JUDGEMENT
-
(1.)This writ petition is filed under Article 226 of the Constitution of India for a writ of mandamus as stated therein: By consent the main writ petition itself is taken up.
(2.)The prayer is for a mandamus to the respondents to allot one seat to the petitioner in the Post Graduate Course for the Academic Year 2002-2003 from the increased 3 seats as per the prospectus as directed by this Court in W.P.No.18200/2002 dated 13-8-2002 and as modified on 25.10.2003. 2. The petitioner's case is as follows: She completed her M.B.B.S. Course during February, 1994. She also got her Diploma in Obstetrics and Gynaecology. She got selected through Tamil Nadu Public Service Commission in April, 1999 and is now working as Assistant Surgeon in the Government Hospital, Melur. She has also completed the required two years of service in the Primary Health Centre. She became eligible to apply for Post Graduate Degree Course. She also applied for the same for the year 2002-2003. She belongs to Nadar Christian Community, which is a Backward Community. She is eligible to compete with other students of open category on merits also. In the entrance examination held for admission to Post Graduate Courses for the year 2002-2003 her rank among the service candidates was 61, her entrance test mark being 63.60. By communication dated 17-4-2002, she was called for counselling on 29-4-2002 by the Selection Committee. She attended the same and opted for Post Graduate Degree in Obstetrics and Gynaecology. She was told that all the seats for open category and backward class were filled up and that her position in open category in waiting list was No.2 for Post Graduate Degree in Obstetrics and Gynaecology. She opted to stay in the waiting list, so that there was possibility of being accommodated in case seats were available. Though there were seats available for other disciplines, she did not opt for them. She was willing to wait and take a chance. As per clause 29 of the Prospectus, since a candidate has to appear for counselling only once, even if seats are available in future in Post Graduate Degree in Obstetrics and Gynaecology, she would not be called for second counselling had she joined in some other Post Graduate Degree Course. She chose to wait, even at the risk of losing the available Post Graduate Degree Course. As per the Tamil Nadu Backward Classes, Scheduled Caste and Scheduled Tribes (Reservation of Seats in Educational Institutions and of appointments or Posts in the Services under the State) Bill, 1993, which later became Act 45 of 1994 and was included in the Ninth Schedule to the Constitution by the Constitution (Seventy Sixth Amendment) Act, 1994 enacted by the Parliament to get protection under Article 31-B of the Constitution. The percentage of reservation as stipulated in the Prospectus is as follows: Open Competition (OC): ... 31% Backward Class (BC): ... 30% Most Backward Class (MBC)... 20% Scheduled Caste (SC): ... 18% Scheduled Tribe (ST) ... 1% This Act was challenged before the Supreme Court in INDRA SAWHNEY VS. UNION OF INDIA (1992 Supp.3 SCC 217). The Supreme Court gave an interim direction to create additional seats equal to the number of seats, which the open category candidates have been denied selection because of the 69% policy. Similar directions are being issued from the Academic Year 1994 onwards by the Supreme Court. An attempt was made to seek amendment of the orders before the Supreme Court. The Supreme Court rejected the request for variation of the earlier order in VOICE (CONSUMER CARE) CUNCIL VS. STATE OF TAMIL NADU (1996(11) SCC 740). As the direction of the Supreme Court was not complied with, the writ petitioner filed W.P.No.18200/2002 to increase the number of seats and to allot one seat to her. By order dated 13-9-2002 this Court directed the respondents to take action expeditiously for implementing the direction of the Supreme court in respect of admission to Post Graduate Course for the year 2002-2003 and to give a seat to the petitioner if she was found eligible or fell within the minimum or cut off mark. As no steps were taken by the respondents, the petitioner made a representation on 2.9.2002. The third respondent sent a communication dated 11.9.2002 stating that by applying 69%, it is 4 seats for service quota and that as per the direction of the Supreme Court and the High Court, by applying 50% the total seats in M.D. (O&G) is modified as 7 for service quota in open category, that the cut off mark by applying 69% and 50% reservation is 65.68 and 64.61 respectively and that as the petitioner's cut off marks was 63.60, she did not fall within the eligible zone for consideration for admission. It is clear that 3 seats are to be filled up from the service candidates in open competition and the 3 seats have to be filled up from the candidates, who had opted for being in the waiting list without going for any other speciality. The petitioner is eligible for allotment in the increased seats. By order dated 13-8-2002 this Court has clarified that the procedure shall be as per the prospectus and if as per the prospectus she is eligible, she will be given a seat. There is no provision for applying cut off mark in the selection in the Post Graduate Course and as the seats are filled up by the process of counselling depending upon the availability and option of the candidates, fixing the cut off marks is misnomer. All the seats are to be filled up from the available candidates in the waiting list. Subsequent correspondence having failed to evoke any response, the present writ petition has been filed. The writ petitioner is entitled to allotment of a seat in Obstetrics and Gynaecology Course.
