Lokesh Ahuja v. State Of Chhattisgarh

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Order Reserved on 22.8.2019 Order Delivered on 28.8.2019 WPC No. 2447 of 2019 • Lokesh Ahuja S/o Ramesh Kumar Ahuja Aged About 21 Years C- 73, Main Road, Tagore Nagar, Near Devi Laxmi Hospital, Raipur. ---- Petitioner

Versus

1. State Of Chhattisgarh Through Secretary, Health & Family Welfare & Medical Education, Mantralaya Mahanadi Bhawan, Atal Nagar, Naya Raipur.

2. Director of Medical Education, Old Nurses Hostel, DKS Bhawan Parisar, Raipur.

3. Pt. Jawahar Lal Nehru Memorial Medical College, Through DEAN, Situate at Jail Road, Raipur, Email- ptjnm_mcr@rediffmail.com.

4. Chhattisgarh Institute Of Medical Science Through Dean, Situate at Sradar Vallabh Bhai Patel Hospital Bilaspur Emaildeancims@gmail.com.

5. Late Baliram Kashyap Memorial Government Medical College. Through Dean, Situate At Dirmrapal Jagdalpur, EmailGmcdjagpur02yahoo.com

6. Late Shri Lakhiram Agrawal Governement Medical College Through Dean, Situate Bendrachuwa Raigarh Email- info@gmcraigarh.edu.in and gmcraigarh.2013@gmail.com.

7. Bharat Ratna Late Shri Atal Bihari Bajpayee Memorial Medical College Through Dean Situate At Rajnandgaon Email - admin@gmcrjn.in

8. Ku. Shruti Singh D/o Ramesh Singh R/o Katkona Colliery, At & PO Katkona, District Koriya Pin 497 331.

9. Mahapatra S/o Late Shashank Mahapatra R/o Mahendra Karma Ward, Kumhar Para, PO Jagdalpur, District Bastar Pin 494001. 10.Ku. Himanshi Pandey D/o Mahendra Prasad Pandey R/o Bharridand, Marwahi, PO Bharridand, District Bilaspur Pin 495118 11.Sanskar Dubey S/o Sanjay Dubey R/o Professor Colony, Raipur Pin 492001 12.Piyush Agrawal S/o Santosh Agrawal R/o At & PO Raigarh, District Raigarh Pin 496801 13.Ku. Mansi Asati D/o Niranjan Asati R/o 4/6 NN Staff Qtr, Nehru Nagar, Durg Pin 490020 14.Ku. Jigyasha Golcha D/o Arun Golcha R/o At & PO Bagbahara, District Mahasamund Pin 493449 15.Ku. Aditi Gupta D/o Tapan Gupta R/o At & PO Banki Mongra, District Korba PIN 495447

16.Ku. Aparna Gupta D/o Nawal Kishor Gupta R/o Datta Colony at & PO Ambikapur, District Surguja Pin 497001.

17.Chandan Tiwari S/o Santosh Tiwari R/o Mission Chowk, At & PO Ambikapur, District Surguja Pin 497001 18.Ayush Harjpal S/o Gopal Harjpal R/o Sindhi Colony, Jarhabhata, District Bilaspur Pin 495001 19.Ku. Swati Choudhary D/o Prabhat Choudhary R/o 27 Kholi, At And PO Bilaspur Pin 495001.

20.Adithya Mohan S/o Shri G. Mohanan R/o ITI Rampur, Korba Pin 495667 21.Rohit Sharma S/o Anjani Kumar Sharma R/o GM Complex Chirmiri, West Chirmiri, District Korea Pin 497773.

22.Ayush Gyanchandani S/o Dilip Gyanchandani R/o Darri Road, At & PO Korba Pin 495678.

23.Maninder Singh S/o Hardew Singh R/o At & PO Surajpur Pin 497229. 24.Ziyauddin Ahmed Siddique S/o Tanveer Ahmed Siddique R/o Mission Chowk, At & PO Ambikapur, District Surguja Pin 497001. 25.Aman Kumar Gupta S/o Shri Ram Babu Gupta R/o Kota, Kargi Road, Bilaspur 495113 26.Abhay Kumar Tiwari S/o Om Prakash Tiwari R/o At & PO Shankargarh, Balrampur.

