Roli Garg vs State of U.P. and Others

D.K. Upadhyay, J.—Heard Sri H.G.S. Parihar, learned Senior Advocate, assisted by Ms. Meenakshi Singh, learned counsel for the petitioner, Sri Mohd. Mansoor Ahmad, learned Chief Standing Counsel for the State-respondents and Sri Mohiuddin Khan, learned counsel appearing for the respondent Nos. 5 to 10.

The petitioner, who appeared as a candidate in the entrance examination conducted for giving admission to M.D.(Ayurved) course in the State Ayurvedic College, Lucknow, has challenged the allotment order dated 21.11.2015, passed by the Joint Director, Ayurvedic Services/Chairman, U.P.P.G. (Ayurved), Entrance Examination 2015-2016 whereby ten other candidates have been given admission to the course in question.

Challenge to the impugned action on the part of the respondents has been made by the learned counsel for the petitioner on two counts. Firstly, it has been submitted by the learned counsel for the petitioner that while applying the rule of reservation, respondents have erred in law, inasmuch as number of candidates selected for reserved categories has exceeded the prescribed quota meant for candidates of the said categories in terms of the rules applicable for providing reservation, and secondly, he has submitted that the information regarding result of the entrance examination was not displayed in terms of the provisions contained in the Information Brochure issued to the candidates, which has resulted in depriving the petitioner of her right of admission in the course in question, though on merit she is entitled to be admitted.

Sri Parihar has drawn attention of the Court to Clause 5 of the Information Brochure which provides that the rules regarding reservation shall be made applicable on the seats available for the candidates belonging to the State of U.P. His submission is that out of 10 seats advertised, reservation was, thus, to be applied only against 8 seats as these 8 seats were to be filled in from amongst the candidates who have obtained their qualifying degree from the State of U.P. It has, thus, been submitted that out of 8 seats meant for the candidates belonging to the State of U.P., maximum seats which could be reserved, are 4, whereas by the impugned allotment order, 5 candidates belonging to the reserved categories have been given admission by providing them the benefit of reservation which is not permissible. It has, thus, been contended on behalf of the petitioner that by the impugned order of allotment since number of candidates belonging to the reserved categories has exceeded the substantive quota meant for the reserved category candidates, as such allotment is illegal, being in violation of the rules of reservation.

Learned Chief Standing Counsel, per contra, has opposed the plea taken by the learned counsel for the petitioner stating that the reservation in the instant case has been applied as per law and there is no infirmity in the order of allotment.

The U.P.P.G. (Ayurved) Entrance Examination for the academic session 2015-2016 was organized and conducted by the Admission Committee constituted by the State Government which conducted the said examination in two phases. In the first phase, the examination was conducted for filling up 14 seats in the State Ayurvedic Colleges and in the second phase, the entrance examination was held for filling up 10 seats. The occasion to conduct the second phase examination arose on account of the fact that Government of India by means of its order dated 30.10.2015 has sanctioned these 10 seats. The sanction order dated 30.10.2015 was subsequent to the date on which the earlier entrance examination was held and the admissions based thereon were already completed. It is in this background that the second phase of the entrance examination was held by the Admission Committee.

The Admission Committee issued an Information Brochure for the benefit and guidance of the candidates appearing in the said entrance examination which gave various informations including the information regarding application of rule of reservation. In para-5 of the Information Brochure, it has been indicated by the Admission Committee that benefit of reservation will be available as per the policy of the State Government against the seats meant for being filled in from amongst the candidates belonging to the State of U.P. on the basis of entrance examination known as U.P.P.G. (Ayurved) Course Entrance Examination. At this juncture, it is relevant to notice that as per the policy of the State Government and the instructions issued from time to time by the Government of India and the Central Council of Indian Medicine, 75% of the total available seats are required to be filled in from amongst the candidates belonging to the State of U.P., that is to say, from amongst the candidates who have obtained qualifying degree from the State of U.P. and rest of the 25% seats are required to be filled in from amongst the candidates who acquire their qualifying degree from the institutions situated out side the State of U.P.

