respondents ----------- For the petitioner: M/S. Shiya Ram Shahi and Md. Anisur Rahman. For the BCECE Board: Mr. Vikas Kumar. For the State : Mr. Arun Kumar Prasad, AC to GA 4. ------ 05. 12 .08.2011 Petitioner wants a direction upon the respondent authorities to permit him to take admission in MD(Ayurved) in Dravaya Gun. He claims a right for such admission on the basis of the result published by the respondent Bihar Combined Entrance Competitive Examination Board i.e. Respondent No.2. He claims that the respondents have not only acted arbitrarily by not allowing him to be admitted into the said course but have also violated the terms of the advertisement as well as the merit list which was notified by the respondents. He submits that based on the merit list in the general category he would have been the only choice for being offered a seat in Dravaya Gun but illegally yet another person namely Chandrajeet Kumar who was placed in the BC category having Roll No. 30139 at Serial No. 7 was admitted at the cost of the petitioner. By allowing such a jump the right of the petitioner has been taken away in the garb 2 of providing opening to persons falling in the reserved category. Counter affidavit has been filed on behalf of respondent Nos. 2 and 3. They submit that there is no wrong doing with regard to the admission in the course or subject which has been offered to the candidates based on their respective merit position as well as the reservation policy, which is followed in the State. In the counter affidavit the details of the seat and the course which were available for admission have been indicated. Counselling in this regard was held on 28.4.2011, which was strictly on merit cum choice basis. Names of candidates who were given admission in various courses have been listed seriatim wise in para 8, which according to them does not suffer from any vice. They have explained that one Dr. Amod Prakash, Roll No.30132, merit position Gen-04 and also BC-02, instead of opting for a single seat of Dravayagun course available in General Category at his merit, preferred to opt for the single seat of Ras-Shashtra course available at his BC-02 merit serial. This was a case of jumping from General Category to Reserved BC category which required compensation as per resolution of Health Deptt. Vide Memo No.224(26)/26 PGMAT-2-6/95/Health dated 14.11.1995. Accordingly Ras-Shashtra course was allotted to him and the last seat of Dravayagun course available in General Category was made available to BC category as compensation and the same was allotted to Dr. Chandrajeet Kumar, Roll 3 No.30139, Merit Serial – BC-03 on the basis of merit-cum- option. In this connection para -9 of the call letter No.99/2011 dated 7.4.2011 enclosed with this writ application as Annexure-4 clarifies that the candidates belonging to different reservation categories, who have qualified in General merit list as also in their respective reserve category merit list, such candidates of General category will be allowed to exercise their option of Institution/Course against the seat available in their respective reserve category also at their merit position and will not be adjusted / counted against such reserve category seats. Para-9 (A) (iv) of the prospectus of PGMAT-2011 also provides that the candidates of reserve categories, competing in General Merit list will not be counted against reserve category seats. Such candidate will have the option for General as well as the concerned reserved category seats. But if the seat of reserved category gets exhausted due to their option, it will be compensated from the seats of General Merit list (Category). All this clarification or the reason explained by the respondents is based on the letter issued by the Department of Health way back on 14.11.1995, which in terms had to be issued on the basis of decisions rendered by the High Court on such matter. Details of which have been indicated in para 2 of the 4 said letter being Annexure-B to the counter affidavit, which is in existence since 1995 and has been implemented strictly in letter and spirit and has been applied to the present case. Thus, the submission of the counsel for the petitioner is very imaginary rather than based on actual state of affairs. Since parity has been maintained and opening has been provided to the persons belonging to reserved category in terms of the direction or the decision of the Government in terms of Annexure-B and that does not have the effect of changing the percentage of reservation, this petitioner as a matter of right cannot claim admission into Dravayagun on merit position. If Dr. Amod Prakash had not opted for Ras-Shashra course by jumping to the reserved category of BC category, there may not have an occasion to apply the principle of compensation by giving an opening to yet another person namely, Dr. Chandrajeet Kumar on the basis of Annexure-B. But since Dr. Amod Prakash had a right to claim admission in a better stream by virtue of his position even in reserved category, 1995 circular came in the way of the petitioner which he is looking for. In the totality of the facts and the circular there is no arbitrariness nor does a right in favour of the petitioner accrue for admission in the stream which he was looking for. Writ has no merit. It is dismissed. rkp ( Ajay Kumar Tripathi, J.) 5