---- Respondents .................................................................................................. For Petitioner : Shri Raja Sharma, Advocate For Respondents :

Shri Gagan Tiwari, Dy. Govt. Advocate, Shri Govind Ram Mirri, Shri UNS Deo, Shri Manoj Paranjpe, Shri Sandeep Yadav, Shri AN Pandey, Shri KPS Gandhi, Shir Nishikant Sinha, Shri R. Mahobia, Shri Priyank Rathi, Shri Ansul Tiwari, Shri Sumit Singh Rathore, Advocates.

.................................................................................................. HON. SHRI P.R. RAMCHANDRA MENON, CJ HON. SHRI PARTH PRATEEM SAHU, J CAV ORDER Per Parth Prateem Sahu, J 28/08/2019

1. Challenge in this writ petition is to the letter/memo dated 21.6.2019 issued by respondent No.2 granting relaxation to the candidates belonging to 'Economically Weaker Section' category, who appeared in the entrance exam, to submit EWS certificate at the

time of scrutiny of documents. Admissions granted to respondents No.8 to 25 in different medical colleges of the State have also been put to challenge in this writ petition.

2. Facts of the case, in nutshell, are that respondent No.2 issued a prospectus on 1.11.2018 inviting applications for appearing in the 'National Eligibility-cum-Entrance Test' (for short 'NEET') for selecting candidates for admission to different courses for the academic year 2019-20. Last date for receipt of application forms was 7.12.2018. The petitioner appeared in the NEET exam held on 5.5.2019 and he scored 430 marks out of 720 marks (92.8516291 percentile). His All India Rank is 100144 and category rank is 50641. After declaration of results, on 21.6.2019 respondent No.2 notified that the Government of India has notified increase of 10% seats under 'Economically Weaker Section' quota (henceforth 'EWS'). Eligibility and application in form prescribed in letter dated 29.5.2019 will be admissible.

It has also been mentioned in the said letter by respondent No.2 that eligible candidates may submit required certificate at the time of scrutiny. Last date of registration for counselling was 27.6.2019, which was extended upto 28.6.2019. Petitioner being the permanent resident of State of Chhattisgarh participated in the counselling process for State Quota seeking admission against 'Economically Weaker Section Quota' seats. On the basis of letter issued by respondent No.2, respondent authority concerned granted admission to the candidates, who have obtained EWS certificate after the last date of registration i.e.

time of scrutiny, as a result of which, the petitioner has been deprived of his right to get the admission, which made him to approach this Court by filing instant writ petition with following prayers;- "10.1 Issue appropriate writ(s)/order(s)/direction(s); a. Direct the Respondents to strike off their rolls those students who have obtained admission against EWSs quota on the basis of EWSs certificate issued after the last date of registration i.e. 28/06/2019. b. Direct the Respondent No.1 & 2 to include the seats thus falling vacant after elimination of EWSs candidates holding belatedly issued EWSs certificate in the SECOND ROUND of the counselling; and c. Directing the Respondents No.1 & 2 to not proceed with the second round of counselling till ineligible candidates are eliminated from the rolls of the colleges.

10.2 Grant any other relief as may deem fit."

3. During the pendency of writ petition, learned counsel for the State filed reply to writ petition and raised an objection to the effect that the petition is not maintainable as it suffers from the defect of nonjoinder of necessary parties. On such objection being raised, the petitioner moved an application for amendment in writ petition which was allowed by this Court vide order dated 1.8.2019 and the writ petition was amended arraying respondents No.8 to 26 as party to writ petition and also incorporating certain other

amendments. Notices were also issued to private respondents. In the amended petition, the petitioner in addition to his earlier reliefs also sought following relief :- "Direct the Respondents to strike off their rolls respondents No.8 to 26 those students who have obtained admission against EWSs quota in respondent No.5 college on the basis of EWSs certificate issued after the last date of registration i.e. 28/06/2019."