(3.)The third respondent has filed a detailed counter and also given tables showing the position of the various candidates and their eligibility. It is stated in the counter that the Selection Committee as per the policy of the State Government, has completed the selection for Post Graduate admission following 69% Rule of Reservation. As per the rank position of the petitioner, she was placed as Serial No.6 in the waiting list for inservice candidates. The total marks scored by the last candidate both under open category and the service category and the mark scored by the petitioner are shown in the tables set out: TABLE 1 OOC CATEGORY (OPEN OPEN COMPETITION) 69% RULE OF RESERVATION 889.htm TABLE - 2 SOC CATEGORY (SERVICE OPEN COMPETITION) 69% RULE OF RESERVVATION 88901.htm TABLE 3 OOC CATEGORY (OPEN OPEN COMPETITION) 50% RULE OF RESERVATION 88902.htm TABLE 4 SOC CATEGORY SERVICE OPEN COMPETITION) 50% RULE OF RESERVATION -------------------------------------------------------- E.E.No Name of Community Status Total Selected Candidate marks community -------------------------------------------------------- 12851 Cordelia Boaz BC SER 67.12 SOC 15354 Sujjanna, A.L. Manuel BC SER 66.85 SOC 13252 Sumithra, D. BC SER 66.04 SOC 10349 Malarselvi, J. BC SER 65.68 SOC 13812 Kasthuri, V. BC SER 65.14 SBC 10859 Suresh, K. BC SER 65.13 SBC 15326 Ammani, T. BC SER 64.61 SBC 12146 Helen, P. BC SER 63.60 Wait List --------------------------------------------------------- As per Table-4, it would be clear that the petitioner did not score the required marks for being admitted either under the open category or as an inservice candidate. Even if the communal reservation is restricted to 50%, then cut off marks for the last candidates eligible for admission under open category would be 69.88, which is higher than the marks scored by the petitioner. Likewise, if 60% reservation is applied for the seats meant for service category, the cut off marks would be 64.61. The petitioner is not coming within the zone of consideration for admission in M.D. (O & G) Course for the Academic Year 2002-2003 under any one of the two methods of admission stated above. The details of the seat allocation for open category (Non-Service) as per the 69% Rule of Reservation are as follows: OPEN COMPETITION (NON-SERVICE) (Both Private and Service Candidates are eligible) TOTAL SEATS 14 Apportionment of seats as per 69% Reservations ---------------------------------------------------------------------- Category Total Seats OC BC MBC SC ST --------------------------------------------------------------------- Percentage 31% 30% 20% 18% 1% Seats available in open category 14 4 4 3 3 - Cut off marks - 71.41 69.81 65.80 63.64 - --------------------------------------------------------------------- In the case of open competition (Non-service), both private and service candidates are eligible. In the case of seats meant for service candidates, only service candidates are eligible. The tabular statement below shows the apportionment of seats as per 69% Rule of Reservation. SERVICE (Service candidates alone are eligible) TOTAL SEATS 14 Apportionment of seats as per 69% Rule of Reservation ---------------------------------------------------------- Category Total OC BC MBC SC ST Seats ---------------------------------------------------------- Percentage 50% 31% 30% 20% 18% 1% Seats avail-able in open category 4 4 4 3 2 - Cut off marks 65.68 64.23 59.83 57.79 - ---------------------------------------------------------- The petitioner having scored 63.60, which is less than 64.61, the cut off marks for open (Service) under 50% Rule of Reservation, she is not eligible for claiming admission for the seats exclusively set apart for service candidates as per 50% Rule of Reservation. The petitioner is under misconception that three seats were created under open category both for the open (Non-service and service) candidates as well as open (Inservice) candidates for the purpose of implementing 50% Rule of Reservation. The question of creating an additional seat under open Non-service category as per 50% Rule of Reservation would arise only when the petitioner scores more than the cut off marks 69.88 fixed under 50% Rule of Reservation for open (Non-service and service) candidates. Likewise, the creation of an additional seat under open inservice category as per 50% Rule of Reservation would arise only when the petitioner scores more than the cut off marks 64.61 fixed under 50% Rule of Reservation for inservice candidates. The general rank has no bearing for the individual wait list. The petitioner is making a claim as if three additional seats were created for inservice open category candidates for the purpose of implementing 50% Rule of Reservation. The necessity to create any seat to accommodate the petitioner by implementing 50% Rule of Reservation does not arise for the reason that the petitioner scored only 63.60 marks, which is less than the cut off marks.
Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.