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Judgment
This intra court appeal takes exception to the order passed in W.P.No.14841/2019 dated 18.02.2020 whereby the writ court directed the University to permit a UR (unreserved) candidate to occupy the seat lying vacant for SC/ST category. The pivotal question in this appeal is whether the direction of writ court is legal and justified.
Mrs. Shobha Menon, learned Senior counsel for the appellants/ University urged that the respondent submitted his candidature against an advertisement for Ph.D. programme in the discipline of Commerce. As per the advertisement, six seats were advertised out of which two seats were earmarked for UR whereas remaining seats were reserved for OBC (Other backward Caste), EWS (Economically Weaker Section) and SC/ST respectively. The respondent submitted his candidature as UR candidate and could not secure a berth in the said category. As an afterthought, he wanted to occupy the seat earmarked for EWS.
The University took a specific stand before the writ court that the said claim is not tenable. The seats in Unreserved and EWS have already been filled-up. The writ court took an example of another candidate, namely, Madhushree who was allegedly given the benefit of switch-over from one category to another and after production of EWS certificate she was given the benefit. It is argued that there was no pleading/ foundation of claiming parity or alleged discrimination qua Madhushree. She was selected in a different selection for a different seat. This claim of parity based on I.A was impermissible. In nutshell, the writ court has erred in directing the appellant to adjust the respondent of UR category candidate in the seat lying vacant for SC/ST category. The direction runs contrary to the settled legal position that a reserved category candidate on his own merits can occupy a UR category seat but it is not the other way round.
Per contra, Shri Amit Mishra, learned counsel for the respondent supported the impugned order and urged that respondent is a meritorious student. He was a Gold Medalist. He gave an undertaking on the next day of interview to produce the relevant certificate of EWS. On 11.07.2019, the said certificate was produced. He placed reliance on 2013(1) MPHT-369 (SC) (Faiza Choudhary Vs. State of Jammu & Kashmir and another, (1980) 2 SCC-752 (Charles K.Skaria and others Vs. Dr. C.Mathew and others), 2008(3) MPHT 32(DB) ( Dr. Ramu Thakur Vs. M.P.Professional Examination Board and (2004) 3 MPHT-382(Amit Kumar Aritwal Vs. State of M.P. and others) to submit that the order of learned Single Judge is in accordance with law and a candidate of General category can be permitted to occupy a reserved category seat.
No other point is pressed by counsel for the parties.
We have heard the counsel for the parties and perused the record.
The argument of Shri Amit Mishra regarding production of EWS document etc. is of devoid of substance. The learned Single Judge has not allowed the respondent to occupy a UR (EWS) category seat. Indeed, the directions were issued to provide a seat reserved for SC/ST category. In none of the judgments cited by Shri Amit Mishralaw is laid down that a General category candidate can occupy a reserved category post. The said judgments were delivered in the peculiar facts and circumstances of the case which were based on different statutory provisions. Thus, the said judgments are of no assistance to the respondent.
The record shows that the respondent admittedly applied for UR category. He has no legal right whatsoever to occupy a seat of different category, namely, EWS or SC/ST category. We also find substance in the argument of learned Senior counsel for the appellants that the averments of I.A will not form part of the pleadings and on the basis ofaverments of I.A, petition cannot be decided. In AIR 1959 SC 395 (Pandit M.S.M. Sharma Vs. Sri Krishna Sinha), (2006) 9 SCC 90 ( Ashok Lanka Vs. Rishi Dikshit and (1981) 2 SCC 484 (Arti Sapru Vs. State of J&K), the Apex Court opined that a question of fact raised in the rejoinder and not in the petition cannot be taken into account.
In view of foregoing analysis, the learned Single Judge has clearly erred in passing the impugned order directing the University to adjust the respondent, an UR category candidate against the seat reserved for SC/ST category.
Resultantly, the order dated 18.2.2020 is set aside. Writ appeal is allowed.