4. Learned counsel for the petitioner submits that on 25.5.2018 the Chhattisgarh Medical, Dental and Physiotherapy Graduate Entrance Admission Rules, 2018 (for short 'the Admission Rules, 2018') have been framed giving detailed procedure for admission in medical colleges of the State. Rule 7 of the Admission Rules, 2018 provides for process of registration, uploading of scanned copies of required original documents in the counselling portal etc. He submits that although the private respondents have not uploaded their EWS certificate at the time of getting themselves registered for counselling, as per Rule 7(ii), and claiming seat reserved for EWS candidates, but they have been granted admission on the basis of EWS certificate issued to them after the last date of registration of candidates for counselling, which is against Rule 7 (iii) of the Admission Rules, 2018. He further submits that relaxation/ extension granted to the candidates belonging to EWS category for producing EWS certificate at the time of scrutiny itself by

respondent No.2 is without any jurisdiction and therefore admission granted to respondents No.8 to 26 is liable to be cancelled.

5. On the other hand, learned counsel for the State submits that reservation to the candidates belonging to EWS category has been brought into force by way of 'One Hundred & Third Constitutional Amendment' which was notified by the Ministry of Law & Justice in the Gazette of India on 12.1.2019. Pursuant to said Constitutional Amendment, office memorandum dated 31.1.2019 was issued floating complete scheme for granting reservation to EWS candidates and quantum of reservation has been fixed as 10%. The Department of Health & Family Welfare, Government of India, New Delhi issued letter dated 21.6.2019 for increase of seats in all the medical colleges of the State of Chhattisgarh for granting reservation of 10% to EWS candidates in admission to MBBS course and on the same day, respondent No.

2 had issued letter showing increased number of seats in the medical colleges of the State and also the reference of circular/letter providing eligibility and proforma of application dated 29.5.2019. Respondent No.2 had also mentioned in the said letter that the candidates seeking admission under EWS quota can produce EWS certificate at the time of scrutiny of documents. He further submits that the rules governing admission in medical colleges have been framed in the year 2018 and at that time there was no provision for reservation of seats to the candidates belonging to EWS category. In the Admission Rules, 2018 there is a provision for passing any order to remove difficulty. In these circumstances, respondent No.

special relaxation to the candidates belonging to EWS category to the effect that they can submit their 'EWS certificate' at the time of scrutiny although they are required to register themselves as 'EWS candidate' on the date of registration for counselling itself, else they will not be entitled for benefit under EWS quota. The aforesaid relaxation has been granted with a view to achieve the object of the Constitution to grant benefit to the candidates belonging to economically weaker section of the society which was implemented subsequent to framing of Admission Rules and submission of application forms and extra seats of 10% quota were only allotted on 21.6.2019.

6. Mr. Paranjpe, learned counsel appearing for respondent No.14 submits that at the time of submission of application forms for appearing in the entrance exam, there was no such provision for reservation of seats for EWS candidates. Reservation of 10% seats has been provided only in the month of January, 2019 by way of One Hundred Third Constitutional Amendment. Scheme has been framed on 31.1.2019 and the direction for implementation of reservation to EWS candidates during academic year 2019-20 has been issued only in the month of April, 2019, whereas extra seats for 10% quota have been allocated in every medical college of the State on 21.6.2019. He further argued that taking benefit of letter/circular dated 21.6.2019 issued by respondent No.2, the petitioner participated in the admission process, however, when he could not get admission in MBBS course on the basis of his merit in EWS category, he decided to challenge the proceedings initiated by

the respondent authorities. He further submits that the petitioner has participated in the admission process knowing fully well that relaxation is granted by respondent No.2 to EWS candidates and therefore it is now not open to the petitioner to challenge the same. Reliance is placed on the judgment delivered in the matter of Ramesh Chandra Shah & ors v. Anil Joshi & ors reported in (2013) 11 SCC 309 & Dolly Chhanda vs. Chairman, JEE & ors reported in (2005) 9 SCC 779.