So far as the information contained in the Information Brochure regarding rule of reservation is concerned, para-5 provides that reservation will be applicable only to the seats meant for being filled up from amongst the candidates who have passed their qualifying degree from the institutions situated in the State of U.P. However, the aforesaid prescription contained in para-5 of the Information Brochure clearly appears to run contrary to the provisions contained in the U.P. Admission to Educational Institutions (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 2006. This enactment was passed by the State Legislature to provide for the reservation in admission to educational institutions including private educational institutions other than the minority educational institutions referred to in Clause (1) of Article 30 of the Constitution of India. ''Educational Institution'' has been defined in Section 3 (e) of the said Act to mean a college or a school or an institution imparting education approved or recognized by a competent Statutory Body and affiliated to a State University, including a Private University established under or by an Act of the State Legislature. The said definition of the ''Educational Institution'' also includes a deemed University within the meaning of University Grants Commission Act. Section 3 (e) of the Act, 2006 also takes a College or a School or an Institution imparting education in professional courses, approved or recognized by the Competent Statutory Body, within the fold of ''educational institution''.

Thus, so far as the State Ayurvedic Colleges, including State Ayurvedic College at Lucknow, are concerned, the same are recognized for running the courses by the competent authority under the relevant provisions of Indian Medicines Act and are also affiliated to Lucknow University or to some other State University. The State Ayurvedic College at Lucknow is being run by the Government, hence, it falls within the meaning of "Educational Institution" as defined in Section 3(e) of the Act. The applicability of reservation in admission to various courses being run by the State Ayurvedic Colleges are, thus, to be regulated by the statutory prescriptions provided for by the State Legislature by enacting the Act, 2006. Section 4 (1) of the said Act, 2006 mandates that in the educational institutions reservation at the stage of admission shall be provided to the extent of percentage of sanctioned intake prescribed therein. According to the said provision percentage of reservation proscribed in the case of Scheduled Castes is 21%, in case of Scheduled Tribe, it is 2% and in case of Other Backward Classes of citizen, it is 27%. Thus, in the wake of Legislative mandate available in the form of the Act, 2006, reservation is to be provided on over all sanctioned intake of the seats to which admission is sought to be made.

Admittedly, Government of India, in the instant case, by means of its letter/order dated 30.10.2015 had sanctioned 10 seats, as such reservation to the reserved category candidates is to be applied on all the 10 seats to ensure the mandate contained in Section 4 of the Act, 2006. Any deviation from the provisions of Section 4 while applying rule of reservation for making admission would be impermissible. In the light of the provisions contained in Section 4 of the Act, which clearly uses the phrase ''percentage of sanctioned intake'', any contrary information contained in the Information Brochure would be rendered meaningless. Merely because the Information Brochure provides that reservation will be provided only against the seats meant to be filled in from amongst the candidates who have obtained their qualifying degree from the institutions situated in the State of U.P., it would legally not be permissible to render the substantive provisions contained in Section 4 of the Act, 2006 nugatory.

In the wake of the statutory prescriptions contained in the aforesaid enactment of the Legislature, any contrary information contained in Information Brochure or any other Circular or even Government Order would carry no meaning and the prescriptions available in the Act have to be followed.

In view of the aforesaid discussions, the contention of learned counsel for the petitioner that reservation has to be applied in terms of the prescriptions made known to the candidates by the Information Brochure cannot be accepted and thus merits rejection.

Having held that the reservation is to be applied in terms of Section 4 of the Act, 2006 against the total sanctioned intake/seats, I am unable to refrain myself from observing that the callousness shown by the authorities concerned in giving an information in the Information Brochure contrary to the statutory prescriptions, cannot be appreciated. The authorities of the State Government, those of the Directorate of the Ayurved and members of the Admission Committee, ought to have been alive to the Rules, Regulations and relevant laws applicable to the admission in question and should have prepared the Information Brochure accordingly containing correct factual and legal position, which was to guide the candidates.

Dealing with the second limb of the argument raised by the learned counsel for the petitioner in respect of the mechanism provided for declaration of the result which allegedly deprived the petitioner of an opportunity to participate in the counselling in time, the schedule appended with the Information Brochure is relevant to be referred to. The schedule provides that the advertisement for the entrance examination would be published in the newspapers and on website on 10.11.2015. Pursuant to the advertisement the date of filling up application form online would commence on 10.11.2015. The last date as mentioned in the schedule for filling up online form was 18.11.2015 till 5.00 p.m. After 5.00 p.m. on 18.11.2015, the admit cards were to be down loaded and the entrance examination was held on 19.11.2015 between 2.00 p.m. to 4.00 p.m. at the Examination Hall, Administrative Block, K.G.M.U., Lucknow. The said schedule clearly provides that the answers to the question papers would be published on the website on 19.11.2015 after 7.00 p.m. and objection, if any, to the key answers will be received by 12.00 noon on 20.11.2015 and thereafter the answer would be displayed again on the same date i.e. on 20.11.2015 after 4.00 p.m. The schedule also states that the result of the entrance examination shall be published on the notice board and website on 20.11.2015 after 8.00 p.m.. It also declares that counselling at State Ayurvedic College, Lucknow, medical examination of the candidates and admissions would be held on the very next day i.e. 21.11.2015.

