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PETITIONER: RAJIV MITTAL

       Vs.

RESPONDENT: MAHARSHI DAYANAND UNIVERSITY & ORS.

DATE OF JUDGMENT:       28/11/1997

BENCH: J.S. VERMA, B.N. KIRPAL, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                THE 28TH DAY OF NOVEMBER, 1997 Present:                  Hon’ble the Chief Justice                  Hon’ble Mr.Justice B.N.Kirpal                  Hon’ble Mr.Justice M.Srinivasan Manoj Swarup, Adv. for the appellant K.K. Mohan, Adv. for the Respondents.                       J U D G M E N T The following Judgment of the Court was delivered:      KIRPAL,J.      The question  which arises  for consideration  in  this appeal 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  of  M.B.B.S.  entrance examination. Rohtak  Medical  College,  respondent  No.2  is affiliated to  Maharishi Dayanand University, Rohtak and for the session  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,  had secured position at serial No.1 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  of merit.      On 9.9.1996,  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 placed at serial No. 1 in the category of backward  class. He  naturally got  selected and  secured admission to  the M.B.B.S.  course  at  the  Rohtak  Medical

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College in the reserved category.      In after  the first  counselling, certain  seats remain unfilled, then  second, third  or fourth counselling, as the need arise,  takes place,  inasmuch  as  few  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 granted admission and there still remained on  seat in  the general category which remained to be filled.  The candidates 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.  This seat  was thereupon  offered  to  the appellant herein  who was  at serial No. 66. He accepted the offer of admission and jointed the Rohtak 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 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  vacant  which  would naturally fall to respondent No. 3.      On behalf  of the respondent No. 1, 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 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 these  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 accommodated against  the reserved  vacancy".  It  thereupon came to  the conclusion  that Sunil  Yadav 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 was  occupied by  respondent in  the  Medical  College, Agroha, Hissar,  Haryana should  be given  to the  appellant herein and  writ petitioner  should be  shifted to  the seat which was  occupied by  the appellant  herein in the Medical College at  Rohtak. It  may 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 wanted to shift to the Rohtak Medical College.      On behalf  of the appellant, it has been contended that the High  Court  not  direct  that  Sunil  Yadav  should  be considered as having been given the general category seat in

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the second counselling when he had already secured admission in the  first counselling  in the  reserved category. on the other had,  the respondents  have relied  on the judgment of the High  Court and  in particular Note 2 of the Information Brochure and  contended  that  Sunil  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 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 mot  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.      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 of if then 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 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 my have an option of shifting  to another  college. An  appropriate analogy of this  system  is  that  of  booking  chart  for  a  dramatic performance which  has to  take place  in  the  future.  The peoples standing  in the  queue 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.  Just as counselling for seats to medical colleges must stop once the course of study commence.      The learned  counsel for  the respondent submitted that Sunil Yadav  could only  be considered as a general category candidate and  placed reliance  on the  observations of this Court in  Indra Sawhney  & Ors. Vs. Union of India 1992 Supp (3) SCC 212 where at page 735, it was observed as follows:      "In this  connection it  is well to      remember  that   the   reservations      under Article  14(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      their own  merit; they  will not be      counted against  the quota reserved      for Scheduled  Castes; they will be      treated   as    open    competition      candidates."      The  aforesaid   principles   has,   apparently,   been incorporated in  Note 2  in the  Information Brochure of the Maharshi Dayanand University Rohtak which reads as follows:      "A candidate who applies either for      reserved  category   or  for   both      reserved   and    open   will    be      considered first  in open category.      In case  he/she is  not selected in

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    open  category,   he/she  will   be      considered for reserved category."      The aforesaid  Note 2  has been constructed by the High Court to  mean that  Sunil Yadav  who was  also in the merit list for  the seat in the open 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  a  reserved  category candidates 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  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 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 could not have been called or considered for admission against any of the  11 reserved  seats in the counselling 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  40th seat  was at serial No. 53, therefore, having ailed 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  10.9.1996.  It  is  in  that counselling that  he was  selected and  granted admission to the Medical  College at Rohtak. Once Sunil Yadav has 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 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 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 there served 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  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 of  the High  Court, the result of which would be  that the writ petition filed by the respondent No. 3 before the High Court would stand dismissed. There will be no order as to costs.