7. Mr. Deo, learned counsel appearing on behalf of respondent Nos.8 to 10 adopted arguments of learned counsel for the State and respondent No.14 with regard to date of bringing into force the reservation to EWS category candidates, its application and increase of seats. In addition to above, he also submitted that as in the merit list of EWS category, the petitioner's name finds place at Sr. No.90 and all the respondents are much above the petitioner in the merit list, therefore, even if the petition of the petitioner is allowed, he will not get admission in the medical course.

8. Learned counsel appearing on behalf of other respondents have adopted the arguments advanced by learned counsel for the above respondents.

9. We have heard learned counsel for the parties and perused the records.

10. The Admission Rules, 2018 have been notified on 25.5.2018 and a copy of the same has been placed on record by the petitioner as Annexure P-4. Rule 2 of the Admission Rules is the definition

clause defining various expressions used in the Admission Rules. Rule 2 (d) defines the word 'category' which means "scheduled caste, scheduled tribe, other backward class (non-creamy layer) and unreserved". There is no category like 'economically weaker section'. Rule 5 provides for reservation of seats and Rule 5 (1) provides for reservation of seats in government and private medical colleges institution-wise wherein percentage of reservation of seats for SC, ST and OBC (non-creamy layer) has been provided as 32%, 12% & 14% respectively. Thus, it is evident from the aforementioned provisions of the Admission Rules, 2018 that initially there was no provision for reservation of seats for the candidates of EWS category.

11. As per notification issued by respondent No.2, last date for submission of application forms for admission in MBBS course was 7.12.2018. The Ministry of Law and Justice, Govt. of India, New Delhi issued Notification dated 12.1.2019 enacting 'The Constitution (One Hundred and Third Amendment) Act, 2019 by which Article 15 (6) & Article 16 (6) were inserted in the Constitution of India, which reads as under:- "(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from makinga) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority

educational institutions referred to in clause (1) of Article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent, of the total seats in each category."

"16 (6) Nothing in this article shall prevent the State from making any provision for the reservation of appointment or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent, of the posts in each category. 12.Pursuant to above Constitutional Amendment, on 31.1.2019 the Ministry of Personnel, Public Grievances and Pension, Government of India, New Delhi issued an office memorandum framing reservation scheme for EWS category fixing quantum of reservation as 10%.

Thus, for the first time, on the basis of One Hundred & Third Constitutional Amendment, the Government of India has fixed the quota of reservation for EWS candidates who are not covered under the scheme of reservation for SC, ST & OBC categories. It also prescribes the criteria of income & assets, authorities competent to issue income and asset certificate etc. The State Government vide memo dated 29.5.2019 issued instructions/guidelines along with proforma of application to obtain EWs certificate. Prior to 29.5.2019 there was no authority prescribed for issuance of certificate to the candidates belonging to EWS category in the State of Chhattisgarh, as per memorandum dated 31.1.2019.

13. From perusal of the documents placed on record across the Bar by the learned counsel for respective parties, it is clear that the Government of India vide letter dated 21.6.2019 under the subject "Reservation for Economically Weaker Section (EWS) for admission in medical education institutions under the Constitutional

Amendment (One Hundred and Third Amendment) Act, 2019 dated 12.1.2019, increased seats for 10% of EWS quota for the academic year 2019-20', was allotted for the first time. The Board of Directors in supersession of the Medical Council of India had made allotment of MBBS seats so that admission can be provided under 10% EWS quota and accordingly even number of seats in five medical colleges of the State of Chhattisgarh have been increased i.e. about 120 seats for all colleges. Respondent No.2 quoting aforementioned letter of the Government of India and list of allotment of additional seats for granting reservation of 10% seats to EWS candidates, on the same day i.e. 21.6.

2019, issued letter of Annexure P-7 mentioning therein that as number of seats were not known to the candidates, therefore, special relaxation is granted to them to submit EWS certificate in the prescribed form, as provided in the scheme framed by the State Government, at the time of scrutiny to obtain benefit of reservation under EWS quota. Said letter/ circular has been issued by the respondent No.2 as a general notice/letter in order to provide benefit of reservation of 10% seats to all the candidates of EWS category. Said act of respondent No.2 is in furtherance to implement and achieve the object as mandated by the constitutional amendment to provide benefit of reservation to EWS category candidates and not to extend benefit to any candidate in particular.

