RAJIV MITTAL

MAHARSHI DAY ANAND UNIVERSITY

AND ORS.

NOVEMBER 28, 1997

[J.S. VERMA, CJ., B.N. KIRPAL AND M. SRINIVASAN, JJ.]

Constitution of India-Article I6(4)-Information Brochure of the Maharshi Dayanand University, Rohtak-Reservations-Admissions in Medical Colleges in State of Haryana-System of counselling-Reserved C category candidate having failed to secure admission in general category in first counselling, could secure admission to reserved seat in first counselling-

Once admission obtained in Medical College could not be allowed to take part in second counselling for general category-Note 2 in the Information Brochure held inapplicable in fact situation.

For the session 1996-97, Rohtak Medical College affiliated to respondent University had 60 M.B.B.S. free seats, out of which 49 seats were to be filled from the open category candidates while remaining I I seats were reserved for backward class candidates. In the entrance examination, one S, on the basis of his marks, secured position at seriaI°No. I in the category E of backward class quota while in the general category, he had been placed at merit position No. 62. As the seats to the medical colleges are filled on the basis of counselling where candidates are given option to .select the college where they want to study, in the first counselling for the 49 seats in the open/general category, 'S' did not secure any seat in the gener.il F category because of his low merit position he was placed at serial No. I in the category of backward class. Therefore he got selected and secured admission to the M.B.B.S. Course at the Medical College in the reserved category. Inasmuch as few seats in the general category had fallen vacant, second counselling was held and students upto serial No.60 in the merit list were granted admission and there still remained one seat in the general G category which remained to be filled. The candidate at merit list No.61 did not join the counselling, 'S' who was at merit list No.62 having already secured admission. Also did not appear for the counselling for general category. As Candidates at serial Nos. 63,64 and 65 also not joining for counselling, this seat was thereupon offered to the appellant who was at H 573 •

A serial No.66 who accepted the offer of admission and joined the Medical College. Respondent 3, reserved category candidate, not able to get admission inasmuch his merit position in the reserved category was at serial No.12 while the number of seats in this category in that college were only 11, all those seats having been filled. Filed a writ petition contending that 'S' should B have been adjusted against the general category seat which had been allotted to the appellant in the second counselling, and if this was done. One seat in the reserved category would fall vacant which would fall to respondent 3.

The High Court allowed the writ petition holding that 'S' should have been adjusted against the seat in the general category which had been C offered to the appellant at the time of second counselling and that the reserved seat, which would be so vacated by 'S' should be offered and admission granted to respondent 3, and that the sat occupied by the respondent was directed to be given to the appellant and writ petitioner should be shifted to seat which was occupied by the appellant in the Medical College.

D This appeal had been filed against the judgment of the High Court The appellant contended that the High Court could not direct that 'S' should be considered as having been given the general category seat in the second counselling when he had already secured admission in the first counselling in the reserved category. The respondent relying on Note 2 of the Information Brochure of the respondent University contended that 'S' could only be E adjusted against the open category seat and he could not be considered for the reserved category.

Allowing the appeal, the Court

HELD: I.I. The system of counselling for the purpose of granting F admission to the various medical colleges in the State of Haryana is now regarded as most equitable one where options are given of various seats to the students in accordance with their overall merit psition in the combined entrance examination. Which examination is competitive in nature. If as a result of first counselling all the seats, which are available, are filled then G no further counselling takes place. Where however some seats become available, then it appears that second, third or if the need arises fourth counselling does take place but in such a manner that normally there should be no delay in the commencement of the course of study. Unless and until counselling takes place no candidate who has been granted admission on the basis of the counselling is allowed to change his college merely because a H seat in another college has fallen vacant. The seats if any, which fall vacant,

RAJIV MITT AL v. MAHARSHI DAY ANAND UNIVERSITY 575

can only be filled if and when counselling takes place where the candidates A who have already been selected may have an option of shifting to another college. Counselling for seats to medical colleges must stop once the courses of study commence. [578-E-H]

1.2. Note 2 in the Information Brochure of the Maharishi Dayanand University, Rohtak will have application only when a reserved category B candidate is in a position to secure, and secures admission to a seat in the general catagory in the same counselling in which seat is available to him in the reserved category. It is for this reason that the first counselling for the general category candidates was held on 9.9.1996 while the first counselling for the reserved category candidates was held on 10.9.1996. The first counselling was spread over two days so that if any reserved category C student had managed to secure admission to the general category seat then he will not be entitled to adjustment against the reserved seat. Had 'S' secured admission to any one of the 49 seats in the first counselling held on 9.9.96 then he could not have been called or considered for admission against any of the 11 reserved seats in the counselling which was held for D the backward class candidates on 10.9.1996. As 'S' s position in the open category was at serial number 62 and the last candidate who had secured admission at the first counselling against the 49th seat was at serial No.53, therefore, having failed to secure admission on 9.9.96 'S' was rightly allowed to take part on the second day of the first counselling for the backward class candidates which was held on 10.9.1996. It was in that counselling that he E was selected and granted admission to the Medical College at Rohtak. Once 'S' had secured admission in the reserved category quota at the first counselling, there would be no occasion for him to take part in the second counselling for the general category seat for the same college which was held on 26.9.1996. The seat which had fallen vacant was one of the 49 seats which was required to be filled by the general category candidates. As the aforesaid Note 2 was not applicable to a case like the present, where 'S' having failed to secure admission to a seat in the open category in the first counselling for that category but had secured admission to the reserve seat in the same counselling, the question of his being shifted or being regarded