Submission of learned counsel for the petitioner is that as per the schedule the result was to be published both on the notice board and website as given in the Information Brochure. The website as disclosed in the Information Brochure is www.kgmu.org. Sri Parihar has stated that the result of the entrance examination on 20.11.2015 after 8.00 p.m. was never displayed or shown on the aforesaid website. It has been contended in the writ petition that the petitioner tried to download the result from the website as disclosed in the Information Brochure but the result was since not uploaded, hence the petitioner could not know her fate on 20.11.2015. The petitioner has averred in the writ petition that she came to know about the result only once she contacted one of her colleagues on the next day i.e. 21.11.2015 and that is how she came to know that the result has been uploaded on the website and thereafter on 21.11.2015, she reached the State Ayurvedic College at 4.30 p.m. and she, then, was informed by the Principal of the College that all the seats have been allotted to other candidates and admissions have also been made. Submission is that the petitioner has secured 4th rank in over all merit and had the information been published on the website, as disclosed in the Information Brochure, she would have been admitted and pursuing her course of study.

Schedule appended in the Information Brochure discloses that the result would be declared on the notice board and the website. It has not been denied by the State authorities that the result was not published on the website as disclosed in the Information Brochure i.e. wwe.kgmu.org; rather it was published on the website of State Ayurvedic College, that too on the next day i.e. on 21.11.2015. The result was also available on the website of K.G.M.U. from 9.30 a.m. only on 21.11.2015. It has also not been disputed by the learned Chief Standing Counsel that the result was not even pasted or published on the notice board of K.G.M.U., though the examination was held in the Academic Block of the K.G.M.U. and it was published on the notice board of State Ayurvedic College, Lucknow from where the Admission Committee has been functioning through out conduct of the examination.

From the aforesaid undisputed facts as disclosed in the preceding paragraphs, the Court comes to the conclusion that during conduct of examination and entire admission process, the authorities entrusted with their duties, have not been cautious enough which has resulted in such a peculiar situation, as in the present case, where a candidate securing 4th rank in merit has been denied admission.

The question, thus, for consideration of the Court now is as to whether for the mistake of the respondents-authorities, an order should be passed to give admission to the petitioner according to her rank in the entrance examination. In this regard, the most relevant factor to be taken into account is that the last date of making admission to M.D.(Ayurved) Course has been fixed by the Central Government in consultation with the Central Council for Indian Medicines which is a Statutory Body created under an Act of Parliament. In matters like maintaining the academic calendar, it is the expert statutory bodies whose views are to be given due weightage. It would, thus, not be possible for the Court to disturb the admissions already made after the last date fixed for admission by the Central Government in consultation with the CCIM i.e. after 21.11.2015. Further more, the schedule appended to the Information Brochure indicates that the examination was held on 19.11.2015 and the result was to be declared on 20.11.2015 after 8.00 p.m. by publishing it on the notice board as well as on the website. In normal course, it would be expected of the candidates who have appeared in the examination on a particular day to be available on the next day as well to learn the result of the examination. Without diluting the requirement of publishing the result on the website as disclosed in the Information Brochure, I may only observe that it was altogether not impossible for the petitioner to have come to know of the result on 20.11.2015 or in the early hours of 21.11.2015. In these circumstances, I refrain from issuing any direction to give admission to the petitioner which resultantly would disturb the admissions already made.

Learned Chief Standing Counsel on the basis of instructions received, has submitted that one seat of M.D. (Ayurved) Course is still lying vacant in the State Ayurvedic College at Lucknow against which petitioner can be offered admission subject to permission to be accorded by the Central Council for Indian Medicine (CCIM)/Government of India. Accordingly, I find it appropriate to issue direction to the State Government and the State Ayurvedic College to offer admission to the petitioner against the said vacant seat and seek requisite permission of the CCIM/Government of India in that regard. Direction is issued accordingly.

Looking into the over all facts and circumstances of the case, it is expected of the CCIM/Government of India to consider the grant of permission to such admission to the petitioner sympathetically and expeditiously.

In the facts and circumstances noted above, in the present case, the Court expects that Principal Secretary of the department concerned will issue appropriate direction or circular to ensure that examinations in future are conducted in an appropriate and proper manner and the Information Brochure is published containing correct factual and legal position. The Court also expects that the Principal Secretary would also ensure that all future examinations are entrusted to responsible and capable officers/persons.

With the aforesaid observations and directions, the writ petition is finally disposed of.