14. The petitioner based on the letter issued by respondent No.2 dated 21.6.2019 got himself registered for counselling as EWS candidate,

but when he could not secure admission to MBBS Course under EWS quota, he decided to challenge the said letter. 15.The yardsticks applicable for other certificates based on which candidates of reserved categories like SC, ST, OBC, Freedom Fighter, Ex-serviceman etc. are claiming admission, which were known to them prior to submission of application forms, cannot be made applicable in the present case because at the time of submission of application form itself, those candidates were well aware about the fact that for claiming benefit of reservation under a particular quota or category, they are required to produce certificate in support of their claim at the stage and time as prescribed under the Admission Rules.

The Admission Rules provide that a candidate belonging to a particular reserved category if wanted to fill-up his application form under that category, then he is required to produce/submit certificate of said category on the date of registration for counselling itself. The Admission Rules further provides that any document issued after the date of registration for counselling will not be accepted. The Admission Rules do not say that the candidate claiming benefit of reservation under a particular category, as provided under the Admission Rules, should possess certificate of that category issued prior to the date of submission of application form.

on the basis of which he/she is claiming reservation for admission, to be issued prior to the date of registration for counselling. This provision and leeway is provided to the candidates seeking admission in medical colleges bears some purpose behind it and that cannot be ignored.

16. In the case at hand, respondent No.2 increased the seats to provide 10% reservation to EWS candidate only on 21.6.2019 and prior to that, the candidates, who appeared in the entrance exam and came out successful, were not aware that certain seats have been reserved for EWS category candidates for academic year 2019-20 because as per Admission Rules, 2018 and seat matrix, there was no provision for reservation to EWS category candidates. The candidates belonging to EWS category came to know about the benefit of reservation of 10% seats to EWS category candidates for the academic year 2019-20 and that column has also been displayed on-line only when the registration for counselling process stated i.e. on 21.6.2019.

Definitely, in the NEET exam the candidates belonging to all categories, classes and sections as well as the candidates residing in remotest areas of the State appeared to make their career and future bright. Even in this century, there is no continuous connectivity with Internet in many parts of the State like Chhattisgarh.

21.6.2019 i.e. date on which registration for counselling was opened, the respondent No.2 had extended some special relaxation to the candidates belonging to EWS category to submit EWS certificate only at the time of scrutiny of documents. It does not provide that all the certificates/documents are to be produced at the time of scrutiny. As held in the preceding paragraphs that by aforementioned action of special relaxation for production of EWS certificate at the time of scrutiny, is issued to benefit all the candidates of EWS category and not only for one or two students. Said action of respondent No.2 appears to achieve the goal of the constitutional amendment and the directions issued pursuant to it by the Government of India to provide benefit of reservation to the candidates belonging to EWS category from the current academic sessions itself, which was issued only in the month of April, 2019.

17. So far as the reliance placed by learned counsel for the petitioner on the judgment rendered in Rajnarain Singh's case (supra) to show that executive authority can be authorized to modify either existing or future laws but not any essential feature. In the afore cited case, the subject-matter before the Court was with respect to payment of tax after reorganization of the municipal limits. In the case of taxation, it requires strict interpretation of law. Other case law relied upon by learned counsel for the petitioner i.e. Diptimayee Parida's case (supra) wherein the issue was with respect to appointment of Aanganbadi Workers by advertisement issued by State of Odisha.

Both the aforementioned case laws relied upon by the petitioner are on different facts. It is not the case that the provision of reservation was available at the time of framing of Admission Rules or submission of application form and percentage as well as number of seats were also published for the candidates belonging to EWS category. In fact, there was no provision of reservation prior to 12.1.2019. The other important aspect is that the application is to be made under prescribed format. Format of application and competent authority is published by the State Government only on 29.5.2019. Therefore, the case laws relied upon by the learned counsel for the petitioner will not apply to the facts of present case.

18. So far as the judgment relied upon by Shri Paranjpe, learned counsel for respondent No.14 i.e. Ramesh Chandra' case (supra), is concerned, the same may not apply to the facts of present case.