as a candidate to the open category seat which had become available only G after he had secured admission did not and could not arise and consequently, the appellant was rightly granted admission to the general category seat in the Rohtak Medical College. [579-F-H; 580-A-D]

Indra Sawhney v. Union of India, [1992] Supp 3 212, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6613 of H

A 1997.

Form the Judgment and Order dated 23.7.1997 of the Punjab & Haryana High Court in C.W.P.No.1782of1997.

Manoj Swarup for the Appellant.

K.K. Mohan for the Respondents.

The Judgment of the Court was delivered by

KIRPAI, J. The question which arises for consideration in this appeal C relates to the admission to first year M.B.B.S. Course for the session 1996- 97 to the Rohtak Medical College, respondent No.2.

Seats in different medical colleges in the State of Haryana are filled on the basis ofM.B.B.S. Entrance examination Roh~ Medical College, respondent No.2 is affiliated to Maharshi Dayanand University, Rohtak and for the session D 1996-97 it had 60 M.B.B.S. free seats to which admission had to be made in the first year of the said course. Out of this 49 seats were to be filled from the open category candidates while remaining 11 seats were reserved for backward class candidates.

In the entrance examination one Sunil Yadav, on the basis of his marks, E had secured position at serial No. I in the category of backward class quota while in the general category he had been placed at merit position No.62 The seats to the medical colleges are filled on the basis of counselling where candidates are given option to select the college where they want to study.

This option is given to the candidates whose names are arranged in the order F of merit.

On 9.9.15196 the first counselling for the 49 seats in the open/general category was held. Sunil Yadav did not secure any seat in the general category because of his low merit position. On the following day i.e. 10.9.1996, Sunil Yadav appeared for the first counselling for the reserved seats as he had been G placed at serial No. I in the category of backward dass. He naturally got selected and secured admission to the M.B.B.S. Course at the Rohtak Medical College in the reserved category.

If after the first counselling certain seats remain unfilled then second third or fourth counselling, as the need arise, takes place. Inasmuch as few H seats in the general category had fallen vacant second counselling was held

"' on 26.9 .1996 Students upto serial No. 60 in the aforesaid merit list were A granted admission and there still remained one seat in the general category which remained to be filled. The candidate at merit list No.61 did not join the counselling, Sunil Yadav, who was at merit list No.62 having already secured admission, also did not appear for the counselling for the general category Similarly candidates at serial Nos. 63,64 and 65 also did not join for counselling. B This seat was thereupon offered to the appellant therein who was at serial No. 66. He accepted the offer of admission and joined the Rohlak Medical College.

Respondent No.3 who belonged to the reserved category could not get admission in the Rohtak Medical College inasmuch as his merit position in C the reserved category was at serial No.12 while the number of seats in this category in that college were only 11 and all those seats had been filled. He thereupon filed a writ petition in the Punjab & Haryana High Court contending that Sunil Yadav should have been adjusted against the general category seat which had been allotted to the appellant herein in the second counselling held on 26.9.1996 and if this is done one seat in the reserved category would fall D vacant which would naturally fall to respondent No.3. .

On behalf of the respondent No.I the stand taken was that Sunil Yadav could not be considered in the first counselling in the open category because he did not fall among those open category candidates who had'been given admission against 49 open category seats. Candidates upto merit position 53 E had been offered admission against these seats at the time of first counselling Thereupon sunil Yadav was called for first counselling for reserved seats and was granted admission against the backward category quota. He having thus secured the seat lost his claim for open category and therefore, did not attend the second counselling which was held on 26.9.1996.

The High Court, allowed the writ petition filed by respondent No.3 as it held that it was ''settled principle of law that a candidate from the reserved class, if is entitled to get admission to a course of his own merit in the general

list he must be treated on his merit and not accommodilted against the reserved vacancy". It thereupon came to the conclusion that Sunil Yadav G should have been adjusted against the one seat in the general category which had been offered to the appellant at the time of second counselling and that the reserved seat, which would be so vacating by Sunil Yadav, should be offered and admission granted to respondent No.3. It however, directed that

the seat which was occupied by respondent in the Medical College, Agroha, Hissar, Haryana should be given to the appellant herein and writ petitioner H

A should be shifted to the seat which was occupied by the appellant herein in the Medical College at Rohtak. It may here be noticed that respondent No.3 had already secured admission at Medical College, Agroha, Hissar, Haryana but he wanted to shift to the Medical College, Rohtak just as the appellant herein had already secured a admission in another medical college and he too B wanted to shift to the Rohtak Medical College.