19. Hon'ble Supreme Court in the matter of Dolly Chhanda (supra) considered the submission of relevant certificate on later date and held as under:- "9.The appellant undoubtedly belonged to reserved MI category. She comes from a very humble background, her father was only a Naik in the armed forces. He may not have noticed the mistake which had been committed by the Zilla Sainik Board while issuing the first certificate dated 29.6.2003. But it does not mean that the appellant should be denied her due when she produced a correct certificate at the stage of second counselling. Those who secured rank lower than the appellant have already been admitted. The view taken by the authorities in denying admission to the appellant is wholly unjust and illegal."

20. The petitioner is placed at Sr. No.90 in the merit list of EWS category candidates. All the respondents who are already admitted are much above the petitioner in the merit list. One thing which cannot be brushed aside is the fact that seats for 10% quota was only allotted on 21.6.2019 for the first time and the practical difficulty in obtaining certificate from the competent authority in the corners of the State by students belonging to rural areas cannot be ignored. The relaxation was granted to extend benefit to all EWS candidates including the petitioner.

21. No doubt, Rule 15 of the Admission Rules, 2018 provides the State to pass orders to remove difficulty, but looking to the peculiar facts of the case that the Director, Medical Education, who is one of the authorities in Medical Education, issued letter/memo mentioning that EWS certificate can be submitted at the time of scrutiny, the candidates, who acted upon it, cannot be made liable to have committed mistake because it is a general memo / letter granting extension for whole of the EWS category candidates and not for one. Now the meritorious candidates of EWS category are admitted to medical colleges of the State. None of the private respondents herein is below the petitioner in merit. Meritorious candidates cannot be deprived of admission on the part of mistake committed by other authority, if any.

The Time Schedule framed by the Medical Council of India has not been violated. All the programme of admission was carried out strictly in accordance with the scheduled of dates framed for admission. All the admissions of the State quota are to be filled-up by 18.8.2019.

upon by the petitioner claiming that last date of admission, in any case, is 31.8.2019 is not sustainable. In Civil Appeal No.9519/2018, Medical Council of India v. NC Medical College and Hospital & ors, Hon'ble Court considered Appendix-E of the Regulations on Graduate Medical Education, 1997 for the time schedule for completion of the admission course wherein at Sr. No.8 in Column 'Last Date upto which students can be admitted/ joined against vacancies arising due to any reason' is mentioned as 'by 31st August'.

22. The petitioner himself relied the Scheduled for completion of admission process for first MBBS Course for the academic year 2018-19 and onwards as provided in Appendix-F of the Regulations on Graduate Medical Education, 1997 and also submitted that it is still in force. Perusal of the Schedule clearly mentions in Column No.9 that for forwarding list of students 10 times of the number of vacant seats for central counselling is 27th August and State counselling is 13th August. Similarly, last date of joining for central counselling is 31st August and the State counselling is 18th August. 23.

In the above appendix and schedule of date, it is clearly mentioned that last date for admission by State counselling is 18th August. In the above circumstances, in Note it is mentioned as 'in any circumstances, last date for admission is 31st August'. Whereas, in Appendix-E, which is part of judgment of Hon'ble Supreme Court in Medical Council of India's case (supra), seats to be filled-up by the Central Government and the State Government against vacancy arising is shown as 31st August. In view of the above, when

schedule of dates itself is different in Appendix-E & F (as per existence on date), the petitioner could not get any help of the judgment rendered in MCI's case (supra).

24.

In the peculiar facts and circumstances of the case, particularly looking to the fact that EWS reservation came into effect only on 12.1.2019, seats of 10% EWS quota were declared on 21.6.2019 for the first time by respondent No.2 and there was relaxation provided by respondent No.2. We are not inclined to interdict with the admissions of students i.e. respondent No.8 to 26, already taken place, that too of meritorious candidates than the petitioner.

25. The writ petition fails, which is liable to be dismissed and is hereby dismissed. However, this order may not be taken as precedent as it has been passed in peculiar facts of the case, as mentioned above.

Sd/- Sd/- (PR Ramchandra Menon) (Parth Prateem Sahu) Chief Justice Judge roshan/-