On behalf of the appellant, it has been contended that the High Court could not direct that Sunil Yadav should be considered as having been given the general category seat in the second counselling when he had already secured admission in the first counselling in the reserved category. On the C other hand, the respondents have relied on the judgment of the High Court and in particular Note 2 of the Information Brochure and contended that Sun ii Yadav could only be adjusted against the open category seat. and he could not be considered for the reserved category.

In our opinion the High Court erred in allowing the writ petition and D directing that the admission which had been granted to the appellant, should be cancelled. The system of counselling for the purpose of granting admission to the various medical colleges in the State is now regarded as most equitable one where options are given of various seats to the students in accordance with their overall merit position in the combined entrance examination, which examination is competitive in nature.

E If as a result of first counselling all the seats which are available are filled then no further counselling takes place. Where however some seats become available then it appears that second third or if the need arise fourth counselling does take place but in such a manner that normally there should be no delay in the commencement of the course of study. Further more unless F and until counselling takes place, no candidate who has been granted admission on the basis of the counselling is allowed to change his college merely because a seat in another college has fallen vacant. The seats if any which fall vacant can only be filled if and when counselling takes place where the candidates who have already been selected may have an option of G shifting to another college. An appropriate analogy of this system is that of a booking chart for a dramatic performance which has to take place in the future. The people standing in the queues reserve or book their seats out of those which are available according to their preference. Once the chart fills up the booking closes. Only sometimes if tickets are returned they may be reissued. But once the dramatic performance starts no one is allowed to enter.

H Just as counselling for seats to medical colleges must stop once the courses

of study commence.

The learned counsel for the respondents submitted that Sunil Yadav could only be considered as a general category candidate and placed reliance on the observations of th is Court in Indra Sawhney & Ors. v. Union of India, [1992] supp. 3 sec 212 where at page 735, it was observed as follows:

"In this connection it is well to remember that the reservations under Article 16( 4) do not operate like a communal reservation. It may well happen that some members belonging to say Scheduled Castes get selected in the open competition field on the basis of this own merit; they will not be counted against the quota reserved for Scheduled

Castes; they will be treated as open competition candidates." C

The aforesaid principle has, apparently been incorporated in Note 2 in the Information Brochure of the Maharshi Dayanand University Rohtak which reads as follows.

"A candidate who applied either for reserved category or for both D reserved and open will be considered first in open category. In case he/she is not selected in open category, he/she will be considered for reserved category."

The aforesaid Note 2 has been construed by the High. Court to mean that Sunil Yadav who was also in the merit list for the seat in the open E category should be considered as having been selected to the open category seat and he should not be considered as having been selected for the reserved category seat.

The aforesaid Note 2 has not been correctly construed by the High Court. This note, in a case like the present, will have application only when F a reserved category candidate is in a position to secure and secures admission to a seat in the general in the same counselling in which seat is available to him in the reserved category. It is for this reason that the first counselling for the general category candidates was held on 9.9.1996 while the first counselling for the reserved category candidates was held on 10.9.1986. In G other words the first counselling was spread over two days so that if any reserved category student had managed to secure admission to the general category seat then he will not be entitled to adjustment against the reserved seat. Had Sunil Yadav secured admission to any one of the 49 seats in the first counselling held on 9.9.96, then he could not have been called or considered for admission against any of the 11 reserved seats in the counselling H

A which was held for the backward class candidates on 10.9.1996. As Sunil

Yadav's position in the open category was at serial number 62 and the last candidate who had secured admission at the first counselling against the 49th seat was at Serial No. 53 therefore, having failed to secure admission on 9.9.1996 Sunil Yadav was rightly allowed to take part on the second day of the first counselling for the backward class candidates which was held on B 10.9.1996. It is in that counselling that he was selected and granted admission to the Medical College at Rohtak. Once Sunil Yadav had secured admission

in the reserved category quota at the first counselling there would be no occasion for him to take part in the second counselling for the general category seat for the same college which was held on 26.9.1996. The seat C which has fallen vacant was one of the 49 seats which was required to be filled by the general category candidates. As the aforesaid Note 2 was not applicable to a case like the present where Sunil Yadav having failed to secure admission to a seat in the open category in the first counselling for that category but had secured admission to the reserved seat in the same counselling the question of his being shifted or being regarded as a candidate to the open D category seat which had become available only after he had secured admission did not and could not arise and consequently, the appellant was rightly granted admission to the general category seat in the Rohtak Medical college.

For the aforesaid reasons, we allow the appeal and set aside the judgment E of the High Court the result of which would be that the writ petition filed by. respondent No.3 before the High Court would stand dismissed. There will be no order as to costs.

R.A.

Appeal allowed.